GARGEON IS A TECHNOLOGY COMPANY THAT DOES NOT PROVIDE COLLECTION, TRANSPORTATION AND DISPOSAL OF WASTE AND RECYCLABLE MATERIALS SERVICES AND THE COMPANY IS NOT A WASTE COLLECTION, TRANSPORTATION AND DISPOSAL COMPANY. HOWEVER, GARGEON HAS EXPERTISE IN MANAGEMENT OF CERTAIN WASTE PRODUCTS ("MANAGEMENT SERVICES"). AS PART OF THAT EXPERTISE, THE SERVICE OF THE COMPANY IS TO LINK THE CUSTOMERS WITH GARGEON'S PROFESSIONAL NETWORK OF THIRD PARTY, INDEPENDENT HAULERS (THE "HAULERS"), WHICH WOULD THEN BE RESPONSIBLE FOR THE COLLECTION AND DISPOSITION OF THE WASTE & RECYCLING MATERIALS ("COLLECTION SERVICES"). GARGEON DOES NOT NOR INTENDS TO PROVIDE WASTE COLLECTION, TRANSPORTATION AND DISPOSAL SERVICES OR ANY ACT THAT CAN BE CONSTRUED IN ANY WAY AS AN ACT OF A WASTE COLLECTION, TRANSPORTATION AND/OR DISPOSAL PROVIDER. THE COMPANY IS NOT RESPONSIBLE NOR LIABLE FOR ANY ACTS AND/OR OMISSION OF ANY THIRD PARTY PROVIDERS AND/OR ANY TRANSPORTATION SERVICES PROVIDED TO THE CUSTOMER.
By using the Software and the Services, you agree that:
CUSTOMER AUTHORISES GARGEON AS AN AGENT TO MANAGE WASTE & RECYCLING MANAGEMENT SERVICES ON ITS BEHALF [AS DESCRIBED IN THIS AGREEMENT AND ANY EXTRA SERVICES AUTHORISED ORALLY OR OTHERWISE (IF APPLICABLE)]. AS OF THE EFFECTIVE DATE, CUSTOMER AUTHORISES GARGEON, AT GARGEON'S SOLE DISCRETION, TO (I) MANAGE AND ENTER INTO/TERMINATE CONTRACT(S) WITH AN INDEPENDENT HAULER FROM GARGEON'S NETWORK OF INDEPENDENT HAULERS; AND/OR (II) AUTHORISE THE INDEPENDENT HAULER TO ENTER THE CUSTOMER'S PREMISE TO CARRY OUT WASTE & RECYCLING COLLECTION AND/OR ANY ACTION REASONABLY CONNECTED TO IT.
Customer agrees to terminate all contracts with other incumbent/existing haulers ("INCUMBENT PROVIDERS") before entering into contract with GARGEON, unless agreed explicitly and in writing otherwise, by GARGEON.
Customer agrees to deliver to GARGEON's Haulers all waste & recycling materials, in accordance with this Agreement. Customer agrees to deposit all waste & recycling materials that is intended to be collected by the Hauler(s) into the specific bins provided. The particular Hauler(s) selected shall be at Customer's decision via Marketplace in which best quotation and proposal are granted. All Haulers and their respective employees are independent contractors, and not employees, of GARGEON.
GARGEON will act as the single point of contact between Customer and the Haulers. In providing the Management Services, GARGEON will make the arrangements necessary for the provision of the Collection Services, including, but not limited to, scheduling and routing, using GARGEON's network of Haulers. The Customer agrees to contact GARGEON, and not a specific Hauler, regarding any billing, hauling or other issues during the Agreement Term. GARGEON will, without prejudice to the company's rights, endeavour to monitor Customer's waste streams in order to assess the timeliness and the efficiency of the Collection Services.
To the extent that Customer has any rights in or to the Waste and Recycling Data, Customer unconditionally grants GARGEON a worldwide, perpetual, irrevocable, royalty-free, fully paid, exclusive, sub-licensable and transferrable right and license to use, commercially exploit, publish, reproduce, adapt, create derivative works, publicly display, publicly perform and otherwise use all Waste and Recycling Data.
Customer shall make GARGEON its exclusive provider of waste and recycling management services during the Agreement Term.
Title to Waste Materials shall, at the time of collection, transfer directly from Customer to the Haulers or vendors identified by GARGEON, provided further, that at GARGEON's option, title to approved Recyclable Materials shall, at the time of collection, pass directly from Customer to GARGEON. Notwithstanding anything to the contrary in this Agreement, title to and liability for Prohibited Materials shall at all times remain with Customer, and GARGEON shall not be deemed to own, generate, possess or control, and shall not be liable to Customer or any third party regarding any (i) Prohibited Materials, or (ii) Waste Materials for which GARGEON has not expressly accepted title in writing.
Customer may choose to pay for the billing invoices by online transfer, bank in cheque, or bank in slip or where available by such other methods as are made available in the Software. It shall payable to below banking details:
Bills for Monthly Services Fees will be sent by Hauler to the Customer via management software (builtin billing function) between every 1st and the 10th of the certain month, whichever is later. Customer agrees to pay GARGEON by the method stated above with the 30 days credit terms basis, whichever is earlier.
For the term of this Agreement, if Customer fails to pay GarGeon the amount due, in addition to all other remedies available under this Agreement or at law, GarGeon shall charge the Customer a late fee as set out below:
45 days (after the payment is due with the credit term 30 days)
GarGeon shall charge Customer a late fee of five percent (5%) of Customer's outstanding balance due monthly plus any amount owed due to previous late fee penalty until payment is received by GarGeon. If full payment has not been made in the first 30 days after payment is due, then the late fee shall be calculated as five percent (5%) of Customer's outstanding balance due monthly unless a written official letter by Customer to extend the credit term.
In addition to the foregoing, GarGeon reserves the right to either (i) withhold the Management Services until all amounts due are paid in full to GARGEON, or (ii) terminate this Agreement in accordance with Section 3 "TERM AND TERMINATION" as set out below.
In addition to the circumstances described in Section 7, the invoice may, at GarGeon's discretion via Software (management account), be adjusted upward by (i) non-controllable increases in the costs of landfill waste disposal, and federal, state, municipal or any other local government taxes and fees.
The invoices received either at the end of the month or after every service ended are calculated based on the Management Services specified and requested by Customer in the Service Details (through Customer Management Account) and Haulers published rates on the quotation as of the Effective Date. Customer represents and warrants that the Management Services requested by Customer in the Service Details and account registration fully and accurately reflect its waste and recycling services needs during the Agreement Term. Notwithstanding anything herein to the contrary, in the event Customer requires Management Services in excess of or different to those specified in the Order Form, Customer hereby acknowledges and agrees that the Monthly Service Fees shall be adjusted upward to reflect Customer's actual waste and recycling needs using Haulers published rates at the time of the adjustment, and this Agreement shall be deemed amended to reflect the updated monthly service fee.
For the term of this Agreement, Customer agrees that the services that matched undergoes (i) a 1 year minimum basis contract period or (ii) due to temporary period in which services terminated after a period of time as may be mutually agreed between the Customer and GarGeon or (iii) the contract period is renewed after 1 year basis after mutually agreed between Customer and GarGeon.
The term of this Agreement begins on the Effective Date and shall extend for successive, automatically renewing monthly terms (each, a "Renewal Term") unless either Customer or Haulers notifies the other of their intention to GarGeon to not renew the Agreement, no later than 30 days prior to the proposed date of termination The Initial Term and all Renewal Terms are collectively referred to as the "Agreement Term."
GarGeon may terminate the service contract with the particular Hauler by providing at least thirty (30) days' prior written notice to the Hauler if the case falls on violating the GarGeon Term of Services.
GarGeon and Hauler may immediately terminate this Agreement, without prejudice to any other right or remedy, if the other Party (i) becomes insolvent, (ii) is generally unable to pay, or fails to pay its debts as they become due, (iii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, (iv) makes or seeks to make a general assignment for the benefit of its creditors, or (v) is appointed a trustee, receiver or custodian on account of such Party's insolvency.
In using the Management Services, Customer represents, warrants and covenants to GARGEON that: (i) Customer is providing and will provide Accepted Materials (general waste, construction waste, recyclables) for collection, (ii) Customer is not contaminating and mixing Prohibited Materials (scheduled waste, medical waste, chemical waste, hazardous waste) in Accepted Material for collection; and (iii) Customer is and will remain in compliance with all Environmental Laws. As used in this Agreement, the following terms shall have the following meanings:
GarGeon shall not be liable for damages from any cause whatsoever, regardless of the form of action, whether in contract or in tort, including negligence, strict liability, personal injury, real or personal property damage or otherwise, arising from or relating in any manner to any action or failure to act on the part of a Hauler, except to the extent those damages arise solely out of any management by GARGEON of the Collection Services.
Notwithstanding anything to the contrary in this Agreement, Customer shall defend, indemnify, and hold harmless GARGEON and GARGEON's employees, agents, representatives, current or future parent, subsidiaries, commonly owned affiliates and advisors from and against any and all liabilities arising from or relating to: (a) a breach of this Agreement by Customer or its employees, subcontractors or suppliers, including but not limited to any breach or inaccuracy of any representation, covenant or warranty contained herein; (b) Prohibited Materials of or concerning Customer; (c) any violation by Customer or Customer's employees, subcontractors or suppliers of, or liability under, any Environmental Laws or any other governmental laws, rules, ordinances, or regulations; (d) the Incumbent Providers and the agreements entered into with Incumbent Providers ("Incumbent Agreements"); (e) any performance under, management of, or termination by GARGEON of the Incumbent Agreements (except if resulting from the gross negligence or intentional misconduct of GARGEON); or (f) any bodily injury, including death, or damage to real property or tangible personal property arising out of any negligence or willful misconduct of Customer or Customer's employees, subcontractors or suppliers. Customer agrees to promptly notify GARGEON in writing of any matter covered above and do all things required to protect GARGEON's interests. Customer's indemnity of GARGEON shall survive the termination or expiration of this Agreement.
GarGeon and Customer acknowledge and agree that during the Agreement Term, either Party (the "Disclosing Party") may disclose or make available to the other Party (the "Receiving Party"), non-public proprietary and confidential business information that is of value to its owner and is treated as confidential, which shall expressly include the pricing information of GarGeon under this Agreement ("Confidential Information"). Confidential Information shall not include information that (i) is or becomes generally available to the public other than as a result of the Receiving Party's breach of this Section 9; (ii) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was in the Receiving Party's possession prior to the Disclosing Party's disclosure hereunder; or (iv) was or is independently developed by Receiving Party without using any Confidential Information. Except as otherwise expressly set forth in this Agreement, the Receiving Party shall hold in confidence and not disclose or use the Confidential Information or any portion of it. The Receiving Party shall protect and prevent the unauthorized use or disclosure of the Confidential Information using the same degree of care, but no less than a reasonable degree of care, as the Receiving Party uses to protect its own confidential information of a like nature. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify the Disclosing Party to afford the Disclosing Party the opportunity to seek a protective order or other remedy.