Austin’s A Team Disposal and Commercial Services LLC, a Texas limited liability company, including its affiliates and subsidiaries (“Company”), agrees to rent to Customer all containers, compactors and other equipment and devises (“Equipment”) for use in accordance with the terms of this Agreement. Equipment shall remain the sole and exclusive property of the Company.
1. Term. This Agreement will commence on the date listed in the Service Agreement and will terminate upon the request of the Customer as long as the Customer is not in breach of any provisions of this Agreement.
2. Service: Transportation and Delivery of Waste. The Company shall collect and dispose of all Proper Waste Materials (any solid waste material or substance which the Company can safely handle and transport without the requirement of a hazardous or toxic license or permit and without incurring any damage or injury to its employees, to the Company’s equipment or vehicles, or to any third party) properly deposited by Customer in the Equipment in the intervals specified in the Service Agreement.
3. Prohibited substances. Customer acknowledges that local, municipal, city, county, state and federal laws, regulations, rules and ordinances prohibit the storage of certain items, materials and substances in the Equipment. Customer is solely and exclusively responsible for complying with all applicable laws relating to prohibited substances and shall be liable for any charges, expenses, damages, loses, fines and/or penalties relating to Customer’s storage and/or transportation of Prohibited Substances in Equipment.
4. Duties and responsibilities: Company. Company will use commercially reasonable efforts to ensure the timely delivery and pick up of Equipment. Company cannot and does not guarantee delivery times or dates and is not liable to Customer under any circumstances for costs, expenses, losses and or damages incurred by Customer in any manner relating to such delays. Upon delivery of the Equipment to the location designated by Customer, Customer shall not move, transport or attempt to move or transport (either directly or indirectly) the Equipment from the designated site without giving prior notice to and receiving consent from Company.
5. Duties and responsibilities: Customer. Customer acknowledges that he is responsible for the proper care, custody, control, safekeeping and use of any Equipment on Customer’s premises and will use the Equipment solely for the deposit of Proper Waste Materials. Customer is responsible for any damage to the Equipment in the event of fire, vandalism, or other damage beyond the normal use and wear of the Equipment. Customer shall not overload the Equipment in either weight or volume as defined by federal, state or local law, regulations or ordinance. Customer is responsible for all liabilities that result therefrom, including any fines or penalties. All risk of loss for the damage or destruction of the Equipment on Customer’s premises shall be borne by Customer. Customer will make no alteration or changes to the Equipment. Customer is responsible for any damage caused by an electrical drop or surge, including lightning, which is conducted into the Equipment. On collection day, Customer will provide unobstructed access to the Equipment. If the Equipment is inaccessible, Customer will be notified and any additional fees to service the container will be charged to the Customer.
6. Service Fee. Customer will pay, on a monthly basis, the service fees and charges designated in the Service Agreement. The fees and charges in this Agreement may, at the option of the Company, be increased and the Customer is responsible for paying the increased amount. Company reserves the right to increase the unit price of the schedule of fees and charges in an amount equal to any equipment increase in fuel costs.
Customer is responsible for any and all sales tax, use tax, fees, surcharges, and all other charges imposed in connection with services provided under or services arising out of this Agreement including without limitation charges for waste material collection, transportation and disposal. Customer hereby expressly authorizes Company to retain its credit card information and charge the card on a monthly basis for service fees and all other charges to which Company is entitled hereunder. Customer acknowledges and agrees that such credit card authorization shall remain valid and in full force and effect during the applicable rental period. If, at anytime during a rental term, Company’s authorization to charge the credit card is revoked and or cancelled by Customer or any third party, than Company, within its sole discretion, may immediately terminate the Equipment rental and recover the Equipment without notice or liability to Customer and without prejudice to or waiver of any of Company’s remedies against Customer.
7. Cancellation Fee. In the event that Company agrees to accept the cancelation of Customer’s properly accepted order, Company is entitled to a cancellation fee of $25.00 if the cancellation occurs 24 hours before the scheduled delivery and a cancellation fee in the amount of $150.00 if the cancellation occurs thereafter. . Customer acknowledges and agrees that Company is authorized and entitles to charge to Customer’s credit card the amount of any such Cancelation Fee.
8. Inconvenience Fee. In the event that Company attempts to deliver or pick up Equipment and is unable to do so for any reason beyond Company’s control, including but not limited to, overloaded Equipment, low lying power lines or tree branches, blocked access to the delivery or pick up location, damaged Equipment, locked gates, fences or parking lots, inaccessible driveways or the storage of prohibited items or substances in the Equipment, than Company shall be entitled to an Inconvenience Fee. The standard Inconvenience Fee is $150.00 provided that if Company incurs additional charges, fees, fines, penalties, costs and or expenses related to this than Company may increase the Inconvenience Fee in order to recoup such charges, fees, fines, penalties, costs and or expenses. Customer acknowledges and agrees that Company is authorized and entitles to charge to Customer’s credit card the amount of any such Inconvenience Fee.
9. Overload Fee. Customer acknowledges that he is solely and exclusively responsible for complying with all weight restrictions and that this responsibility includes but is not limited to covering and or tarping the Equipment in order to prevent rain, water, snow, or ice accumulation in connection with the transport of the loaded Equipment. If Customer fails to comply with the applicable weight restrictions, Company may incur Overload Expenses, which include, but are not limited to, charges, expenses, penalties and or fines from a landfill or other third party, traffic fines and penalties or other consequential damages. If Company incurs such Overload Expenses, Customer will pay Company a fee not to exceed the amount of $125.00 per ton in excess of the applicable weight restriction for the Equipment (“Overload Fee”) as determined within the sole discretion of Company. This Overload Fee is in addition to all other remedies to which Company is entitled and in addition to all other amounts, fees, charges, and expenses due from Customer to Company. Customer acknowledges and agrees that all Overload Fees assessed by Company against Customer may be charges to Customer’s credit card.
10. Title. The Equipment is owned and leased by the Company to the Customer. Company retains all ownership rights, title and interest to the Equipment. Title to all Proper Waste Materials, including recyclable materials, transfers to Company when such waste is loaded into or on the truck. Title to any materials deposited in the Equipment other than Proper Waste Materials will remain at all times with Customer and Customer is responsible for all liabilities that result, including any fines or penalties.
11. Permits. Customer hereby represents and warrants to Company that Customer is solely and exclusively responsible for obtaining and maintaining all necessary and required permits relating to Customer’s possession and use of the Equipment
12. Changes in Service. Any changes in the services provided by the Company or fees and charges paid by the Customer may be made by oral or written agreement of the parties and the continuing actions and practices of the parties with respect to such changes shall constitute the consent and agreement of the parties to such changes
13. Premises. Customer must prepare an adequate and fully accessible site for the Equipment and must provide such utilities as is necessary for the proper operating of the Equipment on-site. Customer provides and hereby grants Company complete and adequate access and right-of-way to the Equipment on Customer’s premises. Company has no obligation or liability for the operation or passage of any of its vehicles, machinery or equipment on Customer’s premises in the granted right-of-way and Customer hereby releases the Company from and disclaims all rights, claims and demands with respect to this. The Company is not responsible for damage to curbs, paved or unpaved driving surfaces or base structures resulting from service of an agreed location of the Equipment.
14. Indemnification. Subject to the limitations expressed in this Agreement, Customer agrees, to the fullest extent permitted by law, to indemnify and hold harmless Company, its officers, directors, employees, and sub-consultants (collectively, Company) against any and all third party claims, actions, proceedings, suits, losses, damages, liabilities or costs including without limitation reasonable attorneys’ fees and defense costs, arising out of or in any way connected with this Agreement, excepting only those damages, liabilities or costs attributable to the grossly negligent acts by Company in the performance of its services under this agreement. Customer agrees to investigate, handle, respond to, provide defense for and defend any such claims, demands or suits at its sole expense and agrees to bear all other costs and expenses related thereto, even if the claim, demand or suit is groundless, false or fraudulent.
15. Limitation on Liability and Disclaimer of Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL THEORY, INCLUDING BUT NOT LIMITED TO DAMAGE TO CUSTOMER’S PROPERTY, PAVEMENT, CURBING DRIVEWAYS, WALKWAYS, LANDSCAPING AND/ OR LAWN WHICH IS RELATED TO OR ARISING FROM THE STORAGE OR TRANSPORT OF THE EQUIPMENT IN OR ON CUSTOMER’S PREMISES EVEN IF COMPANY HAS BEEN ADVISED OF, KNOWS OF, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THE EQUIPMENT IS PROVIDED ON AN “AS IS” BASIS AND COMPANY MAKES NO WARRANTIES TO CUSTOMER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES AS TO THE MERCHANTABILITY, FITNESS FOR ANY PARTICULAR USE OR PURPOSE OR THAT THE EQUIPEMENT WILL MEET ANY REQUIREMENTS. COMPANY’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, will be limited to, at the COMPANY’S option, replacement or correction of any Services not in conformance with this Agreement or to the repayment of the portion of compensation paid by CUSTOMER attributable to the nonconforming Services. The COMPANY will not be liable for any other damages, special, direct, indirect, incidental, consequential or otherwise, and in no event shall the COMPANY’S liability exceed the compensation for the nonconforming services. CUSTOMER HEREBY WAIVES ANY AND ALL CLAIMS AND LOSSES AGAINIST COMPANY RELATING TO OR ARISING FORM CUSTOMER’S RENTAL OF THE EQUIPEMENT AND/OR COMPANY’S PERFORMANCE UNDER THIS AGREEMENT
16. Construction. Whenever the singular number is used in this Agreement and when required by context, the same shall include the plural and vise versa, and the masculine gender shall include feminine and neuter genders and vice versa. The headings in this Agreement are inserted for convenience only and are in no way intended to describe, interpret, define, or limit the scope, extent or intent of this Agreement or any provisions hereof. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.
17. Waivers. The delay or failure of any party to seek redress for default of or to insist upon the strict performance of any convent or condition of this Agreement shall not be deemed or construed to be a consent or waiver and shall not prevent a subsequent act, which would have originally constituted a default, from having the effect of an original default, unless such waiver be so expressed in writing and signed by both parties.
18. Rights and remedies. Rights and remedies provided by this Agreement are cumulative and the rise of any one right or remedy by any party shall not preclude or waive the right to use any other remedy. Said rights and remedies are given in addition to any other legal rights the parties might have.
19. Governing Law. This Agreement is entered into under and shall be governed by the laws of the state of Texas excluding its choice of law provisions.
20. Arbitration. Any and all disputes, controversies, claims, or other disagreements arising out of or relating to this Agreement, or the actual or alleged breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction arbitration will be conducted in the English language in Austin, Texas on a confidential basis and in accordance with the United States Arbitration Act. There shall be one arbitrator, named in accordance with such rules.
21. Entire Agreement. This Agreement constitutes the entire understanding and agreement between the parties and supersedes all prior agreements, representations, and understandings of the parties, written or oral. No modification or amendment of any provision of this Agreement will be binding on any party unless in writing and signed by all the parties. Any of Customer’s terms contained in any Customer documents which are in addition to or different from the terms contained herein are hereby specifically objected to, rejected and excluded and shall be of no force or effect.
This Agreement shall be binding upon Company and Customer and their respective heirs, executors, legal representatives, and successors.
22. Severability. If any term or provision of this Agreement is held to be void or unenforceable, that term or provision will be severed from this Agreement, the remainder of this Agreement and the application thereof shall not be affected and shall be enforceable to the fullest extent permitted by the law so as to give effect to the original intent of the parties hereto.
23. Force Majeure. Neither party shall be liable for, and is excused from, any failure to perform or delay in the performance of its obligations under this Agreement due to causes beyond its control, including without limitation: (a) compliance with any applicable law, ordinance, regulation, rule, order or requirement of any government, department, agency or court of competent jurisdiction; (b) an act of God, fire, floods, natural disasters; (c) acts or omissions of the other party; (d) strikes, war, insurrections, riots, work stoppages, labor disputes, or other catastrophes, electrical, computer or mechanical failure; or (e) any other cause beyond such party’s reasonable control.