Terms and Conditions
Waste Dynamics, LLC, dba Dumpsters.com and its subsidiaries, located at 830 Canterbury Road, Westlake, Ohio 44145, (hereinafter “Company”), agrees to provide certain waste removal services, including the provision of required dumpster equipment ("Equipment") to customer ("Customer") (hereinafter collectively referred to as "Waste Removal Service(s)" or "Service(s)") on the basis of the terms and conditions as stated in these Commercial Services Terms and Conditions. (hereinafter collectively referred to as “Service Agreement”). This Service Agreement shall apply to and govern all Service Documents, (as defined herein) including any agreement, order and/or services related thereto and except as specifically set forth herein, or as otherwise communicated by Company to Customer, shall apply to and govern both commercial and residential services orders.
1. Acceptance; Contract Formation.
This transaction, including Company’s Waste Removal Services, is expressly limited to and made conditional upon Customer’s assent to and acceptance of all the terms and conditions contained herein and any supplemental terms set forth in any related service document, including, but not limited to any quotation, proposal, service agreement, acknowledgment and/or invoice (collectively referred to hereinafter as the “Service Documents”). Customer acknowledges and agrees that Customer has reviewed this Service Agreement and agrees that by placing an order and accepting the Services that a binding and enforceable service agreement shall exist between Company and Customer and this Service Agreement and the Service Documents shall constitute the entire agreement between Company and Customer and supersede all previous agreements. Any of Customer’s terms contained in any request for quotation, purchase order, release, acknowledgement or any other Customer document 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.
2. Ordering Process.
Company intakes and processes all Service(s) orders either via telephone or via our website which is located at www.dumpsters.com (the “Website”). All service orders accepted by Company are accepted with the understanding that each such order is subject to Company’s ability to arrange for the Services to Customer through its network of subcontractors and vendors. Customer is solely responsible for contacting Company (either via telephone or via the Website) in order to initiate the commencement of the Services, as well as the final pickup of the Equipment (in accordance with the terms of Section 5 herein). Customer acknowledges that any telephone numbers posted on and/or adhered to the Equipment belong to third parties and should not be used for the purpose of attempting to contact Company.
3. Term of Agreement.
The Initial Term and any subsequent Renewal Term of this Service Agreement (collectively “Contract Term”) is set forth on the face page of this Service Agreement, which is fully incorporated herein by reference. Unless otherwise specified on the face page of this Service Agreement, at the end of the Initial Term or any subsequent Renewal Term the Contract Term shall automatically renew unless either party gives the other party written notice of the intent not to renew at least ninety (90) days but not more than one hundred eighty (180) days prior to the expiration of the then existing term. Notice of the intent not to renew received at any other time will be considered ineffective and the Service Agreement will be considered automatically renewed upon completion of the then existing term. Any notice of intent not to renew shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). The notice shall be effective only upon documented receipt by the receiving party.
4. Termination Rights.
This Service Agreement can be terminated prior to the end of the Initial Term or a Renewal Term as follows: a) by Customer with thirty (30) days written notice to the Company, subject to Customer’s obligation to pay all the cancellation fees and charges set forth in Section 8 no later than thirty (30) days after the written notice of termination; b) by Customer (with no obligation to pay cancellation fees) if Company fails to cure a breach of its obligation under this Service Agreement within thirty (30) days of Company’s receipt of written demand from the Customer to cure the breach; c) by the Company, if Customer fails to cure a breach of its obligation under this Service Agreement within thirty (30) days of Customer’s receipt of written demand from the Company to cure the breach; d) by the Company, if Customer fails to comply within five (5) days of Customer’s receipt of written demand from the Company demanding payment of past due Service Fees; and e) by Company as additionally specified within the terms of this Service Agreement. In order to move containers in a safe secure and orderly fashion, Company shall have up to thirty (30) days to arrange for the removal of any equipment from Customer’s service location(s) after the effective date of the termination of this Service Agreement. Any notice of termination shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). The notice shall be effective only upon documented receipt by the receiving party.
5. Delivery and Pickup of Equipment.
Company will use commercially reasonable efforts to ensure timely delivery and pickup of Equipment; provided that, due to circumstances beyond our control, including, but not limited to, inclement weather, hazardous roads and/or driving conditions, traffic delays, motor vehicle accidents, delays at landfills and equipment failure, we cannot and do not guarantee delivery times or dates. Company will not be liable to Customer under any circumstances for costs, expenses, losses and/or damages incurred by Customer in any manner relating to such delays. 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, then Company shall be entitled to a Dry-Run inconvenience fee (as defined herein).
Customer acknowledges and agrees that the Equipment must be placed on a firm and stable surface and must be easily accessed for the purpose of Company’s continuing performance of the Services, and be free of ground or overhead obstructions. In addition, the area surrounding the Equipment must also be clear of any ice or snow. Customer further acknowledges that the Equipment cannot be placed or located on streets or roadways. The location and placement of the Equipment is the sole responsibility of the Customer. Upon the delivery of the Equipment to the location as designated on the face-page of the Service Agreement, Customer shall not move, transport or attempt to move or transport (either directly or indirectly) the Equipment from the designated site without prior notice to and consent from Company, which may be withheld within the sole discretion of Company. In the event that a relocation of the Equipment is required in order to comply with applicable laws and regulations and/or to allow Company to perform the Services, then a relocation charge may be assessed by Company within the discretion of Company. Customer shall be solely responsible for any fees, penalties, fines, assessments, charges, costs and expenses asserted by a third party (including, without limitation, a towing company) incurred in connection with the movement, placement and/or use of the Equipment.
In the event of Customer’s violation and/or breach of the terms of the Service Agreement, Company may, within Company’s sole discretion and without prior notice to Customer and without any liability to Customer, pick up the Equipment. In addition, Company may pick up the Equipment at any time if required to do so by local, county and/or state law or as required by order of any local, county and/or state government or agency.
6. Waste Removal Services.
Subject to the restrictions relating to Prohibited Materials (as defined herein), throughout the Term of the Service Agreement, Company shall via Company’s subcontractors and via third parties, use commercially reasonably efforts to arrange for the removal of waste materials (as defined herein) contained in the Equipment located at Customer’s location. Subject to the terms of the Service Agreement, the waste materials contained in the Equipment shall be removed from Customer’s location at the frequency and/or on the days and times as set forth on the face-page of the Service Agreement. In the event that Company (including its subcontractors) attempts to remove the waste materials on a scheduled pickup day (in accordance with the terms stated on the face-page of the Service Agreement) 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 pickup location, damaged Equipment, locked gates, fences or parking lots, inaccessible driveways and/or the storage of prohibited items or substances in the Equipment (collectively referred to as a “Dry Run”), then Company shall be entitled to charge Customer and receive from Customer a Dry-Run/Trip Fee. The standard Dry-Run/Trip Fee is a minimum fee of $150.00; provided that, if Company incurs additional charges, fees, fines, penalties, costs and/or expenses related to the Dry Run, then Company may increase the Dry-Run/Trip Fee in order to recoup any such charges, fees, fines, penalties, costs and/or expenses.
7. Payment Terms, Surcharges, Price Increases.
In addition to Customer’s initial payment to Company which shall consist of the applicable fees for the first month of Service plus a security deposit in the amount as stated on the face-page of the Service Agreement (the “Deposit”), on a monthly basis throughout the Term of the Service Agreement, Customer shall pay Company the monthly Service fees as stated on the face-page of the Service Agreement. (“Service Fees”). Company may, from time to time by notice to Customer, increase the
Service Fee provided in this Agreement or charge additional fees to adjust for any increase due to; (a) a change in location of Customer or the disposal facility used by Company or its contractor; (b) costs related to the delivery of waste removal services including but not limited to fuel, transportation, processing and disposal charges/fees; (c) Company’s actual costs due to changes in applicable governmental fees or taxes; (d) The Consumer’s Price Index for Water Sewer and Trash Collection Services published by the U.S. Bureau of Labor Statistics or other national, regional, or local CPI; and (e) Company or its contractor’s change in costs due to changes in applicable laws and overhead. Customer acknowledges that in addition to and separate and apart from the fees/charges outlined in section (a) through (e) the Company may also increase its Service Fees, with Customer’s consent, which may be evidenced verbally, in writing, electronically, or by virtue of Customer’s ongoing acceptance of and the Company’s continuation of the Services which shall be deemed good and valuable consideration for the increased Service Fees.
Except as otherwise mutually agreed in writing between Customer and Company, Customer will pay Company the initial fee (including the Deposit) and all recurring monthly Service Fees via credit card payment. Customer hereby expressly authorizes Company to retain Customer’s credit card information and charge Customer’s credit card on a monthly basis for service fees and all other fees and charges to which Company is entitled hereunder, including, without limitation, any Dry-Run/Trip Fees, cancellation fees (as stated in Section 8 below), Overage Expenses (as defined herein), Losses (as defined herein), and any other charges, fees, fines, penalties, costs and/or expenses which Company incurs as a result of Customer’s breach of the terms of the Service Agreement or to which Company is entitled to charge Customer in accordance with the terms of the Service Agreement or the Service Documents. Customer acknowledges and agrees that such credit card authorization shall remain valid and in full force and effect throughout the entire Term of the Service Agreement (including the Initial Term and any Renewal Term) and for a period of time not to exceed 120 days beyond the date of termination of the Service Agreement.
If, at any time during the Term of the Service Agreement, Company’s authorization to charge Customer’s credit card is revoked and/or cancelled by Customer or any third party, then Company, within its sole discretion, may immediately terminate the Service Agreement, recover the Equipment and cease providing the Services without notice or liability to Customer, and without prejudice to or waiver of any of Company’s remedies against Customer. Customer acknowledges and agrees that upon termination of the Service Agreement, for any reason, Company may apply the Deposit to the last month’s Service Fees and/or to any outstanding charges that Customer owes to Company at the time of termination of the Service Agreement.
8. Cancellation and Cancellation Fees.
In the event that Customer terminates the Service Agreement prior to the expiration of the then current Contract Term then, in addition to retention of the Deposit, Company shall be entitled to charge Customer all of the following fees and amounts: (a) an early termination fee in the amount of 60% of the current monthly rate multiplied by the amount of months remaining on the term; (b) an Equipment pickup charge in the minimum amount of $150.00; (c) expenses owed by Customer to Company pursuant to the terms of the Service Agreement or Service Documents, and (d) any other charges, fees, fines, penalties, or costs incurred by the Company including any third party hauler cancellation fees, liquidated damages, penalties or charges. Any cancellation fees to which Company is entitled pursuant to this Section 8 may be charged to Customer’s credit card in accordance with the provisions of Section 7 above.
9. Weight Restrictions and Overage/Overload Fees.
Customer is solely responsible for complying with the weight restrictions and cubic yardage limits applicable to the Equipment. Customer acknowledges that: (a) each item/unit of Equipment has a designated weight or cubic yardage limitation and corresponding weight or cubic yardage limit (which varies based on the size and type of the Equipment, as well as other factors); (b) the size and/or cubic yardage limits of the particular item/unit of Equipment is not determinative of the applicable designated weight specification and cubic yardage limits for such item/unit of Equipment; (c) local, municipal, city, county and/or state laws, regulations, rules and ordinances also govern and limit the weight and/or amount of material that can be legally stored in and/or transported in the Equipment; and (d) rain, water, snow and/or ice permitted by Customer to accumulate in the Equipment can increase (and under certain circumstances) exceed the applicable weight restriction relating to specific Equipment. Customer acknowledges that Customer is solely and exclusively responsible for determining the weight restrictions and cubic yardage limits applicable to Customer’s Equipment and for strictly complying with such restrictions, including, but not limited to avoiding loading the Equipment in excess of the cubic yardage limits, and covering and/or tarping the Equipment in order to prevent rain, water, snow and/or ice accumulation in the Equipment.
Customer hereby acknowledges that Company incurs charges, costs and expenses in connection with the transport of loaded Equipment to landfills, and that such charges, costs and expenses are based upon the weight and/or cubic yardage limits of the Equipment. If Customer fails to comply with applicable weight restrictions or cubic yardage limits, Company may incur additional costs and/or be required to pay for charges, expenses, penalties and/or fines from a landfill or other third party, whether private or public, including, but not limited to traffic fines and penalties or other consequential damages (collectively the “Overage Expenses”). In the event that Company incurs any Overage Expenses relating to or in connection with Customer’s failure to comply with applicable weight restrictions or cubic yardage limits, then, 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 (including Customer’s payment or reimbursement of all such Overage Expenses to Company), Customer will pay Company a fee of not less than $125.00 per ton in excess of the applicable weight restriction or $125.00 per cubic yard for loads in excess of the applicable cubic yardage limits for the Equipment (“Overage Fee”), as determined within the sole discretion of Company. Customer acknowledges and agrees that all Overage Expenses and Overage Fees assessed by Company against Customer may be charged to Customer’s credit card in accordance with the provisions of Section 7 above.
Customer acknowledges that certain locations and/or uses of the Equipment may require a permit, license, certification or other local, municipal, city, county and/or state approval relating to the possession, placement, storage and/or transportation of the Equipment (collectively referred to hereinafter as a “Permit”). Customer represents and warrants to Company that Customer (and not Company) is solely and exclusively responsible for obtaining and maintaining all necessary and required Permits relating to Customer’s possession and use of the Equipment. In the event that Customer fails to obtain and/or maintain all necessary and required Permits, Company may pick up the Equipment without prior notice to Customer and without any liability to Customer.
11. Use of Logo.
Customer hereby grants to Company the express right to use Customer's company logo in marketing, sales, financial, public relations materials and other communications solely to identify Customer as a Company customer. Other than as expressly stated herein, neither party shall use the other party's marks, codes, drawings or specifications without the prior written permission of the other party.
12. Prohibited Materials.
Customer acknowledges that local, municipal, city, county, state and/or federal laws, regulations, rules and ordinances prohibit the storage of certain items, materials and substances in the Equipment, including without limitation, tires, batteries, appliances, tree stumps, railroad ties, chemically treated lumber, paints and lacquers, motor oil, oils, fuels, liquid chemicals, asbestos, roofing, concrete, brick, block, asphalt, dirt, infectious waste, contaminated soils and absorbents, inks and resins, industrial drums, water heaters and water tanks, food waste, fuels, adhesives, refrigerants, aerosols, and other radioactive, volatile, highly flammable, explosive, toxic, special or hazardous materials and substances. (“Prohibited Materials”). A non-exclusive list of certain Prohibited Materials is available on the Website for Customer’s review. Customer acknowledges and agrees that the only material to which the Services are provided consist solely of non-hazardous general solid waste and/or recyclable materials (“Waste Materials”), and does not include any Prohibited Materials, which are excluded from such Services. Customer agrees to not deposit or permit the deposit for collection any Prohibited Materials in the Equipment and further that title to and liability for Prohibited Materials will remain with Customer at all times. Customer acknowledges and agrees that Customer is solely and exclusively responsible for complying with all applicable laws relating to Prohibited Materials, and Customer shall be liable for any charges, costs, expenses, damages, legal fees and costs, losses, fines and/or penalties (including, but not limited to traffic fines and penalties) of whatever nature relating to the deposit, storage and/or transportation of Prohibited Materials in the Equipment.
Customer agrees to indemnify, defend and hold harmless Company, including its officers, directors, members, employees, agents, parent companies, affiliates, subsidiaries, successors, subcontractors, vendors, and assigns from and against any and all claims, counterclaims, suits, demands, actions, causes of action, damages, setoffs, liens, attachments, judgments, debts, fines, penalties, charges, expenses, legal fees, costs or other liabilities of whatsoever kind or nature (collectively, “Losses”) asserted or alleged by any third party arising from or related to: (a) Overage Expenses; (b) Customer’s failure to obtain and/or maintain any required Permit; (c) Customer’s use, storage, or deposit of Prohibited Materials in the Equipment; (d) loss or theft of the Equipment; (e) damage and/or destruction of the Equipment during the applicable service term; (f) personal injury and/or property damage relating to Customer’s use and/or possession of the Equipment; (g) physical damage to streets, roadways, driveways, walkways, pavement, curbs, wells, irrigation systems, landscaping, lawn, septic systems and/or underground utilities caused by the Equipment including, without limitation, any damage to Customer’s property from leaks or stains relating to the use of the Equipment; (h) Customer’s breach of the Service Agreement or the terms of any of the Service Documents; and (i) any fees, penalties, fines, assessments, charges, costs and expenses asserted by a third party (including, without limitation, a towing company) incurred in connection with the movement, placement and/or use of the Equipment.
14. Waiver; Limitation of Liability and Disclaimer of Warranties.
EXCEPT IN THE EVENT OF GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, CUSTOMER HEREBY WAIVES ANY AND ALL CLAIMS AND LOSSES AGAINST THE COMPANY AND ITS SUBCONTRACTORS, HAULER SUBCONTRACTORS, OR VENDORS RELATING TO OR ARISING FROM THE CUSTOMER’S USE OF THE EQUIPMENT AND/OR THE COMPANY’S, OR ITS SUBCONTRACTORS, HAULER SUBCONTRACTOR’S OR VENDOR’S PERFORMANCE UNDER THE SERVICE DOCUMENTS, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO STREETS, ROADWAYS, OR CUSTOMER’S PROPERTY, PAVEMENT, CURBING, DRIVEWAYS, WALKWAYS, LANDSCAPING, LAWN, WELLS, IRRIGATION SYSTEMS, SEPTIC SYSTEMS AND/OR UNDERGROUND UTILITIES RELATED TO OR ARISING FROM THE STORAGE OR TRANSPORT OF THE EQUIPMENT IN OR ON CUSTOMER’S PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY DAMAGE TO CUSTOMER’S PROPERTY FROM LEAKS OR STAINS RELATING TO THE USE OF THE EQUIPMENT. THE EQUIPMENT SHALL BE 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 MERCHANTABILITY, FITNESS FOR ANY PARTICULAR USE OR PURPOSE OR THAT THE EQUIPMENT WILL MEET YOUR REQUIREMENTS.
15. Governing Law; Severability.
Any and all disputes arising from or in connection with the Services, including, but not limited to, the Service Agreement, the Service Documents and/or Customer’s possession and use of the Equipment or Company’s (including its subcontractors and vendors) performance of the Services, shall be construed in accordance with and governed by the laws of the State of Ohio, U.S.A., including all matters of construction, validity and performance, without giving effect to the conflict of laws provisions of such State. Any provision hereof which may be prohibited by applicable law shall be ineffective to the extent of such prohibition and without invalidating the remaining provisions hereof.
Any action arising from or in connection with the Service(s), including, without limitation, the Service Agreement, the Service Documents and/or Customer’s possession and use of the Equipment or Company’s (including its subcontractors and vendors) performance of the Services, shall be resolved exclusively through arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The number of arbitrators will be one. The seat, or legal place, of arbitration will be the City of Cleveland, Cuyahoga County, Ohio. The governing law will be the substantive law of Ohio, and judgment on the award rendered by the arbitrator may be entered by any court having jurisdiction.
The parties agree to arbitrate solely on an individual basis, and that this Service Agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitration may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. In the event the prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of this arbitration provision will remain in force.
Neither the Service Agreement or the Service Documents, nor any part or portion of Customer’s performance hereunder is assignable by Customer in whole or part without the prior written consent of Company, which may be withheld within the sole discretion of Company. No approval shall be required from the Customer in order for the Company to assign this Service Agreement or any of the Service Documents or the performance of the Services.
18. Reservation of Rights.
Company expressly reserves all rights and remedies which are available to it at law or in equity.