AGENCY AGREEMENT. p. 1 of 4 (excluding exhibits) Contract version:

Transcription

1 This Agency Agreement (this Agreement ) is effective as of, by and between Dispose-All LLC, a Michigan limited liability company ( Dispose-All ), and the entity listed under the heading Hauler on the signature page to this Agreement ( Hauler ). Recitals WHEREAS, Dispose-All operates an internet-based business in which third parties ( Customers ) request that Dispose-All make the necessary arrangements with a waste hauler to rent roll-off dumpsters ( Roll-Offs ) and dispose of waste placed into those dumpsters ( Waste Materials ); WHEREAS, Hauler is engaged in the business of delivering Roll-Offs to specified locations and hauling the Waste Materials deposited in those Roll-Offs to appropriate landfills or recycling centers ( Services ); and WHEREAS, Hauler desires to appoint Dispose-All as Hauler s agent for purposes of entering into agreements with Customers for Services and Dispose-All has agreed to accept such appointment on the terms and conditions set forth in this Agreement; NOW, THEREFORE, the parties agree as follows. 1. Appointment of Agent. Subject to the terms and conditions set forth in this Agreement, Dispose-All is hereby appointed to act on behalf of Hauler for purposes of (a) entering into agreements with Customers for Services ( Customer Agreements ) on the terms described in Section 2 below, (b) collecting payment from such Customers for such Services and (c) taking such other administrative actions as Dispose-All deems necessary or desirable for purposes of carrying out the terms of this Agreement and the Customer Agreements. In performing its functions as agent of Hauler, Dispose-All is not assuming, and shall not be deemed to have assumed, any obligation of Hauler whatsoever, including under any Customer Agreement. Dispose-All shall have no obligations, duties or responsibilities except for those expressly set forth in this Agreement. 2. Customer Agreements. (a) Execution. If Dispose-All has received a request from a Customer for Services to be performed within either the territory described on Exhibit A or anywhere else Hauler has agreed, including verbally or by Hauler s conduct, to perform Services (the Territory ), and Dispose-All has determined, in its discretion, that Hauler should provide such Services, then Dispose-All shall have the authority to act as Hauler s agent for purposes of executing, on behalf of Hauler (by means of an electronic signature or other evidence of execution), a Customer Agreement in the form attached hereto as Exhibit C (the Standard Form ). Dispose-All shall not have authority to bind Hauler to any Customer Agreement that is not materially equivalent to the Standard Form; provided, however, that Dispose-All shall have the authority to complete the blank information (including the time, location and type of Services to be provided) set forth in the Standard Form prior to execution on behalf of Hauler, including the authority to determine, on a case-by-case basis, the fees to be charged to each Customer under each Customer Agreement (the Customer Fee ). For clarity, the Customer Fee is independent of and unrelated to the Hauler Payment described in Section 4(a). (b) Notification. If Dispose-All executes a Customer Agreement on behalf of Hauler, Dispose-All shall promptly notify Hauler and shall include in such notification (i) the name of the applicable Customer and (ii) the details of the Customer Agreement necessary for completion of the Services, including the time, location and type of Services to be provided. (c) Non-Exclusive. Hauler acknowledges that the agency relationship between Dispose-All and Hauler is not exclusive and that Dispose-All may also act as agent for other persons or entities that provide Services within the Territory, even if they compete directly with Hauler. Hauler hereby waives any conflict of interest claim it may have against Dispose-All. 3. Performance of Services. (a) Services. Hauler accepts full responsibility for performing the Services described in each Customer Agreement executed by Dispose-All on Hauler s behalf. Hauler acknowledges that it is solely responsible for properly delivering Roll-Offs and collecting, disposing and recycling Waste Materials in compliance with all applicable laws, rules and regulations. Hauler will ensure that it maintains all required licenses, permits and other approvals necessary to perform the Services. Hauler will be solely responsible for selecting an appropriate disposal location and characterizing the Waste Materials deposited in the Roll-Offs by the Customer. All documents concerning the shipment of the Waste Materials shall name Hauler as the transporter. Hauler shall immediately notify Dispose-All if Hauler would, for any reason, be unable to perform under this Agreement or any p. 1 of 4 (excluding exhibits) Contract version:

2 existing or potential Customer Agreements (including, for example, if Hauler s required licenses have lapsed); provided, however, that such notice shall not excuse any breach by Hauler of this Agreement or any Customer Agreement caused by such inability to perform. (b) Timing. Hauler acknowledges that the provision of timely Services is an essential and material term of this Agreement and the Customer Agreements entered into on Hauler s behalf. Hauler agrees to deliver Roll-Offs of the size requested on the delivery date requested, which may be as early as Hauler s next day of normal operation. If Hauler does not have the exact size Roll-Off requested by a Customer, Hauler will deliver a Roll-Off of the next available larger size; however, the Hauler Payment shall be determined based on the Roll-Off size originally requested by the Customer. (c) Hazardous Waste. Notwithstanding the foregoing, nothing in this Agreement or in any Customer Agreement shall require Hauler to provide Services with respect to Hazardous Waste (as defined herein), and if Hauler provides any Services with respect thereto it shall be specifically responsible for, and shall indemnify Dispose-All from and against, any and all liabilities resulting from or related to such Hazardous Waste. As used in this Agreement, Hazardous Waste shall mean any radioactive, volatile, corrosive, highly flammable, explosive, infectious, toxic or hazardous material, any medical waste, or any material that due to its nature or composition requires special treatment or handling including, but not limited to, any type of waste or material listed or characterized as hazardous or special by the United States Environmental Protection Agency or by any state agency pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C et seq., the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, 42 U.S.C et seq., any similar state law regarding the environment, or by any other applicable federal or state law. (d) Cost of Services. Hauler will be solely responsible for all costs associated with the performance of the Services under the Customer Agreements, including disposal, recycling, transportation, equipment and licensing costs, taxes, fees, tariffs, surcharges and any other cost or expense incurred in the performance by Hauler of such Services. The Fee Schedule described in Section 4(a) shall only be modified in accordance with the terms of such Section and shall not be affected by any change in the cost to Hauler of performing Services under the Customer Agreements. 4. Payment. (a) Hauler Payment and Agency Fee. Within 31 days of completion of the Services described in a Customer Agreement, Hauler shall deliver an invoice to Dispose-All which shall include all of the information listed on Exhibit B. Within 30 days after receipt of each invoice, Dispose-All will remit to Hauler the applicable fee amount described on Exhibit A (the Fee Schedule ) for the Services performed (the Hauler Payment ). With respect to each completed Customer Agreement, Dispose-All shall retain the excess of the Customer Fee over the Hauler Payment as Dispose-All s agency fee paid by Hauler ( Agency Fee ). Hauler will be entitled to modify the Fee Schedule twice every 12 months by giving Dispose-All not less than 30 days advanced written notice. Hauler will retain records that substantiate the information set forth in each invoice delivered to Dispose-All including, without limitation, all weight tickets, for a period of at least one year from the date of each invoice. (b) Collection. Dispose-All shall, on behalf of Hauler, collect the Customer Fee from Customers for the Services described in the Customer Agreements either at the time each Customer Agreement is executed or upon completion of the Services. Hauler shall not charge any Customers any amounts other than through Dispose-All acting as its agent under this Agreement. 5. Agency Relationship Only. Dispose-All and Hauler acknowledge and agree that the former is acting as the agent for the latter only with respect to the matters set forth in this Agreement and that, except for such agency relationship, Dispose-All and Hauler are not, and have not, entered into an independent contractor, distributor, representative or similar relationship nor are they forming a partnership or joint venture. The parties acknowledge that the duties of Dispose-All as agent for Hauler will be administrative in nature and Dispose-All shall not have, or be deemed to have, by reason of this Agreement or otherwise, a fiduciary relationship with respect to Hauler. 6. Representations and Warranties. Hauler represents and warrants to Dispose-All that (a) Hauler is experienced in the business of providing the Services, (b) it will handle, load, transport, recycle and dispose of all Waste Materials in a safe and workmanlike manner and in full compliance with all applicable legal requirements and reasonable Customer specifications to the extent such specifications do not conflict with any applicable law, rule, regulation or any permit or license, (c) it is and it shall remain in full compliance with all federal, state and local laws pertaining to its business and operations, (d) it is and shall remain fully licensed and in good standing to p. 2 of 4 (excluding exhibits) Contract version:

3 operate in the Territory, (e) it has the authorization, power and right to execute, deliver and fully perform its obligations under this Agreement in accordance with the terms hereof and (f) this Agreement does not require any authorization, consent, approval, exemption or other action by Hauler or any other party that has not been obtained and does not conflict with or result in the breach of the terms, conditions or provisions of, constitute a default under, or result in a violation of any agreement, instrument, order, judgment or decree to which Hauler is subject. 7. Indemnification. Hauler agrees to indemnify and hold Dispose-All harmless from and against any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever (including reasonable attorneys fees) ( Losses ) that may be imposed on, incurred by, or asserted against Dispose-All in any way relating to or arising out of this Agreement, the Customer Agreements, the Services or any action taken or omitted to be taken by Dispose-All acting as agent for Hauler; provided, however, that Hauler shall not be liable to indemnify and hold Dispose-All harmless from and against any such Losses resulting from Dispose-All s gross negligence or willful misconduct. With respect to any matter for which Dispose-All is entitled to indemnification hereunder that involves a third party claim, Hauler shall be entitled to assume the defense of such claim with counsel reasonably satisfactory to Dispose-All. For clarity, if Hauler fails to assume such defense or fails to select counsel reasonably satisfactory to Dispose-All, Dispose-All shall be entitled to recover all legal fees it incurs in defending such claim as additional Losses. 8. Term and Termination. The term of this Agreement shall be for one (1) year from the date hereof unless sooner terminated in accordance with the terms below. This Agreement shall automatically renew on an annual basis unless either party provides written notice of non-renewal at least sixty (60) days prior to the expiration of the term then in effect. Either party may terminate this Agreement in the event of a breach by the other; provided, however, that if such breach can be cured, the terminating party must give the other party at least fifteen (15) days to cure such breach and, if cured, such breach may not form the basis for termination of this Agreement. The parties agree that failure by Hauler to fulfill its requirements to provide Services under any Customer Agreement on the terms stated therein (including with respect to timing) is a breach under this Agreement that cannot be cured. 9. Subcontractors. Hauler may subcontract its obligations under this Agreement provided that (a) any such subcontractors agree to be bound by the terms of this Agreement and (b) Hauler shall be directly responsible for compliance with the terms of this Agreement by such subcontractors and shall indemnify and hold Dispose-All harmless from and against any liability that accrues to Dispose-All as a result of a subcontractor s activities. 10. Confidentiality. Hauler agrees to keep strictly confidential and not to use (except as necessary to the performance of its obligations under this Agreement) or disclose to any third party any information concerning the business practices and affairs of Dispose-All that Hauler may learn as a result of this Agreement. 11. Non-Compete. Hauler shall not solicit or perform any Services for any Customer for whom Services have been provided by Hauler, pursuant to Exhibit A TERRITORY AND FEE SCHEDULE, under the terms of this Agreement, except for (i) subsequent Services provided under the terms of this Agreement or (ii) until 12 months has passed after the date such Customer was last provided Services by Hauler under the terms of this Agreement. 12. Insurance Coverage. During the term of this Agreement, Hauler agrees to maintain, at its expense: (a) Comprehensive General Liability Insurance with combined single limits of at least $1,000,000, including (without limitation) blanket contractual liability, owner s and contractor s protective liability, personal injury, products, completed operations, broad form property damage non-owned; and (b) Automotive Liability Insurance with combined single limits of at least $1,000,000, owned and (c) Workmen s Compensation in the statutory amount and employer s liability of at least $500,000; (d) pollution legal liability insurance coverage covering claims or losses for bodily injury, property damage or clean-up costs resulting from the handling, transportation and disposal of Waste Material, including any Hazardous Waste, in the course of the performance of the Services under this Agreement, with a combined single limit for personal injury, death and property damage arising out of any one occurrence of at least $2,000,000, and a per claim deductible of not greater than $50,000. Upon execution of this Agreement and thereafter as requested by Dispose-All, Hauler shall be required to provide a certificate of insurance to Dispose-All. Such certificate of insurance shall name Dispose-All as an additional p. 3 of 4 (excluding exhibits) Contract version:

4 insured and shall provide that such policies will not be canceled or coverages thereunder reduced without having provided Dispose-All with at least thirty (30) days prior written notice. 13. Miscellaneous. (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 in one or more counterparts, all of which together shall constitute one and the same Agreement. (b) Assignment; Third Parties. Neither party shall assign its rights and interests or delegate its obligations hereunder to any third party without the other party s prior written consent. Notwithstanding the foregoing, either party may, upon written notice to the other, assign this Agreement to any successor entity upon a merger, reorganization, consolidation or sale of all or substantially all of such selling party's assets; provided, however, that such assignment shall not relieve the assigning party of any obligations under this Agreement that accrued prior to such assignment. This Agreement shall be binding against and enforceable by each party s successors and permitted assigns. Nothing in this Agreement is intended to confer, nor shall confer, any rights or benefits of any kind on any third party not a party hereto. (c) Partial Invalidity. If, at any time, any provision hereof is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions hereof, nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby. (d) Amendments. This Agreement may only be amended or modified by a writing signed by both parties; provided, however, that the Fee Schedule may be modified in accordance with the procedures described in Section 4(a). (e) Notices. Any notice given by one party to the other shall be deemed properly given if personally delivered, delivered by overnight courier or if delivered by facsimile or electronic mail and specifically acknowledged by the receiving party as follows: If to Dispose-All: Dispose-All N. Scottsdale Rd Suite B524 Scottsdale, AZ Attention: If to Hauler: Attention: (f) Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan without regard to its choice of law provisions. 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 the State of Michigan 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. above. IN WITNESS WHEREOF, the parties have caused this Agency Agreement to be executed as of the date first written HAULER: DISPOSE-ALL LLC By: Name: Its: Date: Company name: By: Name: Its: Date: p. 4 of 4 (excluding exhibits) Contract version:

5 EXHIBIT A TERRITORY AND FEE SCHEDULE

6 EXHIBIT C TERMS AND CONDITIONS OF SALE Page 1 of 1

7 EXHIBIT B 1. The following items shall be listed on the Hauler s invoice for each dumpster order: a. Delivery street, city and state b. Size of the dumpster c. Delivery date d. Pickup or retrieval date e. Actual tonnage f. Tonnage rate g. Dollar amount and itemized description of each extra disposal item charge [if applicable] h. Dollar amount and number of additional days billed [if applicable] i. Dollar amount of any dry runs [if applicable] j. Date of dry run [if applicable] k. Sales Tax [if applicable] 2. Hauler shall within seven days of request provide Dispose-All a copy of the weight ticket. 3. Hauler shall within seven days of request provide Dispose-All a copy of any document waiving Hauler s liability for placement of the dumpster. DETROIT Page 1 of 1