IDS GENERAL TERMS AND CONDITIONS
These IDS General Terms and Conditions are incorporated herein by this reference to the Service Agreement, Proposal or Billing Sheet (each, an “Agreement”) between Industrial Dewatering Solutions LLC (“IDS”) and the customer identified on the cover sheet (the “Customer”).
End of IDS General Terms and Conditions.
- Compensation.Unless otherwise agreed to in writing between the parties, all work performed, and materials and equipment provided by IDS for Customer under this Agreement, including work included in any change order (together, “Work”) shall be billed to Customer on a time and materials basis, which shall be at IDS’s then current standard rates for applicable labor, material and equipment, which may change from time to time. Work or materials not covered under IDS’s then current rate schedule shall be billed at a rate of cost plus twenty percent (20%) for disposal work and cost plus fifteen percent (15%) for all other Work. Customer agrees to pay amounts invoiced by IDS within 30 days following the presentation of the invoice. Customer further agrees to pay to IDS on all past due accounts an interest charge of one and one half percent (1 1/2%) per month on invoice balances. In the event of Customer’s failure to pay any amount due upon IDS’s invoice(s) or in the event of Customer’s breach of this Agreement, Customer agrees to pay IDS all reasonable attorney’s fees (including costs of in-house counsel which will be $300 per hour), collection fees, all costs and expenses incurred by IDS in any legal action or collection efforts brought to collect unpaid invoice balances owed by Customer or to enforce this Agreement whether or not litigation is commenced. Any daily sheets provided to Customer are for reference only and may be later modified by IDS to correct certain matters such as overtime, job numbers, and other matters.
2. Changes.Any additional quotes or estimates for cost of Work to be performed shall be in writing and signed by IDS’s authorized representative. If conditions at the work site are encountered by IDS which are (a) subsurface or otherwise concealed physical conditions or unusual geologic conditions which differ materially from those indicated in the proposal for Work or otherwise originally contemplated by the parties, then IDS before conditions are disturbed, will notify Customer within a reasonable period of time. Customer shall promptly, investigate such conditions and if such conditions do materially differ and cause an increase or decrease in IDS’s cost of, or the time required for performance of any part of the Work, then an equitable adjustment shall be made with respect to the scope of the Work, compensation and/or time schedule. Unknown or unanticipated conditions or conditions differing from information provided by Customer, changes in laws or required standards, changes in charges by any disposal facility, directions by other federal, state or local agencies or other conditions encountered beyond IDS’s control shall be considered a change requested by Customer. If the Work involves emergency response services, the parties acknowledge that the scope of the Work may not be determined until after IDS arrives at the site and assesses the Work. Such Work may include waste cleaning, transportation and disposal. Customer will pay IDS for all Work performed at the site that IDS reasonably determines to be necessary or customary to adequately respond to the emergency response.
3. Limitation of liability. IDS shall not be liable to Customer or any third parties for (a) consequential, special, incidental or indirect losses or damages including, without limitation, the loss of profits, loss of production, plant down-time, Customer’s liability to third parties or punitive damages; (b) losses or damages arising from any pre-existing condition at the work site or the negligence of Customer and/or any third parties; (c) losses or damages arising from causes beyond IDS’s control including, without limitation, war, riots, acts of governmental authorities, strikes or other labor difficulties, inclement weather, fires, floods and unavoidable casualties or delays in transportation; (d) losses or damages arising from the lack of identification or inaccurate identification of the Hazardous materials or Waste or other materials; and (e) any other claims, losses or damages arising out of the Work except to the extent caused by IDS’s sole negligence or breach of this Agreement. If there is any defect in the Work, Customer shall notify IDS within three business days after Customer’s discovery of the defect or 90 days after the Work is complete, whichever occurs sooner. If IDS is timely notified, IDS may (at its election) either re-perform the Work or refund Customer an equitable amount for damages caused by the defect. Customer’s failure to timely notify IDS of any defect shall be a complete bar against any recovery from IDS for any suits or damages arising out of such defect. The remedies set forth herein are exclusive and the total liability of IDS on any claim (including attorneys’ fees and costs), whether in contract, tort (including negligence, whether sole or concurrent), or otherwise arising out of, connected with or resulting from the Work shall not exceed the total fees paid to IDS by Customer plus applicable insurance proceeds.
4. Handling of Waste regulated by Law. If included in the Work, IDS agrees to treat, store, remove, haul or dispose of hazardous waste, hazardous material, toxic waste, dangerous wastes, or any other waste (“Hazardous Waste”) regulated by the Resource Conservation and Recovery Act, 42 USCA, Section 6901, et seq. as amended (hereinafter “RCRA”) or any other federal, state or local law or regulation relating to the receipt, handling, treatment, storage, transportation and disposal of such Hazardous Wastes (“Environmental Laws”). Customer warrants that at all times it has title to and shall retain title to all Hazardous Waste and is the generator of all Hazardous Waste included in the Work. Customer agrees to waive and relinquish any claim or argument that IDS is a “generator” or “arranger” of Customer’s Hazardous Waste under Environmental Laws. Customer is solely responsible and liable for compliance with the provisions of all Environmental Laws pertaining to Customer’s Hazardous Waste, including but not limited to identifying Hazardous Waste, completing and signing all paperwork associated with the Hazardous Waste (including but not limited to waste profiles and manifests), selecting the final disposal facility for the Hazardous Waste, and retaining records related to the management and disposal of the Hazardous Waste. Any transportation undertaken or arranged by IDS to a disposal facility, and any execution of contracts, waste profiles or payment by IDS for any transportation or disposal service, shall be accomplished by IDS as Customer’s authorized agent, the delegated authority for which is expressly acknowledged by Customer. Customer shall reimburse IDS for any fees and gross receipts, sales, use or similar taxes arising from or related to handling or assisting Customer with Customer’s Hazardous Waste. Prices quoted by IDS for the transportation and disposal of Hazardous Waste do not constitute a selection of the disposal facility and shall be subject to adjustment, payable by Customer, in the event the disposal facility increases its price to IDS, or Customer designates another facility.
5. Handling of Non-Hazardous Waste. In the performance of its Work, IDS shall dispose of all non hazardous waste or substance (“Other Waste”) in accordance with the terms of this Agreement. If IDS discovers either prior to removing Other Waste from Customer’s work site or after removing Other Waste from such work site that the Other Waste is for any reason not acceptable for disposal at a disposal facility, IDS shall notify Customer why the Other Waste is nonconforming to the Waste Material Profile Sheet and/or is not acceptable at the disposal facility. IDS shall be excused from further performance with respect to the Other Waste that is determined to be non-conforming and not acceptable for disposal at the disposal facility selected by Customer. If IDS provides evidence that the Other Waste is different than as profiled Customer shall reimburse IDS for its reasonable expenses in connection with the Other Waste. Customer shall have the option to treat the Other Waste as Hazardous Waste and dispose of such in accordance with the provision of paragraph 4 above.
- Authorized Agent. Customer hereby authorizes IDS to take any of the actions IDS deems necessary or convenient on behalf of Customer: (a) complete and execute Generator Waste Profile Sheets, (b) complete and execute Generator Waste Profile Sheet recertifications, (c) authorize and execute amendments to Generator Waste Profile Sheets, (d) execute contracts and other instruments to dispose of and/or transport material, and (e) execute manifests to initiate shipment to disposal facilities. Notwithstanding the foregoing, IDS’s authority is permissive and IDS will not be obligated to take and shall have no liability for failing to take any of the foregoing actions on behalf of the Customer unless IDS agrees to do so in writing with Customer.
7. Termination or Suspension.IDS may terminate this Agreement or suspend its performance of Work in the event of Customer’s failure to timely pay amounts due IDS or if customer breaches any provision of this Agreement and fails to remedy such breach(s) within five (5) days of IDS notice to Customer of such breach(s). Customer shall be responsible for all costs and expenses incurred by IDS relating to such termination or suspension. Standby costs, demobilization and mobilization costs incurred to remove personnel and equipment from the site and other costs incurred as a result of suspension or delay beyond the direct control of IDS shall be compensated by Customer in accordance with IDS’s then current rate schedule.
8. Indemnity. Customer shall indemnify, defend and hold harmless IDS from and against any and all loss, liability, claims, damages, fines, penalties, costs or expenses,(including defense costs and attorneys’ fees), incurred by IDS or third parties arising from or in connection with any bodily injury, death, property damage or destruction , environmental release, impairment, pollution or condition, violation or alleged violation of any law, order, regulation,, code, ordinance or statute or any other cause occurring prior to CSS commencement of Services, and during or after the performance of Services except to the limited extent such losses are directly attributable to IDS’s negligence in the performance of its Services.
9. Insurance. During the performance of the Work, IDS shall maintain workers compensation and employer’s liability insurance, commercial general liability insurance in the amount of $1,000,000 per occurrence/$1,000,000 aggregate; automobile liability insurance in the amount of $1,000,000 combined single limit and contractor’s pollution liability insurance in the amount of $1,000,000.
10. Dispute Resolution. In the event of dispute(s) between Customer and IDS, the parties agree to exercise a good faith effort to resolve such dispute(s). If the parties do not resolve the dispute, the matter shall then be submitted to binding arbitration in accordance with the rules of the Arbitration Services of Portland, Inc. in Longview, Washington before a single arbitrator. The party that prevails in such arbitration will be entitled to recover from the other party its reasonable attorney’s fees, expert witness fees and other costs of arbitration which shall be determined by the arbitrator and included in the award, which award shall be binding upon the parties.
11. Governing Law; Jurisdiction; Severability. This Agreement will be governed by the laws of the state of Washington, without regards to the principles of conflicts of laws thereof. Exclusive jurisdiction and venue in any litigation shall lie in the state and federal courts of Cowlitz County, Washington. If any provision of this Agreement shall be held invalid or unenforceable to any extent the remainder of the Agreement shall be in full force and effect and shall not be affected thereby.
12. Notices. Any information or notices required or permitted hereunder may be made by mail, facsimile or personal delivery and shall be deemed to have been duly given to either party on the day that notice is delivered personally or by facsimile or email or two days after having been mailed by first class mail to The President, General Manager or Project manager of either party at the addresses set forth in this Agreement or at the location of the work site established under this Agreement. An executed original of the signed document shall be delivered within three (3) days of any delivery by facsimile or email, but failure to deliver the executed original shall not change the effective date of the document. A party may change it address for future notices by such notice.
13. Warranties and Limitations. IDS warrants that the work performed under this Agreement will be performed in a good and workmanlike manner consistent with industry standards. This warranty will expire on the anniversary date of the substantial completion of the Work or eighteen months after the date of this Agreement, whichever is sooner (the “Warranty Period”) regardless of when the alleged breach of warranty is discovered. Customer may bring no claim, action or arbitration against IDS whether under contract, tort, statute or any other theory after the expiration of the Warranty Period and Customer hereby expressly waives all rights to bring any such claims, action or arbitration and that this provision shall be a complete defense against any such claims, action or arbitration. IDS MAKES NO WARRANTIES AS TO EITHER THE TOTAL COST OF OR ANY COMPLETION DATE OF ANY SERVICE OR MATERIALS TO BE PROVIDED OTHER THAN AS EXPRESSLY STATED IN THIS AGREEMENT AND ALL WARRANTIES WHETHER IMPLIED OR STATUTORY, INCLUDING MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, CUSTOM AND USEAGE ARE HEREBY DISCLAIMED BY IDS AND WAIVED BY CUSTOMER.
14. Entire Agreement. This Agreement and Rate Schedule constitute the entire Agreement between IDS and Customer. This Agreement shall not be modified or amended nor there any waiver, termination or discharge of any provision of this Agreement that shall be binding upon the parties except by a writing signed by IDS and Customer. Customer and IDS acknowledge that any and all verbal understandings, representations or promises between them have been included within this Agreement. Any proposal for additional or different terms or any attempt by Customer to vary in any degree any of these terms and conditions is hereby rejected. Any covenant, term, or condition set forth in any purchase order, contract, subcontract, acceptance or other instrument shall not operate as a rejection of these terms and conditions. If these terms and conditions are deemed an acceptance of a prior offer by Customer, it shall be limited to the express terms in these terms and conditions. These terms and conditions supercede any contradictory terms and conditions set forth in any contract, subcontract, or other instrument executed by IDS and Customer.
15. Acceptance; Assignment. If this instrument is executed by the Customer, the representative of Customer executing this Agreement warrants that he/she has the authority to execute this Agreement and bind Customer to the terms of this Agreement. If this instrument is included in a proposal or offer by IDS to the Customer, Customer may accept this by any written or verbal acknowledgement or by permitting IDS to begin the Work. Without limiting the foregoing, if IDS commences any work under this Agreement or if Client acknowledges these terms and conditions by email or otherwise, Client will be bound by these terms and conditions. This Agreement shall inure to the benefit of each parties successors and permitted assigns. Customer may not assign its rights under this Agreement without IDS’s prior written consent.
- Use of Customer’s Employees. If Customer elects to have any of its employees assist or otherwise participate in any part of the Work or related work, then (a) Customer represents and warrants to IDS that the Customer employee(s) who will be participating has adequate training, qualifications and experience to safely do so; (b) to the extent permitted by law, Customer will indemnify, defend, and hold harmless IDS and its affiliates and each of their agents, employees, officers, and directors (each an “Indemnitee”), against all claims, damages, fines, penalties, costs, liabilities, or losses (including amounts paid in settlement of claims, reasonable attorneys’ fees, consultant fees, expert fees, and costs) (“Claims”) arising out of the acts or omissions of Customer’s employee, including (without limitation) such employee’s negligence, other tortious fault, intentional misconduct, or any allegation that Customer’s employee is an employee of IDS for any purpose, including under any joint employer theory of liability; and (c) for purposes of the indemnification obligations under Section 15(b), Customer expressly waives any immunity it may be granted under the Washington State Industrial Insurance Act, Title 51 RCW (or any analogous state law if the work if applicable). Customer’s indemnification obligation will not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable to or for any third party under workers’ compensation acts, disability benefit acts, or other employee benefit acts. The parties expressly acknowledge and certify that the waiver of immunity under Title 51 RCW (or analogous statute) was mutually negotiated and agreed upon.