TERMS AND CONDITIONS
1. SERVICES PROVIDED. The Company will provide Customer with collection, management, transportation, disposal, and recycling services (“Services”) for Customer’s non-hazardous solid waste, and/or special waste (collectively “Industrial Waste”) as described on Exhibit A Pricing Schedule(s). Company will also provide Customer with subcontracted general site services such as; portable restrooms, site fencing, storage containers, and other common services to construction trades. Solid Waste means garbage, refuse and rubbish including those which are recyclable but excluding Special Waste. Special Waste includes polychlorinated biphenyl (“PCB”) wastes, industrial process wastes, asbestos containing material, petroleum contaminated soils, treated/de-characterized wastes, incinerator ash, medical wastes, demolition debris and other materials requiring special handling in accordance with applicable federal, state, provincial or local laws or regulations. When Company handles special waste for Customer, Customer will provide Company with a Generator’s Waste Profile Sheet (“Profile Sheet”) describing material contents and composition, and provide a representative sample of such waste on request. In the event this Agreement includes transportation by Company, Customer shall, at the time of tender, provide to Company accurate and complete documents, shipping papers or manifests as are required for the lawful transfer of the special waste under all applicable federal, state, or local laws or regulations. Tender of delivery shall be considered nonconforming if not in accordance with this Paragraph.
2. CUSTOMER WARRANTIES. Customer hereby represents and warrants that all waste material delivered by Customer to Company shall be in accordance with waste descriptions given in this Agreement and shall not contain any Nonconforming Waste. “Nonconforming Waste” means: (a) non-hazardous Solid Waste that contains regulated Special Waste; (b) waste that is not in conformance with the description of the waste in Exhibit A Pricing Schedules(s) or the Profile Sheet incorporated herein; (c) waste that is or contains any infectious waste, radioactive, volatile, corrosive, flammable, explosive, biomedical, biohazardous material, regulated medical or hazardous waste or toxic substances, as defined pursuant to or listed or regulated under applicable federal, state or local law, except as stated on the Profile Sheet; or (d) waste that is prohibited from being received, managed or disposed of at the designated disposal facility by federal, state, or local law, regulation, rule, code, ordinance, order, permit, or permit condition. Customer (including its subcontractors) represents and warrants that it will comply with all applicable laws, ordinances, regulations, permits, or other legal requirements applicable to the Industrial Waste.
3. INSPECTION; REJECTION OF WASTE. Title to and liability for Nonconforming Waste shall remain with Customer at all times. Company shall have the right to inspect, analyze or test any waste delivered by Customer. If Customer’s Industrial Waste is Nonconforming Waste, Company can, at its option, reject Nonconforming Waste and return it to Customer or require Customer to remove and dispose of the Nonconforming Waste at Customer’s expense. Customer shall indemnify, hold harmless, and pay or reimburse Company for any and all costs, damages, and/or fines incurred as a result of or relating to Customer’s tender or delivery of Nonconforming Waste or other failure to comply or conform to this Agreement, including costs of inspection, testing, and analysis.
4. SPECIAL HANDLING; TITLE. If Company elects to handle, rather than reject, Nonconforming Waste, Company shall have the right to manage the same in the manner deemed most appropriate by Company given the characteristics of the Nonconforming Waste. Company may assess and Customer shall pay additional fees associated with delivery of Nonconforming Waste, including, but not limited to, special handling or disposal charges, and costs associated with different quantities of waste, different delivery dates, modifications in operations, specialized equipment, and other operational, environmental, health, safety, or regulatory requirements.
5. COMPANY WARRANTIES. Company hereby represents and warrants that: (a) Company will manage the Industrial Waste in a safe and workmanlike manner in full compliance with all valid and applicable federal, state, and local laws, ordinances, orders, rules and regulations; and (b) it will use disposal facilities that have been issued permits, licenses, certificates, or approvals required by valid and applicable laws, ordinances, and regulations necessary to allow the facility to accept, treat, and/or dispose of Industrial Waste. Except as provided herein, Company makes no other warranties and hereby disclaims any other warranty, whether implied or statutory.
6. CHARGES AND PAYMENTS. Customer shall pay the rates set forth on the respective Service Rate Summary, Price List, and/or Exhibit A Pricing Schedule(s)., which may be modified as provided in this Agreement. The rates may be adjusted by Company to account for: any increase in or to recoup all or any portion of, disposal, transportation, fuel, or environmental compliance fees or costs; any change in the composition of the Industrial Waste; increased costs due to uncontrollable circumstances, including, without limitation, changes in local, state, or federal laws or regulations, imposition of taxes, fees, or surcharges and acts of God such as floods, fires, etc. Increases in charges for reasons other than as provided above require the consent of Customer which may be evidenced verbally, in writing, or by the actions and practices of the parties. Customer shall pay the rates in full at time of service unless approved for a credit account, in which case, customer agrees to pay the rates in full within 30 days of receipt of each invoice from Company. Customer shall pay a late fee on all past due amounts accruing from the date of the invoice at a rate of eighteen percent (18%) per annum.
7. EQUIPMENT. The equipment furnished hereunder by Company shall remain the property of Company; however, Customer acknowledges that it has care, custody, and control of the equipment while at the Customer’s location and accept responsibility for all loss or damage to the equipment (except for normal wear and tear or for loss or damage resulting from Company’s handling of the equipment) and for its contents. Customer agrees not to overload (by weight or volume), move or alter the equipment, and shall use the equipment only for its proper intended purpose. Customer agrees to indemnify, defend, and hold harmless Contractor against all claims, damages, suits, penalties, fines, and liabilities for injury or death to persons or loss or damage to property arising out of Customer’s use, operation, or possession of the equipment. Customer agrees to provide unobstructed access to the equipment on the scheduled collection day. Customer is responsible for marking any underground structures or utility service prior to delivery.Company is not responsible for any damage caused to any unmarked underground structures or services. If the equipment is inaccessible so that the scheduled service cannot be completed, Company will charge a trip charge also known as a dry run fee.
8. FENCING. Customer is solely responsible for the maintenance and safekeeping of the leased chain-link panels, posts, and stands. Fencing subcontractor will inventory at delivery and pickup. All projects located inside City and County of Denver County will incur Sales Tax. Customer acknowledges that if there is not a site walk prior to event; either A) if the quantities are deficient to what is needed to make the event or job complete, additional trip charges may occur, or B) if the quantities exceed the need of the project, the Customer may be charged for the full amount of fence ordered.
9. PORTABLE TOILETS. If the portable toilet is damaged or a complete loss, Customer is liable for the replacement fee/unit from the supplier plus twenty percent (20%).
10. INDEMNIFICATION. The Company agrees to indemnify, defend, and hold Customer harmless from and against any and all liability (including reasonable attorney’s fees) which Customer may be responsible for or pay out as a result of bodily injuries (including death), property damage, or any violation or alleged violation of law, to the extent caused by Company’s breach of this Agreement or by any negligent act, negligent omission, or willful misconduct of the Company or its employees, which occurs (1) during the collection or transportation of Customer’s Industrial Waste by Company, or (2) as a result of the disposal of Customer’s Industrial Waste, after the date of this Agreement, in a registered facility, provided that the Company’s indemnification obligations will not apply to occurrences involving Nonconforming Waste. Customer agrees to indemnify, defend, and hold the Company harmless from and against any and all liability (including reasonable attorney’s fees) which the Company may be responsible for or pay out as a result of bodily injuries (including death), property damage, or any violation or alleged violation of law to the extent caused by Customer’s breach of this Agreement or by any negligent act, negligent omission, or willful misconduct of the Customer or its employees, agents, or contractors in the performance of this Agreement or Customer’s use, operation, or possession of any equipment furnished by the Company. Neither party shall be liable to the other for consequential, incidental, or punitive damages arising out of the performance of this Agreement.
11. UNCONTROLLABLE CIRCUMSTANCES. Except for the obligation to make payments hereunder, neither party shall be in default for its failure to perform or delay in performance caused by events beyond its reasonable control, including, but not limited to, strikes, riots, imposition of laws or governmental orders, fires, acts of God, and inability to obtain equipment, permit changes and regulations, and the affected party shall be excused from performance during the occurrence of such events.
12. ENTIRE AGREEMENT. This Agreement represents the entire understanding and agreement between the parties relating to the management of waste and supersedes any and all prior agreements, whether written or oral, between the parties regarding the same.
13. TERMINATION. Company may immediately terminate this Agreement, (a) in the event of Customer’s breach of any term or provision of this Agreement, including failure to pay on a timely basis, or (b) if Customer becomes insolvent, the subject of an order for relief in bankruptcy, receivership, reorganization dissolution, or similar law, or makes an assignment for the benefit of its creditors or if Company deems itself insecure as to payment (“Default”). Notice of termination shall be considered valid and deemed given when delivered in person, by email, or by certified mail.
14. MISCELLANEOUS. The prevailing party will be entitled to recover reasonable fees and court costs, including attorneys’ fees, in interpreting or enforcing this Agreement. In the event Customer fails to pay Company all amounts due hereunder, Company will be entitled to collect all reasonable collection costs or expenses, including lien processing fees, reasonable attorney’s fees, court costs, or handling fees for returned checks from Customer; The validity, interpretation, and performance of this Agreement shall be construed in accordance with the law of the state in which the Services are performed; If any provision of this Agreement is declared invalid or unenforceable, then such provision shall be deemed severable from and shall not affect the remainder of this Agreement, which shall remain in full force and effect; Customer’s payment obligation for Services and the Warranties and Indemnification made by each party shall survive termination of this Agreement.