Additional Transportation Terms and Conditions
Notwithstanding anything to the contrary contained in the Master Lease & Services Agreement by and between Customer and Contractor (the "Master Agreement") or any subsequent Purchase Order, Work Order, or other similar document, the following terms shall apply to Contractor's transportation/non-hazardous waste hauling services provided on behalf of Customer. Capitalized terms used but not defined herein shall have the meaning set forth in the Master Agreement.
- Services; Waste Materials. As may be requested in one or more Purchase Orders or Change Orders, Contractor shall provide transportation services related to non-hazardous waste materials ("Waste Materials") generated by the Customer. At or prior to the scheduled time for pick-up, Customer shall provide a true, accurate and complete description of the Waste Materials to be retrieved by Contractor as set forth in one or more waste profile sheets, material safety data sheets, waste characterization reports or other written descriptions or analyses (each a "Profile Sheet"). The generator of the Waste Materials will be identified by Customer on the applicable Profile Sheet, and Customer hereby represents to Contractor that no Transportation Services will be performed by Contractor until the applicable Profile Sheet has been signed by the generator of the Waste Materials. Customer acknowledges and agrees that Contractor shall not, under any circumstances whatsoever, be identified as the generator of the Waste Materials or be expected to sign a Profile Sheet. Customer expressly acknowledges that Contractor will not independently analyze or verify the Waste Materials but rather is relying exclusively on the Profile Sheet delivered incident to the transportation services, which Customer represents, warrants and covenants shall be true, accurate and complete to the best of its knowledge. Customer also warrants that any containers of Waste Materials retrieved by Contractor will be marked, labeled, and otherwise in conformance with all applicable federal, state, and local laws and regulations. Contractor shall have the right, but not the obligation to inspect, analyze and/or test any Waste Materials before performing the transportation services. Failure or refusal of Customer to provide Contractor with access to any Waste Materials prior to commencement of the transportation services shall cause such Waste Materials to be deemed Nonconforming Waste (as defined below). Contractor's exercise of, or failure to exercise, its right hereunder shall not operate to relieve Customer of its responsibility or liability under the Agreement or any Purchase Order issued thereunder.
- No Transportation of Hazardous Substances. Customer acknowledges that Contractor is not agreeing to transport any Hazardous Substances (as defined below) pursuant to the Agreement. "Hazardous Substances" means any substance, chemical, material or waste (a) which is regulated by any federal, state or local governmental authority because of its toxic, flammable, corrosive, reactive, carcinogenic, mutagenic, infectious, radioactive, or other hazardous property or because of its effect on the environment, natural resources or human health and safety, including, but not limited to, petroleum and petroleum products, asbestos-containing materials, polychlorinated biphenyls, lead and lead-based paint, radon, radioactive materials, flammables and explosives; and/or (b) which is designated, classified, or regulated as being a hazardous or toxic substance, material, pollutant, waste (or a similar such designation) under any federal, state or local law, regulation or ordinance, including under any Environmental Law such as the Comprehensive Environmental Response Compensation and Liability Act, as amended (42 U.S.C. §9601 et seq.), the Emergency Planning and Community Right-to-Know Act, as amended (42 U.S.C. §11001 et seq.), the Hazardous Substances Transportation Act, as amended (49 U.S.C. §1801 et seq.), the Clean Air Act, as amended (42 U.S.C. §7401 et seq.), or the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C. §6901 et seq.), and any regulations promulgated thereunder.
- Nonconforming Waste. If Customer delivers to Contractor or Contractor retrieves (on behalf of Customer) any Nonconforming Waste (as defined below), Contractor shall immediately provide notice to Customer upon its discovery thereof. Following such notice, Contractor may pursue one of the following courses of action: (a) Contractor may require Customer to immediately collect and remove part or all of the Nonconforming Waste and to transport and/or dispose of such Nonconforming Waste to a lawful place of disposition; (b) Contractor may return the Nonconforming Waste to Customer within a reasonable time after notice of nonconformity has been communicated to Customer; (c) Contractor may transport and/or dispose of the Nonconforming Waste to a lawful place of disposition; or (d) Contractor may agree with Customer to some mutually acceptable alternative lawful manner of disposition of the Nonconforming Waste. In all events, Customer shall pay Contractor its reasonable expenses and charges for retrieving, handling, loading, preparing, transporting, storing, caring for and disposing of, any Nonconforming Waste. For purposes of the Agreement, the term "Nonconforming Waste" shall mean Waste Materials that (i) do not conform to the descriptions in the applicable Profile Sheet, (ii) contain Hazardous Substances, (iii) are not in accordance with the representations, warranties and descriptions, specifications or limitations set forth in the Agreement or any Purchase Order issued thereunder, and/or (iv) are rejected as unacceptable for disposal by the designated disposal facility.
- Transportation Services. Contractor shall transport and deliver the Waste Materials to the designated disposal facility in accordance with the provisions of the Agreement, any Purchase Orders, any Change Orders and all applicable laws, rules, regulations, and orders, and shall deliver the Waste Materials to the designated disposal facility. Customer shall have the sole responsibility and obligation for verifying the accuracy and completeness of the description of the Waste Materials contained in the Profile Sheet or work authorizations (or similar document), the quantities thereof and for determining that the packaging, labeling, marking, coding and placarding of same for shipment complies with all applicable federal, state and local laws and regulations prior to transport thereof.
- Risk of Loss. Risk of loss to all Waste Materials tendered to Contractor shall pass from Customer to Contractor upon Contractor's acceptance of delivery thereof but only until delivery thereof by Contractor to Customer's designated disposal facility, after which Contractor shall not bear any further risk of loss. If any event resulting in death, injury, accident, property damage, environmental contamination, significant media coverage or community evacuation occurs while Contractor performs any transportation services, Contractor shall immediately report such matters to Customer. Title to any Waste Materials shall at all times remain with Customer. Notwithstanding the foregoing, in no event shall Contractor have any risk of loss with respect to any Nonconforming Waste tendered to Contractor and such risk of loss shall, at all times, remain with Customer.
- Retrieval and Disposal Sites. Customer shall arrange for, select, designate, and communicate to Contractor all locations or facilities where Contractor is to retrieve the Waste Materials. Customer shall arrange for, select, designate, and communicate to Contractor all recycling, reclamation, treatment, storage, or disposal facilities to which Contractor is to transport the Waste Materials. Customer acknowledges and agrees that Contractor shall not be responsible in any way for selecting, designating or communicating to Customer as to which recycling, reclamation, treatment, storage, or disposal facilities that Customer decides to transport the Waste Materials to, and that such selection, designation or communication is the sole responsibility of Customer or the generator identified on the applicable Profile Sheet. Customer represents and warrants that any disposal facility selected to receive the Waste Materials is properly permitted to receive the Waste Materials under applicable federal, state and local laws and regulations. In the event that the designated disposal facility rejects delivery of the Waste Materials, Contractor shall immediately notify Customer prior to taking further action. Contractor shall then proceed only according to Customer's instructions. Customer agrees that it shall bear all additional costs and expenses arising from such rejection to the extent such rejection is due to causes outside of Contractor's control and/or responsibility, including, but not limited to, (a) rejections due to the nonconformance of the Waste Materials to the descriptions contained in the Profile Sheet, work authorizations (or similar document) or other written instruction relating to the transportation services; (b) mishandling, mislabeling, miscoding, or improper packaging, placarding, or labeling of the Waste Materials; (c) failure of Customer to properly schedule delivery with the disposal facility; (d) the violation of any applicable law, rule, regulation, or order by Customer; or (e) any negligent or willful act or omission of Customer in connection with the storage or loading of the equipment used in connection with the transportation services prior to any transportation services being rendered hereunder.
- Charges. In addition to the rates set forth in any Purchase Order or Change Order, Contractor may charge Customer additional amounts including (a) any fuel surcharge, fixed by Contractor and Customer from time to time; (b) additional equipment, materials or personnel needed to perform the transportation services; and/or (c) any amounts which Contractor is required to pay to local, state, or federal governments or agencies by virtue of a tax, tariff, fee, surcharge, or other charge in connection with the performance of the transportation services (other than an income tax).
- Contractor shall indemnify, defend and hold harmless Customer, its affiliates, subsidiaries, directors, officers, employees and agents from and against all losses, damages, liabilities, penalties, fines, forfeitures, demands, claims, causes of action, suits, costs and expenses, including, but not limited to, costs of defense, settlement and reasonable attorneys' fees (including, but not limited to, investigative, removal or remedial expenses in connection with contamination of or adverse effect on the environment) arising out of or in connection with, any Waste Materials (other than and excluding Nonconforming Waste) handled by Contractor pursuant to the Agreement and any Purchase Order issued thereunder, but only to the extent arising during Contractor's custody or control of such Waste Materials.
- Customer shall indemnify, defend and hold harmless Contractor, its affiliates, subsidiaries, directors, officers, employees, and agents from and against all losses, damages, liabilities, penalties, fines, forfeitures, demands, claims, causes of action, suits, costs and expenses, including, but not limited to, costs of defense, settlement and reasonable attorneys' fees (including, but not limited to, investigative, removal or remedial expenses in connection with contamination of or adverse effect on the environment) arising out of or in connection with: (i) any disposal facility to which Contractor transported any Waste Materials; (ii) any Waste Materials (excluding any Nonconforming Waste) while not in the custody or control of Contractor; or (iii) any Nonconforming Waste (irrespective of whether in Contractor's custody or control).