These Terms and Conditions (“T&C”) shall apply to any purchases of goods or services by you (“Customer”) from Quality Equipment Management, LLC (“QEM”). QEM rejects any additional, supplemental, or conflicting terms provided by you, and no QEM employee has authority to accept such terms. Instead, the Order and these T&C shall be the sole and exclusive agreement between you and QEM.
RELATIONSHIP. Customer acknowledges that QEM is a broker of the Equipment. QEM provides a service consisting of connecting customers with local Haulers (defined below) as a broker for orders issued to Haulers for the delivery and retrieval of Equipment and its subsequent transport to waste transfer stations. The Haulers are not employees of QEM. The Haulers are independent contractors who are not under QEM’s direction or control, but who independently provide and transport the Equipment. Customer authorizes QEM to share Customer’s name, email address, phone number and the Site Address with any Hauler. Customer authorizes QEM to share Customer’s name, email address, phone number, Site Address, requested Equipment, requested delivery and pickup dates, amounts paid (but not credit card information) with Lowe’s Home Centers, LLC for reporting purposes.
DEFINITIONS. “Equipment” includes, without limitation, all replacements, repairs, additions, attachments and accessories. “Incident” is any fine, citation, theft, accident, casualty, loss, vandalism, injury, death or damage to person or property, claimed by any person or entity that appears or is alleged to have occurred in connection with the Equipment. Equipment is considered “Lost” when it is either stolen, its location is unknown, or QEM is unable to recover it for a period of 5 days. “Hauler” means the independent contractor who delivers, picks up, and empties the Equipment. “MSLP” is the Equipment manufacturer’s suggested list price on or about the date of the Incident relating to the Equipment. “One Shift,” means not more than 8 hours per day and 40 hours per week. “Order” means the order placed by Customer using QEM’s online order system. The “Service Period” commences when the Equipment is delivered to the Site Address and continues until the Equipment is picked up. “Site Address” is the delivery address specified by the Customer at the time of the order. “QEM Entities” is QEM and its affiliated companies, their respective officers, directors, employees and agents.
TERM, TERMINATION. This Agreement shall begin on the date on which Customer places the order and shall terminate when the Equipment is picked up as provided herein.
EQUIPMENT. This is not a rental agreement. Customer shall not have any ownership interest in the Equipment. QEM has no control over the use of the Equipment by Customer or any third party. Customer shall inspect the Equipment to confirm that it is in good condition, without observable defects, includes readable decals and operating and safety equipment or instructions and is suitable for Customer’s intended use. Customer shall be present at the Site Address to accept delivery of the Equipment, and if Customer is not present then QEM may leave the Equipment at the Site Address in any safe location. Customer shall immediately notify QEM if the Equipment is Lost, damaged, unsafe, disabled, malfunctioning, levied upon, threatened with seizure, or if any Incident occurs, or if Customer has any questions regarding the safe operation or use of the Equipment. QEM is not responsible for providing training. The Equipment’s use shall be in a careful manner, in compliance with all operating and safety instructions provided on, in, or with the Equipment and all applicable laws, including but not limited to, OSHA.
(a) Repairs.If QEM determines that repairs to the Equipment are needed, other than ordinary wear and tear, Customer shall pay the repair cost. Customer grants QEM and its agents the right to enter the Site Address to deliver and remove the Equipment.
(b) Liability. CUSTOMER ASSUMES ALL RISK ASSOCIATED WITH THE DELIVERY, POSSESSION, USE, AND REMOVAL OF THE EQUIPMENT, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, DEATH, THEFT, DAMAGE AND DESTRUCTION, WHETHER OR NOT THE CUSTOMER IS AT FAULT. After an Incident, Customer shall: immediately notify QEM, the police, and Customer’s insurance carrier; secure the Equipment and the surrounding premises in the condition existing at the time of such Incident so that QEM or its agents can investigate; and immediately submit copies of all police or other third-party reports to QEM.
(c) Service Rates.The total charges specified in this Agreement are estimated based upon Customer’s representation of the estimated Service Period, materials to be discarded, and other information provided by Customer. When the Hauler picks up the Equipment at the end of the Service Period, it will be weighed at a transfer station and if it is overweight then a charge will apply. If the Hauler finds Excluded Waste in the Equipment then the Hauler may decline to remove the equipment until Customer removes the Excluded Waste; if the Hauler does remove the Equipment but the Excluded Waste is detected at the transfer station then an additional fee will apply to dispose of the Excluded Waste. Weekly rates shall not be prorated. Service charges accrue during ALL days, including weekends and holidays. The stated rates do not include, and Customer is responsible for: all consumables, fees, licenses, present and future taxes and any other governmental charges based on Customer’s possession and/or use of the Equipment; extra delivery and pickup attempt charges; repairs and replacements to the Equipment; a cleaning fee if required, in the sole and absolute discretion of QEM; fines and damages caused by Customer or those under its control, including, without limitation, for placement location of the Equipment; and any Environmental Fees. If the Equipment becomes full at any time and you desire it to be hauled-off and replaced with empty Equipment, then additional charges shall apply.
(e) Purchases. If this Agreement identifies any Equipment or other goods to be purchased by Customer, QEM sells and delivers such items to Customer on an “AS IS, WHERE IS” basis, with all faults and without any warranties (other than manufacturer warranties, if any). QEM shall retain title to such Equipment or other goods until the full purchase price has been paid in full.
(f) Environmental Fee. QEM also incurs a wide range of environmental related expenses (both direct and indirect). These expenses include services such as waste disposal, construction and maintenance of Equipment and cleaning facilities, acquisition of more fuel efficient equipment, and disposal. To help defray these costs, QEM assesses an Environmental Fee, plus applicable taxes thereon. The Environmental Fee is not placed in an escrow account, but is a charge that QEM collects as revenue and uses at its discretion.
5. NO WARRANTIES. QEM DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED WITH RESPRECT TO THE EQUIPMENT AND ANY OTHER GOODS FURNISHED, INCLUDING THE WARRANTTIES OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, AND AGAINST INFRINGEMENT. The Equipment and any other goods are provided on an “AS IS, WHERE IS” basis, with all faults and without any recourse whatsoever against QEM. QEM does not design or manufacture the Equipment or any goods, and is not the agent of those that do. Customer assumes all risks associated with the use and possession of the Equipment during the Service Period. Customer also assumes all risks associated with the delivery and removal of the Equipment, which Customer acknowledges will be performed by third parties who are not under the direction or control of QEM. With respect to its services, QEM warrants only that the services will be performed in compliance with the specifications stated in the Order. QEM does not guarantee perfect accuracy, timeliness, or results. QEM makes no warranties relating to intellectual property infringement.
6. CUSTOMER UNDERTSANDS THAT THE EQUIPMENT MAY CAUSE DAMAGE TO SURFACES. Haulers will use due care in the placement of the Equipment at the location requested by Customer. The Equipment is heavy and, when filled, weighs several thousand pounds. Customer understands that failure to cover the Equipment with a tarp during inclement weather will add very significant extra weight, likely causing overweight charges, and possibly causing the Equipment to be so heavy that a specialty hauler will be required to remove the Equipment at Customer’s sole expense. Customer assumes the risk of damage caused to Customer’s driveway, curb, or other surfaces required to be traveled upon to place or remove the Equipment. Customer will hold QEM and the Hauler harmless with respect to any such damage.
7. CUSTOMER’S COVENANTS. QEM and the Hauler will not remove or dispose of Waste Materials that are above the maximum fill line within the Equipment, or the top of the container if no maximum fill line exists. If the Equipment is overfilled, or appears to contain Excluded Waste (defined below), or cannot be safely removed, then the Equipment will not be removed; in such event, Customer will pay the Hauler’s trip charge plus an administrative fee, and Customer will be required to correct the issue and reschedule the pick-up. If such pickup does not occur before the scheduled end of the Service Period then additional charges will apply.
(a) Prohibited Use. Customer shall use due care to ensure that children do not play on or near the Equipment. Customer shall not: alter or cover up any decals or insignia on the Equipment or remove any operating or safety equipment or instructions; assign its rights under this Agreement; move the Equipment from the Site Address without QEM’s written consent; use, or permit others to use, the Equipment in a negligent, illegal, unauthorized, or abusive manner, or in any publication (print, audiovisual or electronic); or allow the use of the Equipment by anyone with insufficient training or experience, or anyone who is under the influence of illegal drugs, alcohol, or prescription drugs or other substances that could cause impairment.
(b) Non-hazardous Materials. All materials placed in the Equipment shall be non-hazardous solid waste or recyclables (“Waste Materials”) that do not contain “Excluded Waste.” Excluded Waste means: (i) any hazardous, biohazardous, infectious, radioactive, flammable, explosive, biomedical, or toxic waste as defined by applicable laws or regulations, including, without limitation, any hazardous waste regulated under applicable law; (ii) appliances; (iii) mattresses; and (iv) other materials that, because of their chemical or physical state, pose a risk to human health or the environment. Customer shall remove Excluded Waste from the Equipment or other property, but if such materials are not removed by Customer immediately then QEM may arrange for lawful disposal at the sole cost and expense of Customer. Title to and liability for Excluded Waste shall at all times remain with Customer. Customer shall be responsible for all costs associated with Excluded Waste, including, but not limited to, handling, loading, preparing, exhuming, transporting, storing, and disposing of Excluded Waste and any materials contaminated therewith. Title to Waste Materials (as defined above) including any value received in connection therewith, shall vest with QEM upon collection. Customer shall at its expense provide any requested Chemical characterization of waste to be collected and provide prior notice of any changes in the waste characteristics or generation process. Customer shall be solely responsible for complying with applicable laws mandating pretreatment, source separation or recycling.
(c) Access. Customer shall provide unobstructed access to the Equipment at all times. If such access Is not provided then Customer will be notified and QEM may make additional collection attempts, subject to “extra pick-up” or additional charges. QEM shall be excused from providing service if precluded from doing so due to reasons beyond its control. Customer represents and warrants that any right-of-way used by QEM to access the Equipment is sufficient to bear the weight of the Equipment and QEM’s vehicles. QEM shall not be responsible for any damage to any curb, driveway or subsurface or enclosure.
8. LIMITED LIABILITY. QEM SHALL NOT BE LIABLE FOR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, OR FOR SPECIAL OR INCIDENTAL DAMAGES OF ANY KIND. QEM’S AGGREGATE LIABILITY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY OF LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE TRAILING 12-MONTH PERIOD.
RELEASE AND INDEMNIFICATION. To the fullest extent permitted by law, Customer shall indemnify and hold harmless QEM and its directors, officers, employees, and representatives from and against all liabilities, claims, losses, damages, and expenses, including, without limitation, attorney’s fees and costs (collectively “Claims”), arising out of or relating to any actual or alleged Incident, damage to property, injury to or death of any person(s), contamination, violation of law, if any of the foregoing is connected with: (a) placement of the Equipment, (b) Customer’s use, possession, or control of the Equipment; (c) delivery, placing, or removal of Equipment; (d) the results of any services provided by QEM; (e) Customer’s breach of this Agreement; (f) illegal, negligent, or intentionally wrongful acts or omissions of Customer or those under Customer’s direction or control; and (g) any Claim or Claims to the extent it or they exceed the liability limitations stated in these T&C. Customer’s indemnity obligation shall be limited only to the extent of any actual negligence or intentionally wrongful acts or omissions by QEM or the Hauler as finally determined by a court of competent jurisdiction. Customer’s indemnity obligations are independent obligations and shall survive the termination of this agreement for any reason.
INSURANCE. Customer shall maintain, at its own expense, such insurance coverage as may be necessary to protect Customer’s property and the surfaces described in Section 1.
PAYMENT. Customer shall pay amounts due, without any offsets, in full upon receipt of the applicable invoice. Customer must notify QEM in writing of any disputed amounts, including credit card charges, within 15 days or Customer shall be deemed to have irrevocably waived its right to dispute such amounts. At QEM’s discretion, any account with a delinquent balance may be placed on a cash-in-advance basis, and the services may be terminated immediately and the Equipment may be picked up without notice. Customer shall pay interest at a rate of 2% per month on all late payments until paid in full. Customer shall pay a fee of $75 for each check returned for lack of sufficient funds for processing. If customer presents a credit card to pay for charges or to guarantee payment, Customer authorizes QEM to charge the credit card for (a) any amounts not paid timely, (b) any fees related to Excluded Waste, weights of Waste Material being higher than estimated, late delivery or pickup cancellations, and (c) any loss of or damage to the Equipment. QEM may, in its sole discretion, increase rates and fees to Customer for any change in law, regulation, permit or approval, including any fees, taxes, franchise fees, tolls, host charges or similar charges related to QEM’s business.
DEFAULT. Customer shall be in default if Customer: (a) fails to pay any sum when due; (b) fails to comply with each provision of this Agreement; (c) places the Equipment at risk; or (d) fails to surrender the Equipment upon demand. If a Customer default occurs, QEM shall have, in addition to all rights and remedies at law or in equity, the right to take possession of the Equipment without judicial process or prior notice. Customer shall pay all of QEM’s costs, including reasonable costs of collection, court costs, attorneys and legal fees, incurred in exercising any of its rights or remedies. QEM shall not be liable due to seizure of Equipment by any Hauler or by order of governmental authority.
DISPUTES. IN ANY DISPUTE ARISING OUT OF, IN CONNECTION WITH, OR IN ANY WAY PERTAINING TO THIS AGREEMENT, CUSTOMER AND QEM HEREBY WAIVE ANY RIGHT TO A TRIAL BY JURY, THIS WAIVER BEING A MATERIAL INDUCEMENT TO ENTERING INTO THIS AGREEMENT. AT THE ELECTION OF CUSTOMER OR QEM, ANY DISPUTE ARISING OUT OF, IN CONNECTION WITH OR IN ANY WAY PERTAINING TO THIS AGREEMENT SHALL BE SETTLED BY ARBITRATION BROUGHT IN THE PARTY’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF IN A PURPORTED CLASS OR REPRESENTATIVE CAPACITY, ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES OR BY JAMS PURSUANT TO ITS STREAMLINED ARBITRATION RULES AND PROCEDURES AND JUDGEMENT ON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR TRIED ON A CLASS ACTION BASIS.
GOVERNING LAW. This Agreement, including any related tort claims, shall be governed by the laws of Georgia, without regard to any conflicts of law principles. If any provision of this Agreement is prohibited by any law, such provision shall be ineffective to the extent of such prohibition without invalidating the remaining provisions.
MISCELLANEOUS. This Agreement includes Customer’s online order, and constitutes the entire agreement of the parties regarding its subject matter. This Agreement may not be modified except by written amendment signed by both parties. Customer’s obligations hereunder shall survive the termination of this Agreement. Customer’s rights with respect to the Equipment are subordinate to all rights, title and interest of the owner(s) of the Equipment. Headings are for convenience only. To the extent that any terms in this Agreement conflict, the parties agree that the more specific terms control. Any failure by a party to insist upon strict performance of any provision of this Agreement shall not be construed as a waiver of the right to demand strict performance in the future. Unless otherwise provided herein, all notices shall be in writing and delivered by overnight courier, with tracking enabled: (1) to QEM at 1350 Bluegrass Lakes Pkwy, Alpharetta, GA 30004, ATTN: General Counsel, or (2) to Customer at the Site Address.