1.0 GENERAL PROVISIONS
1.1 ACTenviro is a corporation engaged in the business of environmental management, including, but not limited to, the packaging, transportation, and disposal of hazardous waste; general and specific environmental, health and safety compliance; chemical relocations; radiological waste management; biological waste management; facility decontaminations; and on-site staffing of environmental professionals.
1.2 Upon acceptance of the agreement, the parties agree to be bound by the terms of the Service Agreement. The parties understand that the terms of the agreement and the terms of the Service Agreement make up the entire contract of the parties.
1.3 ACTenviro carries all permits and authorizations required to perform work for CUSTOMER.
1.4 The term of the agreement shall be intact until either party agrees to terminate with or without cause by giving 90 days written notification to the other party.
2.0 LAWFUL COMPLIANCE IN PERFORMANCE OF WORK
2.1 ACTenviro and CUSTOMER agree to comply with all applicable federal, state, and local laws and ordinances and lawful orders, rules, and regulations of any constituted authority that may pertain to the generation, collection, transportation, handling, storage or disposal of any of CUSTOMER’S waste. ACTenviro and CUSTOMER have obtained all necessary permits, licenses, and other forms of documentation required to perform their respective obligations hereunder and, upon request of the other party, each shall furnish copies thereof to such other party. CUSTOMER shall obtain generator EPA identification numbers and promptly notify ACTenviro of such EPA identification numbers and any changes thereto. As it pertains to the transporting of the waste material, ACTenviro, is acting as a common carrier and in no other capacity. ACTenviro will not accept improperly identified and/or unidentified material for packaging, transportation, and/or disposal.
2.2 CUSTOMER warrants that it is under no temporary or permanent injunction, administrative or court order or writ, which would prohibit or constrain the transportation, treatment, storage and/or disposal of such wastes by ACTenviro in any manner whatsoever.
3.0 OWNERSHIP AND TITLE OF WASTE
3.1 CUSTOMER warrants that it holds clear title to all the wastes to be packaged, transported, treated, stored, and or disposed of as part of the work. CUSTOMER assumes responsibility, without limitation, as “Generator” (as defined in the applicable statutes and/or regulations) for compliance with the Resource Conservation and Recovery Act, 42 USCA, section 6901, et seq., (hereinafter “RCRA”), the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601, et seq., (hereinafter “CERCLA”) and any federal, state or local statute, ordinance, treaty, or regulation that applies to “Generators” or entities responsible for the creation of hazardous waste or release thereof.
3.2 Nothing contained within this Contract shall be construed or interpreted as requiring ACTenviro to assume the status of “Generator” as that term appears in RCRA, CERCLA, or any federal, state, or local statute or ordinance or any treaty governing the generation, treatment, storage, transportation, and disposal of waste, such as, without limitation, the Hazardous Waste Control Act and the Carpenter-Presley-Tanner Hazardous Substance Account Act.
4.1 ACTenviro maintains insurance at or above the required levels required by governing agencies for work performed for CUSTOMER.
4.2 Certificates of insurance will be provided upon request.
5.0 WASTE DISPOSAL
5.1 CUSTOMER shall approve of the disposal facility to which the waste shall be taken. CUSTOMER acknowledges and agrees that the CUSTOMER alone has reviewed and approved of the place of disposal, as indicated by the CUSTOMER’S signature on relevant shipping documents.
6.0 NON-CONFORMING WASTE
6.1 CUSTOMER understands that waste pricing is highly dependent on the constituents, and percentage of constituents, of the waste. CUSTOMER warrants that all wastes which may be serviced under this agreement shall materially conform to the WASTE DESCRIPTIONS in the Proposal, which were provided to ACTenviro by CUSTOMER.
6.2 If CUSTOMER ships waste outside of the parameters outlined in the waste’s profile, CUSTOMER understands additional charges may result and agrees to pay the additional charges related to the packaging, transportation, and disposal of the non-conforming waste.
7.0 PRICING AND COMPENSATION
7.1 CUSTOMER agrees to compensate ACTenviro according to the parameters outlined in this agreement. ACTenviro will invoice the CUSTOMER as each stage of the project is completed. All invoices are due net thirty (30) days from the date of issuance. ACTenviro reserves the right to charge a market (%) finance charge per month for balances past due thirty (30) days.
7.2 Pricing may be modified to (a) include pricing for new services and/or (b) adjust current pricing for existing services. If the pricing is modified, ACTenviro shall provide CUSTOMER a Revised Pricing Schedule, which shall become effective upon the date of receipt, indicated by the signature of CUSTOMER.
8.1 ACTenviro agrees, to the fullest extent permitted by law, to indemnify and hold harmless CUSTOMER from and against any liabilities, damages, and/or costs (including reasonable attorney’s fees and cost of defense) arising out of the death or bodily injury to any person, or the destruction or damage to any property, to the extent caused, during the performance of services under this Contract, by the negligent acts, errors and/or omissions of ACTenviro or its officers, directors, principals, or employees, subject to the limitations outlined in Section 9.0 (Limitation of Liability) of this Contract.
8.2 CUSTOMER agrees, to the fullest extent permitted by law, to indemnify and hold harmless ACTenviro, its officers, directors, principals and employees, from and against any liabilities, damages, and/or costs (including reasonable attorney’s fees and cost of defense) arising out of the death or bodily injury to any person, or the destruction or damage to any property, to the extent caused, during performance of services under this Contract, by the negligent acts, errors or omissions of the CUSTOMER or CUSTOMER’S contractors, consultants or anyone for whom CUSTOMER is legally responsible.
9.0 LIMITATION OF LIABILITY
9.1 CUSTOMER acknowledges and understands the inherent difficulty in packaging and moving materials in chemical relocation projects. Examples may include, but are not limited to, chemicals, media, live stock cultures, refrigerated material, research compounds and/or pharmaceutical related material. If any damage occurs to the materials during the packaging, shipment, unpacking and placement of the materials, CUSTOMER agrees to submit claims only for the replacement value of the materials, and in no circumstance shall such claim(s) exceed $5,000 per project. CUSTOMER understands and agrees that $5,000 is the maximum allowed claim for the replacement and damage of materials under this Contract, and that all other damage and/or replacement claims are hereby waived by CUSTOMER.
9.2 All materials with a value in excess of $1,000 shall be identified to the ACTenviro project manager. Any items damaged by ACTenviro during relocation will have a maximum combined liability not to exceed $1,000 unless identified to the ACTenviro project manager in advance of start of work.
10.0 INDEPENDENT CONTRACTORS
10.1 CUSTOMER understands and acknowledges, and ACTenviro hereby agrees that this agreement shall not render the agents of ACTenviro as employees of CUSTOMER for any purpose. The agent of ACTenviro is and will remain an agent of ACTenviro in his or her relationship to CUSTOMER. Consequently, CUSTOMER shall not be responsible for withholding taxes with respect to the agent’s compensation. The agent shall have no claim against CUSTOMER hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker's compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind.
11.0 RESTRICTIVE COVENANT CONVERSION/RITE TO HIRE
11.1 If CUSTOMER wishes to hire or otherwise engage an ACTenviro employee as an employee, consultant, independent contractor, or in any other way utilize a person employed by ACTenviro, or hire, contract or in any other way utilize a person employed by ACTenviro within the previous 3 years of the date of said hiring, contracting or utilization, CUSTOMER agrees to pay ACTenviro a personnel acquisition fee equal to one year (2060 Hours) of the individual’s highest customer hourly billing rate.
12.1 CUSTOMER understands and agrees that ACTenviro may assign and subcontract certain portions of the work performed for CUSTOMER. However, ACTenviro warrants that all work performed for CUSTOMER by ACTenviro subcontractors shall carry all protections, restrictions and limitations as if ACTenviro performed the work.
13.0 ATTORNEY’S FEES
13.1 In any litigation, arbitration, or other proceeding by which one party either seeks to enforce its rights under this agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Contract, the prevailing party shall be awarded its reasonable attorney fees, and costs and expenses incurred.
14.1 Any notices required or permitted to be given under this agreement shall be given in writing and shall be delivered (a) in person, (b) by a commercial overnight courier that guarantees next day delivery and provides a receipt or (c) by or prepaid certified mail, return receipt requested to both: Advanced Chemical Transport, 967 Mabury Road, San Jose, CA 95133, Attn: Shawn Ball, Senior Vice President, and Advanced Chemical Transport Inc.
15.1 All information and material that may be disclosed by one party to the other in the course of performance of this Contract is considered confidential and proprietary and will not be used by the receiving party other than for the purposes under this agreement for which it was disclosed. The receiving party will protect such information from disclosure to third parties and hold it as confidential using the same degree of care as that party uses to protect its own confidential or proprietary material of like importance, but at least reasonable care. This obligation will continue for a period of two (2) years following receipt of the material and will survive any termination of this Contract, but it will not cover any information which is disclosed to a third party by the disclosing party without restrictions on disclosure, any information that has been or is developed independently by the receiving party without violation of obligations of confidentiality, any information that falls into the public domain without fault of the receiving party, any information that is rightly obtained by the receiving party from a third party without restriction, or any information that is rightly in the possession of the receiving party at the time of disclosure by the disclosing party.
16.0 FORCE MAJEURE
16.1 Neither party shall be liable in damages or have the right to terminate this agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including Acts of God, government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected.
17.1 If any provision or provisions of this agreement shall be held to be invalid, illegal, and unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
18.0 ENTIRE CONTRACT
18.1 This agreement, including the Scope of Work, Revised Pricing Schedule, Waste Profile Sheet(s) and any other schedule or exhibit referred to in this agreement, constitutes the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the subject matter of this agreement and supersede all prior and contemporaneous understandings or agreements, whether oral or written, of the parties. This agreement may not be contradicted by evidence of any prior or contemporaneous statements or agreements.
18.2 No party has been induced to enter into this agreement by, nor is any party relying on, any representation, understanding, agreement, commitment or warranty outside those expressly set forth in this agreement.
18.3 No modification shall be binding on ACTenviro unless in writing and signed by both parties. In no event shall the conflicting terms or conditions found on any CUSTOMER purchase or work order be considered an amendment or modification to this agreement.
19.0 GOVERNING LAW
19.1 The laws of the State of California shall govern the validity and interpretation of this agreement, without regard for conflicts of law principles of this, or any other, jurisdiction.
All personnel and equipment rates are subject to the following:
Double Time Recognized Holidays
|New Year’s Day
|Martin Luther King Jr. Birthday
|Independence Day (July 4th)
|Day After Thanksgiving
No rates provided account for prevailing wage rate tables or specific classes of labor
Disposal, Subcontractors, and Rental Equipment:
Disposal costs not listed, and all subcontractor services will be quoted on a case-by-case basis.
Day rates are based on 12-hours of operation beginning with mobilization. Minimum charge for Day rate equipment is daily charge per day with additional hours over 12 charged in a half-day increment. Equipment rates do not include operator or drive. Minimum call out for hourly equipment is 4 hours. All equipment remains on the clock and subject to charges until properly decontaminated by ACT personnel and returned to service. ACT personnel shall conduct all decontamination operations on its equipment. The Customer is responsible for damages and wear.
Non-Specified Container Conversion
|Cubic Yard Boxes
|250-275 gallon totes
|330-350 gallon totes