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These Vendor Terms and Conditions (these “Terms”) are by and between Local Dumpster Rental L.L.C. d.b.a LDR Site Services, a Georgia limited liability company (“LDR”) and the vendor (“Vendor”) identified in the applicable order form, work order, or other document affirming a mutual agreement (each, an “Order”), pursuant to which Vendor will provide certain waste hauling, dumpster rental, portable toilet rental, storge containers rental, scissor lift rental, temporary fencing, and/or material handling services (collectively, the “Services”) for LDR’s customers. These Terms, along with any applicable Order (collectively, this “Agreement”), shall constitute the full and complete agreement between LDR and Vendor. LDR and Vendor may be referred to hereafter individually as “Party” and collectively as “Parties.”
The term of this Agreement shall be for a period of two (2) years from the earliest of (i) the date Vendor first signs or confirms to accept an Order, (ii) the date Vendor provides the Services to LDR’s customers, and (iii) the date Vendor signs or confirms to accept these Terms and shall automatically renew for successive one (1) year terms unless sooner terminated pursuant to Section 11 herein. These Terms shall govern any and all Orders (including any Change Orders) issued by LDR and accepted by Vendor from time to time.
2.1 This Agreement is not intended to constitute, create, give effect to or otherwise recognize a joint venture, partnership as defined by applicable law or formal business organization of any kind or any agency, employment, or fiduciary relationship between the Parties, and the rights and obligations of the Parties shall be only those expressly set forth herein. The Parties shall be independent contractors for all purposes at all times. No Party shall act as agent for or representative of the other and the employees of one shall not be deemed to be employees of the other, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. No Party shall, in its performance hereunder, take any action that would be illegal under any applicable rules, regulations and laws. Further, the Parties’ respective agents or subcontractors shall avoid any practices that are unlawful, improper or unethical.
2.2 Each Party represents and warrants that it has the legal right to perform all its obligations under this Agreement.
2.3 It is the Parties’ intent that LDR may engage Vendor from time to time to perform certain Services to LDR’s customers on an as-needed basis and pursuant to an applicable Order, subject to these Terms. Nothing in these Terms shall be construed to obligate LDR to engage Vendor to perform any Services for LDR or LDR’s customers in any manner.
2.4 This Agreement, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and any Order, these Terms shall govern, unless the Order expressly states that the terms and conditions of the Order shall control, provided that such Order shall also be signed by the Chief Executive Officer or Chief Financial Officer of LDR.
Vendor acknowledges that time is of the essence with respect to Vendor’s obligations hereunder and that prompt and timely performance of all such obligations, including all performance dates, timetables, and other requirements in this Agreement, is strictly required.
Vendor shall:
4.1 provide the Services to LDR’s customers as described in each applicable Order and in accordance with these Terms, and notify LDR immediately if any spill/release of hazardous materials occurs during the performance of the Services;
4.2 before the date on which the Services are to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services;
4.3 comply with all rules, regulations and policies of LDR and its customers and general health and safety practices and procedures;
4.4 maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the dates and equipment or other materials used by Vendor in providing the Services in such form as LDR shall approve. During the term of this Agreement, upon LDR’s written request, Vendor shall allow LDR to inspect and make copies of such records and interview Vendor personnel in connection with the provision of the Services;
4.5 obtain LDR’s written consent prior to entering into agreements with, or otherwise engaging any person or entity, including all subcontractors and affiliates of Vendor, other than Vendor’s employees, to provide any Services to LDR’s customers (each such approved subcontractor or other third party, a “Permitted Subcontractor”). LDR’s approval shall not relieve Vendor of its obligations under the Agreement, and Vendor shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Vendor’s own employees. Nothing contained in this Agreement shall create any contractual relationship between LDR and any Vendor subcontractor or supplier;
4.6 require each Permitted Subcontractor to be bound in writing by the confidentiality and intellectual property provisions of this Agreement;
4.7 ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Vendor, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services; and
4.8 ensure that all of its equipment or other materials used in the provision of the Services is in good working order and suitable for the purposes for which it is used and conforms to all relevant legal standards and standards specified by LDR and/or its customers.
LDR may at any time instruct Vendor regarding any order changes to the Services (each, a “Change Order”). Vendor shall promptly comply with such Change Order or immediately notify LDR if it cannot. In the event Vendor cannot or fails to comply with the Change Order, LDR may seek an alternative vendor to perform the Services, in each case as determined by LDR in its sole discretion.
6.1 In consideration for the satisfactory provision of the Services by Vendor, LDR agrees to pay the fees set forth in the Order (the “Fees”). Vendor acknowledges and agrees that the Fees shall constitute the full and exclusive compensation Vendor will receive with respect to the provision of the Services and Vendor shall not charge any additional fees to any customer of LDR in any manner.
6.2 Unless otherwise specified in an applicable Order, Vendor shall issue invoices (along with all required supporting documentation, if applicable) to LDR within fourteen (14) days after completing the Services set forth in the Order, provided that any long-term or ongoing Services should be invoiced in two-week intervals. LDR reserves the right to not pay all or part of the Fees if Vendor fails to invoice LDR within thirty (30) days after completing the Services, and Vendor hereby waives all right to payment by LDR in such case.
6.3 LDR shall pay all properly invoiced amounts due to Vendor as soon as practicable (but within thirty (30) days) after LDR’s receipt of the invoices, except for any amounts disputed by LDR in good faith. To expedite the payment, Vendor will email all invoices to LDR at ap@ldr.us. The Fees will be paid by virtual card or ACH as selected by Vendor, and Vendor shall complete the necessary documentation to enable the selected payment method.
6.4 Without prejudice to any other right or remedy it may have, LDR may set off or withhold at any time any amount owing to it by Vendor against any amount payable by LDR under this Agreement.
All intellectual property rights, including trademarks, service marks, trade names, corporate names, domain names, logos, trade dress, copyrights, patents, inventions (whether patentable or not), trade secrets, know-how, and customer and vendor information, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to LDR’s operations, websites or platforms, or any documents and other materials provided by LDR to Vendor, shall be owned exclusively by LDR. Nothing contained in this Agreement shall be construed as granting or conferring any rights whether by license or otherwise to Vendor with respect to any of LDR’s Intellectual Property Rights.
8.3 All non-public, confidential or proprietary information of LDR, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by LDR to Vendor, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Vendor without the prior written consent of LDR. Confidential Information does not include information that is (i) in the public domain; (ii) known to Vendor at the time of disclosure without any prior obligation of confidentiality; or (iii) rightfully obtained by Vendor on a non-confidential basis from a third party.
8.4 Vendor will use the Confidential Information provided by LDR only for the purpose of providing Services under this Agreement. Vendor will hold in confidence such Confidential Information by means that are no less restrictive than those used for its own confidential information and will not disclose the Confidential Information to anyone other than its employees or Permitted Subcontractors who are bound by confidentiality obligations and who need to know the same to perform Vendor’s obligations hereunder. In the event Vendor is required to disclose the Confidential Information pursuant to the requirements of law, regulation, or court order, Vendor will promptly inform LDR of any such requirement in advance and reasonably cooperate with efforts to limit disclosure, procure a protective order or similar treatment. Without limiting the generality of the foregoing, Vendor agrees that it will not, and will cause its subcontractors and affiliates not to, disclose to any LDR customer the pricing or rates applicable to any Order. Vendor covenants that it will direct LDR customers to LDR for any inquiries regarding Vendor’s pricing or rates for the Services. Vendor acknowledges and agrees that LDR’s relationship with its customers are proprietary, confidential, and are considered valuable assets of LDR. Vendor agrees that, during the term of this Agreement, and for a period of two (2) years from the date the Agreement expires (including all renewals or extensions), Vendor will not, without LDR’s prior written consent, provide or solicit to provide, directly or indirectly, to any of LDR’s customers that became known to Vendor pursuant to this Agreement or any other agreement with LDR, the same or substantially similar services as those described in any Order.
8.5 The Parties agree that there may be no adequate remedy at law for any breach of this Section 8, including without limitation any actual or threatened disclosure of Confidential Information, and that LDR, in addition to any other rights or remedies, will be entitled to seek equitable relief including an injunction restraining any such breach or threatened breach by Vendor. Vendor agrees to reasonably cooperate with LDR in the event any action is necessary to enforce the terms of this Section 8 with respect to the activities of any third party (including any third-party agent of Vendor), including providing reasonable assistance to protect any rights provided in law or equity regarding the Confidential Information or to remedy any injury resulting from the inappropriate or unauthorized disclosure or use of the Confidential Information.
This Agreement is non-exclusive. Either Party may enter into similar agreements with other third parties; provided, however, that consistent with observing the requirements of Section 8 herein, in no event shall Vendor disclose information concerning the subject matter of this Agreement to any third party without the prior written consent of LDR.
10.1 Vendor represents and warrants to LDR that:
10.1.1 It shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with best industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
10.1.2 It is in compliance with, and shall perform the Services in compliance with, all applicable laws. 10.1.3 The Services will be in conformity in all respects with all requirements or specifications stated in this Agreement and the applicable Order.
10.2 The representations and warranties set forth in Section 10.1 are cumulative and in addition to any other warranty provided by law or equity. These warranties survive any acceptance of or payment for the Services by LDR. Any applicable statute of limitations runs from the date of LDR’s discovery of the noncompliance of the Services with the foregoing warranties.
11.1 In addition to any remedies that may be provided under this Agreement, LDR may terminate this Agreement or any Order with immediate effect upon written notice to Vendor, if Vendor:
11.1.1 has not performed or complied with any of the terms of this Agreement, in whole or in part; or
11.1.2 becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. 11.2 Either Party may terminate this Agreement for any reason with thirty (30) days’ prior written notice to the other Party.
12.1 Upon termination or expiration of this Agreement, Vendor will return or destroy all Confidential Information and all copies thereof in Vendor’s (including its agents’ or subcontractors’) possession or control to LDR. If requested by LDR, Vendor will confirm in writing that no copies have been retained by Vendor, its employees, agents, or subcontractors.
12.2 Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement, including but not limited to Sections 2, 7, 8, 10, 12, 13, 14, 15, 17, 19 and 22.
Vendor shall indemnify, defend and hold harmless LDR, its parent company, its subsidiaries, affiliates, successors or assigns, and their respective members, shareholders, directors, officers, employees, agents, and representatives, and LDR’s customers (each, an “Indemnitee”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, relating to any claim of a third party or LDR arising out of or related to the Services or Vendor’s negligence, willful misconduct or breach of this Agreement. Vendor shall not enter into any settlement without LDR’s or Indemnitee’s prior written consent.
EXCEPT FOR VENDOR’S OBLIGATIONS UNDER SECTION 13, UNDER NO CIRCUMSTANCES SHALL A PARTY BE LIABLE TO THE OTHER FOR LOST REVENUES, LOST PROFITS, OR OTHER SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT A PARTY HAS BEEN ADVISED BY THE OTHER OF THE PROBABILITY OF SUCH DAMAGE OR LOSS, WHETHER SUCH DAMAGE OR LOSS ARISES IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
Vendor shall be solely responsible for providing the equipment and/or materials in the provision of the Services to LDR’s customers, and in no event will LDR be liable in any manner for any damage or loss with respect to such equipment or materials, regardless of whether such damage or loss is caused by an LDR customer. Notwithstanding the foregoing, in the event any good faith dispute arises between Vendor and an LDR customer related to the Services, LDR will use commercially reasonable efforts to work with Vendor in good faith to achieve an amicable resolution of such dispute.
15.1 During the term of this Agreement and for a period of two (2) years thereafter, Vendor shall, at its own expense, maintain and carry the following insurance coverage in full force and effect with one or more financially sound and reputable insurers licensed to do business in the state where the work is performed:
15.1.1 Workers Compensation Insurance as required by applicable laws and regulations covering all personnel (including any affiliate or contractor personnel) of Vendor involved with the Services;
15.1.2 Employer’s Liability Insurance protecting Vendor against common law liability in the absence of statutory liability for employee bodily injury arising from the master/servant relationship with a limit of not less than $1,000,000 per occurrence;
15.1.3 Commercial General Liability Insurance for premises, operations, bodily injury, property damage, and other incidents that would give rise to an indemnity obligation of Vendor under this Agreement, with limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate and naming LDR and its affiliates as additional insured;
15.1.4 Automobile Liability Insurance including coverage for owned and non-owned or hired vehicles, with limits of not less than $1,000,000 per occurrence and naming LDR and its affiliates as additional insured.
15.2 Upon LDR’s request, Vendor shall provide LDR with a certificate of insurance from Vendor’sinsurer evidencing the insurance coverage specified in these Terms. Vendor shall provide LDR with thirty (30) days’ advance written notice in the event of a cancellation or material change in any insurance policy of Vendor. Except where prohibited by law, Vendor shall require its insurer to waive all rights of subrogation against LDR’s insurers and LDR.
No waiver by LDR of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by an authorized representative of LDR. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
This Agreement shall for all purposes be governed by and interpreted in accordance with the laws of the State of Georgia, without reference to its conflict of laws principles. The Parties shall use reasonable efforts to resolve any disputes, controversies or differences arising out of or relating to this Agreement amicably. If the Parties are not able to reach resolution within sixty (60) days (or such longer period as mutually agreed), then any dispute, claim or controversy arising out of or relating to this Agreement, or the breach thereof, shall be determined by binding arbitration administered by the American Arbitration Association in accordance with its Arbitration Rules as modified by this Agreement. The arbitration shall be held before one neutral arbitrator. The arbitration and proceedings shall be confidential. The place of arbitration shall be within the metropolitan areas of Atlanta, Georgia. The arbitrator will issue a detailed written decision and award that shall set forth the legal principles of the opinion, shall decide all issues submitted, and shall be final and binding upon the Parties. Judgment on the arbitral award may be entered in any court of competent jurisdiction. This Section shall not preclude either Party from seeking injunctive or other equitable relief in an appropriate court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the transactions contemplated by this Agreement.
Vendor may not assign or transfer its rights or obligations under this Agreement without LDR’s prior written consent, except to a person or entity who acquires all or substantially all of the assets or business of Vendor, whether by sale, merger or otherwise. Any attempted assignment or transfer in violation of this provision shall be void and without effect. This Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns.
Should a dispute arise between the Parties from the subject matter of this Agreement, the prevailing Party in any resulting litigation or action shall be reimbursed by the other Party for any attorney’s fees and associated expenses incurred.
The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth in the applicable Order or to such other address as may be designated by the receiving Party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid) or email. Except as otherwise provided in this Agreement, a Notice is effective only (i) upon receipt of the receiving Party, and (ii) if the Party giving the Notice has complied with the requirements of this Section.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
This Agreement may only be amended or modified in a writing that specifically states that it amends this Agreement and is signed by an authorized representative of Vendor and the Chief Executive Officer or Chief Financial Officer of LDR.
If this Agreement is signed manually, it may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one agreement. Signatures delivered by fax, scan, or other electronic means shall be considered original signatures for all purposes under this Agreement. If this Agreement is signed or otherwise accepted electronically, LDR’s records of such execution or acceptance shall be presumed accurate unless proven otherwise.