ONLINE PAYMENT AGREEMENT (“AGREEMENT”)
SERVICES, PRICING & PERFORMANCE REPRESENTATIONS. Customer grants to Priority Waste, LLC, hereafter (Company), the exclusive right within Company’s service area, to manage the collection, transportation, disposal and/or recycling of the Customer’s non-hazardous solid waste materials including Recyclable materials (collectively, “Waste Materials”), and Company agrees to provide such services. Company shall not increase Customer’s pricing by more than five-percent annually, and if Company were to increase rates more than five-percent annually, then Customer may terminate this Agreement at anytime with written notice to Company. Customer may also cancel Company at any time due to any unresolved, documented performance failures by Company.
ONLINE PAYMENT. By making payment electronically, herein at www.PriorityWaste.com, Customer(s) agrees to conduct business electronically and agrees to be bound by the following contractual terms and conditions, with the date of said initial payment being the effective date.
PAYMENT. Customer shall pay Company for the services and equipment furnished by Company, or its contractor at the rates set forth in this Agreement within 15 days of Customer’s receipt of Company’s invoice. Customer shall pay all taxes, fees and other governmental charges assessed against or passed through to Company (other than income or real property taxes). Customer shall pay such fees as the Company may impose from time to time by notice to Customer, including by way of example only, late payment fees, fuel recovery fee, administrative fees and environmental fees, with Company to determine the amounts of such fees in its discretion up to the maximum amount allowed by applicable law. Customer shall pay to Company a fee of $50 for each check submitted by Customer that is an insufficient funds check or is returned or dishonored. At any time after Company becomes concerned about Customer’s creditworthiness or after Customer has made any late payment, Company may request, and if requested, Customer shall pay a deposit in an amount equal to one month’s charges under as determined by the Company. Customer shall pay interest on any past due invoices equal to the greater of 1 1/2% per month or the maximum lawful rate, until paid in full. If Customer cancels an order after the order has been processed, Customer may be assessed a cancellation fee by Company at Company’s current rate. CUSTOMER AUTHORIZES COMPANY TO COLLECT CHARGES BY ELECTRONIC MEANS, INCLUDING BUT NOT LIMITED TO CREDIT CARD OR ACH PAYMENTS FOR ANY AND ALL CHARGES INCURRED BY CUSTOMER, INCLUDING BUT NOT LIMITED TO THE INITIAL CHARGE, ANY WEIGHT OVERAGES AND DEMURRAGE. Unless otherwise mutually agreed in writing, Customer hereby accepts Company’s policy of no refunds being issued.
ATTORNEYS’ FEES. If any litigation is commenced to enforce any part of this Agreement, the Company shall be entitled to recover, in addition to such other relief as the court may award, its reasonable attorneys’ fees, expert witness fees, litigation related expenses:’ and court or other costs incurred in such litigation or proceeding.
WASTE MATERIALS. The Waste Materials shall not contain any hazardous materials, wastes or substances; toxic substances, wastes and pollutants; contaminants; infectious waste; medical wastes; or radioactive wastes (collectively, “Excluded Waste”), each as defined by applicable federal, state and local laws or regulations (collectively, “Applicable Laws”).
RATE AND ADJUSTMENTS. Company may, from time to time by notice to Customer, increase the rates provided in this Agreement to adjust for any increase due to; (a) a change in location of Customer or the disposal facility used by Company or its contractor; (b) Disposal costs; (c) Company’s actual costs due to changes in Applicable Governmental fees or taxes; (d) The average weight per cubic yard of Customer’s Waste Materials. (e) The Consumer’s Price Index. (f) Company or its contractor’s change in costs due to changes in applicable laws and overhead. Customer also acknowledges that the Company is managing the listed services on the Customer’s behalf to reduce the Customer’s overall cost for these services and that on certain occasions, a cost reduction either cannot be obtained, or may be delayed or limited due to reasons which are beyond the Company’s control. These could include but are not limited to; a) Municipal Franchised Areas; b) Existing contracts between the customer and the current services provider, and/or c) special operational circumstances. Customer acknowledges that the Company may be required, other than as set forth above, to maintain or increase its rates accordingly, with Customer’s consent, which may be evidenced verbally, in writing, electronically, or by the parties’ actions and practices.
SERVICE CHANGES. The parties may change the type, size or amount of equipment, the type or frequency of service, and correspondingly the rates by agreement of the parties, which may be evidenced verbally, in writing, electronically, or by the parties’ actions and practices. This Agreement shall apply to any change of location of Customer within the area in which Company provides its services. Customer expressively waives their right to utilize any 3rd party waste management or waste broker to manage any aspect of Customer’s waste and or recycling services during the term of this Agreement. Company may substitute similar, yet equivalent services and/or containers at no additional cost to Customer at Company’s sole discretion.
RESPONSIBILITY FOR EQUIPMENT; ACCESS. Any equipment the Company or its contractors furnish shall remain the Company’s or Company’s contractor’s property. Customer shall be liable for all loss or damage to such equipment (except for normal wear and tear and for loss or damage resulting from Company or its contractor’s handling of the equipment). Customer shall use the equipment only for its proper and intended purpose and shall not overload the equipment (by weight or volume), move, or alter the equipment without the express written consent of Company. Contractor reserves the right to remove (e.g. dump out) materials from its equipment in instances where Contractor determines, in its sole discretion, that its equipment is overloaded, by either weight or volume, or in instances of Customer’s nonpayment. Customer is solely and exclusively liable for any and all fees, fines, property damage clean-up costs and/or other costs associated with such removal of materials. Customer shall indemnify, defend and hold harmless Company from and against all Losses arising from any injury or death to persons or loss or damage to property (including the equipment) arising out of Customer’s use, operation or possession of the equipment. Customer shall provide safe, unobstructed access to the equipment at all times. Company may charge an additional fee for any additional collection service required by Customer’s failure to provide access. If Company cannot access the equipment at the time of service (for example, locked gate, blocked access, overloaded) Customer shall pay a two-hundred dollar per hour demurrage fee, prorated every fifteen minutes.
DAMAGES. Customer agrees that excluding any damage caused intentionally or due to gross negligence, Company, or the Company’s contractor shall not be responsible for any damages to Customer’s pavement, curbing or other driving surfaces, overhead and/or side objects such as electrical wire, phone lines, overhanging roof lines, walls, corrals, etc., whether such objects are within the Customer’s lot line or a neighboring property, resulting from Company or its contractor providing service(s) at Customer’s location. Customer agrees to defend, indemnify, save and hold harmless, Company, officers, employees and agents, to the fullest extent permitted by law, of and from all claims, loss, damage, injury, suits of whatever nature, for personal injury and property damage alleged to arise out of, or any conditions, of the work performed under this contract, that are or may be brought by parties not subject to the terms of this agreement, specifically neighboring real or personal property owners, who allege to have suffered a loss as a result of performing the duties enunciated herein.
SUSPENSION. If any amount due from Customer is not paid within 30 days after the date of Company’s invoice, Company may, without notice and without terminating this Agreement, suspend collecting and disposing of Waste Materials until Customer has paid such amount to Company. If Company service is suspended, Customer shall pay Company a temporary service interruption fee in the amount of $75.00 plus any deposits Company deems appropriate in addition to any other amounts due to Company under this Agreement. If Customer’s service is suspended due to non-payment all past due balances must be paid in full and the Customer must agree to pay future invoices via automatic electronic payments as condition precedents to removal of the suspension.
TERM. IF CUSTOMER DOES NOT HAVE AN EXISTING WRITTEN CONTRACT WITH COMPANY, THEN THE INITIAL TERM OF THIS AGREEMENT SHALL BE EFFECTIVE UPON THE FIRST PAYMENT BY CUSTOMER TO COMPANY BEING MADE (“EFFECTIVE DATE”) AND SHALL CONTINUE FOR THIRTY-SIX MONTHS. THIS AGREEMENT SHALL AUTOMATICALLY RENEW FOR SUCCESSIVE THIRTY-SIX MONTH TERMS UNLESS EITHER PARTY GIVES NOTICE OF TERMINATION TO THE OTHER AT LEAST THIRTY DAYS BEFORE THE END OF THE THEN CURRENT TERM BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED. BEFORE COMPANY SHALL ACCEPT CUSTOMER’S, TERMINATION COMPANY SHALL BE GIVEN THE FIRST RIGHT TO MATCH COMPETITOR’S OFFER TO CUSTOMER. COMPANY MAY TERMINATE THIS AGREEMENT AT ANY TIME WITH 7 DAYS NOTICE TO CUSTOMER. IF CUSTOMER DOES ALREADY HAVE AN EXISTING WRITTEN CONTRACT WITH THE COMPANY, THEN SAID EXISTING CONTRACT SHALL GOVERN.
TERMINATION. In addition to its above suspension rights, Company may terminate this Agreement immediately by written notice to Customer if (a) any of the information contained in any credit application submitted to Company in connection with this Agreement is untrue or (b) Customer breaches this Agreement and fails to cure such breach within 10 days after Company gives Customer written notice of the breach. Company may terminate this agreement at any time with 30 day written notice to Customer. Company’s failure to suspend service or terminate this Agreement when Customer fails to timely pay or otherwise breaches this Agreement shall not constitute a waiver of Company’s right to suspend service or terminate this Agreement for any future failure to pay or other breach.
PAYMENT UPON TERMINATION. If Customer terminates this Agreement before its expiration other than as a result of a breach by Company, or if Company terminates this Agreement as a result of a breach by Customer (including nonpayment), Customer shall pay Company an amount equal to Customer’s most recent month’s waste hauling and disposal charges/expenses or an average monthly charge based on the previous (12) twelve months whichever is greater, multiplied by the lesser of (a) six (6); or (b) the number of months remaining in the term. Customer acknowledges that in the event of such a termination, actual damages to Company would be uncertain and difficult to ascertain, such amount is the best, reasonable and objective estimate of the actual damages to Company, such amount does not constitute a penalty, and such amount is reasonable under the circumstances. Any amount payable under this paragraph shall be in addition to amounts already owing under this Agreement. This early termination fee does not include any removal and or restocking fees regarding the equipment. Such removal and or restocking fees shall not exceed five thousand dollars per site.
EXCUSED PERFORMANCE & CURE PERIOD. Except for Customer’s obligation to pay amounts due to Company, any failure or delay in performance due to contingencies beyond a party’s reasonable control, including strikes, Riots, terrorist acts, mechanical failures, compliance with Applicable Laws or governmental orders, fires and other acts of God, shall not constitute a breach of this Agreement. Company shall be allowed a reasonable cure period for any performance failures alleged by Customer.
TITLE. Company and or its contractors shall acquire title to Waste Materials when they are loaded into the Company’s or Company’s contractor’s truck. Title to and liability for any Excluded Waste and any Waste Materials removed by Company due to overloaded equipment shall remain with Customer and shall at no time pass to Company or its contractors.
ASSIGNMENT. Company may assign this Agreement at any time. Customer may assign this Agreement to a successor upon the consent of Company, which shall not be unreasonably withheld. By agreeing to Companies “Terms and Conditions” Customer agrees that successors in ownership and or assigns are bound by this agreement.
MISCELLANEOUS. This Agreement sets forth the entire agreement of the parties and supersedes all prior agreements, whether written or oral, that may exist between the parties regarding the subject matter of this Agreement. Company shall have no confidentiality obligation with respect to any Waste Materials. All calls to and from Company are recorded and monitored for record-keeping, training, and quality assurance purposes. This Agreement shall be binding upon and inure solely to the benefit of the parties and their permitted assigns. Customer agrees that it shall not engage in any business activity with any other waste/recycling company that employs a former employee of Company for a period of two years after the termination of this Agreement. If any provision of this Agreement shall be invalid, illegal, or unenforceable, it shall be modified to be valid, legal, and enforceable but so as most nearly to retain the intent of the parties. If such modification is not possible, such provision shall be severed from this Agreement. In either case, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not in any way be affected thereby. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Michigan. Customer consents to personal jurisdiction and venue in the courts for the County of Macomb, State of Michigan. Customer and Company agree that electronic signatures are valid and effective, and then an electronically stored copy of this Agreement constitutes proof of the signature and contents of this Agreement, as though it were an original. By signing this agreement Customer agrees to all Company Terms and Conditions contained in this agreement and all Terms and Conditions which may be updated and set forth at www.PriorityWaste.com, unless Customer makes or written objection to the amendment within (14) fourteen days of the update.