TERMS AND CONDITIONS

Services. EcoLube Recovery (“ELR”) will provide Customer with used oil recycling and other environmental services. ELR’s services include only those services stated in the Agreement and any additional services that ELR agrees in writing to provide on a case-by-case basis. In exchange, Customer agrees to the terms and conditions set forth herein (“Terms & Conditions”). The Terms & Conditions govern all services provided by ELR under this Agreement and any additional services that ELR provides on a case-by-case basis.
Service Guarantee. ELR warrants that it will perform services for Customer in accordance with these Terms and Conditions; applicable federal, state and local laws and regulations; and generally accepted industry standards. If ELR fails to perform the services in accordance with such standards in any material respect, and fails to cure such failure within ten (10) business days of its receipt of written notification from Customer or by a later date mutually agreed upon by the parties, Customer may, at its option, terminate this Agreement upon its payment of all monies due and owing to ELR as of the termination date.
Fees and Purchase Prices. Customer agrees to pay the fees outlined in this Agreement for the services ELR provides. If applicable, ELR agrees to pay Customer the prices listed in this Agreement for the used oil purchased from Customer. For used oil pricing based on an index, pricing for each month’s collected volumes will be calculated based on the prior month’s average low postings of the assigned index. The parties will make all payments in U.S. Dollars. Pricing for listed services or products may increase or decrease from ELR original price quote during the term of this agreement based upon changes in customer quantities or raw material market fluctuations, (i.e. crude oil, base lube oil, raw material costs, energy costs, or steel prices). Based on aforementioned factors, ELR reserves right to change prices at any time. Fees will be set solely by this Agreement and any quoted fees or prices will be valid for thirty (30) days after submission of the Agreement to Customer.
Payment and Credit Terms. Customer agrees to pay for services rendered within fifteen (15) days of the date of the invoice. If Customer fails to pay any amount owed by its due date, Customer agrees to pay interest on the unpaid amount at the rate of 1.5% per month (or the maximum allowed by law, whichever is less) in addition to all costs and expenses (including reasonable attorneys’ fees and court costs) incurred by ELR in collecting the overdue amount or otherwise enforcing ELR’s rights under this Agreement. If there is a good faith dispute related to any portion of an invoice, Customer agrees to pay the undisputed portion of the amount owed. If Customer fails to pay any amount owed, ELR reserves the right to offset such amount against any amount that ELR may owe to Customer.
If applicable, ELR agrees to issue payment for all used oil purchased from Customer on the 15th of each month for the prior month’s collected volumes.
Term. This Agreement will be effective for an initial term of one year. This Agreement will automatically renew at the end of the initial term (and each renewal term) for successive one year periods unless Customer notifies ELR in writing in accordance with this Agreement at least sixty (60) days, but not more than one hundred twenty (120) days, prior to the termination date that Customer desires to terminate this Agreement and cease receiving ELR’s services. In addition to other rights of termination, ELR may terminate this agreement for its convenience by giving thirty (30) days written notice to Customer. In such event, Customer shall forthwith pay ELR in full for all services previously authorized and performed prior to the effective date of the Agreement’s termination, as well as for all unavoidable expenses incurred by ELR prior to termination.
Exclusivity and Right of First Refusal. This is an exclusive agreement. During the term of this Agreement, Customer agrees not to contract for or receive the services ELR provides pursuant to this Agreement from any other service provider. If ELR is purchasing used oil from Customer, Customer agrees not to transfer its used oil to any other person during the term of this Agreement. Further, upon termination of this Agreement for any reason (except as provided for under paragraph 2 above), Customer grants ELR a right of first refusal to provide the services contemplated hereunder in accordance with terms and conditions that meet or exceed the terms and conditions set forth in a bona fide offer by another service provider. Customer must give ELR prompt written notice of any such bona fide offer and provide ELR with a reasonable opportunity to respond.
Product Warranty. As the generator of the used oil, product or waste (collectively, the “Material”) provided to ELR, Customer represents, warrants and certifies to ELR that: (i) Customer has knowledge of how the Material was generated, including the Material’s source; (ii) if Customer is requesting service to recycle used oil, the Material provided by Customer for used oil recycling satisfies the definition of “used oil” as provided in 40 C.F.R. § 279.1; (iii) the Material is not and has not been mixed with a “hazardous” or “dangerous” waste, as determined under federal and applicable state laws and regulations; (iv) the Material provided by Customer does not contain polychlorinated biphenyls at detectable levels or more than 1,000 ppm total halogens; and (v) the Material has been properly named, classified, packaged and labeled for transportation in compliance with U.S. Department of Transportation regulations and applicable international and state laws and regulations. Customer also represents, warrants and certifies that any Material that ELR collects from Customer satisfies and conforms with any applicable standard, representation or warranty set forth in the invoice, work order or bill of lading furnished to Customer at the time ELR collects the Material from Customer.
Remedies. In addition to other remedies available to ELR in law or equity, if any of the Material fails to comply with any of the representations, warranties or certifications provided in this Agreement, contains hazardous waste, or contains polychlorinated biphenyls at detectable levels (“Out-of-Spec Material”), then Generator agrees that ELR may, in its sole discretion, either reject the Out-of-Spec Material back to Generator or arrange for proper disposal of the Out-of-Spec Material or, if applicable, any mixture of the Out-of-Spec Material with other material within ELR’s inventory which has been contaminated. In either case, Generator agrees to be solely responsible for the management, removal, transportation, disposal, and if necessary, remediation of the Out-of-Spec Material or, if applicable, the contaminated ELR inventory containing Out-of-Spec Material. If Generator fails to promptly take action with respect to the management, removal, transportation, disposal or remediation of the Out-of-Spec Material or, if applicable, the contaminated ELR inventory containing Out-of-Spec Material, Generator authorizes ELR, or its agent, to take any action compliant with law that ELR deems necessary or appropriate and agrees to reimburse ELR for any costs and expenses that it incurs, including attorneys’ fees, in connection with such action.
Indemnification. ELR agrees to indemnify Customer against, and reimburse Customer for, any loss, damage, expense or liability that Customer, its employees or agents may incur as a result of ELR’s negligence, misconduct or breach of this Agreement.
Customer shall indemnify, defend, and hold harmless ELR (and its officers, directors, employees and agents) for, from and against any and all claims, demands, actions, losses, liabilities, damages, fines, penalties, and associated expenses and costs (including reasonable attorneys’ and consulting fees) arising out of or in connection with any breach by the Customer of the Agreement including without limitation these Terms & Conditions, any misrepresentation about the Material by the Customer, or any of Generator’s acts or omissions, whether negligent, intentional, willful or otherwise. Customer’s indemnity as set forth in this paragraph shall survive termination of this Agreement.
Limitation of Liability. Notwithstanding anything to the contrary in these Terms & Conditions, and in recognition of the relative risks and benefits of the services to be performed by ELR, ELR and Customer agree that ELR’s aggregate joint, several and individual liability, whether for breach of contract, breach of warranty, negligence, strict liability, or any other legal or equitable theory of recovery, shall be limited to an amount that is the lesser of (i) Customer’s actual damages or (ii) the total amount of fees paid to ELR for the services performed that gave rise to ELR’s liability. Neither ELR nor any of its officers, directors, employees or agents shall be liable for any other damages to Generator, including indirect, consequential, special, incidental or punitive damages, or other losses or expenses (including lost profits and opportunity costs). Generator covenants that it will not, under any circumstances, bring a lawsuit or claim against Ecolube Recovery’s individual officers, directors, or employees and that Generator’s sole remedy shall be against Ecolube Recovery.. The parties agree to this allocation of liability as a result of their bargained-for understanding. The fees Customer will pay for ELR’s services reflect this allocation. This paragraph 10 shall survive termination of this Agreement.
Insurance. ELR agrees to carry at a minimum the following liability insurance coverage during the term of this Agreement:
(a) Comprehensive General Liability (CGL) insurance with limits of $1,000,000 for each occurrence and $2,000,000 in the aggregate.
(b) Statutory workers’ compensation and employer’s liability insurance with limits of $1,000,000.
(c) Automobile liability insurance with limits of $1,000,000.
Miscellaneous. The parties agree to be bound by the following miscellaneous terms and conditions:
(a) This Agreement will be governed by Washington law.
(b) If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions of this Agreement will not be affected or impaired in any way.
(c) This Agreement will be binding upon the parties’ respective successors in interest. Customer may not delegate any duties or assign any rights or claims under this Agreement without ELR’s written consent. Any such attempted delegation or assignment will be void.
(d) Neither party will be liable for any delay or failure to perform due to acts of God or other circumstances beyond its control which could not have been avoided by the exercise of due care. The foregoing provision will not justify or excuse the failure to make any payment required to be made under this Agreement.
(e) Any notice or communication required or permitted by this Agreement must be in writing and will be considered to have been received when personally delivered to the other party or three (3) business days after being sent by certified mail, postage prepaid, to a party at the address specified in this Agreement
or at such other address as a party may from time to time designate to the other.
(f) Time is of the essence in the performance of obligations under this Agreement.
(g) This Agreement is the complete and exclusive statement of the parties’ agreement regarding the services ELR will furnish to Customer. No changes to the terms of this Agreement will be binding unless they are in writing and signed by each of the parties.