Granger’s Terms and Conditions
Applicability. These Terms and Conditions, along with the accompanying cover and any applicable schedule thereto (the “Agreement”), are the entire agreement between Granger and Customer the (the “Parties”). This Agreement supersedes all other written or oral understandings, agreements and communications. Customer agrees and understand that Granger may periodically make changes to these Terms and Conditions, and that those changes will be effective ten (10) days after posted on Granger’s website located at grangernet.com. In the event of any conflict between these Terms and Conditions and the Disposal Agreement Cover Page, the terms of the Disposal Agreement Cover Page shall control.
Waste. The Customer represents, warrants and covenant that all of the materials presented to Granger (“Waste”) (i) will not contain any hazardous materials or substances, radioactive materials or substances or toxic waste or substances, that is inappropriate for disposal at a municipal solid waste landfill, also called “Type II landfills,” and (ii) will not contain any materials that Granger designates as unacceptable in the Disposal Agreement or on Granger’s website in each case as may be amended from time to time in Granger’s sole discretion. Any Waste which does not meet these requirements (whether in Granger’s possession or otherwise) will be referred to in this Agreement as “Unacceptable Waste.” In all matters relating to the collection, transportation and disposal of Waste under this Agreement, Customer will comply with all applicable laws, regulations, rules and orders.
All Waste that is not Unacceptable Waste shall be considered “Acceptable Waste.” Title in and to Acceptable Waste shall pass to Granger when it is in Granger’s possession or control. Title to all Unacceptable Waste handled or disposed of by Granger shall remain with Customer at all times. If Customer delivers waste that contains both Acceptable Waste and Unacceptable Waste, the entire delivery shall constitute Unacceptable Waste if the Unacceptable Waste cannot be separated from the Acceptable waste through the reasonable efforts of Granger, as Customer’s agent to cause such separation, with the cost of such separation to be paid by the Customer.
Rights of Refusal/Rejection. Granger has the right to refuse or to reject any Waste at any time and for any reason. Granger has the right to inspect all vehicles and containers of Waste, including Customer vehicles, to determine whether the Waste is Acceptable Waste or Unacceptable Waste. Granger’s exercise, or failure to exercise, its rights under this Agreement does not relieve Customer of its responsibilities or liability under this Agreement. Customer is responsible for, and bears all reasonable expenses and damages incurred by Granger, related to Unacceptable Waste. Granger may also, in its sole discretion, require Customer to promptly remove any Unacceptable Waste.
Continuing Compliance. Customer has a continuing obligation to inform Granger of any information that may affect the acceptability of the Waste. Customer will comply with all of Granger’s requests for evidence of continuing compliance with the terms of the Agreement including, but not limited to, any or all of the following: (i) providing new, updated Waste profiles on the Waste offered for disposal, (ii) providing appropriate certification that the Waste being offered for disposal is accurately reflected by the Disposal Agreement, (iii) re-sample the Waste at Customer expense if reasonable cause exists as to its acceptability under the terms of this Agreement, or (iv) allow Granger to re-sample the Waste at Customer’s expense if reasonable cause exists as to its acceptability under the terms of this Agreement.
Customer’s Obligations. Customer will: (a) cooperate with Granger in all matters relating to the Services, including complying with Section 2 (Waste), Section 3 (Rights of Refusal/Rejection) and Section 4 (Continuing Compliance), (b) respond promptly to any request from Granger to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Granger to perform the Services in accordance with the terms of this Agreement; (c) provide any materials or information that Granger may request to enable Granger to carry out the Services in a timely manner, and ensure that such materials or information are complete and accurate; and (d) obtain and maintain all necessary licenses and consents, and comply with all applicable laws in relation to the Services, before Granger starts providing the Services. If Customer or its agents, subcontractors, consultants or employees in any way prevent or delay Granger from providing the Services, Granger will not be deemed in breach of the Agreement or otherwise liable for any costs or losses incurred by Customer, in each case, to the extent such costs or losses arise directly or indirectly from such prevention or delay.
Fees and Expenses; Payment Terms; Interest on Late Payments; True-Up Period. In return for the Services, Customer will pay the fees shown on the cover of this Agreement, and Customer will reimburse Granger for all government-imposed surcharges, fees and taxes levied on the disposal or management of Waste (defined in Section 2), including all surcharges, fees and taxes that Granger is obligated to pass-through to, and collect from, Customer (which may be rolled into Granger’s rates or separately line itemed on an invoice). Customer will pay Granger all invoiced amounts in US dollars within twenty (20) days of receiving Granger’s invoice, or as otherwise set forth in the Disposal Agreement. If Customer does not make payment by such date, Customer shall pay a late payment fee in an amount equal to the lesser of (i) the greater of $10 per month or one and on-half percent (1.5%) per month or portion thereof on the amount past due or (ii) the maximum amount allowed by Applicable Law. Customer also shall pay a fee of up to $50 (which Granger my increase from time to time by notice to Customer) for each check submitted by Customer that is an insufficient funds check or is returned or dishonored. At any time after Granger become concerned about Customer’s creditworthiness or after Customer has made any late payment, Granger may request, and if requested Customer shall pay, a deposit in an amount equal to one month’s charges under this Agreement. Customer is responsible for all sales, use and excise taxes, and any other similar charges imposed by any governmental entity on any amounts payable by Customer under the Agreement.
If a True-Up provision is indicated on the Cover of this Agreement, at the end of each True-Up Period (“True-Up Period”), Granger shall aggregate the variances over the True-Up Period. Granger shall invoice Customer for, and within twenty (20) days of Customer’s receipt of such invoice, Customer shall pay Granger any shortfall in accordance with the Rate Schedule set forth on the Disposal Agreement Cover Page of this Agreement. If the True-Up period is identified as quarterly, the True-Up Period shall end on March 31, June 30, September 30, and December 31 of each calendar year, and the rates for the first and last calendar quarter shall be pro-rated to adjust for the length of the period.
Representation and Warranty. Granger will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, and Granger will devote adequate resources to meet Granger’s obligations under this Agreement. Granger will not be liable for breaching this warranty unless, within three (3) days of the time when discovered or ought to have discovered that the Services were defective, Customer provides written notice reasonably describing the defective Services. If Customer provides timely notice, Granger will, at its option, either: (i) repair or re-perform such Services, or (ii) credit or refund the price of such Services at the pro rata contract rate. The remedies set forth in this Section 8 shall be Customer’s sole and exclusive remedy and Granger entire liability for any breach of the limited warranty set forth herein. Except for the warranty set forth in THIS Section 8, Granger makes no warranty whatsoever with respect to the services whether express or implied by law, course of dealing, course of performance, usage of trade or otherwise.
Limitation of Liabilities. In no event shall Granger be liable to customer or to any third party for any loss of use, revenue or profit or diminution in value, or for any consequential, incidental, indirect, exemplary, special or punitive damages whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not Granger has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose. In no event shall Granger’s aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the aggregate amounts paid or payable to Granger pursuant to the applicable Agreement in the three (3) month period preceding the event giving rise to the claim.
Termination. In addition to any remedies provided under this Agreement, Granger may terminate this Agreement effective immediately upon Customer’s receipt of Granger’s written notice if Customer: (a) fails to pay any amount when due under this Agreement; (b) has not performed or complied with any of the terms of this Agreement, in whole or in part; or (c) becomes insolvent, file a petition for bankruptcy or commence or have commenced against Customer proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Customer may terminate this Agreement effective upon ninety (90) days’ written notice, if Granger materially breaches any obligation in this Agreement and such breach remains uncured for ten (10) days.
Indemnification. To the fullest extent authorized by law, Customer will indemnify, defend and hold harmless Granger and Granger’s subsidiaries, affiliates and parent corporations, and all respective officers, directors, lenders, employees, subcontractors and agents (collectively, “Indemnified Parties”) from and against any and all claims, suits, losses, liabilities, assessments, damages, fines, costs and expenses, including reasonable attorneys’ fees, (collectively, “Damages”) arising under any laws, regulations, ordinances or common law, arising out of or in connection with (i) any Unacceptable Waste that Customer presents to Granger, (ii) Customer’s breach of this Agreement, or (iii) Customer’s or Customer’s employees’ or agents’ negligent acts or omissions. Customer is also responsible for all costs that Granger incurs due to its reasonable concerns as to the content or characteristics of the Waste following discovery of potentially Unacceptable Waste. The indemnification and obligations stated in this paragraph survive the termination of this Agreement for a period of five (5) years.
Miscellaneous. This Agreement shall be governed by the laws of the State of Michigan. No waiver of a breach of any of the obligations contained in the Agreement shall be construed to be a waiver of any prior or succeeding breach of the same obligation or of any other obligation of this Agreement. No modification, release, discharge or waiver of any provision or obligation hereof shall be of any force, or effect, unless in writing signed by all Parties to this Agreement. Each Party shall treat as confidential and not disclose to others (other than such Party’s officers, directors, affiliates, attorneys, and agents) during or subsequent to the terms of this Agreement, except as is necessary to perform this Agreement, or to comply with any applicable law or regulation any information (including any technical information, experience or date) regarding the other Party’s plans, programs, plants, processes, products, costs, equipment or operations which may come within the knowledge of either Party or its employees in the performance of this Agreement, without in each instance securing the prior written consent of the other Party. If any term, phrase, obligation or provision of this Agreement shall be held to be invalid, illegal or unenforceable in any respect, this Agreement shall remain in effect and be construed without regard to such term, phrase, obligation or provision. This Agreement constitutes the entire understanding between the Parties, replacing and amending any prior agreements between the Parties, and shall be binding upon all Parties hereto, their successors, heirs, representatives and assigns. It is the understanding and agreement of the Parties that Granger is an independent contractor, and is not an agent, nor an authorized representative of Customer. All notices herein provided for shall be considered as having been given upon: (i) receipt if delivered personally or electronically; or (ii) being placed in the mail, certified postage prepaid addressed to Granger or Customer at the address herein set forth in this Agreement or to such other address as may be given to the other Party in writing. Any delays in or failures of performance of a Party under this Agreement shall not be considered a breach of this Agreement if and to the extent caused by occurrences beyond the reasonable control of the party affected, including but not limited to acts of God; changes in regulations or laws of any government; strikes or other concerted acts of workers; fires; floods; explosions; riots; wars; rebellions; and sabotage; and any time for performance hereunder shall be extended by the actual time of delay caused by such occurrence.