These terms and conditions (“Agreement”) are by and between 1-800-GOT-JUNK? and the client (“Client”) set forth on the applicable Credit Application, National Account Service Agreement or Statement of Work executed with 1-800-GOT-JUNK? from time to time.
This Agreement sets forth the terms pursuant to which franchisees of the 1-800-GOT-JUNK? franchise system (the “Participating Franchisees”) will provide junk removal and clear out services (“Services”) to the Client. The parties agree as follows:
In this Agreement: (i) references to 1-800-GOT-JUNK? means 1-800-GOT-JUNK? Commercial Services (Australia) Pty. Ltd.; and (ii) the Client and 1-800-GOT-JUNK? may each be referred to as a “Party” and may be referred to collectively as the “Parties”.
2. Term and Termination
The term of this Agreement (the “Term”) shall be for a period of twelve (12) months beginning from the service effective date (the “Effective Date”) unless sooner terminated as herein provided. This Agreement shall automatically renew for additional successive twelve (12) month periods (each, a “Renewal Term”) commencing upon the expiry of the Term or the previous Renewal Term, as the case may be, provided that this Agreement will not automatically renew if either Party has given notice to the other, not less than sixty (60) days before the end of the then current Term or Renewal Term, that it does not wish to renew this Agreement. Either Party may terminate this agreement upon thirty (30) days advance written notice, or without advance notice in the event of a material breach (whether serious or repeated) in the performance of the other Party’s obligations under this Agreement. In the event of any such termination, all amounts due for Services rendered up to the date of termination shall become due and payable regardless of whether or not an invoice for such Services has been issued or delivered to the Client prior to the date of termination.
3. Service Level and Pricing
Services will be provided for the Client on an “as needed” and “as directed” basis in accordance with reasonable commercial standards from time to time. Any tracking codes to be used by the Client shall be designated by 1-800-GOT-JUNK? from time to time. On-site documentation or collection of paperwork will not be necessary unless otherwise indicated in this Agreement. The Client must provide the account tracking code provided by 1-800-GOT-JUNK? from time to time, if any, when ordering Services in order to be eligible for any discounts or promotions described in this Agreement. Subject to other provisions of this Agreement, 1-800-GOT-JUNK? may charge a “dry run” fee of $100 for any Services cancelled by the Company once the Participating Franchisees have arrived on the premises to perform the Services.
All prices referenced shall be the standard prices charged by the Participating Franchisee, which are subject to change from time to time, who performs the Services at the time the Services are provided. Unless otherwise stated in this Agreement, Services performed in areas not within the exclusive territory of a Participating Franchisee (“Out of Area Services”) shall be subject to an additional charge of USD $1.44 per mile travelled in the United States of America or CDN $1.59 per mile travelled in Canada, which may be amended from time to time with notice to the Client, calculated from the Participating Franchisee’s head office, plus a minimum volume charge which is calculated based on the distance travelled. Performance of Out of Area Services shall be at the discretion of 1-800-GOT-JUNK?. 1-800-GOT-JUNK? may charge a “dry run” fee of the quoted price for any Out of Area Services cancelled less than six (6) hours before they are scheduled to be performed.
Unless otherwise stated in this Agreement, Participating Franchisees shall invoice the Client upon performance of Services and such invoices shall be due and payable upon presentment. If this Agreement provides for the direct invoicing of the Client by 1-800-GOT-JUNK?, then invoices for Services performed will be aggregated by 1-800-GOT-JUNK? and delivered to the Client in the manner set out in this Agreement and shall be due and payable on net 30 terms, unless otherwise stated in this Agreement. If applicable, in the event that Client is engaging 1-800-GOT-JUNK? to perform the Services at a site of a third party who is not a party to this Agreement, under no circumstance shall Client’s payment obligations under this Agreement be contingent upon Client receiving payment from such third party. 1-800-GOT-JUNK? and Participating Franchisees, as the case may be, may charge the Client interest of two percent (2%) per month (twenty-four percent (24%) per annum) on any late payment of fees for Services rendered, as well as charge back to the Client any and all reasonable legal fees and other expenses incurred by 1-800-GOT-JUNK? or Participating Franchisees in the collection of any unpaid fees and charges owing pursuant to this Agreement.
5. Compliance with Laws
1-800-GOT-JUNK? will comply with all laws in connection with its performance of the Services under this Agreement. The Client represents at each time it orders the Services that it is legally entitled to order the Services requested. Neither Party shall be obliged to carry out its obligations under this Agreement to the extent that it would be unlawful to do so.
Each Party represents and warrants to the other Party that it has the legal right and ability to enter into this Agreement and perform its obligations hereunder in the manner contemplated by this Agreement. 1-800-GOT-JUNK? warrants that it has and shall maintain all approvals, authorizations, licenses, permits and other permissions, consents, and authorities (regulatory or otherwise) whatsoever needed to perform its obligations under this Agreement.
7. Limitation on Damages
In no event shall either Party be liable for any indirect, incidental, or consequential damages, including but not limited to lost profits, arising out of or in relation to this Agreement. Under no circumstances will the aggregate liability of 1-800-GOT-JUNK? arising out of or in relation to this Agreement under any action or claim exceed the total amount of fees paid for the Services by Client to 1-800-GOT-JUNK? during the six months preceding the event giving rise to such action or claim.
8. Governing Law
This Agreement and the transactions contemplated herein shall be governed by, interpreted, construed and enforced in accordance with the laws of the State of New South Wales. Each of the Parties hereby waive trial by jury.
Neither Party’s rights or obligations under this Agreement may be assigned without the express written consent of the other Party. Notwithstanding the preceding sentence, the Client acknowledges and agrees that: (a) 1-800-GOT-JUNK? may assign any of its obligations under this Agreement to Participating Franchisees; (b) 1-800-GOT-JUNK? may subcontract certain third party contractors to carry out junk removal and clear out services in relation to electrical, plumbing and other services from time to time; and (c) either Party may assign this Agreement to any of its affiliates or subsidiaries without notice to or consent from the other Party, or in connection with a merger, amalgamation, sale of all or substantially all of its assets or a similar corporate transaction, provided that the assignee acknowledges and agrees to be bound by the provisions of this Agreement.
10. Relationship of Parties
The relationship between the Parties under this Agreement is that of independent contractors. This Agreement shall not create any relationship of employer and employee, principal and agent, partnership or joint venture between the Parties. Nothing in this Agreement shall be construed as creating an exclusive contract or arrangement between the Parties or that the Client will provide 1-800-GOT-JUNK? with any minimum fees for services performed under this Agreement unless otherwise specified in this Agreement.
Any notice, consent, authorization, communication or approval required to be given hereunder shall not be deemed validly given unless in writing and sent by facsimile, first class mail or actually delivered by reliable overnight courier or in person, to the address of the receiving Party as set forth, or to such address as such Party shall designate in writing from time to time.
12. Entire Agreement
This Agreement sets forth the entire understanding of the Parties with respect to the subject matter contained herein and supersedes all prior agreements, arrangements and understandings, whether oral or in writing, relating solely to the subject matter herein, provided that if the Parties have entered into a confidentiality or non-disclosure agreement in connection with this Agreement, such agreement shall continue to bind the Parties according to its terms. 1-800-GOT-JUNK? will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Client in any receipt, invoice, acceptance, purchase order, confirmation, correspondence, or otherwise, regardless of the failure of 1-800-GOT-JUNK? to object to such terms, provisions, or conditions.
If any provision of this Agreement or the application of any such provision to any Party or circumstance is held to be unlawful or invalid, the remainder of this Agreement and the application of such provision other than to the extent it is held unlawful or invalid, will not be considered by the Parties to be unlawful, invalidated or affected thereby, and shall remain in full force and effect.
14. No Restrictions
Other than as specifically provided for in this Agreement, nothing in this Agreement shall prevent either Party from performing any services for, or receiving any services from, other entities, including other affiliates, during or after the term of this Agreement.
1-800-GOT-JUNK? will direct Participating Franchisees to obtain and maintain the following insurance coverage during the Term and any Renewal Term: (a) comprehensive public liability and property damage insurance, including personal and bodily injury liability, contractual liability, employers’ liability and owners’ and contractors’ protective insurance coverage, with a policy limit of not less than $1,000,000 per occurrence; (b) owned, hired and non-owned vehicle liability insurance with a policy limit of not less than $1,000,000 combined single limit for any vehicle; and (c) such other insurance as required by Participating Franchisees’ home province, territory or state, as applicable.