Terms and Conditions
The following terms and conditions are hereby agreed to by and between Russell Reid Waste Hauling & Disposal Service Co., Inc. d/b/a Mr. John, Inc. (“Company”) and the customer (“Customer”) named in the contract, lease, proposal or invoice (the “Agreement”) to which these Terms and Conditions are attached and shall become part of the Agreement. Customer also includes any agent of the Customer who signs on its behalf.
1. Terms & Conditions
Company agrees to provide Customer and Customer accepts (i) the Services (the “Services”) and/or (ii) the equipment for rental (the “Equipment”), in either case listed in the Agreement.
Customer agrees to pay Company in accordance with the payment terms listed on the Agreement in US currency. Payment shall be made by Customer to Company prior to or within thirty (30) days after the date of the invoice (the “Due Date”) unless otherwise agreed to in writing by the Company. If Company shall fail to receive payment by the Due Date, Company may impose and Customer agrees to pay a late fee equal to the lesser of a monthly rate of one and one-half percent (1 ½%) of the outstanding balance due and the maximum amount permitted by law. Moreover, if Company shall fail to receive payment within thirty (60) days after the Due Date, Company shall be permitted to terminate this Agreement in accordance with Section 4 hereof and or place the customer in an “on hold” position wherein a unit will not be serviced. No price adjustment or credit will be due to the Customer for equipment placed in an “on hold” status and not serviced. If Company resorts to litigation for unpaid charges, Customer agrees to pay all reasonable attorneys fees, court costs, and other expenses incurred by Company in connection with such litigation. Customer agrees to pay Company the sum of Twenty-Five Dollars ($25.00) plus bank fees, in the event that Customer’s check is returned as uncollectable.
If this Agreement is for the provision of Services, the term of this Agreement (the “Term”) shall be as set forth in the Agreement. If this Agreement is for the rental of Equipment, the Term shall be for one 28-day billing period unless otherwise agreed to in writing by the parties, which Term shall automatically renew, unless terminated by a party upon the provision of seven (7) days prior notice by a party to the other party. If this Agreement is terminated in the middle of a 28-day period, Customer shall be responsible for the entire amount listed on the invoice during such period regardless of the number of services rendered by the Company.
4. Additional Events of Default/Remedies
In addition to the non-payment of invoices, in the event that (i) a proceeding in reorganization, bankruptcy, or insolvency is instituted against Customer, or (ii) Customer makes an assignment for the benefit of creditors, or (iii) Customer makes or permits any unauthorized use, assignment or transfer of the Equipment or Company’s equipment used for the provision of Services (“Company’s Service Equipment”), Company shall, in addition to the remedies set forth in Section 2, be entitled to: (a) cease to provide Services to Customer immediately; or (b) proceed by way of appropriate court action to enforce performance of this Agreement or to recover damages for breach of its terms and conditions; or (c) recover the Equipment and Company’s Service Equipment without notice to Customer, by entering directly or through an agent, upon the premises of Customer, or any other premises where the Equipment or Company’s Service Equipment, as the case may be, is held, and take possession thereof and henceforth hold, possess, and enjoy thereof, free from any right of Customer or its successors or assigns including any receiver, trustee in bankruptcy or creditor of Customer. Customer acknowledges and agrees that in the event of an occurrence of default pursuant to this Section or pursuant to Section 2 of this Agreement, Company shall have the right to retain all payments made by Customer to Company prior to the occurrence of the event of default and Customer shall be required to pay Company the remaining payments set forth in this Agreement.
Customer acknowledges that Company shall at all times remain the owner of the Equipment or Company’s Service Equipment, as the case may be. Customer further acknowledges that it has the responsibility for the care of the Equipment or Company’s Service Equipment, as the case may be, except when the Equipment or Company’s Service Equipment is being handled by employees of Company. Customer agrees to defend, indemnify and hold Company harmless from and against any and all claims for loss or damage (including legal fees and other costs of defense) to property, or injury or death of person or persons resulting or arising in any manner out of Customer’s use or possession of the Equipment or Company’s Service Equipment.
6. Exclusive Right to Advertise
(a) For so long as this Agreement or any renewal or extension hereof is in effect, Company shall have the exclusive right to advertise in and on the Equipment rented by Customer. (b) Customer agrees that it will not cause or permit any advertising or other display or messages in or on the Equipment. (c) Company shall have the sole and absolute discretion for determining the types of advertising and promotion that will be displayed on the Equipment rented by Customer and under no circumstances shall Customer remove or deface such advertisements. (d) Company reserves the right to remove or replace at any time any advertising from the Equipment for any reason. Company also reserves the right to determine the appropriate placement of the advertising on the Equipment.
If this Agreement is for the rental of Equipment, Customer shall, at all times provide and pay for all risk insurance against damage or physical loss of the Equipment and such insurance policy (the “Policy”) shall name Company and its successors and assigns as their interests may appear as an additional insured on the Policy. The minimum limits of the Policy shall be as Company shall specify. Customer shall provide Company with certificates of insurance, in the form of Acord 25, upon the request by Company.
8. Access and Waiver
Customer acknowledges that it has granted Company access to Customer’s premises, including without limitation its driveway and lawn to provide delivery, service and removal of the Equipment or to provide the Services, as the case may be, and Customer hereby holds Company harmless should any damage occur to the pavement, gardens, lawns or driving surfaces unless caused by gross negligence. In the event that Company’s Service Equipment and/or Company’s vehicles become disabled as a result of unknown ground conditions at Customer’s premises, Customer shall pay for (i) the cost of a tow truck to extract Company’s vehicles from the Customer’s premises, and (ii) One hundred and fifteen Dollars ($115.00) per hour that Company’s Service Equipment and/or Company’s vehicles have remained disabled at Customer’s premises. Service location of the Customer may from time to time be deemed inaccessible by the Company for various reasons including but not limited to (1) locked gate (2) blocked approach (3) unsafe conditions and (4) commercially unfeasible wait time. In such cases service may be rescheduled at Company’s quoted rates with no adjustment to regular Term or Service Rates. Furthermore, if this Agreement is for the performance of Services by Company, the Company may handle, remove, and/or replace certain parts related to the wastewater system and its related fixtures and pipes (collectively, the “System Parts”). Customer assumes all risk and liability resulting from Company’s handling of the System Parts.
9. Environmental Indemnification
If this Agreement is for the performance of Services, Customer represents and warrants that the waste material to be collected and disposed of by Company (“Waste Material”) does not include any radio-active, volatile, highly flammable, explosive, toxic, or hazardous material or categorical waste. The term “hazardous material” shall include, but not be limited to, any amount of waste listed or characterized by the United States Environmental Protection Agency or any state agency pursuant to the Resource Conversation and Recovery Act of 1976, as amended, and applicable state law. Company shall not acquire title to the Waste Material when such Waste Material is loaded into Company’s trucks or containers. Title to and liability for the Waste Material shall remain with Customer and Customer expressly agrees to defend, indemnify and hold Company harmless from and against any and all damages, penalties, fines, and liabilities (including legal fees and other costs of defense) resulting from or arising out of the Waste Material.
10. Exceptions to Our Responsibilities
Company is not responsible for (a) personal injury, property damage or other damage or loss to Customer or others arising out of Company's Services and/or Equipment, as the case may be, except to the extent caused by Company's gross negligence or failure to perform the Services or provide the Equipment in accordance with this Agreement; (b) defective, damaged, or deteriorated lines, mold, lead piping, or other unexpected or undisclosed conditions, and the consequence of such conditions, including delays, broken fixtures or lines, and lodged equipment (if Company encounters such a condition, Company may stop the Services and Customer will pay Company a reasonable charge for the Services performed); (c) the time required to complete Company's work with reasonable diligence; (d) unless explicitly stated in writing, any damage necessary to complete Company's work, including damage to landscaping, walls, painting, tile or concrete or similar items; (e) damage caused by the removal of any clean out, drain cover or cap; or (f) tasks Company performs in accordance with Customer's specific instructions. Company is not required to service equipment at or on a set day of the week or time unless agreed to in writing with the Customer and reserves the right to alter its service times and dates as necessary during Holiday weeks and inclement weather or as necessary under Terms and Conditions (13).
11. Release and Hold Harmless
Customer releases Company from (and if Customer is a commercial customer, Customer will defend and indemnify Company and hold Company harmless against) all damages, claims, demands, settlements, judgment, liabilities, costs and expenses, including reasonable attorneys' fees, allegedly arising out of (a) breach of Customer's responsibilities under this Agreement or (b) matters for which Company disclaims responsibility under paragraph 10.
12. No Warranty/Limitation of Liability
COMPANY REPRESENTS THAT THE EQUIPMENT AND/OR THE SERVICES, AS THE CASE MAY BE, ARE PROVIDED TO CUSTOMER ON AN “AS IS” BASIS AND COMPANY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES IN CONNECTION WITH THE EQUIPMENT AND/OR THE SERVICES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. IN ADDITION, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY FOR SYSTEM FAILURE WHICH CONTINUES OR OCCURS SUBSEQUENT TO COMPANY’S PERFORMANCE OF THE SERVICES. MOREOVER, COMPANY’S LIABILITY IS HEREBY LIMITED TO THE AMOUNT ACTUALLY PAID BY CUSTOMER TO COMPANY PURSUANT TO THIS AGREEMENT. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT COMPANY, ITS EMPLOYEES AND AGENTS SHALL NOT BE LIABLE, WHETHER IN CONTRACT OR TORT, FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND, OR FOR THE LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS OR OTHER FINANCIAL LOSS OR FOR PERSONAL INJURY ARISING OUT OF OR IN CONNECTION WITH THE EQUIPMENT AND/OR THE SERVICES, AS THE CASE MAY BE.
13. Force Majeure
If this Agreement is for the performance of Services by Company, neither party shall be liable for its failure to perform hereunder due to contingencies beyond its reasonable control including, but not limited to, strikes, riots, terrorist acts, fires and acts of God (any of the foregoing, a “Force Majeure Event”). If this Agreement is for the lease of Equipment, Customer shall not be excused from its payment obligations pursuant to Section 2 of these Terms and Conditions, notwithstanding the occurrence of a Force Majeure Event.
14. Sales Tax
Payment of sales tax and or the exemption from such is the responsibility of the Customer. Company will charge Customer for sales tax based on its up to date understanding of reasonably published sales tax regulations and will accept certificates of resale and exemption based on good faith. If a certificate issued by the Customer has been deemed to have not been issued accurately or in good faith, Customer will be liable for payment of said sales tax to Company pursuant to section 2 of these Terms and Conditions for a period of not less than three (3) years from service date.
This Agreement may not be assigned by Customer without the consent of Company which may be withheld in Company’s sole discretion. The failure of Company to require full or strict performance of any term set forth herein shall not affect the right to require full and strict performance of any term at any time thereafter. All notices shall be delivered in writing and shall be effective upon delivery to Company or Customer, as the case may be, at the addresses set forth on the front of the Agreement. This Agreement shall be construed in accordance with the laws of the State of New Jersey without regard to the conflicts of law principles thereof. In the event of a dispute arising under this Agreement, New Jersey state and federal courts shall have jurisdiction to resolve such a dispute. If any one or more of the provisions hereof shall be held to be invalid, illegal, or unenforceable, the other provisions shall not be effected and the Agreement shall be construed as such invalid, illegal or unenforceable provision had not been contained herein. This Agreement, including the Terms and Conditions, shall constitute the entire agreement between the parties and may not be modified except by a writing signed by both parties hereto.
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