IMPORTANT: PLEASE READ THIS CUSTOMER AGREEMENT CAREFULLY. IF YOU ARE BEING ASKED TO CLICK A BUTTON TO INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT, CLICKING SUCH BUTTON IS YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IN ADDITION, IF YOU SEND A TEXT MESSAGE, E-MAIL OR FACSIMILE, OR VERBALLY COMMUNICATE VIA TELEPHONE, INDICATING THAT YOU AGREE TO BE BOUND BY THIS AGREEMENT, YOU WILL BE SO BOUND. FINALLY, IF YOU ACCEPT THE SERVICES DESCRIBED IN THIS AGREEMENT, YOU WILL BE BOUND BY ITS TERMS. IN ANY CASE, YOU AGREE THAT YOUR ORIGINAL SIGNATURE IS NOT REQUIRED FOR YOU TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. THE HAULER (AS DEFINED HEREIN) MAY ACCEPT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT BY ANY MEANS, INCLUDING BY PERFORMANCE OF THE SERVICES DESCRIBED HEREIN, AND YOU AGREE THAT THE HAULER IS NOT OBLIGATED TO DELIVER NOTICE OF ITS EXECUTION OF THIS AGREEMENT TO YOU.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT TAKE ANY OF THE ACTIONS INDICATED ABOVE THAT WILL CAUSE YOU TO BE BOUND BY THIS AGREEMENT.
2. Services. The party identified as the “Customer” in the Order Confirmation (“Customer”) hereby engages the “Hauler” identified in Exhibit A in your order confirmation email(“Hauler”) to (a) deliver the dumpster(s) to the delivery address and on the delivery date described in the Order Confirmation, (b) remove such dumpster(s) from such location either on the pick-up date listed in the Order Confirmation or, if a pick-up date is not included in the Order Confirmation, at a date later requested by Customer with at least one business day advanced notice to Agent and (c) properly dispose of the Waste Materials deposited by Customer into such dumpster(s) (the “Services”). Hauler shall have the right to refuse removal of any dumpster(s) that do not comply with the terms of this Agreement (for example, overweight dumpster(s) or dumpster(s) containing Nonconforming Waste (as defined herein)). Customer agrees to provide clear access to the dumpster(s) for the purpose of loading and unloading.
3. Agent. Customer acknowledges and agrees that Dispose-All LLC (doing business as SameDayDumpsters.com) (“Agent”) acts as an agent for Hauler and that Agent is not a party to this Agreement. Hauler has authorized Agent to enter into this Agreement and to collect payment under this Agreement on Hauler’s behalf. Customer agrees to indemnify, defend and hold Agent harmless from and against any liability, claims, damages, injuries, wrongful death, suits, penalties and fines (collectively, “Claims”) that might arise or result from, or otherwise relate to, this Agreement or the Services to be provided hereunder.
4. Fees. In exchange for the Services, Customer agrees to pay to Agent, the fees and taxes stated in the Order Confirmation and any additional fees that may be imposed under this Agreement. All fees shall be payable upon Customer entering into this Agreement or when subsequently determined. If Customer has given credit card or debit card information to Agent, Customer authorizes Agent to charge such credit card or debit card for all amounts due under this Agreement. In the event Customer changes its request for Services, modifies the delivery or pick-up date, incurs any additional charges, or fails to comply with the terms and conditions of this Agreement (such as, by way of example only, depositing materials in the delivered dumpster(s) that differ from the Waste Materials described in the Order Confirmation), then the Agent may re-price the Services consistent with the Order Confirmation and (to the extent applicable) the price list show on the Order Confirmation as Exhibit A hereto (the “Revised Fee”) and charge Customer the difference between the Revised Fee and all amounts previously collected from Customer, if any. Unless agreed to in writing by Agent on behalf of Hauler, no refund will be due to Customer if the Services are canceled or reduced. If any collection action is required, Customer agrees to pay all collection costs, including attorney fees.
5. Waste Material. Customer is solely responsible for the placement of materials into Hauler’s dumpster(s) delivered under this Agreement. Customer represents and warrants that the materials placed in Hauler’s dumpster(s) shall be “Waste Material,” as defined herein, and shall contain no other substances. The term “Waste Material” shall mean solid waste generated by Customer, excluding the following types of material: radioactive, volatile, highly flammable, explosive, biomedical, infectious, toxic, Prohibited Material (as defined in the Order Confirmation) and Hazardous Material (as defined in the Order Confirmation). The term “Prohibited Material” means those materials listed on Exhibit B in the Order Confirmation. The term “Hazardous Material” shall mean any and all hazardous material including, but not limited to, any waste listed or characterized as hazardous waste by the United States Environmental Protection Agency or any state agency under the Resource Conservation and Recovery Act of 1976, as amended, or by other applicable law. The term “Waste Material” also excludes other materials that may be prohibited from disposal in municipal solid waste landfills, including, but not limited to, liquids, solvents and other chemicals, Freon, batteries, paint cans (unless empty or dry), medical waste and other biohazards, asbestos, lead painted materials, propane tanks, and equipment containing gas or oil. Title to and liability for any material excluded from the definition of “Waste Material” set forth above (“Nonconforming Waste”) shall remain with Customer, and Customer expressly agrees to defend, indemnify and hold harmless Hauler and Agent from and against any and all Claims resulting from or arising out of such Nonconforming Waste. Customer shall remain liable for any costs associated with Nonconforming Waste deposited in the dumpster(s), even if Hauler fails to object to their inclusion in the dumpster(s) at the time of removal.
6. Dumpster Loading and Weight. Customer shall ensure that Waste Material is not placed above the fill line on Hauler’s dumpster(s) and, in no event, shall Waste Material protrude above the top of the dumpster(s). Customer shall be responsible for any additional fees resulting from exceeding the “tonnage allowance” stated in the Order Confirmation in accordance with the fee schedule in the Order Confirmation as Exhibit A. Under no circumstance shall the Customer fill a dumpster with weight greater than the “maximum tonnage” stated in the Order Confirmation, if any. Hauler is not required to haul any dumpster with protruding Waste Materials or that exceeds the applicable weight restrictions for public roads and highways. Customer shall fill the dumpster(s) in a manner that ensures even distribution of weight. Customer is responsible for any required offloading or redistribution of Waste Materials. Customer is responsible for any precipitation (rain and snow) that may be absorbed by some types of Waste Material or pool in the dumpster(s) resulting in additional weight. It is the Customer’s responsibility to tarp the dumpster(s).
7. Dumpster Care. The dumpster(s) delivered to Customer remains the property of Hauler. Customer shall ensure the safety and security of the dumpster(s) until it is retrieved by Hauler. Customer is responsible for (i) any and all damage, movement, loss, or destruction of any dumpster(s), whether by Customer, Customer’s agents or third parties, (ii) any and all Claims resulting from the use, placement, and/or access to the dumpster(s). Customer hereby agrees to indemnify Hauler and Agent from any and all such Claims and pay for reasonable repairs to the dumpster(s) for which the Customer is responsible under the terms of this Agreement.
8. Dumpster Delivery and Removal. Hauler will make reasonable efforts to deliver and remove dumpsters on the delivery and pickup dates stated in the Order Confirmation. Hauler is not liable for delays caused by forces of nature, strikes, laws, restricted access, and other matters that are beyond Hauler’s control. Customer shall provide unobstructed access to the delivery area on the delivery and pick-up dates stated in the Order Confirmation. Hauler may, at Hauler’s discretion, decline to deliver and/or remove a dumpster based on safety or accessibility concerns. Customer may be subject to an additional attempted delivery/removal fee (i.e., Dry run fee) as listed on Exhibit A in the Order Confirmation if Hauler is unable to deliver and/or remove a dumpster on the scheduled date.
9. Delivery Area. Customer covenants, represents, and warrants that any delivery area provided for the dumpster(s) is sufficient to bear the cumulative “max tonnage” weight of all dumpster(s) and vehicles necessary to perform the Services. Hauler shall not be responsible for any pavement, sidewalks, utilities or other overhead or underground structures, lawns, fences, garage doors, gates, culverts, curbs, landscaping or other items damaged during the performance of Services. Customer shall be responsible for obtaining any necessary permits for the placement of dumpsters in a public right-of-way. Customer may be charged an additional fee for relocating any dumpster per the fee schedule in the Order Confirmation as Exhibit A.
10. Limitation of Liability. Hauler shall not be responsible for any damage caused to Customer’s property by the dumpster(s) or their delivery and removal unless such damage is caused by Hauler’s gross negligence.
11. Late Payment; Price Adjustments. All payments due from Customer shall be paid to Agent in the manner described above. In the event a payment is overdue more than 10 days, Agent may, on behalf of Hauler, charge Customer a late fee equal to 18% per annum on such overdue balance. Any request from Customer for a price adjustment must be made within 30 days after the end of performance of the related services by Hauler. Any price adjustment agreed to by Agent will be subject to a 3% processing fee.
12. Subcontract. Hauler may subcontract its obligations under this Agreement without prior written approval from Customer.
(a) Integration. This Agreement shall constitute the final, complete and exclusive agreement and understanding by and between the parties and supersedes all prior or contemporaneous written or oral agreements. This Agreement may be executed by any of the means described in the opening paragraph of this Agreement and in one or more counterparts, all of which together shall constitute one and the same Agreement.
(b) Assignment. Unless consented to by Hauler or Agent, acting as agent for Hauler, Customer may not assign this Agreement to any third party. Agent shall be deemed to be a third party beneficiary under this Agreement.
(c) Amendments. This Agreement may only be amended or modified by a writing signed on behalf of both Customer and Hauler.
(d) Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the state where the dumpster(s) are being delivered hereunder. Each party hereby irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement or any agreements or transactions contemplated hereby shall be brought exclusively in the courts of such state and hereby expressly submits to the personal jurisdiction and venue of such courts for the purposes thereof and expressly waives any claim of improper venue and any claim that such courts are an inconvenient forum.
(e) Severability. The provisions in this Agreement are severable. To the extent any provision is deemed void or otherwise unenforceable, the remaining provisions shall survive.
IN WITNESS WHEREOF, the parties have caused this Agency Agreement to be executed as of the date first written above.