MERCER GROUP INTERNATIONAL OF NEW JERSEY, INC / HORIZON DISPOSAL SERVICE TERMS AND CONDITIONS
- SERVICES; WASTE MATERIALS. Customer grants to Mercer Group International of New Jersey, Inc., Horizon Disposal Service and its subsidiaries (collectively the “Company”) the exclusive right, and Company shall furnish equipment (“Equipment”) and services (“Services”), to collect and dispose of and/or recycle all of Customer’s Waste Materials at Customer’s Service Address(es) set forth on the reverse side of this Agreement. Customer represents and warrants that the materials to be collected under this Agreement shall be only “Waste Materials” as defined herein. “Waste Materials” means all non-hazardous putrescible and non-putrescible solid waste and recyclable materials generated at Customer’s Service Address(es). Waste Materials may include Special Waste, such as industrial process wastes and demolition debris, if such Special Waste has been specifically approved by Company in writing. Waste Materials specifically excludes, and Customer agrees not to deposit or permit the deposit of: tires; radioactive, volatile, corrosive, flammable, explosive, biomedical, infectious, biohazardous, toxic or hazardous waste or material, or toxic substance as defined by, characterized or listed under applicable federal, state or local laws or regulations, or Special Waste not approved in writing by Company (collectively, “Excluded Materials”). TITLE TO AND LIABILITY FOR EXCLUDED MATERIALS SHALL REMAIN WITH CUSTOMER AT ALL TIMES. Company shall acquire title to Customer’s Waste Materials upon Company’s receipt or collection, unless otherwise stated.
- TERM. The Initial Term of will be stated in Customer’s proposal and shall commence on the Effective Date. At the end of the Initial Term, and any renewal thereafter, this Agreement shall automatically renew for additional terms, each having the same duration as the Initial Term unless either party gives written notice of its intent to terminate by Certified Mail, return receipt requested, at least ninety (90) days, but not more than one hundred eighty (180) days, prior to the expiration of the term. Notice of termination received in any other manner or at any other time will be considered ineffective and the contract will automatically renew upon completion of the then-existing term. Customer grants Company a right of first refusal to match any offer for like services which Customer receives or intends to make after the completion of a term of this Agreement. Customer shall provide Company with written notice of any offer and a reasonable opportunity to respond.
- CHARGES; PAYMENTS; ADJUSTMENTS. Invoices are due thirty (30) days from the date of invoice. Customer shall pay Company for all charges, fees or other amounts payable under this Agreement (collectively “Charges”). If an invoice is not paid within thirty (30) days, Customer is in default and late charges will accrue at the rate of two percent (2%) per month (or the maximum rate allowed by law). Any returned payment may be charged a Return Fee. Company may adjust the Charges payable by Customer during any Term to account for: an increase in disposal, fuel or transportation costs; changes and/or differences in the actual Services and/or Equipment provided from those listed on the reverse side; any additional services including, but not limited to, additional pickups, container relocation or removal; inactivity fees; contamination of recyclable materials; any change in the composition of the Waste Materials or increases in the average weight per container of Waste Materials; and/or increased costs due to any uncontrollable circumstances described in Section 8(a), including, without limitation, changes in local, state or federal laws or regulations, imposition of taxes, fees or surcharges, and acts of God. Increases in charges for reasons other than as provided above require the consent of Customer which may be evidenced verbally, in writing, by payment of an invoice, or by the actions and practices of the parties. If payment is not made when due, Company retains the right to suspend service until the past due balance is paid in full. If service is suspended for fifteen (15) days or more, Company may terminate this Agreement for Default and recover any equipment and all amounts owed hereunder, including liquidated damages under Section 6. Company’s failure to suspend service or terminate this Agreement shall not constitute a waiver of Company’s right to do so for any future failure to pay or breach. Company may request a deposit in an amount of at least one month’s charges to protect Company’s extension of credit to Customer.
- TERMINATION. Company may terminate this Agreement in the event that Customer is in default of any term or provision of this Agreement and fails to cure such default within twenty (20) days of Company’s written notice. Customer may terminate this Agreement if Company is in default of providing services as described within this Agreement and fails to cure such default within twenty (20) days of receipt of the Customer’s written notice. Notice under this provision may be given by regular or electronic mail.
- CHANGES. Changes in the schedule or frequency of collection Services or in the capacity, number, and/or type of Equipment may be agreed to verbally, in writing, by payment of the invoice, or by the actions and practices of the parties. This Agreement remains in effect should Customer relocate within an area where Company provides services.
- EQUIPMENT; ACCESS. All Equipment furnished by Company remains its sole property; however, Customer shall have care, custody and control of the Equipment and shall bear responsibility and liability for any and all loss or damage to the Equipment and for its contents from the date of delivery to Customer’s Service Address until the Equipment is returned to the Company. Customer agrees it will not overload, move or alter the Equipment, or allow a third party to do so, and will use the Equipment for its intended purpose only. At the termination of this Agreement, Customer shall return the Equipment to Company in the condition in which it was provided, normal wear and tear excepted. Customer shall provide safe and unobstructed access to the Equipment on the scheduled collection day(s) and upon termination of this Agreement. Company shall have a limited license to enter upon Customer’s property to provide the Services hereunder, and/or replacing or retaking possession of Equipment. Customer may be responsible for additional fees resulting from Customer’s failure to provide such Company shall not be responsible for any damage to Customer’s property, resulting from Company’s provision of Services. Customer warrants that its right of way is sufficient to bear the weight of Company’s Equipment and vehicles.
- LIQUIDATED DAMAGES. If Customer terminates this Agreement prior to the end of the Term (Initial or Renewal), for any reason other than as provided herein, or if Company terminates this Agreement for Customer’s default, Customer shall pay liquidated damages, in addition to any amounts already owed, as follows: (a) if the remaining Initial Term is six (6) months or more, Customer shall pay the average of its six (6) most recent monthly Charges, (or, if the Effective Date is within six (6) months of Company’s most recent invoice, the average of all monthly Charges after the Effective Date), multiplied by six (6); or (b) if the remaining Initial Term is less than six (6) months, Customer shall pay the average of its six (6) most recent monthly Charges multiplied by the number of months remaining in the term; or (c) if the Agreement is in a Renewal Term and the remaining term is three (3) months or more, Customer shall pay the average of its six (6) most recent monthly Charges multiplied by three (3); or (d) if the remaining Renewal Term under this Agreement is less than three (3) months, Customer shall pay the average of its six (6) most recently monthly Charges for Service multiplied by the number of months remaining in the Renewal Term. Customer agrees that in the event of termination, actual damages to Company would be impractical to prove or complicated to ascertain and that such amount is a reasonable estimate of the anticipated damages to Company and is not a penalty. Customer shall also pay Company’s legal fees incurred in enforcing this
- INDEMNITY. The Company agrees to indemnify, defend and save Customer harmless from and against any and all liability 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 the willful misconduct or any negligent act or omission of the Company or its employees, which occurs (a) during the collection or transportation of Customer’s Waste Materials, or (b) as a result of the disposal of Customer’s Waste Materials, after the effective date of this Agreement, in a facility owned by the Company or a subsidiary or affiliate thereof, provided that Company’s indemnification obligations will not apply to occurrences involving Excluded Materials or caused in whole or in part by Customer’s willful misconduct or negligent acts or omissions. Customer agrees to indemnify, defend and save the Company harmless from and against any and all liability 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 the willful misconduct or any negligent act or omission of the Customer or its employees, agents or contractors. Neither party shall be liable under any circumstances for any special, incidental, punitive or consequential damages arising out of or in connection with performance or non- performance of this Agreement.
- MISCELLANEOUS. (a) 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, without limitation, strikes, riots, imposition of laws or governmental orders, fires, acts of God, or an inability to obtain Equipment, and the affected party shall be excused from performance during the occurrence of such events. (b) Customer shall not assign this Agreement without Company’s prior written consent. Company may assign this Agreement without Customer’s consent, and this Agreement shall be binding on and shall inure to the benefit of the parties hereto and their respective successors and assigns. (c) This Agreement represents the entire agreement between the parties and supersedes any and all other agreements. (d) This Agreement shall be construed in accordance with the laws of the state in which the Services are provided. (e) EACH PARTY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL. (f) If any provision of this Agreement is declared invalid or unenforceable, then such provision shall be severed from and shall not affect the remainder of this Agreement. (g) Customer’s payment obligation and the parties’ indemnity obligations survive termination of this Agreement. (h) In the event Customer fails to pay Company all amounts due hereunder, Company shall be entitled to collect all reasonable collection costs, including reasonable attorneys’ fees. If litigation is commenced under this Agreement, the prevailing party will be entitled to recover its reasonable attorneys’ fees and court costs. (j) The parties agree that electronic signatures are valid, and that any electronic or facsimile copy of said Agreement shall be deemed binding. This Agreement is a valid and binding agreement. By accepting Company’s Services, Customer agrees to these Terms and Conditions.