WASTE OIL RECYCLERS,INC. ("RECYCLERS")
SERVICE AGREEMENT TERMS AND CONDITIONS
RECYCLER’S DUTIES. Recycler agrees to furnish the waste oil collection, disposal, and/or recycling services and equipment specified, or service existing equipment pursuant to the terms described on the front page hereof.
EQUIPMENT USE AND OPERATION.
A. All containers and equipment owned and furnished by Recycler for Customer’s use hereunder shall, while in the possession and control of the Customer, remain the property of Recycler. Customer, except as expressly set forth herein, shall have no ownership rights to such equipment.
B. Customer shall use the equipment only for the proper purposes for which it is intended and shall not overload the equipment or make any alterations or improvements to the equipment. Customer shall be liable to Recycler for loss or damage to the equipment in excess of ordinary wear and tear.
C. Customer agrees to indemnify, defend and hold harmless Recycler, its employees and agents, against all claims, damages, suits, penalties, fines and any other liability for injury or death to person or loss or damage to property or the environment (“Damages”) arising out of Customer’s breach of this Agreement including, but not limited to the Customer’s use, operation or possession of the equipment or the deposit of Excluded Material (hereinafter defined) with Recycler. Customer shall maintain the equipment and surrounding area in a clean and safe condition and shall maintain an open right of ingress and egress to enable Recycler to service the equipment safely and efficiently.
WASTE OIL PICK-UPS.
A. On collection day(s), Customer shall provide unobstructed access to the equipment. If the equipment is inaccessible, Recycler will attempt to notify Customer in person, or failing that, by telephone. Recycler shall be excused from completing said collection and any additional substitute collection service or substitute attempt to provide such service shall be charged as an “extra pick-up” and customer hereby agrees to pay a fee to Recycler at Recycler’s prevailing rate for the extra cost of additional transportation to and from customer’s facility. For the purposes of this provision, inaccessibility shall include (without limitation) Recycler’s inability to make a collection because of parked vehicles, locked security gates or fences, snow/ice, flood waters or other accumulations or obstructions.
B. If Recycler fails to make a scheduled collection for any reason other than inaccessibility, Customer’s fault, or causes beyond Recycler’s control, Customer’s exclusive remedy shall be to notify Recycler that a collection has not been made, and unless otherwise excused, Recycler shall perform said collection within twenty-four (24) hours of receipt of notification. If Recycler is excused from said collection, Recycler will perform the collection as soon as reasonably possible and practical.
TERM. Customer agrees that Recycler shall have the absolute and irrevocable exclusive right to collection and disposal of customer’s waste oil material pursuant to this Agreement for an initial term of 1 years from the Effective Date and for any and all renewal terms hereunder. The obligations, representations warranties and indemnifications herein shall survive any termination hereof.
NOTICE OF TERMINATION/RENEWAL. Except where prohibited by law, this Agreement shall be automatically renewed for successive 1 year terms unless Customer or Recycler gives written notice of termination by Certified Mail to the other at least sixty (60) days but not more than one hundred twenty (120) days prior to the termination of the initial term or any renewal term then in effect. To be effective, termination notice must be given directly by the Customer or Recycler to the other, and not by or through any third person or entity, including (without limitation) a competitor service provider of Recycler. If at the time of the execution of this Agreement, the Customer has an existing agreement with a competitor service provider, the effective date of this Agreement shall be the first renewal date of the existing agreement, and customer agrees to give proper notice of termination of such agreement.
RIGHT TO COMPETE. Customer grants to Recycler the right to compete with any offer which Customer receives (or intends to make or accept) relating to any services under this Agreement upon any termination hereof, and agrees to give Recycler written notice of any such offer and a reasonable opportunity to respond to it and match it. If Recycler matches the offer, Customer shall renew this Agreement for an additional term.
EARLY TERMINATION BY CUSTOMER. If Customer terminates this Agreement other than as provided above (an “Early Termination”), Customer shall pay to Recycler, as liquidated damages, an amount equal to fifty percent (50%) of the average monthly gross income to Recycler derived from Customer from all sources multiplied by the number of months remaining in the term. The average Monthly Gross Income is: (a) the average of all Recycler’s gross income attributable to waste oil pickups from Customer’s facility for the six (6) months preceding termination; or (b) if terminated less than six (6) months into the term, the average of all Recycler’s gross income attributable to waste oil pick-ups from Customer’s facility since the Effective Date; or (c) if terminated before any Recycler gross income is realized from Customer, the anticipated Recycler gross income. The sale of Customer’s business assets and a resulting termination of the Agreement shall be deemed an “Early Termination” hereunder. Customer acknowledges that these liquidated damages are not a penalty, but a reasonable and good faith forecast of just compensation to the Recycler for damages that any otherwise be difficult to estimate and that result from Customer’s breach of this agreement.
WASTE MATERIAL.
A. Customer represents and warrants that the waste oil material to be collected and transported by Recycler pursuant to this Agreement is used cooking oil as defined by applicable laws and regulations, generated by Customer (“Waste Oil Material”), and will not contain food waste, water or special waste, such as industrial process wastes, material containing asbestos, petroleum contaminated waste, treated/de-characterized wastes, or any other waste other than said food waste. Waste Oil Material specifically excludes, and Customer agrees not to tender, deposit or permit the deposit for Recycler’s collection of, any radioactive, volatile, corrosive, flammable, explosive, biomedical, infectious, bio-hazardous, regulated medical or hazardous waste, toxic substance or other material, as defined by, characterized, or listed under applicable federal, state, or local law or regulations (collectively, “Excluded Material”). Customer retains all title to and liability for Excluded Material.
B. Customer shall, at its expense, provide any requested chemical characterization of the waste oil to be collected and transported by Recycler. Customer shall notify Recycler, in advance, of any changes in the characteristics or consistency of the oil waste or the oil waste generation process with respect to the oil waste streams collected and transported by Recycler hereunder.
C. Recycler may reject, tender and/or return to Customer at Customer’s expense any Excluded Material. Customer shall bear full responsibility and pay all expenses and costs incurred (including but not limited to removal, decontamination, transportation, remediation, proper treatment and disposal, and any fines and penalties together with Recycler’s actual legal expenses, expert fees, and other costs) with respect to such Excluded Material and any other material contaminated therewith, whether from transfer and/or disposal facility (ies), the customer( s) property, third party property or equipment, or Recycler’s (or its subcontractor’s) vehicles or equipment.
CHARGES; PAYMENT; ADJUSTMENTS. When required by this Agreement, Customer shall pay Recycler within ten (10) days of invoice receipt for the services provided by Recycler (For equipment replacement) in accordance with the Schedule of Charges shown. Recycler may increase charges or adjust payment to off-set the increased costs of providing services to Customer including increases in: disposal, fuel, environmental compliance fees or transportation costs; changes in the characteristics or composition of Customer’s oil waste; uncontrollable circumstances, including (without limitation) changes in local, state or federal law or regulation, governmental imposition of taxes, fees or surcharges; and resulting from acts of God, such as floods, hurricanes and fires. Annually, the Recycler may also adjust the rates to reflect the percentage increase in the U.S. City Average Consumer Price Index for All Urban Consumers (CPI-U), published by the U.S. Department of labor, Bureau of Labor Statistics. Recycler may adjust the rates hereunder in any amount in excess of the foregoing with Customer’s approval upon thirty (30) days prior notice. Changes in rates, equipment, and frequency of service may be agreed to orally or in writing and shall be deemed evidenced by the practices and actions of the parties, including payment. Recycler may suspend service or remove the equipment if payment is late or in the event of any other breach by Customer, without prejudice to any of Recycler’s other rights, and such suspension or removal shall not constitute termination of this Agreement unless Recycler so elects. If Recycler elects, such termination shall be deemed an Early Termination by Customer.
PAVEMENT DAMAGE/OVERWEIGHT CONTAINERS. Recycler shall not be responsible for damage to any pavement or accompanying subsurface of any driveway, curb, parking lot or other route reasonably necessary to perform the services herein contracted. Customer shall place all oil waste material hereunder into provided container(s), and shall not overload containers serviced by Recycler.
FORCE MAJEURE. Except for payment of services rendered or loss of gross revenue to Recycler from anticipated Customer waste oil pick-ups, to the extent that either party is precluded from performing its obligations hereunder as the result of acts of God, authority of laws, strikes, lockouts, labor disputes, riots or other causes beyond its control, such non-performing party shall be excused to the extent that its performance continues to be precluded by such causes.
ASSIGNMENT/BINDING EFFECT. Customer may not assign its rights and/or obligations under this Agreement without the prior written consent of Recycler. This Agreement is a legally binding contract on the part of Recycler and Customer and their respective heirs, representatives, successors and assigns. This Agreement shall apply to changes in service address location(s) and to additional service location(s) of Customer within the area in which Recycler provides collection service.
LIMITATION ON LIABILITY. The parties shall not be liable for any indirect, incidental or consequential damages other than described in this Agreement. Recycler’s aggregate liability, if any, arising out of this agreement shall not exceed the aggregate gross income derived by Recycler from waste oil picked up from Customer’s facility, regardless of whether recovery is sought in contract, tort, statute or otherwise.
MISCELLANEOUS. As to conflicts between terms hereof which are printed and those which are typed or written, the typed or written language shall govern. As to conflicts between this Agreement and the printed terms of a Customer’s agreement to which this Agreement may be attached or incorporated, the terms of this Agreement shall control. In the event of a breach of this Agreement, including Customer’s failure to pay liquidated damages for Early Termination as aforesaid, the breaching party shall pay all actual attorney’s fees, collection fees and costs of the prevailing party incident to any action brought to remedy a default or enforce the terms of this Agreement. Each party hereby waives its right to a trial by jury with respect to any litigation resulting from a breach or enforcement hereof. There are no third party beneficiaries of this Agreement. This Agreement, together with any documents referred to herein, sets forth the entire agreement of the parties hereto. Any invalid provision of this Agreement shall be deemed stricken and shall no invalidate or render unenforceable this Agreement or any other provision; as such, the parties hereby authorize a court of competent jurisdiction to “blue pencil” any legally non-conforming provision to render it legally conforming under relevant law for the remainder of this term of this agreement. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania. Venue for any action brought under this Agreement shall be the Court of Common Pleas of Chester County, Pennsylvania.
Waste Oil Collection
Planet: Responsibility
