HAULER STANDARD TERMS AND CONDITIONS
THE FOLLOWING TERMS AND CONDITIONS GOVERN HAULER’S PROVISION OF SERVICES TO KETER AT THE PROPERTY. BY CHECKING A BOX INDICATING ACCEPTANCE OR OTHERWISE EXECUTING A SERVICE ORDER FORM THAT REFERENCES THIS AGREEMENT, HAULER ACKNOWLEDGES AND ACCEPTS THE TERMS AND CONDITIONS HEREIN. “Agreement” means these Hauler Standard Terms and Conditions, which include and incorporate any Service Orders, exhibits, schedules, attachments, or appendices related thereto.
The Term of this Agreement is set forth in the Service Order or RFP award. Keter may terminate this Agreement for cause, including Hauler’s failure to perform any of its duties under this Agreement, if Hauler fails to cure such default or performance within ten (10) days after written notice by Keter.
Hauler will provide Services in compliance with all applicable federal, state, local laws, rules, and regulations, including those pertaining to approved disposal and recycling sites. The frequency of the hauling and disposal service shall be as determined by Keter.
a. WASTE MATERIALS. The only material(s) to be managed by Keter and with respect to which Hauler shall provide Services at the Property consists solely of the current month’s waste and recyclables generated by the Property and/or its managing agent, tenants, and visitors (the “Materials”). Title, risk of loss and all other incidents of ownership to the Materials, shall be transferred at the time Hauler takes possession of and removes Materials from the place of transfer. Radioactive, volatile, highly flammable, explosive, toxic, special or hazardous material (all of which are herein referred to as “Potentially Harmful Materials”) are excluded from such waste and recyclables and not to be managed by Keter and are not material with respect to which the Hauler shall provide waste and/or recycling services at the Property.
b. RECYCLING/CONTAMINATION. Equipment designated to contain recyclable material and located at the Property shall be treated as containing recyclable material. If a portion of any load of recyclable material is alleged to be contaminated, Hauler must provide, within seventy-two (72) hours of service, both (a) digital photographs and (b) a written statement indicating the specific degree and amount of contamination to such load. If Hauler proves to Keter’s satisfaction that such portion was contaminated, then such load will be billed to Keter at the appropriate waste disposal rates.
3. SERVICE FEES AND PAYMENT PROCEDURES.
a. SERVICE FEES. Rates stated in the Agreement are fixed for the Term of the Agreement and may not be adjusted without the express written consent of Keter. Any price increases not specified herein must be agreed to by the parties in writing at least ninety (90) days in advance of when such increases will go into effect. In no event shall price increases exceed four (4%) percent per year. Waste Disposal rates are to be charged to Keter as a pass-through of the local landfill “Gate Rate” or “Tipping Fee” with no Hauler mark-up. Any contamination, overage, or other similar Hauler-imposed fees must be explicitly agreed to in writing and shall be accompanied by digital photographs submitted within seventy-two (72) hours of service.
b. REPORTING: Hauler is required to provide Keter with a copy of weight tickets regarding all waste compactors and/or OT containers pulled within seventy-two (72) hours of the time of such pull.
c. PAYMENT PROCEDURES. Hauler shall invoice Keter within 10 days of the last day of each month. Keter shall pay Hauler within sixty (60) days from the date of invoice. The invoice shall reflect all services rendered by Hauler in the prior calendar month, including fees and costs for services and a line item reflecting applicable rebate credits offset against any charges due from Keter. In the event rebates exceed the amount on the statement, Hauler shall issue a check made payable to Keter. Notwithstanding any other term, condition or provision of this Agreement, Keter shall have the right, in its sole and absolute discretion, without any requirement of written or verbal notice to Hauler, to offset any amount or amounts of fees or other charges otherwise due Hauler under this Agreement with any amount or amounts due Keter (including, without limitation, any amount or amounts due Keter for recycling rebates when applicable) from Hauler and its affiliates.
d. NO LIEN BY HAULER. Notwithstanding any other term, condition or provision of this Agreement, Hauler hereby agrees and shall require any subcontractor to agree to waive all rights to file a mechanic’s lien or file any other lien or encumbrance against the Property or the owner of the Property.
4. EQUIPMENT AND MAINTENANCE
Hauler shall haul and dispose of the contents of such equipment situated at the Property and designated by Keter pursuant to this Agreement. Keter and Hauler will provide the waste and/or recycling equipment at the Property as designated in writing by Keter; Hauler shall be responsible for proper placement of equipment, as provided in this Agreement. In addition, Hauler will haul and dispose of the contents of any other additional equipment that Keter shall, in its sole and absolute discretion, deem necessary during the Term of this Agreement to properly service the waste and/or recycling needs of the Property upon written authorization from Keter. Any such approved additional equipment shall be procured by Hauler.
Hauler represents and warrants that at all times during the Term of this Agreement that it will have in effect all such insurance as required pursuant to this Agreement as set forth in Exhibit A, attached hereto and made a part hereof.
6. INDEPENDENT CONTRACTOR
Hauler represents and warrants that it is an independent legal entity and, furthermore, that it is not an agent, affiliate, or employee of, or otherwise related to, the Property, the owner of the Property, the managing agent of the Property, or Keter. No agent or employee of Hauler shall be deemed to be the employee or agent of Keter.
7. LEGAL COMPLIANCE
Hauler agrees to observe and comply with all applicable federal, state and local laws, rules and regulations (including those promulgated by FMCSA and DOT), including those pertaining to approved landfill and recycling sites, and agrees to defend, indemnify and hold harmless the Property, the owner of the Property, the managing agent of the Property, and Keter from and against any claims brought as a result of Hauler’s failure to comply with any federal, state and local laws, rules and regulations. This Section shall survive the expiration or earlier termination of this Agreement.
To the fullest extent allowable by law Hauler expressly agrees to defend, indemnify and hold harmless the Property, Keter, Keter’s affiliates, the owner of the Property, the managing agent of the Property, the tenants of the Property, and all visitors to the Property from and against any and all liabilities, claims, damages, fines, costs (including reasonable attorney fees), law suits or administrative proceedings, claims for loss or damage to equipment or property, violations of applicable laws, or injury to and/or death of a person or persons, resulting or arising from or out of the acts or omissions or failure to act on the part of the Hauler, its agents, employees, contractors or subcontractors in or during the performance of the obligations of the Hauler under this Agreement. Hauler hereby indemnifies the Property, the owner of the Property, the managing agent of the Property, Keter, the tenants of the Property, and visitors to the property from any and all damages or injuries arising out of the acts of or failure to act on the part of the Hauler, its agents, employees, assigns, contractors or subcontractors, where such damages or injuries are the result of hazardous materials found or located on or in the Property (including, without limitation, on or in any waste and/or recycling equipment located at the Property) as a result of the acts of or failure to act on the part of the Hauler, its agents, employees, assigns, contractors or subcontractors (including, without limitation, on or in any waste and/or recycling equipment located at the Property). This section shall survive the expiration or earlier termination of this Agreement.
In the event of any action or proceeding brought by either party against the other under this Agreement, the prevailing party will be entitled to recover reasonable costs and expenses, including court costs and reasonable attorneys’ fees. Notwithstanding any other term, condition or provision in this Agreement, neither party shall under any circumstances (including, without limitations, damages arising as a result of a breach of this Agreement) be liable to the other party for any consequential damages, incidental damages, indirect damages, special damages, punitive damages, lost profits, lost revenue, or loss of production.
Keter shall be exclusively responsible for providing waste and/or recycling services to the Property. Hauler shall not either directly or indirectly engage in or attempt to engage in any communications, acquire, obtain, or solicit as a customer any persons or entities who are being serviced by Keter as of any day during the Term of this Agreement without the prior written consent of Keter. The obligations set forth in this section shall survive any expiration or earlier termination of this Agreement and shall be fully enforceable for a period of one year from the date Keter is no longer providing services of any type to the Property, unless otherwise agreed to by Keter in writing.
11. CONFIDENTIAL INFORMATION
Beginning on the first day of the Term of the Agreement, Hauler shall keep confidential and shall not disclose to any third party or use for its own financial gain any information which is legally considered to be, or otherwise designated as, “confidential”, any non-public information, including information relating to the Services, the Property, or owner and its affiliates, whether written or oral and whether disclosed to it by Keter, derived from third party sources, or discovered or developed by Hauler or its affiliates, unless such information has become or shall first become publicly available from sources other than Keter. The obligations set forth in this Section shall survive any expiration or earlier termination of this Agreement and shall be fully enforceable for a period of one year thereafter.
12. FORCE MAJEURE
Neither party shall not be deemed in default of this Agreement in the performance of its obligations due to (but not limited to) earthquake, flood, fire, storm, natural disaster, act of God, war, terrorism, armed conflict, labor strike, lockout, boycott, epidemics, pandemics, all other types of viral outbreaks, or other events or circumstances beyond the reasonable control of such party, whether similar or dissimilar to any of the foregoing.
This Agreement shall be governed by and construed in accordance with the laws of the State of Connecticut. This Agreement shall be binding upon and inure to the benefit of the respective parties, their successors, legal representatives and assigns. If any one or more of the provisions contained in this Agreement or in any other document delivered pursuant hereto shall for any reason be held to be invalid, illegal or unenforceable in any material respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement. Notwithstanding any other term, condition or provision herein, this Agreement and any interest herein shall not be assigned, without the written consent of the other party. No failure or delay in Keter exercising any right, power or privilege hereunder shall operate as a waiver thereof. Any cancellation or termination of this Agreement by Keter shall not release Hauler from any outstanding obligations to Keter pursuant to this Agreement. This Agreement shall constitute the entire agreement between the parties to this Agreement as to the subject matter herein.
Hauler and any of its subcontractors shall purchase and maintain such insurance as required pursuant to this Exhibit A, shall furnish Keter a Certificate of Insurance in conformity with such insurance requirements, and furthermore agrees to perform and meet all such other requirements and conditions as set forth in this Exhibit A below:
1. Insurance Policy Requirements:
A. All policies of insurance shall be issued by insurance companies with a general policy holder’s rating of not less than A- and a financial rating of not less than Class X as rated in the most current “Best’s Insurance Reports” and licensed to do business in the state where the Property is located and authorized to issue such policy or policies;
B. All policies of insurance shall be written as primary policies not contributing with and not in excess of coverage that Keter, the Owner of the Property or the Managing Agent of the Property may carry;
C. Hauler shall have the right to insure and maintain the insurance policies required by this Agreement under blanket insurance coverage so long as such blanket insurance policies comply with the types and amounts of insurance and other requirements stated in this Agreement;
D. All policies of insurance procured by Hauler shall contain endorsements providing that such insurance may not be materially changed, amended or canceled with respect to any term, condition or provision of such insurance with regard to or in any way affecting Keter, the Owner of the Property and the Managing Agent of the Property except after thirty (30) days prior written notice from the insurance company to Keter, the Owner of the Property and the Managing Agent of the Property;
E. Hauler shall be solely responsible for the payment of all premiums under such policies and Keter, the Owner of the Property and the Managing Agent of the Property shall have no obligation thereof; and
F. The original policy or policies, or duly executed certificates for the same, shall be delivered to Keter, the Owner of the Property, and Managing Agent of the Property prior to the Service Start Date of this Agreement and upon renewals of such policies not less than ten (10) business days prior to the expiration of any such coverage.
2. Any insurance coverage required to be carried by Hauler pursuant to this Agreement shall not limit Hauler’s liability under any provisions contained in this Agreement for any uninsured or underinsured damages, losses or costs of any type incurred by Keter, the Owner of the Property, the Managing Agent of the Property, the tenants of the Property and any visitors to the Property. Hauler is required to furnish proof of continuing coverage of all insurance required from Hauler under this Agreement at least seven (7) days prior to providing service to the Property (including the tenants of the Property). Proof, for purposes of this subsection, shall be comprised of a valid certificate of insurance in effect from a carrier and signed by same carrier that meets the criteria required of insurance carriers pursuant to this Agreement. Within forty-eight (48) hours of the receipt by Hauler of a notice from Keter of Keter’s request for proof of continuing coverage of all insurance required from Hauler under this Agreement, Hauler shall be required to provide Keter with proof of continuing coverage of all insurance coverage required to be maintained by Hauler pursuant to this Agreement. Proof, for purposes of this subsection, shall be comprised of a valid certificate of insurance in effect from a carrier and signed by same carrier that meets the criteria required of insurance carriers pursuant to this Agreement.
3. Required Coverage Minimums:
A. Worker’s Compensation: At all times during the Term of this Agreement, the Hauler, its contractors and its subcontractors shall maintain in effect statutory Workers’ Compensation Insurance including Employer’s Liability coverage as required by the state where the Property is located.
B. Liability Insurance: At all times during the Term of this Agreement, the Hauler, its contractors and its subcontractors shall procure and maintain, at Hauler’s, its contractors’ and its subcontractors’ sole cost and expense (1) Commercial General Liability Insurance on an occurrence basis with minimum limits of $1,000,000.00 per occurrence and $2,000,00.00 aggregate which insurance shall contain coverage for bodily injury, property damage, premises operations, contractual liability and contingent liability (and, if applicable, liability arising from excavation and underground collapse) for all operations of Hauler, its contractors and its subcontractors and shall name Keter, the Owner of the Property, and the Property’s Managing Agent as additional insureds, on a primary and non-contributory basis (as detailed below).
4. Required Additional Insureds (must be listed on the certificate): Keter Environmental Services, LLC
5. Certificate Holder must be named as: Keter Environmental Services, LLC, 4 High Ridge Park, Stamford, CT 06905.
6. Automobile Liability Insurance: At all times during the Term of this Agreement, the Hauler, its contractors and its subcontractors’ sole cost and expense, an automobile liability policy with a minimum combined single limit of $1,000,000.00; such policy shall include coverage for hired, owned and non-owned vehicles.
7. Excess Umbrella Coverage: At all times during the Term of this Agreement, the Hauler, its contractors and its subcontractors shall maintain the Umbrella/Excess Liability Policy with minimum limits not less than $4,000,000 per occurrence.
8. Environmental Pollution Insurance: Pollution Coverage on an occurrence form basis, with minimum limits not less than $5,000,000 per occurrence and in aggregate. This policy shall include the additional Insured Parties as additional named insured on a primary and non-contributory basis for all liability, claims, events, proceedings and suits arising out of, resulting from, or related to Keter’s or its subcontractor’s operations, acts, omissions, activities and/or presence at the property. This policy shall provide coverage for third party liability and clean-up costs.