INTERIOR WASTE SOLUTIONS LTD.
GENERAL TERMS AND CONDITIONS
All terms capitalized but not otherwise defined herein will have the meanings ascribed to such terms in the Agreement to which these General Terms and Conditions are attached.
2. STANDARD OF CARE
Interior Waste Solutions Ltd (IWS) will perform the Services (a) in a good and workmanlike manner, consistent with that level of care, skill and diligence ordinarily exercised by other waste disposal firms practicing in the same locality under similar conditions and in accordance with the terms of this Agreement, (b) in accordance with all federal, provincial, local and municipal statutes, laws, bylaws, regulations, policies, directives, rules, codes and standards that are applicable from time to time to IWS (the “Applicable Laws”), and (c) in accordance with the terms and conditions of all permits, licenses and certificates required to be held and maintained by IWS for the performance of the Services.
3. RATE ADJUSTMENTS
IWS reserves the right to adjust the rates provided in the Agreement based upon increases in fuel costs, disposal facility costs, and transportation costs. IWS may also adjust the rate to reflect weight and volume of the Disposable Materials disposed. IWS may also adjust the rates from time to time for reasons other than the foregoing with the Customer’s consent upon notice from the Contractor at least five (5) days prior to the effective date of the adjustment.
IWS will employ or contract with qualified and skilled workers or subcontractors who are specialists in the trade or profession required for the Services.
5. RIGHT OF ENTRY
The Customer grants IWS and its employees, agents and subcontractors with the right of entry and access to the Work Site as is reasonably required to enable IWS to perform the Services and its obligations under this Agreement. The Customer will co-ordinate the Services with any work performed by the Customer or any other person at the Work Site to ensure that there will be minimal interference and interruption of the Customer’s. The Customer grants IWS and its employees, agents and subcontractors with the right of entry and access to the Work Site as is reasonably required to enable IWS to perform the Services and its obligations under this Agreement. The Customer will co-ordinate the Services with any work performed by the Customer or any other person at the Work Site to ensure that there will be minimal interference and interruption of the Customer’s and such person’s own work. IWS will take all commercially reasonable precautions in the performance of the Services to avoid damage or injury to the Work Site, the Customer’s property or, if applicable, the Customer’s employees, agents or subcontractors or any other person.
6. EQUIPMENT AND MATERIALS
Upon IWS’ drop off of the Bins at the Work Site, the Bins and all equipment provided to the Customer related thereto shall remain the property of IWS and the Customer shall have no interest in such equipment. The Customer shall be responsible for any loss of, theft of or damage to the Bins and any equipment, materials or other property provided by IWS in connection with the use of the Bins. The Customer shall only use the Bins and the related equipment and materials for their intended purpose and shall not move or alter the Bins and related equipment and materials.
7. PICK UP OF BINS
IWS may pick up the Bins at the Work Site at any time between Monday and Friday from 7:00 AM PST to 8:30 PM PST, and on Saturdays at such times as are agreed to by the Parties, and on no other days or at no other times.
8. TITLE TO DISPOSABLE MATERIALS
The Customer will at all times retain title to the Disposable Materials and at no point will the title to the Disposable Materials transfer from the Customer to IWS, and at all times the Customer will be fully responsible for the Disposable Materials.
9. REPRESENTATIONS AND WARRANTIES OF IWS.
IWS represents and warrants to the Customer that: (i) it has all rights and authority to enter into the Agreement on the terms and conditions set forth and to perform its obligations under this Agreement; and (ii) that the execution and delivery of this Agreement constitutes a legal, valid, and binding obligation of IWS. Unless otherwise stated herein, IWS specifically disclaims all other implied representations and warranties.
10. REPRESENTATIONS AND WARRANTIES OF THE CUSTOMER
The Customer represents and warrants to IWS that: (i) it has all rights and authority to enter into the Agreement on the terms and conditions set forth and to perform its obligations under this Agreement; (ii) the execution and delivery of this Agreement constitute a legal, valid, and binding obligation of the Customer; (iii) it has carefully examined the Work Site and that the present physical condition of the Work Site is of a minimum quality to allow IWS to perform the Services.
11. HAZARDOUS MATERIALS
The Customer agrees that the Disposable Materials will not contain or potentially contain any pollutant, deleterious substance, dangerous goods, toxic substance, hazardous waste, hazardous material, hazardous substance, waste or special waste (including, but not limited to, asbestos), as defined or determined pursuant to any Applicable Laws, including without limitation, the Environmental Management Act (BC) and the Environmental Management Act (BC) (collectively, “Hazardous Materials”), and that the Customer will take all commercially reasonable precautions to ensure that the Disposable Materials do not contain Hazardous Materials.
IWS will not be responsible for damage to the Customer’s pavement, curbing, or other driving surface resulting from IWS’ provision of the Services under the Agreement. IWS will also not be responsible for any damage caused whatsoever by Bins or other equipment or materials provided to the Customer that is not secured in place by the Customer upon pick up and disposal of the Disposable Materials.
13. LIMIT OF LIABILITY
IN NO EVENT SHALL IWS OR ANY OF ITS REPRESENTATIVES BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR: (i) ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF USE, DATA, REVENUE OR PROFIT, COST OF CAPITAL, LOSS OF BUSINESS OPPORTUNITY, LOSS OF GOODWILL, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), ANY OTHER THEORY OF LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EXCEPT IN CASES OF GROSS NEGLIGENCE BY IWS OR THEIR EMPLOYEES OR REPRESENTATIVES.
The Customer will, at all times, indemnify and save harmless IWS and its officers, directors, agents, employees and contractors (collectively, the “IWS Indemnitees”) against all claims, actions, causes of action, judgments, orders, fines, penalties, damages, costs, losses, and expenses, including but not limited to legal fees on a solicitor and own client basis, court and arbitration costs, of any kind or nature, which may arise or accrue to any person against the IWS Indemnitees or which the IWS Indemnitees may pay, incur, sustain or be put to arising out of or in connection with, directly or indirectly, IWS’ disposal of Hazardous Materials at the Disposal Site as a result of the Customer’s disposal of Hazardous Materials in the Bins, the Customer or third parties’ disposal of the Disposable Materials in the Bins, or IWS’ disposal of the Disposable Materials at the Disposal Site. The indemnity provided in this Section 14 will remain effective and survive any modification, partial release, or release of the covenants created by the Agreement and any termination of the Agreement whether by fulfillment of the covenants contained in the Agreement or otherwise.
15. TERMINATION FOR CAUSE
The Agreement may be terminated for cause by either Party, at its option and without prejudicing any other rights it may have under this Agreement, with written notice to the other Party if the other Party: (i) breaches any of its obligations under the Agreement and fails to remedy such default within seven (7) business days after the non-defaulting Party’s written notice of such default; or (ii) makes a general assignment for the benefit of creditors (iii) or makes a written admission of its inability to pay its debts or obligations as they become due; (iv) or on becoming bankrupt or insolvent, takes the benefit of any law in force for the bankrupt or insolvent debtor; (v) or seeks, consents to or acquiesces in the appointment of any trustee, receiver or liquidator of its business or its assets.
16. TERMINATION WITHOUT CAUSE
Either Party may terminate the Agreement without cause with thirty (30) days’ prior written notice to the other Party. Upon receipt or submission, as applicable, of any such termination notice (the “Termination Notice”) and unless the Termination Notice directs otherwise, IWS will: (i) discontinue the Services on the date and to the extent specified in the Termination Notice; (ii) not enter into any further subcontracts or purchase orders for materials, equipment, services or facilities, except as may be necessary for completion of such portion of the Services that are not terminated; (iii) promptly make all commercially reasonable efforts to cancel, with terms satisfactory to IWS, any of its subcontracts and purchase orders to the extent they relate to the performance of the terminated Services; (iv) as soon as they are reasonably able, IWS will remove the Bins from the Work Site and, if applicable and at IWS’ discretion, transport the Disposable Materials to the Disposal Site on behalf of the Customer; (v) perform only such Services as may be necessary to preserve and protect work in progress and to protect materials and equipment in transit, at the Disposal Site, or at other locations where the Services are being performed; and (vi) IWS will provide a final invoice to the Customer setting out the fees incurred for the Services performed up to and including the date of the Termination Notice, and the Customer will pay to IWS the full amount owing under such invoice, in accordance with the terms set out herein.
17. DISPUTE RESOLUTION
If there is a dispute between the Parties arising out of or relating to this Agreement, a Party will provide written notice (the “Dispute Notice”) to the other Party of the nature of the dispute. The Parties will use all reasonable efforts to conduct any dispute resolution procedures under this Agreement as efficiently and cost-effectively as possible.
Upon receipt by a Party of a Dispute Notice, the Parties agree to meet and to attempt to resolve the dispute amicably through good-faith negotiations. The Parties will provide frank, candid and timely disclosure of all relevant facts, information, and documents necessary to facilitate these negotiations. If the Parties cannot resolve a dispute by negotiation under Section 13(b) within 10 days after the date of receipt of a Dispute Notice, a meeting will be called between the Parties within the following 10 days for the purpose of identifying and retaining a mediator (“Mediator”).
The Parties will attend a mediation hosted by the Mediator within 30 days of the Mediator being chosen or, if the Mediator is unavailable within that time, at the earliest date that the Mediator is available to mediate the dispute. In the event that the Parties cannot agree on a Mediator, the matter will be referred directly to arbitration in accordance with Section 13(d).
The costs of any Mediator will be shared equally between the Parties. All disputes arising out of or relating to this Agreement that cannot be resolved by mediation in accordance with Section 13(c) will be referred to and finally resolved by a single arbitrator (“Arbitrator”) pursuant to the Arbitration Act (British Columbia). The arbitration will be governed by the British Columbia International Commercial Arbitration Centre in accordance with its “Domestic Commercial Arbitration Rules of Procedure” (“BCIAC Rules”). The arbitration shall be conducted by a single arbitrator appointed in accordance with BCIAC Rules in Kamloops, BC and the award of the arbitrator including any award as to costs will be final and binding on the parties.
The Parties will keep confidential the terms and conditions of this Agreement and all technical documents and information disclosed to it by the other Party (collectively, “Confidential Information”). The Parties will (and will cause its employees, agents and subcontractors to) only use the Confidential Information as reasonably required to perform their obligations under this Agreement, and will not otherwise use or take any benefit from any Confidential Information. The Parties will keep the Confidential Information strictly confidential and will use conscientious efforts to protect the Confidential Information from unauthorized use, access, disclosure and duplication, and agree not to disclose any Confidential Information to third parties without the other Party’s written consent. Notwithstanding this Section 16, either Party may disclose Confidential Information to the extent required by law, provided that such Party gives the other Party prompt written notice of the proposed disclosure and the reason for the proposed disclosure (unless prohibited by law from doing so) and such Party takes reasonable steps to make the disclosure on a confidential basis.
Any notice or communication required or permitted to be given under the Agreement will be in writing and will be considered to have been received: (i) if delivered by hand during business hours on a business day, upon receipt by a responsible representative of the receiver, and if not delivered during business hours, upon the commencement of business hours on the next business day; (ii) if sent by email, during business hours on the business day the email communication was sent, and if not transmitted during business hours, upon the commencement of business hours on the next business day; and (iii) if mailed by prepaid registered post in Canada, upon the fifth business day following posting; except that, in the case of a disruption or an impending or threatened disruption in postal services every notice or communication will be delivered by hand or sent by facsimile transmission. For the purposes of the Agreement, “business day” will mean any day other than a Saturday, Sunday or statutory holiday in the Province of British Columbia.
20. INDEPENDENT CONTRACTOR
It is mutually agreed and understood by the Parties that IWS is an independent contractor and is not an employee, agent, or servant of the Customer and nothing contained in the Agreement or otherwise nor any past relations or course of dealings between the Parties will be construed as establishing a relationship of principal and agent, master and servant, or employer and employee.
IWS has the right to sell, assign, transfer or grant participations in all or any portion of the IWS’ interests, rights and obligations under this Agreement to any other Person, upon notice to, but without the consent of, the Customer. The Customer may not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of IWS, which consent will not be unreasonably withheld or delayed. Any purported assignment or delegation by the Customer in violation of this Section shall be null and void. No assignment or delegation by the Customer shall relieve the Customer of any of its obligations hereunder.
The Agreement will be governed by and construed in accordance with the laws of the Province of British Columbia and the federal law of Canada applicable therein and will be treated in all respects as a British Columbia contract.
23. PARAMOUNTCY; AMENDMENTS
The Agreement supersedes all other agreements, oral or written, and contains the entire agreement of the Parties. No cancellation, modification, amendment, deletion, addition, waiver or other change in this Agreement will have effect unless specifically set forth in writing signed by the Parties.
The headings in the Agreement are for convenience only and in no way alter, modify, amend, limit or restrict the contractual obligations of the Parties. A reference in the Agreement to a section or schedule is a reference to a section of this Agreement or a schedule to this Agreement, unless otherwise indicated.
25. SUCCESSORS AND ASSIGNS
The Agreement will be binding upon and ensure to the benefit of the Parties and their respective successors and assigns.
The failure of a Party to insist upon the strict performance of any term of the Agreement, or to exercise any right or remedy contained in the Agreement, will not be construed as a waiver or a relinquishment by that Party of any future breach of that term, right or remedy.
27. FURTHER ACTIONS
The Parties will execute and deliver all other instruments and take any other actions necessary to give full effect to this Agreement.