Terms & Conditions
This Service Agreement (the “Agreement”) is made by and between the Contractor identified on the reverse side of this form (“Contractor”), and the Customer identified on the reverse side of this form (“Customer”). This Agreement shall be effective on the date it is executed by Contractor following Customer’s execution (the “Effective Date”). The following terms and conditions govern this Agreement.
1. SERVICES RENDERED. Customer grants to Contractor the exclusive right to collect and dispose of and/or recycle all of Customer’s Waste Materials (as defined below) and Customer agrees to make all payments and comply with all other terms as provided for in this Agreement. Contractor agrees to furnish all equipment and services set forth on the reverse side (the “Services”) in accordance with the terms and conditions of this Agreement.
2. TERM. This Agreement shall remain in force for three (3) years from the Effective Date (the “Initial Term”) and shall thereafter renew automatically for successive three (3) year terms (each, a “Renewal Term”), unless either party gives contrary notice at least sixty (60) days prior to expiration of the then current Term.
3. WASTE MATERIALS. The Waste Materials to be collected and disposed of and/or recycled by Contractor pursuant to this Agreement are all liquid wastes generated by Customer or at Customer’s Service Address set forth on the reverse side of this form (collectively, “Waste Materials”). Waste Materials specifically excludes, and Customer agrees not to deposit or permit the deposit for collection by Contractor, any radioactive, volatile, corrosive, flammable, explosive, biomedical, infectious, biohazardous, toxic or hazardous waste, substance, or material, as defined by, listed, or characterized under applicable Federal, State, or local laws or regulations (“Excluded Materials”). Title to and liability for all Excluded Materials shall remain with Customer at all times. Customer represents and warrants that all materials to be collected under this Agreement shall conform to the definition of Waste Materials herein.
4. CHARGES; ADJUSTMENTS. Customer shall pay Contractor the charges invoiced for the Services (including charges for fuel, environmental fees, equipment repair and maintenance, and applicable Federal, State, and local taxes) in accordance with the rate schedule on the reverse side of this form (the “Charges”). Contractor may increase the Charges on each one year anniversary of this Agreement to account for increases in the Consumer Price Index to All Urban Consumers, or at any time upon written notice in the event of a change of general economic conditions (including disposal or fuel costs or changes in applicable law) that increases Contractor’s operating costs. Any increase in the Charges for reasons other than those provided above requires the consent of Customer, which may be evidenced verbally, in writing, or by the actions and practices of the parties.
5. PAYMENT. All amounts invoiced are due and payable within fifteen (15) days following the invoice date. Contractor may charge, and Customer shall pay, simple interest at the rate of eighteen percent (18%) per annum, or at such lesser maximum rate as permitted by law, on all sums past due under this Agreement, with interest accruing from the invoice date.
6. FUEL SURCHARGE. Southwaste has implemented a Fuel Surcharge that is indexed to the price of diesel fuel as recorded by the U.S. Energy Information Administration (EIA). The rate of the fuel surcharge is determined at the beginning of each quarter by cross-referencing the EIA published US weekly OnHighway diesel fuel price with the Company’s Fuel Surcharge Schedule. Please note: The amount or percentage of your Fuel Surcharge is not specifically tied to the direct or indirect costs to service a specific customer account, and rates are established by contract or at a WRM operating company’s discretion, and are designed to allow a reasonable rate of return and operating margin.
7. ARBITRATION. The parties agree that any claim, dispute or controversy arising out of, or relating to this agreement, or the breach, termination, or invalidity thereof, shall be resolved through final and binding Arbitration to be administered by (“AAA”) The American Arbitration Association and governed by AAA’s Comprehensive Dispute Resolution Rules and Procedures in effect at the time such claim is filed. Any decision and/or award of the Arbitrator is final and binding and may be entered as a judgement in any court having jurisdiction. In the event a party fails to proceed with arbitration, unsuccessfully challenges the arbitrator’s award, or fails to comply with the arbitrator’s award, the other party is entitled to costs of suit, including reasonable attorney’s fees, for having to compel arbitration or defend or enforce the award. The place of arbitration shall be Harris County, TX. The language used in the arbitral proceedings shall be English.
8. CERTAIN CHANGES. Changes in Charges, frequency of collections service, or schedule may be agreed to orally, in writing, or by the actions and practices of the parties; provided, however, that Customer shall not be entitled to alter the service requirements hereunder during any Term for reason of or while contracting with another collection, disposal, or recycling company for services at the Service Address set forth on the reverse side of this form. In the event Customer relocates during any Term and Customer’s new service address is located within the area serviced by Contractor, this Agreement shall be applicable to and remain in full force and effect at such new service address location, subject to any required adjustments accounting for differential in waste volume collected or cost to service.
9. EQUIPMENT; ACCESS. Any equipment furnished hereunder by Contractor shall remain the property of Contractor. Customer shall have care, custody, and control of the equipment while at Customer’s location. Customer shall bear responsibility and liability for all loss or damage to the equipment and for its contents. Customer shall not overload (by weight or volume), move, or alter the equipment and shall use the equipment only for its intended purpose. At the termination of this Agreement, Customer shall return Contractor’s equipment in a similar condition to that which it was provided, allowing for normal wear and tear. Customer shall provide unobstructed access to the equipment on the scheduled collection day. Contractor reserves the right to charge an additional fee for any modifications in collections service caused by or resulting from Customer’s failure to provide access.
10. DRIVEWAYS, PARKING AREAS, PAVEMENT. Contractor shall not be responsible for any damage to Customer’s property (including driveways, parking areas, pavement, or curbing) resulting from Contractor’s vehicles or equipment. Customer warrants that any right of way provided by Customer for Contractor’s vehicles is sufficient to bear the weight of Contractor’s equipment and vehicles used in providing service hereunder.
11. DEFAULT; TERMINATION. Either party may suspend its performance or terminate this Agreement in the event of a material breach of this Agreement (including non-payment) (a “Default”) by the other party, provided, however, that no termination shall be effective until the complaining party has given written notice of the Default to the other party and the other party has failed to cure such Default within either: (i) ten(10) days of such notice with respect to failure to pay, or (ii) thirty (30) days of such notice with respect to all other Defaults. Should Customer default in payment to Contractor or fail to perform any other obligation under this Agreement, Customer shall be responsible for interest as provided above as well as all attorney’s fees, costs, and expenses incurred by Contractor as a result of the Default. Any notice of termination shall be in writing and sent by certified mail, postage prepaid return receipt requested, to the Contractor’s address set forth on the reverse side of this form.
12. TERMINATION FEE. In the event Customer terminates this Agreement prior to the expiration of any Term for any reason other than a Default by Contractor, or in the event Contractor terminates this Agreement for Customer’s Default, Customer shall pay to Contractor as liquidated damages a sum calculated as follows: (i) if the remaining Term under this Agreement is six (6) or more months, Customer shall pay the equivalent of the remaining services fees (as set forth on the reverse side) according to the number of services forfeited based on term remaining and established service frequency; or (ii) if the remaining Term under this Agreement is less than six (6) months, Customer shall pay the equivalent of one (1) additional service fee for services not yet performed. Customer expressly acknowledges that the actual damage to Contractor in the event of termination is difficult to fix or prove, and that the foregoing liquidated damages amount is reasonable compensation that is believed to be commensurate with the anticipated loss to Contractor resulting from such termination and such amount is an agreed upon fee and is not imposed as a penalty. Contractor shall not be liable under any circumstances for any special, incidental, or consequential damages arising out of or in connection with Customer’s use, operation, or possession of any equipment.
13. SECURITY INTEREST. An express Mechanic’s Lien is hereby acknowledged and authorized on customer equipment and fixtures as consideration to secure the amount due for services provided. Debtor agrees to pay any reasonable expenses incurred in the application of said Mechanic’s Lien(s) applied for under this security agreement to all sums due on Debtor’s account. Debtor hereby agrees to give written notice of any change in Debtor’s business entity prior to the change itself. Aforementioned change would include, but would not be limited to, a change in legal ownership or percentage of ownership of Debtor. Debtor agrees that this document may be filed as financing statement.
14. INDEMNITY. Customer agrees to indemnify, defend, and hold harmless Contractor against all claims, damages, suits, penalties, fines, liabilities, costs, expenses, and all other damages (including attorney’s fees) arising directly or indirectly out of or in connection with any actual or alleged (i) breach by Customer of any representations, warranties, terms, or conditions of this Agreement, (ii) generation, placement in equipment, deposit, collection or disposal of any Excluded Materials, or (iii) injury or death of a person or loss or damage to property that may arise out of or in connection with Customer’s use, operation, or possession of any equipment.
15. FORCE MAJEURE. Contractor shall not be responsible for any delay in its performance or failure in performance of any obligations pursuant to this Agreement if such delay or failure is the result of causes beyond its reasonable control, including, but not limited to, strikes, riots, compliance with laws or governmental orders, fires, acts of God, inability to obtain equipment, and other similar causes, and such failure shall not constitute a Default under this Agreement.
16. ASSIGNMENT; BINDING EFFECT. Neither party shall assign this Agreement without the prior written consent of the other party, except that Contractor may assign this Agreement to any corporation or other entity affiliated with Contractor without Customer’s consent. This Agreement shall be binding on and shall inure to the benefit of both Customer and Contractor and their respective heirs, successors, and assigns.
17. ENTIRE AGREEMENT; AMENDMENT. This Agreement represents the entire agreement between the parties and supersedes any and all other agreements, whether written or oral, that may exist between the parties. Except as specifically provided in this Agreement, no course of performance, purchase orders, or agreements purporting to amend, supplement, or explain this Agreement shall be effective unless in writing and signed by authorized representatives of both parties.
18. GOVERNING LAW; SEVERABILITY. This Agreement shall be construed in accordance with the law of the state in which the Services are provided. 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.
19. RIGHT OF FIRST REFUSAL. Customer grants to Contractor a right of first refusal to match any offer which Customer receives (or intends to make) after the completion of any Term of this Agreement relating to any Services provided hereunder and further agrees to give Contractor prompt written notice of any such offer and a reasonable opportunity to respond to it.
20. YELLOW OIL COLLECTION. It is expressly understood and agreed that Yellow Oil Collection services and any rebates that may be associated with such service are driven by commodity pricing as reflected in the Jacobsen Yellow Grease- Gulf Coast Index. As such, Southwaste reserves the right to suspend rebates and, if necessary, charge service fees for collection of Yellow Oil if commodity values fail to a level that make rebates or “No Charge” service impractical. In any case, where a change in rebates or pricing becomes necessary, notification will be provided to customer.
21. NOTICE OF PER- AND POLYFLUOROALKYL SUBSTANCES (“PFAS”) (“FOREVER CHEMICALS”). Without limiting the generality of the foregoing provisions, Customer/Generator acknowledges that PFAS are a group of man-made chemicals that includes PFOA, PFOS, GenX, and many other similar forever chemicals, which are now being regulated by a number of jurisdictions and the EPA. If Customer/Generator is providing any materials under this Agreement or Purchase Order which contain PFAS, Customer/Generator shall provide a notification to WRM/Affiliates regarding a) whether any of the materials/wastes contain PFAS chemicals; b) the PFAS chemical used or present in the material/waste; and c) the reason PFAS chemicals are added to the material/waste. For purposes of this Agreement or Purchase Order, PFAS shall be defined broadly as a class of fluorinated organic chemicals containing at least one fully fluorinated carbon atom. Furthermore, Customer/Generator acknowledges it does not use products containing forever chemicals in its daily activities.