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Customer Service Agreement Additional Terms and Conditions
<br /> 1.REGULATED MEDICAL WASTE SERVICES.WM Healthcare Solutions, Inc. (the "Company"), itself or through its affiliates or subcontractors,will provide Customer with collection,
<br /> management,transportation,disposal,and treatment of all regulated medical waste(or"Regulated Medical Waste"or"Waste Material"),and not including Nonconforming Waste as defined
<br /> herein,generated by Customer at the Customer's sites more accurately described on Exhibit A,during the term of this Agreement(the"Services").For the purpose of this Agreement"Regulated
<br /> Medical Waste"includes but is not limited to sharps,gauze,bandages,containers,tubing,blood,blood products,trace chemotherapy waste,tissue,specimens generated in the course of
<br /> diagnosis and medical treatment or medical waste as defined by your State medical waste regulations or the OSHA Bloodbome Pathogen Standard.Customer shall,at the time of tender,
<br /> provide to Company accurate and complete documents,shipping papers or manifests as required for the lawful transfer of Regulated Medical Waste under all applicable federal,state or local
<br /> laws or regulations."Nonconforming Waste"means:(1.)any waste or other material not falling within the definition of Regulated Medical Waste including complete human remains or abortion
<br /> products;(2.)radioactive waste;(3.)any chemical waste and any listed or characteristic hazardous waste;(4.)containers that are damaged,leaking or could cause harm or exposure to
<br /> employees,general public or others;(5.)waste that has been incorrectly identified,labeled and/or segregated;(6.)any waste or device containing mercury including amalgam,vacuum pumps
<br /> and other medical devices(7.)pharmaceutical waste(except what is accepted in writing by the Company under the Company's pharmaceutical disposal program);(8.)boxes that exceed
<br /> approved Company and DOT standards(9.)any other waste that cannot be Serviced by the Company in accordance with state and federal regulations,laws and/or guidelines.Customer is liable
<br /> for all damages and losses resulting from any Nonconforming Waste due to packing or the contents being Serviced by the Company.
<br /> 2.TERMS OF AGREEMENT.The Initial Term of this Agreement shall be equal to the"Terms in months"noted on the face of this Agreement,commencing on the Effective Date.
<br /> 3.INSPECTION;REJECTION OF WASTE.Title to and liability for Nonconforming Waste shall remain with Customer at all times.Company shall have the right to inspect,analyze or test any
<br /> waste delivered by Customer.If Customers Waste Material is Nonconforming Waste,Company can,at its option,reject Nonconforming Waste and return it to Customer or require Customer to
<br /> remove and dispose of the Nonconforming Waste at Customers sole expense.Customer shall indemnify,hold harmless(in accordance with Section 6)and pay or reimburse Company for any and
<br /> all costs,damages and/or fines incurred as a result of or relating to Customers tender or delivery of Nonconforming Waste or other failure to comply or conform to this Agreement,including costs
<br /> of inspection,testing and analysis.
<br /> 4.COMPANY WARRANTIES.Company hereby represents and warrants that:(a)Company will manage the Waste Material in a safe and workmanlike manner in full compliance with all valid
<br /> and applicable federal,state and local laws,ordinances,orders,rules and regulations;and(b)it will use disposal facilities that have been issued permits,licenses,certificates or approvals
<br /> required by valid and applicable laws,ordinances and regulations necessary to allow the facility to accept,treat and/or dispose of Waste Material.Except as provided herein,Company makes no
<br /> other warranties and hereby disclaims any other warranty,whether implied or statutory.
<br /> 5.CHARGES AND PAYMENTS.Customer shall pay the rates set forth on the face of the Agreement or a Confirmation Letter,which may be modified as provided in this Agreement.The rates
<br /> may be adjusted by Company to account for:any increase in disposal or fuel costs;any change in the composition of the Waste Material;increases or changes in the scope of work,as
<br /> requested by Customer;increased costs due to uncontrollable circumstances,including,without limitation,changes in local,state or federal laws or regulations,imposition of taxes,fees or
<br /> surcharges and acts of God such as floods,fires,etc.Company may also increase the charges to reflect increases in the Consumer Price Index for the municipal or regional area in which the
<br /> Services are rendered.Increases in charges for reasons other than as provided above require the consent of Customer which may be evidenced verbally,in writing or by the actions and
<br /> practices of the parties.All rate adjustments as provided above and in Section 5 shall take effect upon notification from Company to Customer.Customer shall pay the rates in full within 30 days
<br /> of receipt of each invoice from Company.Customer shall pay a late fee on all past due amounts accruing from the date of the invoice at a rate of eighteen percent(18%)per annum or,the
<br /> maximum rate allowed by law.In the event Company adjusts the Charges as provided in this Section 5,the parties agree that this Agreement as so adjusted will continue in full force and effect.
<br /> 6.INDEMNIFICATION.The Company agrees to indemnify,defend and save Customer harmless from and against any and all liability(including reasonable attorneys fees)which Customer may
<br /> be responsible for or pay out as a result of bodily injuries(including death),property damage,or any violation or alleged violation of law,to the extent caused by Company's breach of this
<br /> Agreement or by any negligent act,negligent omission or willful misconduct of the Company or its employees,which occurs(1)during the collection or transportation of Customers Waste
<br /> Material by Company,or(2)as a result of the disposal of Customers Waste Material,after the date of this Agreement,in a facility owned by a subsidiary or affiliate of Waste Management,Inc.,
<br /> provided that the Company's indemnification obligations will not apply to occurrences involving Nonconforming Waste.
<br /> Customer agrees to indemnify,defend and save the Company harmless to the extent provided by North Carolina Law from and against any and all liability(including reasonable attorneys fees)
<br /> which the Company may be responsible for or pay out as a result of bodily injuries(including death),property damage,or any violation or alleged violation of law to the extent caused by
<br /> Nonconforming Waste,Customers breach of this Agreement or by any negligent act,negligent omission or willful misconduct of the Customer or its employees,agents or contractors in the
<br /> performance of this Agreement or Customers use,operation or possession of any equipment furnished by the Company.Neither party shall be liable to the other for consequential,incidental or
<br /> punitive damages arising out of the performance of this Agreement.Customer agrees that the Company shall not be responsible to Customer for damage to Customers pavement,curbing or
<br /> other driving surfaces resulting from the weight of vehicles providing Services at the Customers location.
<br /> 7.UNCONTROLLABLE CIRCUMSTANCES.Except for the obligation to make payments hereunder,neither party shall be in default for its failure to perform or delay in performance caused by
<br /> events beyond its reasonable control,including,but not limited to,strikes,riots,imposition of laws or governmental orders,fires,acts of God,terrorist acts,and inability to obtain equipment,
<br /> permit changes and regulations,restrictions(including land use)therein,and the affected party shall be excused from performance during the occurrence of such events.
<br /> 8.ASSIGNMENT.This Agreement shall be binding on and shall inure to the benefit of the parties and their respective successors and assigns.
<br /> 9.ENTIRE AGREEMENT.This Agreement represents the entire understanding and agreement between the parties and supersedes any and all prior agreements for the same Services,whether
<br /> written or oral,between the parties regarding the same. Unless otherwise provided herein,any modifications to this Agreement must be agreed to by both parties in writing.
<br /> 10.TERMINATION;LIQUIDATED DAMAGES.Company may immediately terminate this Agreement,(a)in the event of Customers breach of any term or provision of this Agreement,including
<br /> failure to pay on a timely basis or(b)if Customer becomes insolvent,the subject of an order for relief in bankruptcy,receivership,reorganization dissolution,or similar law,or makes an
<br /> assignment for the benefit of its creditors or if Company deems Customer insecure as to payment collectively,("Default").Notice of termination shall be in writing and deemed given when
<br /> delivered in person or by certified mail,postage prepaid,return receipt requested.In the event Customer terminates this Agreement prior to the expiration of any Initial or Renewal Term for any
<br /> reason other than as provided herein,or in the event Company terminates this Agreement for Customers Default,liquidated damages in addition to the Company's legal fees shall be paid and
<br /> calculated as follows:1)if the remaining Initial Term under this Agreement is six or more months,Customer shall pay its most recent monthly charges multiplied by six;2)if the remaining Initial
<br /> Term under this Agreement is less than six months,Customer shall pay its most recent monthly charges multiplied by the number of months remaining in the Term;3)if the remaining Renewal
<br /> Term under this Agreement is three or more months,Customer shall pay its most recent monthly charges multiplied by three;or 4)if the remaining Renewal Term under this Agreement is less
<br /> than three months,Customer shall pay its most recent monthly charges multiplied by the number of months remaining in the Renewal Term.Customer acknowledges that the actual damage to
<br /> Company in the event of termination is difficult to fix or prove,and the foregoing liquidated damages amount is reasonable and commensurate with the anticipated loss to Company resulting from
<br /> such termination and is an agreed upon fee and is not imposed as a penalty.Collection of liquidated damages by Company shall be in addition to any rights or remedies available to Company
<br /> under this Agreement or at common law. Notwithstanding anything stated in the Agreement to contrary,Customer shall not have to pay liquidated damages if this Agreement is terminated in
<br /> accordance with Section 11.
<br /> 11.NON-APPROPRIATION.Company acknowledges that Customer is a governmental entity,and the validity of this Agreement is based upon the availability of public funding under the
<br /> authority of its statutory mandate.
<br /> a. In the event that public funds are unavailable and not appropriated for the performance of Customers obligations under this Agreement,then this Agreement shall automatically expire
<br /> without penalty to Customer immediately upon written notice to Company of the unavailability and non-appropriation of public funds.It is expressly agreed that Customer shall not activate this
<br /> non-appropriation provision for its convenience or to circumvent the requirements of this Agreement,but only as an emergency fiscal measure during a substantial fiscal crisis.
<br /> b. In the event of a change in the Customers statutory authority, mandate and/or mandated functions,by state and/or federal legislative or regulatory action,which adversely affects
<br /> Customers authority to continue its obligations under this Agreement,then this Agreement shall automatically terminate without penalty to Customer upon written notice to Company of such
<br /> limitation or change in Customer's legal authority.
<br /> Upon the happening either occurrence in Section 11(a)or 11(b),Customer shall show actual proof of either occurrence and pay to Company any amounts accrued for any Services provided
<br /> before the receipt of such notice.
<br /> 12.MISCELLANEOUS.(a)The prevailing party will be entitled to recover reasonable fees and court costs,including attorneys'fees,in interpreting or enforcing this Agreement.In the event
<br /> Customer fails to pay Company all amounts due hereunder,Company will be entitled to collect all reasonable collection costs or expenses,including reasonable attorneys fees,court costs or
<br /> handling fees for returned checks from Customer;(b)The validity,interpretation and performance of this Agreement shall be construed in accordance with the law of the state in which the
<br /> Services are performed;(c)If any provision of this Agreement is declared invalid or unenforceable,then such provision shall be deemed severable from and shall not affect the remainder of this
<br /> Agreement,which shall remain in full force and effect;(d)Customers payment obligation for Services and the indemnification made by each party shall survive termination of this Agreement;(e)
<br /> All written notification to Company required by this Agreement shall be by Certified Mail,Return Receipt Requested.(f)Any blanks or unfilled or unmarked boxes or spaces on this first page shall
<br /> be deemed to be inapplicable and not affect the validity of this Agreement..
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