1. SERVICES: Western Waste Services, Inc. (hereinafter referred to as “WWS”) agrees to furnish the solid waste collection and disposal services and/or Equipment specified herein and Customer grants to WWS the exclusive right to collect and dispose of all the Customer’s waste material (including all recyclables) specified herein and the Customer agrees to make payment as provided for herein and abide by the terms and conditions of this agreement.
2. TERM: This term of this agreement is for three (3) years and shall be renewed for successive three (3) year periods without further action by the parties, but may be terminated at the end of any three (3) year period by either of the parties hereto by not less than sixty (60) days prior written notice sent by certified mail. At the completion of this term, Customer grants WWS the right to compete with any offer which Customer receives (or intends to make) relating to services rendered herein, and agrees to give WWS written notice of any such offer and a reasonable opportunity to respond to it. The Renewal Term shall become binding upon the parties without any further action by them unless the Customer has received materially inadequate service during the Initial Term which was not corrected within 90 days of notice being sent to WWS via certified mail.
3. CHARGES AND PAYMENT: Customer shall pay WWS for its services in accordance with the schedule of charges shown on the face of this agreement on a monthly basis. Payment shall be made by the Customer to WWS within ten (10) days of the receipt of an invoice from WWS. Customer shall be liable for all taxes, fees or other charges imposed by federal, state, local or provincial laws and regulations upon the
collection, transportation or disposal of Customer’s waste materials or the services provided hereunder. An account is past due if it has not been paid within thirty (30) days from the invoice date. If an account is past due, WWS has the option to terminate this agreement or to temporarily suspend service until the account is brought current without terminating this agreement or other services affecting the remaining terms hereof. Customer agrees to pay interest at the rate of 18% per annum on all amounts past due.
4. RATE ADJUSTMENTS: The monthly charge will be guaranteed for a period of three (3) years. Customer acknowledges that this guarantee does not apply to fuel, landfill costs, taxes, fees or other governmental charges in the event of and if for any reason fuel costs or the landfill fees at any disposal site utilized in the performance of this agreement are increased or if additional taxes, fees or other governmental charges are imposed on the collection, transportation or disposal of the waste being collected hereunder, WWS may change the price(s) under this agreement. WWS shall document any such increases upon request by Customer.
5. CHANGES: Changes in WWS charges, frequency of collection service, number, capacity and/or type of Equipment may he agreed to orally, in writing or by the actions and practices of the parties, unless notice of nonacceptance is given within sixty (60) days of any such change. Otherwise no amendment, modification or waiver of any provision of this agreement, and no consent by WWS to any departure therefrom by Customer, shall be effective unless such amendment, modification, or waiver shall be in writing and signed by each of the parties hereto.
6. WASTE MATERIAL: The waste material to be collected and disposed by WWS pursuant to this agreement is solid waste generated by Customer excluding radioactive, volatile, highly flammable, explosive, biomedical, toxic or hazardous material. Customer shall solely and exclusively use WWS Equipment and service for the collection, removal and disposal of ‘all its non-hazardous material, including all recyclable materials. The term “hazardous”material shall include, but is not limited to, any amount of waste listed or characterized as hazardous by the United States Environmental Protection Agency or any state agency pursuant to the Resource Conservation and Recovery Act as amended, or applicable state law. WWS shall acquire title to the solid waste material when it is loaded into WWS trucks. Title to and liability for any waste excluded above shall remain with Customer and Customer expressly agrees to defend, indemnify and hold harmless WWS from and against any and all damages, penalties, fines and liabilities resulting from or arising out of such waste excluded above. Customer shall not place any waste that requires special handling in the Equipment, including but not limited to items such as tires, brush, demolition or construction waste, white goods and foam products.
7. EQUIPMENT: All Equipment supplied by WWS shall remain the property of WWS (referred to herein as the “Equipment”). Customer shall have no right, title, or interest in the Equipment. Customer shall not make any alterations or improvements to the Equipment without prior written consent of WWS. Customer shall not overload the Equipment or use it for incineration purposes. Customer shall keep the Equipment free and clear of all levies, liens and encumbrances.
(A) LIABILITY: Customer shall protect and care for all WWS’ Equipment in its possession and control pursuant to the agreement (the “Equipment”), and shall be responsible for all damages to the Equipment beyond ordinary wear and tear. Customer also acknowledges that they have the care, custody and control of Equipment owned by WWS and accepts responsibility of the Equipment and its contents, except when it is being physically handled by WWS. THEREFORE, CUSTOMER EXPRESSLY AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS WWS FROM AND AGAINST ANY AND ALL CLAIMS FOR THE LOSS OF OR DAMAGE TO PROPERTY, OR INJURY TO OR DEATH OF PERSON OR PERSONS, RESULTING FROM AND ARISING IN ANY MATTER OUT OF THE CUSTOMERS USE,OPERATION,OR POSSESSION OF ANY EQUIPMENT FURNISHED UNDER THIS AGREEMENT.
(B) ACCESS: On collection day, WWS shall have clear access to the Equipment. If the Equipment is blocked to prohibit collection, Customer will be notified and one additional attempt for collection shall be made by WWS. However, WWS reserves the right to charge an additional fee for any additional collection service required by Customer’s failure to provide such access. Customer shall immediately remove
or cause to be removed from its premises any Equipment from any other waste collection provider (including recycling containers).
(C) MEANS OF ACCESS: Customer covenants that WWS shall not be liable for any damages to any driveway, parking lot, nearby pavement, curbing or any other surface designated for use by Customer, for WWS to provide services and releases WWS in advance for any such damages. Customer warrants that any such right of way provided by Customer from Equipment location to the most convenient public right of way is sufficient to bear the weight of all WWS Equipment and WWS shall not be responsible for damage to any private pavement or accompanying subsurface of any reasonable access point necessary to perform the services herein contracted. WWS shall not be responsible for damage to any fences, barricades or other structures which enclose WWS containers unless such structures are built to WWS specifications.
8. FAILURE TO PERFORM: In the event Customer breaches this agreement prior to the expiration of this term, Customer agrees to pay WWS as liquidated damages the amount equal to:
(A) Customer’s average monthly billings for the most recent six (6) full months, multiplied by the number of months remaining in the term.
(B) If a Customer received less than six (6) full months of service, Customer’s average monthly billings for all months serviced, multiplied by twelve (12).
(C) If a Customer received less than one full month of service, the monthly standard charge or the billing projected by WWS (whichever appropriately applies to Customer for one month of service ), multiplied by twelve (12).
Customer recognizes that WWS has made a future investment in this business relationship by purchasing customized Equipment necessary to provide services to Customer. Customer acknowledges that the
foregoing liquidated damages are reasonable in light of the anticipated loss to WWS by the breach of this agreement and that the liquidated damages are not imposed as a penalty. In the event the Customer
fails to perform its obligations hereunder, Customer agrees to pay, in the addition to the amount due, any and all costs of collection incurred by WWS, including court costs, travel expenses, “out of pocket”
expenses, expert fees and reasonable attorney fees. LIMIT OF LIABILITY: In no event shall the liability of WWS relating to this agreement exceed three hundred dollars ($300.00).
9. LIMIT OF LIABILITY: In no event shall the liability of WWS related to this agreement exceed three hundred dollars ($300.00)
10. ASSIGNMENT/RELOCATION: This agreement is a legally binding contract between WWS and Customer, their respective principals, successors in interest and assigns in accordance with the terms and
conditions set out herein. If Customer moves its place of business to another location in WWS collection areas, WWS may elect to continue to provide service at the new location in accordance with this
contract. The Customer hereby expressly consents to the assignment of this agreement by WWS to any successors, or purchasers of the whole or any pars of its business and expressly consents to be bound
by all of the terms herein to any such successors or purchasers.
11. FORCE MAJEURE: WWS shall not be liable for its failure to perform hereunder if performance is made impossible or impracticable due to any occurrence beyond its reasonable control, including but not limited
to, labor shortages or strikes, riots, fires, accidents, governmental regulations or laws, natural disasters and acts of God.
12. VENUE: Venue for any action relating to, arising out of or concerning this agreement shall solely and exclusively lie in Twin Falls County, Idaho. Customer acknowledges that this venue selection cause results
in cost savings to the Customer in the term of highly competitive waste services.
13. PARTIAL IN VALIDITY: In the event any provision or portion of this agreement shall be declared void and of no force and effect, the remaining portions of the agreement shall be binding and remain in full
force and effect.
14. PRIOR AGREEMENTS: This agreement constitutes the entire agreement between the parties and hereby supersedes all prior and contemporaneous agreements and understandings, whether written or oral,
between the parties hereto. At the time this agreement is executed, the commencement date of this agreement shall be at the termination date of any preexisting service providers’ agreement, without allowance of any renewals thereof.