DIRT GOPHER LLC
Terms & Conditions- Collection and Disposal
Dirt Gopher LLC, a Texas limited liability company, including its subsidiaries and affiliates, (“Company”), agrees to provide certain earth removal services (as defined herein) and rent certain equipment to customer (“Customer”) on the basis of the terms and conditions as set forth in these Terms and Conditions (“Terms and Conditions”). Except as specifically set forth herein, or as otherwise communicated by Company to Customer, the following Terms and Conditions, including the Service Documents (as defined below) shall apply to and govern both commercial and residential services and rentals.
Customer grants to Company the right to collect, transport, deliver, deposit and/or dispose of all Customer’s Materials (as herein after defined and which includes, without limitation, dirt and/or aggregate and/or other materials), all in accordance with these terms and conditions. Details of the services rendered, including any equipment rental associated with the services are detailed in the services summary and hereinafter referred to as “Services” or “Project”. This transaction, including Company’s provision of the Services to Customer and Company’s rental of the Equipment to Customer, is expressly limited to and made conditional upon Customer’s assent to and acceptance of all the terms and conditions contained herein and as set forth in any related services, materials, or rental document, including, but not limited to any quotation, proposal, Services Agreement, acknowledgment and/or invoice (collectively referred to herein as the “Service Documents”).
Customer is requesting services that may require the use of heavy machinery, vehicles, and at times, containers. The term “Equipment” as used hereafter shall mean any and all equipment, machinery, vehicles, and/or containers used, owned, or provided by the Company in connection with the Project.
CHARGES, PAYMENTS, and LATE FEES
Customer shall properly and timely pay Company for the services provided by Company according to these terms:
Thirty-five percent (35%) deposit required with placement of the order.
The remaining sixty five percent (65%) is due when services are rendered.
In the event that any payment is not made by Customer when due, Company may, at Company’s sole discretion, terminate this Agreement immediately upon email notice to the Customer and recover from Customer all past due amounts as well as any and all Equipment, Vehicles or Containers on the Premises.
All past due amounts unpaid more than thirty days from the date of the invoice shall bear interest at 1.0% per month (equal to 12.0% Annual Percentage Rate) or the maximum legal rate allowed under Texas law, whichever is greater, on the unpaid invoice amount, calculated monthly from the date of the invoice.
SCHEDULING AND RESCHEDULING
Once the order is placed and Customer has scheduled the Services there is a rescheduling Fee of $105.00 to reschedule any work or delivery of equipment.
In the case of Rain, or other condition making work dangerous, excessively costly, and/or impossible, Company will work with Customer to reschedule the needed services and equipment. If Customer refuses to
A Dry-Run Fee of $50.00 per occurrence will be charged to the Customer in the event of cancellation, constructive cancellation or inability to work due to any condition causing a Dry Run (as later defined).
Cancellation is only permitted after speaking with the Company and making good faith efforts to reschedule. If a cancellation is necessary then Cancellation fees start at $50 and increase depending on the size of the project and how long before the scheduled date the cancellation occurs.
DRIVEWAYS AND PARKING AREAS
Customer warrants that they shall provide right-of-way for Company’s equipment, vehicles, or containers, and that such right-of-way shall be located adjacent to the most convenient public right-of-way and is sufficient to bear the weight of all of Company’s equipment, vehicles, materials, and any container, if one is being used. Company is not responsible for damage to any private pavement or accompanying sub-surface of any route reasonably necessary to perform the services herein contracted. Customer assumes sole liability for damage to pavement or road service.
Customer shall provide unobstructed access to the Premises, the Equipment, and the Materials on the scheduled day(s). If the Premises or any Equipment is inaccessible so that the scheduled service, pickup, or delivery cannot be made, Company will promptly notify the Customer and afford the Customer a reasonable opportunity to provide the required access. However, Company reserves the right to charge an additional fee for any additional service arising from Customer’s failure to provide such access. If Customer fails to provide access, a Dry-Run Fee will apply.
Customer acknowledges that certain locations and/or uses of the Equipment may require a permit, license, certification or other local, municipal, city, county and/or state approval relating to the possession, placement, storage and/or transportation of the Equipment (collectively referred to hereinafter as a “Permit”). Customer represents and warrants to Company that Customer (and not Company) is solely and exclusively responsible for obtaining and maintaining all necessary and required Permits relating to Customer’s possession and use of the Equipment. In the event that Customer fails to obtain and/or maintain all necessary and required Permits, Company may pick-up the Equipment without prior notice to Customer and without any liability to Customer.
DELIVERY TRANSPORT AND PICK-UP OF EQUIPMENT
Company will use commercially reasonable efforts to ensure timely delivery and pick up of Equipment; provided that, due to circumstances beyond our control, including, but not limited to, inclement weather, hazardous roads and/or driving conditions, traffic delays, motor vehicle accidents, delays at landfills and equipment failure, we cannot and do not guarantee delivery times or dates. Company will not be liable to Customer under any circumstances for costs, expenses, losses and/or damages incurred by Customer in any manner relating to such delays. Upon the delivery of the Equipment to the location as designated on the Services Summary, Customer shall not move, transport or attempt to move or transport (either directly or indirectly) the Equipment from the designated site without prior notice to and consent from Company, which may be withheld within the sole discretion of Company. In the event that Company attempts to deliver or pick-up Equipment and is unable to do so for any reason beyond Company’s control, then Company shall be entitled to a Dry-Run Fee (as defined herein). Customer acknowledges and agrees that the Equipment must be placed on a firm and stable surface. The placement location must be easily accessible for the purpose of Company’s continuing performance of the Services, and be free of ground or overhead obstructions. In addition, the area surrounding the Equipment must also be clear of any ice or snow. Customer further acknowledges that the Equipment cannot be placed or located on streets or roadways. The location and placement of the Equipment is the sole responsibility of the Customer. In the event that a relocation of the Equipment is required in order to comply with applicable laws and regulations and/or to allow Company to perform the Services, then a relocation charge may be assessed by Company within the discretion of Company. Customer shall be solely responsible for any fees, penalties, fines, assessments, charges, costs and expenses asserted by a third-party (including, without limitation, a towing company) incurred in connection with the movement, placement and/or use of the Equipment. In the event of Customer’s violation and/or breach of the terms of the Services Agreement (including these Terms and Conditions), Company may, within Company’s sole discretion and without prior notice to Customer and without any liability to Customer, pick-up the Equipment. In addition, Company may pick-up the Equipment at any time if required to do so by local, county and/or state law or as required by order of any local, county and/or state government or agency. Customer grants Company, its agents, employees, and contractors (including repair people) access to the Premises, and unfettered access to the Equipment, while Equipment is on the site. Customer hereby waives all trespassing claims against Company and its agents while Equipment is on the Premises.
Subject to the restrictions relating to Unacceptable Materials (as defined herein), throughout the Term of the Services Agreement, Company shall via Company’s subcontractors and via third-parties, use commercially reasonably efforts to arrange for the removal of materials located at Customer’s location (the “Premises”). Subject to the terms of the Services Agreement (including these Terms and Conditions), the materials shall be removed from Customer’s location in the manner and on the days and times as set forth in the Services Agreement. In the event that Company (including its subcontractors) attempts to remove the materials on a scheduled day (in accordance with the terms stated on the face-page of the Services Agreement) and is unable to do so for any reason beyond Company’s control including, but not limited to, overloaded Equipment, low lying power lines or tree branches, blocked access to the delivery or pick-up location, damaged Equipment, locked gates, fences or parking lots, inaccessible driveways and/or the storage of prohibited items or substances in the Equipment (collectively referred to as a “Dry-Run”), then Company shall be entitled to charge Customer and receive from Customer a Dry-Run Fee. The standard Dry-Run Fee is $50.00; provided that, if Company incurs additional charges, fees, fines, penalties, costs and/or expenses related to the Dry-Run, then Company may increase the Dry-Run Fee in order to recoup any such charges, fees, fines, penalties, costs and/or expenses.
Customer represents and warrants that the only materials related to the Project shall be “Acceptable Materials” as defined herein and shall contain no other substances. The Customer Warrants and represents that there shall not be any “Unacceptable Materials” or any hazardous material in the Materials or Premises involved in the Project.
ACCEPTABLE MATERIALS INCLUDE THE FOLLOWING: Wood waste (trees, lumber, brush)
Dirt (Clean, Topsoil, Select Fill, Rock, Rock Dirt/Mix), Brick, and Rock (all types of uncontaminated rock). Concrete is not currently an acceptable material, please speak with Company management if concrete is a concern for your project.
UNACCEPTABLE MATERIALS INCLUDE, WITHOUT LIMITATION, THE FOLLOWING: Any form of waste, including Plastic, Metal, and Asphalt. Hazardous waste, Asbestos, Chemical products, Oil filters, Herbicides & pesticides, Radioactive material, Solvents, Paint (except completely dried latex paint cans, no liquids), other flammable liquids, Aerosol cans, propane tanks, motor oil, transmission oil/lubricating/hydraulic oil/ oil filters, Contaminated oils (mixed with solvents, gasoline, etc.), Antifreeze, Appliances, Petroleum contaminated soil/lead paint chips, Tires, Batteries, Computers, Monitors, Televisions, Microwaves, Fluorescent Tubes, Railroad Ties, Medical Waste, Concrete / Wet or Dry, Barrels, All liquids, and Freon.
HAZARDOUS MATERIAL: The term “hazardous material” shall include, but not be limited to, any amount of waste listed or characterized by the United States Environmental Protection Agency or any state agency pursuant to the Resource Conservation and Recovery act of 1976, as amended, or applicable state law. Title to and liability for any waste excluded above shall remain with Customer and Customer expressly agrees to defend, indemnify and hold harmless Company from and against any and all damages, penalties, fines and liabilities resulting from or arising out of such waste excluded above.
The inclusion of any unacceptable materials may result in rejection at the project site and /or other necessary cost alterations. Various fees, including contamination fees, may be reasonably charged by Company and shall be promptly paid by Customer to Company.
Changes in the schedule, or changes to the location, Premises, amount or quality of the Materials, and/or changes to the number, capacity, and/or type of equipment, container, or transport must be written as change orders and require the signature of both an agent of the Company and the Customer.
Customer agrees and understands that inclement weather affects the Materials and ability to perform Services to such an extent that Company may need to reschedule and/or cancel services as needed if inclement weather affect the Project.
Company may be legally required to stop work in several circumstances arising out of the process of removing the materials, including the discovery of protected wildlife habitats, bones, utility lines, septic systems, or any other unexpected consequence of performing services or using Equipment on the Premises. Injuries or death of persons, injury or damage to property or any protected item or species are also reasons Company may be required to stop work. At the discretion of the Company, a Dry-Run Fee may be applied in cases where work must be stopped for these reasons.
Because disposal and fuel costs constitute a significant portion of the cost of services provided hereunder, Company may increase the service rates proportionately to adjust for any increases in such costs or any increase in transportation costs due to changes in locations in the disposal facility, changes in the type or amount of Materials, changes in the location of the work being performed even if on the same Premises (as different areas on the Premises may be more difficult to excavate or collect Materials), or if the work is being performed more than 30 days after the date of the quote Customer received.
Company may also increase the service rates from time to time to adjust for inflation on any price quoted more than 30 days prior to the work being performed. Company may similarly proportionately pass through to Customer increases in the average weight of the Customer’s Materials due to changes in local, state, or federal rules.
Company recognizes that Customer may be a Commercial entity accustomed to assigning similar contracts within their regular course of business. In the case of an Assignment, Customer shall inform Company of the assignment and give Company the name and contact information of the Assignee within three business days of the Assignment. Company retains the right to enforce all provisions of these Terms and Conditions and of any provisions within any Service Documents as against the Customer and against their Assignee.
Any service order, once placed with and accepted by Company, may not be cancelled by Customer except upon the consent of Company, which may be withheld within the sole discretion of Company. In the event that Company agrees to accept a cancellation after acceptance of Customer’s order, then Company shall be entitled to a cancellation fee (which may be charged to Customer’s credit card on file) in an amount not less than $50.00.
CONTACT AND NOTICES
Company shall give written notices to Customer via email. Customer may contact Company via email or phone with any questions or concerns about their order. Customer acknowledges that any telephone numbers posted on and/or adhered to the Equipment may belong to third-parties and should not be used for the purpose of attempting to contact Company.
Customer agrees to indemnify, defend and hold harmless Company, including its officers, directors, members, employees, agents, affiliates, subsidiaries, successors and assigns from and against any and all claims, counterclaims, suits, demands, actions, causes of action, damages, setoffs, liens, attachments, judgments, debts, fines, penalties, charges, expenses, costs or other liabilities of whatsoever kind or nature (collectively, “Losses”) asserted or alleged by any third-party arising from or related to: (a) Overload Expenses; (b) Customer’s failure to obtain and/or maintain any required Permit; (c) Customer’s use or storage of substances in the Equipment; (d) loss or theft of the Equipment; (e) damage and/or destruction of the Equipment during the applicable rental term; (f) personal injury and/or property damage relating to Customer’s use and/or possession of the Equipment; (g) physical damage to streets, roadways, driveways, walkways, pavement, curbs, wells, irrigation systems, septic systems and/or underground utilities caused by the Equipment; (h) Customer’s breach of the these terms and conditions or the terms of any of the Services Documents; and (i) any fees, penalties, fines, assessments, charges, costs and expenses asserted by a third-party (including, without limitation, a towing company) incurred in connection with the movement, placement and/or use of the Equipment.
Limitation of Liability and Disclaimer of Warranties. EXCEPT IN THE EVENT OF THE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF COMPANY, CUSTOMER HEREBY WAIVES ANY AND ALL CLAIMS AND LOSSES AGAINST COMPANY RELATING TO OR ARISING FROM CUSTOMER’S USE OF THE EQUIPMENT AND/OR COMPANY’S (INCLUDING ITS SUBCONTRACTORS AND VENDORS) PERFORMANCE UNDER THE SERVICE DOCUMENTS, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO STREETS, ROADWAYS, OR CUSTOMER’S PROPERTY, PAVEMENT, CURBING, DRIVEWAYS, WALKWAYS, LANDSCAPING, LAWN, WELLS, IRRIGATION SYSTEMS, SEPTIC SYTEMS AND/OR UNDERGROUND UTILITIES RELATED TO OR ARISING FROM THE STORAGE OR TRANSPORT OF THE EQUIPMENT IN OR ON CUSTOMER’S PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY DAMAGE TO CUSTOMER’S PROPERTY RELATING TO THE USE OF THE EQUIPMENT OR THE COMPANY’S PROVISION OF THE SERVICES. THE EQUIPMENT SHALL BE PROVIDED ON AN “AS-IS” BASIS, AND COMPANY MAKES NO WARRANTIES TO CUSTOMER, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR ANY PARTICULAR USE OR PURPOSE OR THAT THE EQUIPMENT WILL MEET YOUR REQUIREMENTS.
Release and Hold Harmless. CUSTOMER FURTHER ACKNOWLEDGES THAT THE PROVISION OF THE SERVICES OR EQUIPMENT ON THE PREMISES INVOLVES CERTAIN RISKS AND THAT INJURIES, DEATH, PROPERTY DAMAGE, OR HARM COULD OCCUR TO ANY PERSON, ENTITY OR ITEM ON THE PREMISES WHILE EQUIPMENT IS PRESENT OR SERVICES ARE BEING PERFORMED. CUSTOMER HEREBY WAIVES ALL CLAIMS AGAINST COMPANY FOR ANY INJURIES DAMAGES LOSSES OR CLAIMS, WHETHER KNOWN OR UNKNOWN, WHICH ARISE DURING OR RESULT FROM THE EQUIPMENT OR SERVICES PROVIDED. I RELEASE AND FOREVER DISCHARGE THE COMPANY FROM ALL SUCH CLAIMS.
GOVERNING LAW AND SEVERABILITY
Any and all disputes arising from or in connection with the Services, including, but not limited to, these Terms and Conditions, the Service Documents and/or Customer’s possession and use of the Equipment or Company’s (including its subcontractors and vendors) performance of the Services, shall be construed in accordance with and governed by the laws of the State of Texas, U.S.A., including all matters of construction, validity and performance, without giving effect to the conflict of laws provisions of such State. Any provision hereof which may be prohibited by applicable law shall be ineffective to the extent of such prohibition and without invalidating the remaining provisions hereof.
Any disputes between the parties shall be submitted to the appropriate court of applicable jurisdiction in Dallas County, Texas.
RESERVATION OF RIGHTS
Company expressly reserves all rights and remedies which are available to it at law or in equity.
In the event of any arbitration or litigation concerning any controversy, claim or dispute between the parties hereto, arising out of or relating to this Agreement or the breach hereof, or the interpretation hereof, to the extent permitted by law then the party seeking such enforcement or action, if successful, shall be entitled to recover reasonable attorneys’ fees and expenses in addition to such enforcement or action, in addition to any other relief to which such party may be entitled.