AW Site Services LLC DBA ASAP Marketplace, a Delaware Corporation ( “ASAP”) provides these terms and conditions that apply to the Customer’s use of the equipment and services provided or offered now or in the future by the Contractor (“Customer”). Any terms in any agreement or other documentation that are in addition to or inconsistent with the Agreement are rejected by the Contractor and will have no effect.
Customer represents and warrants that Customer has the right, authority, and capacity to enter into legally binding agreements in an individual capacity or on behalf of an entity, and agrees that any agreement under these terms and conditions constitutes a valid agreement in Customer’s individual capacity or on behalf of an entity.
Customer represents and warrants that Customer has read the Agreement in its entirety and by clicking “I Accept” or otherwise accepting through any other reasonable means, electronic or otherwise, agrees to be bound by the Agreement.
1. Definitions
o “Applicable Laws” means any federal or state statutes and regulations related to storage, disposal and transportation of biological waste, sanitation, labor, or accommodation of disabilities, including rules enacted by the Americans with Disabilities Act, the Department of Transportation, Environmental Protection Agency, and Occupational Safety and Health Administration.
o “Applicable Environmental Laws” means any federal, state or local laws or regulations enacted by the Environmental Protection Agency, Occupational Safety and Health Administration or any State or local Agency related to sanitation, waste management, wastewater management, stormwater pollution, and environmental and ecological protection.
o “Authorized Site” means the flat area of land, property, site, structure or location authorized by the Customer for installation of the Equipment.
o “Deliverables” means the delivery of portable toilets, dumpsters, storage containers, construction equipment or any other equipment or services provided or arranged by ASAP.
o “Delivery Date” means the date on which the Equipment is delivered or installed at the Authorized Site.
o “Equipment” means the portable toilet stall, shower trailer, restroom stall trailer, high-rise portable toilet, portable sink, and any of the parts or components provided by ASAP or its suppliers under this Agreement.
o “Operational Failure” means failure of the Equipment to operate due to a defect in material, or workmanship, or normal wear and tear that occurs through the safe and appropriate operation of the Equipment.
o “Prohibited Waste” means any waste fitting the descriptions listed in Section 8(c) of this Agreement.
o “Replacement Equipment” means equipment of like, kind and quality with comparable features and functionality to the Equipment which is provided to the Customer in exchange for the Equipment.
o “User” means any person using the Equipment, whether authorized or otherwise, while it is in the possession of the Customer including, but not limited to, Customer’s employees, associates, affiliates, and visitors.
2. Quotes. ASAP shall arrange to provide the Deliverables as specifically set forth herein, which will be described in one or more quotes (“Quote”) and performed in accordance with this Agreement. Each Quote will be mutually agreed upon and executed by ASAP and Customer. Each Quote will describe the specific Deliverables and the timing for delivery.
3. Payment Terms.
a. If Customer is renting Equipment on an event-by-event basis, Customer shall pay an upfront fee for the rental and use of the Equipment. Customer shall receive an invoice from ASAP, upon the termination of the event, for any additional services provided by ASAP or its suppliers, including any charges for additional deliveries, for disposal of prohibited waste pursuant to Section 8(d), repairs or replacement of Equipment pursuant to Section 8(e), additional collections pursuant to Section 9 and any other charges related to maintenance and cleaning of Equipment.
b. If Customer is renting Equipment on a long-term basis, Customer shall receive a monthly invoice, including any charges for additional deliveries, disposal of prohibited waste pursuant to Section 8(d), repairs or replacement of Equipment pursuant to Section 8(e), additional collections pursuant to Section 9 and any other charges related to maintenance and cleaning of Equipment, other than the one cleaning per week included with the rental.
c. Customer agrees to pay to ASAP the amounts set forth in the applicable Quote payment schedule and invoices. ASAP reserves the right to increase the prices for the Deliverables up to no more than five percent (5%), effective with 30 days’ notice to the Customer. Unless otherwise specified in the applicable Quote, Customer shall pay all undisputed line items within each invoice within ten (10) days from Customer’s receipt of any such invoice. If an invoice or line item is disputed, Customer shall notify ASAP in writing of any such dispute and will provide ASAP with details regarding the reason for Customer’s dispute. Customer shall notify ASAP of any dispute as soon as possible, but in no event later than the date on which payment of the amounts set forth on the invoice is due. ASAP reserves the right to suspend Customer’s access to the Deliverables if Customer’s undisputed amounts are more than thirty (30) days overdue. Undisputed amounts more than thirty (30) days overdue (“Delinquent Invoices”) (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, plus all expenses of collection. If ASAP or Customer initiates termination of this Agreement, Customer will be obligated to pay the balance due on your account computed in accordance with the Quote and this Agreement.
d. Customer agrees that ASAP may, without providing notice to Customer, invoice the Customer at the termination of this Agreement for additional costs related to its services hereunder caused by increases in the usual costs of doing business, including but not limited to increases in costs of fuel, transportation, storage, disposal of waste, fees, taxes (other than income or real property taxes) or other governmental or agency charges that have gone into effect since the commencement of the Initial Term (as defined in Section 5(b) or any subsequent Renewal Term (as defined in Section 5(b).
4. Cancellation of Orders. Customer may cancel any order for Equipment prior to 5 business days before delivery by notification to ASAP and be granted a full-refund of any amounts paid by Customer to ASAP in relation to the cancelled order. Any order for Equipment canceled less than 5 business days, but more than 24 hours before delivery may receive a 50% refund. Any cancellations within 24 hours of delivery is non-refundable. For Restroom Trailer Orders: 50% of the total cost is non-refundable. If not cancelled within 1 month (30 days), the customer is still liable for the remainder of the balance owed. ASAP may cancel or change the terms of the Quote as needed based on its suppliers’ schedule and demands.
5. Term.
a. If Customer is renting the Equipment on an event-by-event basis, this Agreement shall extend from the date delivery is requested by Customer till the date upon which Customer requests the Equipment be collected by ASAP or its suppliers. If ASAP is unable to collect the Equipment on the date requested by Customer due to fault of the Customer, the terms of this Agreement shall extend until such date ASAP or its suppliers is successfully able to collect the Equipment.
b. If Customer is renting equipment on a long-term basis , this agreement shall extend for an initial term of 28 days from the date hereof (the “Initial Term”), and shall automatically renew for successive 28 day terms thereafter (the “Renewal Term”), unless either party gives written notice to the other at least ten (10) days prior to the expiration of the Initial Term or Renewal Term of its intent to terminate the agreement upon the expiration of the then-current thirty (30) day term.
c. Notwithstanding the above, if Customer shall terminate the Agreement prior to the expiration of the Initial Term or any subsequent Renewal Term, Customer shall not be refunded any fees paid and will remain liable for any additional costs.
6. Change Orders. If the need arises to deviate from the any particular Quote after the Quote has been executed by both parties, then both Customer and ASAP will work together in good faith to agree on how to modify the original Quote. The final Change Order modifying the Quote must be executed by an authorized representative of each party before the modification(s) are to be implemented by ASAP
7. Delivery and Site Setup.
a. Site Authorization and Delivery. On the Delivery Date, ASAP and its suppliers will use reasonable efforts to deliver the Equipment to the Customer at the Authorized Site. Customer shall be responsible for ensuring an appropriate location for the Equipment at each Authorized Site. Customer shall be responsible for ensuring that the Authorized Site and any right of way required to access the Authorized Site is free of obstructions, debris or any other hazardous conditions that may prevent delivery of the Equipment, damage the Equipment or cause harm to any vehicles delivering the Equipment. If the Equipment cannot be delivered through reasonable efforts, the Customer will be notified and additional attempts to deliver the equipment can be scheduled. If the Equipment was unable to be delivered as a result of the acts or omissions of the customer, every additional attempt to deliver the Equipment will be scheduled for a rescheduling fee.
b. Equipment Placement at Site. Customer shall be solely responsible for ensuring that the Authorized Site is located on level ground. Uneven or sloped sites can cause the Equipment to overturn, slide or not function as designed due to shifts in center of gravity, fluid levels shifting or excessive structural stress. Customer shall be solely liable for any damages to Equipment or injury to Users and bystanders for Equipment overturning, sliding or failing to function as designed, caused by Customer’s improper selection of Authorized site.
c. Provision of Passage. Customer shall be solely responsible for ensuring ASAP and its supplier’s vehicles have unobstructed access to the Equipment, including but not limited to (i) ensuring there is reasonable line of sight to the Equipment at the Authorized Site; (ii) ensuring delivery vehicles have reasonable clearance from near-by structures, fixtures, fencing, vehicles, trees, landscaping, animals, slopes, bodies of water, or other potential sources of interference; and (iii) ensuring any roadway, trail or structure that delivery vehicles may need to traverse in order to access the Equipment are of sufficient dimensions and strength to support the stresses of such crossing.
d. Provision of utilities. If Customer is renting certain Equipment (e.g. stall trailers, shower trailers, or portable sinks) that requires connections to utilities (i.e. water and electricity), Customer will ensure that the appropriate utility connections are located within accessible distance from the Equipment at the Authorized Site. The Equipment requires standard 3-prong Edison plug outlets on a 20-amp, 110 volt circuit or if using a generator, a minimum 6,000 watt generator for electrical connection. The Equipment requires a standard three-quarter (3/4) inch garden hose fitting for water service. The water source shall be able to provide water at 30 to 50 pounds per square inch (PSI) and be located within 100 feet of the Equipment.
e. Permits. If Equipment is to be delivered to, or the Authorized Site lies on, public property, a public road, or a public lot, Customer may be required to obtain a permit for the placement of the Equipment from the local municipality. It is the Customer’s sole responsibility to obtain any required permits and pay any required fees or fines related to any required permits.
f. ASAP Liability. Customer agrees that ASAP is hereby released of any liability arising out of placement of Equipment on an Authorized Site of Customer’s selection, except as caused by improper installation due to ASAP’s negligence or willful conduct. If Customer requests ASAP’s advice or opinion on selection of the Authorized Site, Customer acknowledges and agrees that ASAP is not an expert at geological surveys, is not familiar with the ground conditions that exist at the site and cannot offer factual statements on how the Equipment will behave when placed on the Authorized Site or upon use of the Equipment on the Authorized Site. Any such advice or opinion sought by Customer or offered by ASAP shall not be construed against the ASAP in finding liability or fault of ASAP.
8. Use by Customer. While Equipment is in the possession of Customer or located at the Authorized Site for Customer’s use, Customer shall:
a.
1. Use the Equipment for waste disposal and storage purposes only;
2. Refrain from filling the Equipment past its capacity;
3. Refrain from filling the Equipment past its maximum structural limits;
4. Refrain from incinerating or composting waste in the Equipment;
5. Maintain the general cleanliness of the equipment;
6. Provide for the safekeeping of the Equipment;
7. Instruct Users to use the Equipment pursuant to the terms of this Agreement;
8. Limit trespassers and unauthorized Users who may cause damage to the Equipment or violate the terms regarding acceptable use of the Equipment in this Agreement; and
9. Use the Equipment in accordance with all Applicable Laws and Applicable Environmental Laws.
b. Inability to Use. If Customer is unable to use the Equipment as contemplated by this Agreement due to an Operational Failure of the Equipment, Customer will notify the ASAP, and the ASAP or its suppliers will remove the Equipment from the Authorized Site and deliver any Replacement Equipment using commercially reasonable efforts to the Authorized Site, at no additional cost to Customer. Any removal of Equipment and delivery of Replacement Equipment will be conducted pursuant to Section 7 above.
c. Prohibited Uses. Customer shall not use the Equipment to store waste that is:
1. Hazardous, Flammable, Explosive, Toxic or Corrosive as defined by Applicable Environmental Laws;
2. Industrial waste, Radioactive, Chemical or Biomedical (including, but not limited to, sharps, medical devices, and infectious biological material);
3. Animal Carcasses;
4. Asbestos, Refrigerants (e.g. freon), Paints, oils and varnishes, Inks and resins; Motor oil and other automobile fluids; Adhesives; Fuels; Rocks and soil; Cement; Garden waste;
5. Rags and clothing; Cans and bottles; Food waste; Trash;
6. Otherwise known to be prohibited by law or injurious or deleterious to the environment, human beings, or other species or damaging to the Equipment;In addition to the list above, different municipalities may have additional restrictions on the types of waste that are prohibited from being placed in roll-off dumpsters or disposed of at waste disposal sites. It is the Customer’s sole responsibility to ensure the waste being placed in the Equipment comply with the laws and rules of Customer’s municipality.
d. Charges for Prohibited Waste. Customer shall be liable for the entirety of any reasonable costs incurred by ASAP or its suppliers in properly disposing of any Prohibited Waste and cleaning the Equipment to remove any traces of the Prohibited Waste.
e. Charges for damage to Equipment. Customer shall be liable for the entirety of reasonable costs incurred by ASAP or its suppliers for repairs to or replacement of Equipment due to theft of any equipment or damage caused by the use, operation or possession of the Equipment by Customer or its User, whether negligent or otherwise, except for normal wear and tear.
9. Collection of Waste.
a. If Customer is renting portable toilets or restroom trailers on a long-term basis, ASAP or its suppliers shall arrange to provide one scheduled waste collection every week commencing on the week following the Delivery Date until this Agreement is terminated. Customer may subscribe to service plans wherein ASAP will arrange to provide additional collections per week in exchange for an additional service fee.
b. If Customer is renting on an event-by-event basis: ASAP or its suppliers shall arrange to collect the waste disposed of in the Equipment upon the date of termination of this Agreement and coinciding with the date the Equipment is reclaimed by the ASAP or its suppliers.
c. Customer is solely responsible for ensuring all delivery vehicles have access to the Equipment pursuant to the terms in Section 7(c) of this Agreement. If Equipment is obstructed so as to prevent collection of waste by ASAP or its suppliers, Customer will be notified and subject to an additional fee.
10. Portable Sanitation Equipment Cleaning and Restocking. If Customer is renting portable sanitation Equipment on a long-term basis, ASAP will clean the equipment to maintain sanitary conditions within the Equipment once every week, the timing of such cleaning will coincide with the weekly scheduled waste collection. At the time of the cleaning, ASAP will also restock the Equipment with chemical digestant and toilet paper. If Customer has rented other equipment such as hand sanitizer stations, ASAP will also restock such equipment at the same time.
11. Termination.
a. If during the term of this Agreement, either party shall be in material breach of the provisions of this Agreement, the other party shall provide written notice of such breach to the breaching party and allow for a period of five (5) business days to cure such breach. If the material breach remains uncured upon written notice of the breach and completion of a period of five (5) business days the non-breaching party may terminate its obligations under this Agreement by delivering a written notice of termination to the breaching party, such termination to become effective upon receipt of such notice. In the event of a termination by the Customer, Customer shall inform ASAP of such termination in writing. Customer acknowledges that notice provided to any party, except for ASAP, shall be insufficient to effectuate termination. Customer acknowledges and agrees that unless properly terminated pursuant to this section, Customer will continue to receive monthly invoices from ASAP and Customer will continue to pay ASAP, pursuant to section 3 of this Agreement.
b. Upon termination of this Agreement, ASAP or its suppliers shall have the right to collect all Equipment and all waste contained therein at its reasonable discretion. Customer agrees to cooperate with ASAP or its suppliers in peaceably relinquishing the Equipment by ensuring unobstructed access to the Equipment at the Authorized Site, absence of any prohibited waste within the Equipment, refraining from filling the Equipment past its maximum fill capacity or weight limit, and refraining from modifying, transporting or relocating the Equipment from the Authorized Site. ASAP may charge Customer a fee for any reasonable repairs to the Equipment or cleaning of the Equipment related to the Customer’s use, operation or possession of the Equipment. If Customer desires to have the Equipment and the waste contained therein removed, Customer must provide notice to ASAP for removal of Equipment. Customer acknowledges and agrees that unless removal of Equipment is properly requested pursuant to this Section 11(b), Customer will continue to be liable for possession and use of the Equipment and for any invoices and costs pursuant to Section 3 above. Removal will occur 2 business days after the day of removal request. Any billing for services periods will end upon removal, without proration, not the request of removal.
12. Ownership of Equipment. All equipment furnished for use by Customer shall remain the property of ASAP or its suppliers. All Equipment is to be returned to the ASAP or its suppliers in the condition it was received, except for normal wear and tear. Customer shall refrain from modifying (including, but not limited to, painting), moving, transporting or otherwise relocating the Equipment while in Customer’s possession. Customer may request relocation of the Equipment by submitting a written request to ASAP. ASAP shall use reasonable efforts to relocate the Equipment at the Authorized Site per Customer’s request within five (5) business days of receiving such written request.
13. Loss of Property. Customer acknowledges that due to the nature of the Equipment, openings may be present within or around the Equipment to allow for disposal of fluids and materials. Customer agrees that ASAP shall not be liable for any property that is lost as a cause of falling or being dropped into such openings.
14. Force Majeure. ASAP will have no responsibility or liability for any delays or failures due to acts of God, fire, flood, explosion, war, strike, embargo, pandemic, acts of government, military authority, or the elements, any telecommunications failures, terrorist acts or other causes outside of the ASAP’s reasonable control.
15. ASAP Representations and Warranties. ASAP warrants to Customer that: (i) ASAP has the right and authority to enter into and perform its obligations under this Agreement, and that, by entering into this Agreement, ASAP does not breach any agreement(s) between ASAP and any third party; and (ii) ASAP is in compliance with and will remain in compliance with all Applicable Laws; EXCEPT AS EXPRESSLY STATED HEREIN, ASAP MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE, CONCERNING THE DELIVERABLES OR THE SUBJECT MATTER OF THIS AGREEMENT.
16. Limitation of Liability. If Customer is renting Equipment for an event, ASAP will use all reasonable effort to timely deliver Equipment suited to the Customer’s needs and specifications. However, in the event ASAP fails to deliver Equipment or delivers Equipment that is different from that ordered by Customer, whether due to negligence or otherwise, ASAP’s liability will be limited solely to the price paid for the rental of the Equipment. ASAP will in no event be liable for the full cost of the event or any other costs associated with the event. ASAP highly recommends acquiring event insurance. ASAP’S LIABILITY TO CUSTOMER FOR ANY DAMAGES ARISING FROM OR RELATED TO ANY CLAIMS OR OTHER DAMAGES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM AMOUNT EQUAL TO CUSTOMER’S LAST INVOICE. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR THIRD-PARTY SERVICE PROVIDERS AND THE MANUFACTURER OF ANY PRODUCTS THAT YOU PURCHASE USING THE SERVICES WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
17. Indemnification. Customer agrees to defend, indemnify, and hold harmless ASAP and ASAP from any and all claims, lawsuits, and liability arising under all Applicable Laws and Applicable Environmental Laws, related to (i) Customer’s use or possession of the Equipment or a breach of this Agreement; (ii) any User slipping, falling, tripping or otherwise being injured due to the conditions present within the Equipment, not directly related to the negligence or willful conduct of the ASAP, including but not limited to, standing puddles of water or other fluids, trash left within Equipment, exposed portions of the Equipment and ice; (iii) any and all waste stored in the Equipment, whether negligent or otherwise, whether on Customer’s property or elsewhere, whether initiated by any private or public parties or State or Federal Regulatory or Law Enforcement Agencies; (iv) injury to persons or damage to property caused by such trespassing persons and animals, including any claims, lawsuits and liability for attractive nuisance, as defined under applicable State laws; and (v) to use, or possession of Equipment, filling the equipment past its maximum fill capacity or structural limit, location of Equipment, or provision of right of way to Equipment.
18. Governing Law; Notices. This Agreement will be governed by and construed in accordance with the laws of the State of Florida and the federal laws of the United States without any reference to the conflict of laws principles of any jurisdiction. The parties agree to exclusive jurisdiction of the courts of the State of Florida and the United States District Court for the Northern District of Florida. Notices and communications required by this Agreement shall be in writing and shall be delivered or mailed to the respective parties at the addresses set forth above.
19. Legal Fees. If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.
20. Assignment, Successors and Assigns. Customer may not assign or transfer this Agreement, the Equipment or Customer’s rights or obligations hereunder to any third party without the prior written consent of ASAP. This Agreement shall be binding on the successors and permitted assigns of ASAP and Customer.
21. Entire Agreement; Severability; Priority. This Agreement, in addition to any Quotes and Change Orders, is the exclusive statement of the terms and conditions between the parties with respect to the matters set forth herein, and supersedes all prior agreements, negotiations, representations, and proposals, both written and oral. If any provision of this Agreement is held unenforceable or inoperative by any court of law, either in whole or in part, the remaining provisions shall be given full force and effect to the extent not inconsistent with the original terms of this Agreement. In the event of any conflict or inconsistency in the definition or interpretation of any term or provision set forth this Agreement and a Quote, such conflict or inconsistency shall be resolved by giving precedence to this Agreement, unless and to the extent the Agreement or the Quote expressly states that a particular term or condition set forth in a Quote takes precedence. Any contrary or additional terms and conditions attached to or part of any purchase order or similar document related to this Agreement shall be invalid and non-binding on the parties.
22. Amendment; Waiver; Counterparts. All modifications to this Agreement and to any Quote or Change Order must be in writing and executed by an authorized representative of each party. No waiver or retraction of a waiver under this Agreement shall be valid, enforceable or binding unless set forth in writing and duly executed by the party against whom such waiver is sought. The failure of either party to exercise any right granted herein, or to require the performance by the other party hereto of any provision if this Agreement, or the waiver by either party of any breach of this Agreement, will not prevent a subsequent exercise or enforcement of such provisions or be deemed a waiver of any subsequent breach of the same or any other provision of this Agreement.
