Terms and Conditions


These TERMS AND CONDITIONS (the “Terms and Conditions”) are effective as of the Customer Execution Date on the Agreement for Mattress Recycling Services (the “Effective Date”). This Agreement is by and between Tough Stuff Recycling, LLC, a Minnesota limited liability company (“TSR”) and Customer for the purpose of TSR providing disposal and recycling services to Customer. During the Term of this Agreement, TSR shall be the exclusive provider of disposal and recycling services to Customer of used Mattresses and Foundations.  The attached Addenda A, B, C, and D will be incorporated fully into the Agreement and will have the same effect as if written in primary body of the Agreement. These Terms and Conditions, the Agreement for Mattress Recycling Services, and the Addenda attached hereto, replace and supersede all prior agreements between TSR and Customer, oral or written. Throughout this Agreement, TSR and Customer shall each be referred to as a “Party” and collectively referred to as the “Parties.” 

 

When used in paragraphs 7, 8, 9, 10, and 11, the term Customer shall also refer to and mean any and all users of TSR’s website, http://toughstuffrecycling.com, any webpages within and part of TSR’s website, and any predecessor or successor websites operated by TSR (the “Website”).  Anyone using the Website, including Customer, agree to the terms of the these Terms and Conditions, Addendum D and TSR’s Privacy Policy.

 

1.              Definitions. The following terms shall have the meanings as set forth below. Other capitalized terms are defined as they may be used through the Agreement.

 

1.1           “Activation Fee” means that initial fee charged to Customer by TSR to initiate Services to the Customer.

 

1.2           “Agreement” means these Terms and Conditions, Pricing Agreement, and the Addenda attached to these Terms and Conditions. 

 

1.3           “Collection Point” means the location identified and approved by TSR as the place where Customer shall deliver or cause to be delivered Containers in which used Units have been placed by Customer.

 

1.4           “Conforming Unit” means a Unit that is not a Non-Conforming Unit and can be recycled at TSR’s recycling facility.

 

1.5           “Container” means a standard Sea Container of 40’ or 20’, a 26’ box truck, or other container deemed acceptable by TSR, in good and usable condition.  

 

1.6           “Curb-Side Pickup” means providing a pickup of Units from an individual Resident's location within and on behalf of a municipality or other governmental unit. 

 

1.7           “Customer” means the individual or entity identified as the “Customer” on the Pricing Agreement. When used in paragraphs 7, 8, 9, 10, and 11, the term Customer shall also mean any and all users of TSR’s Website.

 

1.8           “Effective Date” means the date that the Parties’ rights and obligations begin under the Agreement and is the Customer Execution Date on the Pricing Agreement.

 

1.9           “Expected Volume” means the monthly minimum number of Units that a Customer agrees to deliver or make available to TSR for recycling each month as part of this Agreement.

 

1.10        “Foundation” (also commonly called “box-spring”) means a ticking-covered structure used to support a Mattress or sleep surface. 

 

1.11        “Mattress” means resilient material or a combination of materials that is enclosed by a ticking (the outermost layer of fabric or related material of a Mattress) that is intended or promoted for sleeping upon.  

 

1.12        “Milk-Run” means Unit collection by TSR whereby TSR representatives drive a TSR Container or Trailer to a location chosen by Customer that is (1) within the agreed upon mile radius set forth in the Pricing Agreement, (2) part of TSR’s regular collection schedule, (3) and approved by TSR.

 

1.13        “Non-Conforming Units” means a Unit that cannot be recycled due to contamination caused by human bodily fluids, bed bugs or other insects/vermin infestation; a Unit being heavily soiled, mildewed, wet, or damaged as a result of being in the elements of rain or snow for any given amount of time; or any other reason as may be determined at the sole discretion of TSR.  

 

1.14        “Non-Milk-Run” means Unit collection by TSR whereby TSR representatives drive a TSR Container or Trailer to a location chosen by Customer and approved by TSR but does not meet the other requirements of a Milk-Run.

 

1.15        “Pricing Agreement” means the Agreement for Mattress Recycling Services executed by Customer and TSR. 

 

1.16        “Resident” means a resident of and within the defined area of Customer's municipal limits and applies only to an Agreement with a municipality or other government entity.

 

1.17        “Trailer” means a fully licensed, insured and when applicable, bonded, Department of Transportation inspected Trailer used for and capable of transporting Units.

 

1.18        “Transporter” means an insured and licensed employee, agent or contractor hired by Customer to transport Units in Containers to the Collection Point.

 

1.19        “Unit” means a single Mattress or single Foundation.

 

2.              Mattress Recycling Services. Under the terms and conditions of this Agreement, TSR agrees to provide Mattress and Foundation recycling services (the “Services”) to Customer. TSR agrees to recycle all Conforming Units received by TSR from Customer in compliance with laws and regulations applicable to the recycling of Mattresses and Foundations. Units may be received by TSR for recycling as follows:

 

2.1           Units are delivered in a Container by a Transporter to a Collection Point (“Collection Point Dropoff”). In addition to the Terms of this Agreement, Collection Pont Dropoff shall also be governed by the terms and conditions of Addendum A.

 

2.2           Milk-Run or Non-Milk Run pick up TSR (“TSR Pickup”). TSR Pickup includes White-Glove and Non-White-Glove Services. In addition to the terms of this Agreement, TSR Pickup shall also be governed by the terms and conditions of Addendum B.

 

2.3           A Container is rented from TSR by Customer and when full TSR picks up the Container up at a time and location agreed to by TSR (“Container Rental”). In addition to the terms of this Agreement, Container Rental shall also be governed by the terms and conditions of Addendum C. 

 

2.4           As otherwise agreed, between Customer and TSR.

 

3.              Exclusive Mattress Recycling Service Provider.  Customer agrees that the pricing and terms offered to Customer under this Agreement are based on, and are a fundamental part of, the fact that TSR will act as the exclusive provider of the Services to Customer. Customer has no other agreement with any other entity or individual that limit or prohibit it from using TSR as its exclusive provider of Mattress and Foundation recycling services. It shall be a material breach of this Agreement if Customer uses any other person or entity for the Services, and during the Term, Customer shall not seek or accept Services from any other entity or person. 

 

4.              Term and Termination. This Agreement will commence upon the Effective Date and will remain in full force and effect for a period of 3 years (the “Term”).  This Agreement shall automatically renew for successive three-year Terms unless Customer provides written notice of non-renewal not more than one-hundred and eighty (180) but not less than ninety (90) days prior to the termination of the Agreement. Terms governing termination shall be as follows:

 

4.1           Termination for Convenience.  TSR may terminate this Agreement at any time, for any reason or no reason, in its discretion by providing thirty (30) days’ prior written notice of termination to Customer.

 

4.2           Termination for Cause.  Either Party may terminate this Agreement if the other Party: (i) is in material breach of this Agreement and such breach is not remedied within thirty (30) days of receipt of a notice from the non-breaching Party outlining the terms of the breach; (ii) has a receiver, trustee, administrator or manager of any of its assets appointed; or (iii) passes or attempts to pass a resolution for winding up or otherwise ceases to do business.

 

4.3           Effect of Termination.  Expiration or termination of the Term will not affect any rights or obligations that are to survive the expiration or earlier termination of this Agreement. Any rights or obligations (including monetary) that were incurred by the Parties prior to the expiration or termination shall survive termination. Upon termination or expiration of this Agreement, Customer must immediately pay all amounts due to TSR under this Agreement. 

 

4.4           No Further Obligations. Upon the termination of the Agreement, TSR shall have no further obligation to collect or accept delivery of Units from Customer. Should TSR accept Units from Customer following the termination of the Agreement, the terms of this Agreement shall apply, except that the price per Unit and the amount of any additional fees shall be set by TSR at its sole discretion. 

 

5.              Price and Payment Terms.

 

5.1           Customer Agreement to Pay Charges. The Price charged to Customer, as provided for in the Pricing Agreement, shall be based upon type of service: Collection Point Dropoff; TSR Pickup; Container Rental; Curbside Pickup; or as otherwise agreed to by Customer and TSR. Customer agrees to pay the fees and charges set forth in the Pricing Agreement and agrees to pay any charges for Services rendered by TSR, including charges for transportation, labor, rental of Containers and Trailers, project management, Activation Fees, late fees, and other charges. All charges and fees charged by TSR shall be increased each year by the greater of 3.0% or a percentage equal to the percentage change in the Consumer Price Index statistics published by the United States Bureau of Labor. Comparisons shall be made using the index entitled, “U.S. City Average/All Items and Major Group Figures for all Urban Consumers Portland Area (1982-84 = 100),” or the nearest comparable data on changes in the cost of living, if such index is no longer published. The change shall be determined by comparison of the figure for the previous January 1, with that of January 1 of the current year. The proposed adjustment shall be presented to Customer by TSR thirty (30) days prior to the effective date of the increase.  Due to the nature of this service, TSR may, in its sole discretion, invoice Customer and require payment for Services prior to the month in which Services are provided.

 

5.2           Collection Point Dropoff Pricing. Collection Point Dropoff will be charged as a monthly flat fee and is based on the Expected Volume and other considerations. Customer agrees that it is required to pay a flat fee, payable each month, for the entire Term (subject to increases as set forth in this Agreement). Customer will pay the fixed flat fee even if Customer recycles less than the Expected Volume of Units. In addition, for each month, Customer will pay a per Unit fee for each Unit received by TSR from Customer that is in excess of the Expected Volume for the month, and such per Unit fee will be in accordance with the Volume Tier Pricing Schedule set forth in the Pricing Agreement. 

 

5.3           TSR Pickup Pricing. TSR Pickup pricing is charged as a monthly flat fee and is based on Milk-Run, Non-Milk-Run, White-Glove, Non-While-Glove, Expected Volume and other considerations. Customer agrees that it is required to pay a flat fee, payable each month, for the entire Term (subject to increases as set forth in this Agreement). Customer will pay the fixed flat fee even if Customer delivers less than the Expected Volume of Units. In addition, for each month, Customer will pay a per Unit fee for each Unit received by TSR from Customer that is in excess of the Expected Volume for the month, and such per Unit fee will be in accordance with the Volume Tier Pricing Schedule set forth in the Pricing Agreement. 

 

5.4           Container Rental Pricing. Container Rental pricing is charged as a monthly flat fee and is based on the size of the Container, the Expected Volume agreed to, and other considerations. Customer agrees that it is required to pay a flat fee, payable each month, for the entire Term (subject to increases as set forth in this Agreement). Customer will pay the fixed flat fee even if Customer delivers less than the Expected Volume of Units. In addition, for each month, Customer will pay a per Unit fee for each Unit received by TSR from Customer that is in excess of the Expected Volume for the month, and such per Unit fee will be in accordance with the Volume Tier Pricing Schedule set forth in the Pricing Agreement. 

 

5.5           Curbside Pickup Service Pricing. Curbside Pickup Service pricing shall be on a per Unit basis, but additional terms may be negotiated between TSR and Customer.

 

5.6           Line-Item Pricing.Line-Item Pricing” is an a la carte service that is broken down by recycled Unit, transportation, labor, and other considerations and Services. Pricing for each component will be negotiated and agreed upon between TSR and Customer.

 

5.7           Additional Pricing and Fees. TSR offers a variety of other Services, the pricing of which can be negotiated between TSR and Customer.

 

5.8           Security Deposit.  TSR may require Customer to tender a security deposit as security for any damage that may occur to any property rented to Customer by TSR and for performance of Customer’s covenants and obligations under this Agreement. The security deposit shall be held by TSR without liability for interest, and it shall be expressly understood that the security deposit shall not be considered an advance payment of or for any amounts owing under this Agreement by Customer or a measure of Customer’s liability for damages in case of default by Customer.  TSR shall not be required to keep the security deposit separate from its other accounts and shall have no fiduciary responsibilities or trust obligations whatsoever with regard to the security deposit.  TSR may, from time-to-time, without prejudice to any other remedy and without waiving such default, use the security deposit to the extent necessary to cure or attempt to cure, in whole or in part, any default of Customer hereunder.  Following any such application of the security deposit, Customer shall pay to TSR within five (5) days after demand the amount so applied in order to restore the security deposit to its original amount.  If Customer is not in default at the termination or expiration of this Agreement, the balance of the security deposit remaining after any such application shall be returned by TSR to Customer within sixty (60) days thereafter.  

 

5.9           Invoicing.  At its discretion, TSR will (1) invoice monthly for all Services provided in the month immediately following the month in which Services are provided, or (2) invoice at a date that is prior to Services being rendered, but in no event more than 30-days before the month for which Services are to be rendered. Invoices are due within 30 calendar days of the invoice date. In the event invoices sent prior to Services being rendered, in the event the number of Units exceeds the Expected Volume for the month, the fees associated with the Units that exceed the Expected Volume, and any other changes not included on the original invoice for that month, will be included in the invoice that follows the month in which Services were provided. To the extent that TSR Services are subject to any sales, use or other tax arising out of the delivery of the Services under this Agreement, payment of that tax will be the responsibility of the Customer.  TSR will collect and remit the tax to the taxing authority to the extent it is required and able and any expenses associated with collection of outstanding amounts will be charge to and the responsibility of Customer, even if after termination of agreement.

 

5.10        Three-year Term Material.  A material part of this Agreement is the three-year term and Expected Volume flat fee pricing which allows TSR to offer the pricing model set forth in the Pricing Agreement. Thus, if Customer is unable to provide the Expected Volume to for any month, Customer shall still be required to pay the entire monthly flat fee for the Expected Volume. Customers may inquire of TSR should it request seasonable volume adjustments to its scheduled pricing which may be granted or denied in TSR’s sole discretion. 

 

5.11        Non-Conforming Units. TSR reserves the right to determine, at its sole discretion, whether a Unit is Non-Conforming and to accept, modify, partially accept or entirely reject the Unit(s) or load.  If a load or Unit(s) is accepted, TSR will make commercially reasonable effort to recycle the Unit(s) if it can be done within the safety protocols for TSR employees and facilities. If TSR chooses in its discretion to accept a Nonconforming Unit, and TSR determines the Unit is unrecyclable due to the level of Non-Conforming condition, TSR may dispose of the Unit as solid waste and additional fees will apply.                

 

5.12        Bill of Lading. All Units delivered by Customer in a Container or Trailer and all Containers loaded with Units by Customer must be accompanied by a Bill of Lading that contains the number of Units to be recycled. Additional charges may apply in cases of discrepancies between Bill of Lading count and actual Unit counts at the facility. If no Bill of Lading is provided, TSR will document the number of delivered Units upon receipt of materials at its facility, which will be provided to the Customer.  Charges will be based on the actual number of Units received, verified and documented at the facility by authorized TSR receiving staff.  Any discrepancies on the counts by TSR Staff must be disputed within 60 days.  

 

5.13        Late Payments.  Any late payment will be subject to a late fee of 5% of the unpaid amount. If payment is not received by TSR within 30 calendar days of the invoice date, Customer shall be charged an interest charge of 1.5% per month on any unpaid amount or the maximum rate allowed by law, whichever is less. If Customer fails to pay an invoice within 30 calendar days of the invoice date, TSR may suspend all Services to Customer until any unpaid balances and penalties due are paid in full. Prior to resuming Services, TSR in its discretion may require a reactivation fee. TSR may also require a security deposit as a condition of resuming Services.  Customer shall additionally be responsible for all reasonable attorneys’ fees and costs of enforcing the Agreement, including collecting on any balance owed by Customer to TSR pursuant to the Agreement.

 

6.              Insurance Requirements.  Customer’s Transporter, including the driver, the vehicle and the Trailer, shall be fully licensed, insured, and comply with all federal, state, and local laws and regulations. Each Party shall maintain, at its own expense, the policies of the following minimum limits and coverage as set forth below:

 

Coverage

Minimum Limits

Commercial General Liability

$1,000,000 per occurrence

$2,000,000 aggregate

 

Workers Compensation

Statutory

 

Automobile Liability

$1,000,000 per occurrence

 

Each Party will submit to the other Party current evidence of insurance before the commencement of delivery of Services under this Agreement. Certificates of Insurance and renewals will be provided upon request by TSR or to the delegated vendor or insurance management system provider of TSR. Customer shall provide a Certificate of Insurance naming TSR as an additional insured and that TSR shall include a required notification to TSR of any cancellation or change in Customer’s insurance coverage during the period of the Agreement with not less than thirty (30) calendar days’ notice prior to the date the cancellation or change becomes effective. Customer will provide proof of insurance annually to TSR or on request by TSR or to the delegated vendor or insurance management system provider of TSR. If at any time Customer does not maintain insurance coverage as required by this Section, then TSR may suspend or terminate all Services to Customer. Except as expressly provided herein, compliance by each Party with the foregoing requirements to carry insurance and furnish certificates will not relieve that Party from liability assumed under the provisions of the Agreement. Each Party will require all third parties that it uses to provide any Services under the Agreement to comply with the same insurance requirements specified above.

 

7.                Intellectual Property.

 

7.1           Protection of Marketing and Branding Material.  TSR may from time to time, in its sole discretion, provide Customer with TSR’s trademarks, photographs, brochures and other branding or marketing materials including media copyrighted or trademarked by TSR (collectively, the “TSR Material”). Customer agrees and covenants not to use any TSR Material except as expressly permitted or directed by TSR, regardless of form, without the express written consent of TSR.  Customer agrees unauthorized use of the TSR Material shall be a material default or breach of this Agreement.  Upon termination, or upon request of TSR, Customer shall cease all use of the TSR Material and return (or, if requested by TSR, destroy or erase) all such material in all forms, within ten (10) days after termination or request and provide a signed written certification of such compliance upon TSR’s request. Customer acknowledges and agrees that TSR owns and retains all intellectual property and other proprietary rights, including trade secrets rights, in and/or to the TSR Material. Customer shall not acquire any ownership interest in any TSR Material under this Agreement.  Customer will secure and protect the TSR Material in the same manner that it protects its own intellectual property rights, and in no event with less than a reasonable degree of care.  Customer agrees to promptly notify TSR of, and to assist TSR with respect to any infringement or unauthorized use of such proprietary rights of which Customer is aware or reasonably suspects. Customer shall not, and shall not cause any other Person to: (i) take any action that interferes with any of TSR’s rights in or to TSR’s intellectual property rights, including TSR’s ownership or exercise thereof; or (ii) use any mark, anywhere, that is confusingly similar to TSR Material or otherwise misappropriate, alter, obscure or remove any TSR Material, including without limitation, trademarks contained in TSR Material.

 

7.2           TSR Inventions. Customer agrees that all right, title, and interest in and to any patentable or copyrightable material, notes, records, drawings, designs, inventions, improvements, developments, discoveries, ideas and trade secrets conceived, discovered, authored, invented, developed or reduced to practice by TSR, including any enhancements, updates, or modifications, solely or in collaboration with others, prior to or during the Term of this Agreement and any copyrights, patents, trade secrets, mask work rights or other intellectual property rights relating to the foregoing (collectively, “TSR Inventions”), are the sole property of TSR. TSR Inventions include but are not limited to any TSR web-based application that provides the ability to locate, manage, and service customers in connection with the Services and provide a link between TSR, Customer and others (the “Software”).

 

7.3           Grant of Nonexclusive license.  Subject to the terms of this Agreement, in the event TSR makes any TSR Inventions available to Customer, which it may or may not do in its sole discretion, TSR grants Customer a revocable, non-transferable, non-sublicensable license to use the Software during the Term of this Agreement for the specific and limited purpose of further the Parties’ rights and obligations under this Agreement. The license granted herein shall automatically terminate upon the termination of this Agreement.

 

7.4           TSR’s Option to Provide Use of TSR Inventions; No Warranties.   TSR shall have sole discretion in determining whether to offer any TSR Inventions, including the Software, for use by Customer during the Term of this Agreement, and the license granted in Section 7.3 exists only in the event TSR offers any TSR Inventions to Customer for use. TSR shall have no obligation whatsoever to offer any TSR Inventions for use to Customer. In the event TSR allows the use of any TSR Inventions, TSR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WHETHER ORAL OR WRITTEN, WITH RESPECT TO ANY TSR INVENTION, INCLUDING THE SOFTWARE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.

 

7.5           License Restrictions. Customer shall not and shall not permit any affiliate, employee, supplier, customer or third party without the prior written consent of TSR to reproduce, copy, modify, translate, reverse engineer, disassemble, decompile or otherwise attempt, or permit others to attempt, to discover the source code of the Software, or any other TSR Inventions, in whole or in part. Customer agrees that the Software, and any other TSR Inventions offered for use, may only be used in connection with this Agreement. TSR may revoke the license to use the Software or any other TSR Inventions at any time, for any reason or no reason. 

 

7.6           Assignment of Customer Inventions.  Customer will not incorporate any invention, discovery, idea, original works of authorship, development, improvements, trade secret, concept, or other proprietary information or intellectual property right, whether owned by Customer or any third-party, into any TSR Invention without TSR’s prior written permission, any such acts by Customer shall be a material breach of this Agreement. If Customer, with or without TSR’s consent, incorporates into any TSR Invention any invention, discovery, idea, original works of authorship, development, improvements, trade secret, concept, or other proprietary information or intellectual property right owned by Customer or in which Customer has an interest, prior to, or separate from, the TSR Inventions (“Customer Inventions”), Customer agrees to assign (or cause to be assigned) and hereby irrevocably assigns fully to TSR all right, title and interest in and to the Customer Inventions and TSR is hereby granted a nonexclusive, royalty-free, perpetual, irrevocable, transferable, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Customer Inventions, without restriction, including, without limitation, as part of or in connection with such TSR Inventions, and to practice any method related thereto. 

 

7.7           Moral Rights. Any assignment to TSR of Customer Inventions includes all rights of attribution, paternity, integrity, modification, disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like (collectively, “Moral Rights”). To the extent that Moral Rights cannot be assigned under applicable law, Customer hereby waives and agrees not to enforce any and all Moral Rights, including, without limitation, any limitation on subsequent modification, to the extent permitted under applicable law.

 

7.8           Further Assurances. Customer agrees to assist TSR, or its designee, in every proper way to secure TSR’s rights in the Customer Inventions in any and all countries, including the disclosure to TSR of all pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments and all other instruments that TSR may deem necessary in order to apply for, register, obtain, maintain, defend, and enforce such rights, and in order to deliver, assign and convey to TSR, its successors, assigns and nominees the sole and exclusive right, title, and interest in and to all Customer Inventions and testifying in a suit or other proceeding relating to such Customer Inventions.

 

7.9           Attorney-in-Fact.  Customer agrees that, if TSR is unable because of Customer’s unavailability, dissolution, mental or physical incapacity, or for any other reason, to secure Customer’s signature with respect to any Customer Inventions, including, without limitation, for the purpose of applying for or pursuing any application for any United States or foreign patents or mask work or copyright registrations covering the Customer Inventions assigned to TSR, then Customer hereby irrevocably designates and appoints TSR and its duly authorized officers and agents as Customer’s agent and attorney-in-fact, to act for and on Customer’s behalf to execute and file any papers and oaths and to do all other lawfully permitted acts with respect to such Customer Inventions to further the prosecution and issuance of patents, copyright and mask work registrations with the same legal force and effect as if executed by Customer. This power of attorney shall be deemed coupled with an interest and shall be irrevocable.

 

7.10        Customer Logos and Branding. TSR shall be permitted to use Customer’s logos and branding in its marketing materials, on its website and on its social media accounts, in TSR’s sole discretion. 

 

8.              Indemnification and Limitation of Liability. 

 

8.1           Indemnification by Customer.  Customer shall indemnify, hold harmless, and defend TSR and its officers, directors, managers, shareholders, members, partners, employees, agents, affiliates, successors, and permitted assigns against any and all losses, damages, liabilities, deficiencies, claims, third-party claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney fees, fees and the costs of enforcing any right to indemnification under this Agreement, relating to, arising out of or resulting from: (i) Customer’s breach of this Agreement; (ii) any negligence or misconduct of Customer or its contractors, agents, or employees; (iii) any bodily injury, death of any person or damage to real or tangible personal property caused by the acts or omissions of Customer or its contractors, agents, or employees; (iv) violations of any local, state, federal or international laws by Customer, and/or (v) Customer’s use of the TSR website.

 

8.2           Safety and Health/OSHA Requirements. In the performance of this Agreement, Customer will comply with all applicable statutes, requirements, orders and regulations of the federal government and other applicable jurisdictions, pertaining to occupational safety and health including, without limitation, the Occupational Safety and Health Act of 1970 and those applicable to the handling, shipment, storage and disposal of hazardous materials.

 

8.3           Environmental Representations and Indemnification.  

 

8.3.1               Customer hereby represents, warrants, and covenants that in performing its obligations under this Agreement, it (1) will comply with all Environmental Laws (as defined below), and (2) will not deliver any Units that knowingly contain any Hazardous Materials (as defined below) without first notifying TSR. Upon receiving any notice or obtaining any knowledge of any noncompliance with any Environmental Laws in connection with the Services or becoming aware of the presence of Hazardous Materials in any of the Units, Customer will immediately notify TSR of the same. Customer shall indemnify, defend, and hold TSR harmless from and against all claims and losses (specifically including, without limitation, attorneys’, engineers’, consultants’ and experts’ fees, costs, fines, and expenses) arising from any non-compliance with any Environmental Laws by Customer or the presence of any Hazardous Materials in any of the Units, whether or not Customer is aware of the non-compliance with Environmental Laws or presence of Hazardous Materials. 

 

8.3.2               Environmental Laws” means any and all federal, state and local laws or statutes, that relate to or impose liability or standards of conduct concerning the environment, as now or hereafter in effect and as have been or hereafter may be amended, modified, reauthorized or interpreted, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. Section 9601 et seq.), the Hazardous Materials Transportation Act (42 U.S.C. §1802 et seq.), the Resource Conservation and Recovery Act (42 U.S.C. §6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. §1251 et seq.), the Toxic Substances Control Act (15 U.S.C. §2601 et seq.), the Clean Air Act (42 U.S.C. §7401 et seq.), and the Safe Drinking Water Act (42 U.S.C. §300(f) et seq.), and all rules, regulations, codes, ordinances and guidance documents promulgated or published thereunder, and the provisions of any licenses, permits, orders and decrees issued pursuant to any of the foregoing.

 

8.3.3               Hazardous Materials” means any and all hazardous, toxic, dangerous or other wastes, substances, chemicals, gases, liquids and materials, including, without limitation, (i) “hazardous substances” and “toxic substances” as such terms are defined in the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §9601 et seq., or the Hazardous Materials Transportation Act, 49 U.S.C. §1802 et seq.; (ii) “hazardous wastes”, as such term is defined by the Resource Conservation and Recovery Act, 42 U.S.C. §6902 et seq.; (iii) crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure; (iv) any radioactive material, including any source, special nuclear or by-product material as defined at 42 U.S.C. §2011 et seq.; (v) asbestos in any form or condition; (vi) polychlorinated biphenyls and hydrocarbons or substances or compounds containing polychlorinated biphenyls or hydrocarbons; (vi) mold of a type or in amounts that may present a health or maintenance issue; and (vii) radon gas of a type or in amounts that may present a health or maintenance issue.

 

8.4           Release for Physical Harm and Damage and Loss to Property.   Customer understands that driving vehicles and trailers, manual labor involving lifting and moving Units and equipment, and being present in and around loading and unloading areas and docks presents significant risk of physical injury or death, and/or loss or damage to personal property. Customer, on behalf of its affiliates, employees, agents, independent contractors, representatives, successors, lessors, owners, and/or assigns (“Customer Releasors”) assumes this risk and agrees that Customer Releasor’s actions arising out of this Agreement shall at all times be at Customer Releasors’ own risk. Customer Releasors hereby knowingly, voluntarily and irrevocably agrees to waive and release TSR and its affiliates, employees, agents, independent contractors, representatives, successors, lessors, owners, and/or assigns (“TSR Releasees”) from any and all liability, loss, cost, damage, expense, claim or suit whatsoever, including reasonable attorneys’ fees, for any and all injury, loss, illness, harm, cost, expense, claim, suit, or damage arising out of physical harm and/or property damage that arises out of this Agreement, including without limitation that involving driving vehicles, loading and unloading Units and equipment, or being in and around loading docks. Customer specifically understands that this release includes but is not limited to any claims Customer Releasors’ may have presently or in the future for negligent acts or other conduct by TSR Releasees. Customer further agrees to indemnify and hold harmless TSR Releasees from and against any and all third-party claims arising out of any physical harm and/or property damage as a result of Customer Releasors’ actions arising out of this Agreement, including for attorneys’ fees. Notwithstanding the foregoing, nothing in this agreement purports or intends to waive liability for damage, injuries, or death resulting from conduct that constitutes greater than ordinary negligence. If any portion of this Release shall be deemed by a court of competent jurisdiction to be invalid, then the remainder of this release shall remain in full force and effect and the invalid portion shall be enforceable to the extent permitted by law. 

 

CUSTOMER ACKNOWLEDGES THAT IT HAS CAREFULLY READ THIS RELEASE, HAD AN ADEQUATE OPPORTUNITY TO ASK QUESTIONS ABOUT IT, AND FULLY UNDERSTANDS THAT IT IS RELEASING TSR RELEASEES FROM LIABILITY CAUSED BY ITS PRESENT AND FUTURE CONDUCT AND AGREEING TO INDEMNIFY TSR RELEASEES FOR THIRD-PARTY CLAIMS ARISING AS A RESULT OF THE ACTIONS OF THE PARTIES ARISING OUT OF THIS AGREEMENT.

 

8.5           Limitation of Liability. For any claims that are not released pursuant to this Agreement, Customer, agrees that the total maximum liability for TSR for any claim or claims, losses and/or damages (in contract, tort, or otherwise) which for any reason may arise out of or be related to the Agreement shall not exceed the amount of 6 months of total aggregate fees paid by Customer to TSR for Services under this Agreement. In no event shall TSR be liable to Customer for any consequential, indirect, special, exemplary, punitive and/or incidental damages. TO THE EXTENT PERMITTED BY LAW, TSR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.

 

8.6           Limited Right to Contest Invoices.  Customer agrees that all invoices for Services rendered by TSR under this Agreement are final and cannot be disputed by Customer more than 60-day after the date on the invoice. Thus, after 60-days, all invoices are final and cannot be disputed by Customer, whether by Customer complaint, arbitration or otherwise, including any dispute regarding the number of Units recycled, the price charged for Services rendered, the type of Services rendered, or for any other reason. 60 days after the invoice date, Customer forever waives its right to challenge the content of the invoice and agrees that it must pay the invoice in full.

 

8.7           Credit Card Authorization.  By providing credit card, checking account, or other financial account information (the “Account”), Customer understands and agrees that it is authorizing TSR to charge payments to the Account until Customer either cancels its authorization in writing or this Agreement is terminated or expires and all payments hereunder owing to TSR have been made. To avoid the next payment being charged to Customer’s Account, Customer must terminate its authorization to draw from the Account at least 7 days prior to the next scheduled charge. Customer agrees that no prior notification of charges to any Account will be provided prior to each monthly payment made under this Authorization. Customer hereby agrees and authorizes that different amounts on different dates may be drawn each month. If payments dates are on a weekend or holiday, payments may be executed on the next business day. Customer agrees to notify TSR of any changes to the Account information that has been provided to TSR. The Account information provided to TSR shall be used only for the intended purpose as authorized. Customer shall indemnify and hold TSR harmless from all loss, damage, expense, and liability in connection with such authorized use of any Account. Customer represents that any Account information presented to TSR will be correct. Customer certifies that it is an authorized user of any Account presented to TSR and will not dispute any charges so long as the transactions are consistent with the terms of this Agreement. 

 

TO THE EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER AGREES TO RELEASE TSR AND WAIVE ANY AND ALL LIABILITY ARISING OUT OF UNAUTHORIZED ACCESS TO ANY CUSTOMER ACCOUNT OF CUSTOMER THAT WAS PROVIDED TO TSR BY CUSTOMER; TSR’S FAILURE TO FOLLOW ANY PCI COMPLIANCE OR OTHER INDUSTRY STANDARD FOR MAINTENANCE AND USE OF FINANCIAL INFORMATION; AND ANY UNAUTHORIZED CHARGES ON ANY ACCOUNT OF CUSTOMER. NOTWITHSTANDING THE PROCEEDING SENTENCE, THIS RELEASE SHALL NOT APPLY TO UNAUTHORIZED USE OF ANY ACCOUNT OF CUSTOMER BY TSR EMPLOYEES, AGENTS, OR REPRESENTATIVE FOR THE INTENTIONAL PURPOSE OF MISAPPROPRIATING FUNDS.

 

9.              Dispute Resolution and Agreement to Individual Arbitration.

 

9.1           Disputes.  In the event of any dispute or controversy between the parties as to any matter under or in connection with this Agreement, the parties shall seek to resolve the matter amicably through direct, good-faith negotiations between the parties.  If the parties fail to amicably resolve such dispute or controversy within thirty (30) days of the date the parties begin negotiations, the matter in dispute shall then be resolved in accordance with this Section 9.

 

9.2           Jury Waiver.  EXCEPT FOR A CLAIM THAT MAY BE BROUGHT IN SMALL CLAIMS COURT, CUSTOMER AND TSR AGREE TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY. OTHER RIGHTS THAT CUSTOMER MAY HAVE IF CUSTOMER WENT TO COURT, SUCH AS ACCESS TO DISCOVERY, ALSO MAY BE UNAVAILABLE OR LIMITED IN ARBITRATION.

 

9.3           Covered Disputes and Arbitration Requirement.  Any and all disputes between Customer and TSR arising from or relating to the Agreement (collectively, “Covered Disputes”) will be settled by binding arbitration before a single arbitrator administered by the American Arbitration Association (“AAA”) under the AAA’s Commercial Arbitration Rules in effect on the date the claim was filed.  This arbitration agreement applies to any and all disputes occurring before or after this agreement, supersedes any previous arbitration agreements, and survives termination of this Agreement.  The arbitrator will have the power to grant whatever relief would be available in court under law or in equity, including public injunctive relief, and any award of the arbitrator(s) will be final, binding on each of the Parties, non-appealable, and may be entered as a judgment in any court of competent jurisdiction. Notwithstanding the above, Customer or TSR can bring any individual claim in small claims court consistent with the jurisdictional limitations of such court.

 

9.4           Location of Arbitration Proceedings.  The arbitration will take place in the County of Hennepin, State of Minnesota. 

 

9.5           Class Action Waiver.  TSR AND CUSTOMER AGREE THAT ANY COVERED DISPUTE HEREUNDER WILL BE SUBMITTED TO ARBITRATION ON AN INDIVIDUAL BASIS ONLY. NEITHER TSR NOR CUSTOMER ARE ENTITLED TO ARBITRATE ANY COVERED DISPUTE AS A CLASS, CLASS REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AND THE ARBITRATOR WILL HAVE NO AUTHORITY TO PROCEED ON A CLASS, CLASS REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL BASIS. 

 

9.6           Severability.  If any provision of the agreement to arbitrate in this Section 9 is found unenforceable, the unenforceable provision will be severed, and the remaining arbitration terms will be enforced. 

 

 

10.           Non-Disclosure.

 

10.1        Confidential Information.  From time to time during the Term, TSR may disclose or make available to Customer information about its pricing, business affairs, goods and services, forecasts, confidential information, and materials comprising or relating to intellectual property rights, trade secrets, third-party confidential information, and other sensitive or proprietary information, as well as the terms of this Agreement whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure and as established by documentary evidence: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section by the Customer or any of its representatives; (ii) is or becomes available to the Customer 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 known by or in the possession of the Customer or its representatives prior to being disclosed by or on behalf of the TSR; (iv) was or is independently developed by the Customer without reference to or use of, in whole or in part, any of TSR’s Confidential Information; or (v) is required to be disclosed pursuant to applicable Law.

 

10.2        Protection of Confidential Information.  Customer including its agents, employees, and representatives shall, during the Term and for a period of five (5) years after expiration or termination of the Agreement:

 

10.2.1            Protect and safeguard the confidentiality of TSR’s Confidential Information with at least the same degree of care as the Customer would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;

 

10.2.2            Not use TSR’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and

 

10.2.3            Not disclose any such Confidential Information to any person, except to the Customer’s representatives who need to know the Confidential Information to assist the Customer, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.

 

10.3        Return of Confidential Information.  On the expiration or earlier termination of this Agreement or otherwise at TSR’s written request, the Customer and its representatives shall, promptly return or destroy all Confidential Information and copies thereof that it has received under this Agreement.

 

10.4        Specific Performance.  Customer acknowledges that a breach or threatened breach of any provision of this Agreement would give rise to irreparable harm to TSR, for which monetary damages would not be an adequate remedy, and thereby agrees that in the event of a breach or threatened breach by Customer of any such obligations, TSR shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to seek equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction or arbitrator (without any requirement to post bond).

 

10.5        Reasonable and Necessary.  Customer acknowledges that the restrictions contained in this Section of the Agreement are reasonable and necessary to protect the legitimate interests of TSR. In the event that any provision contained in this Section should ever be adjudicated to exceed the time, geographic, or service limitations or other limitations permitted by applicable law in any jurisdiction, then any court is expressly empowered to reform such covenant, and such covenant shall be deemed reformed, in such jurisdiction to the maximum time, geographic, or service limitations or other limitations permitted by applicable law.  The covenants contained in this Section and each provision hereof are severable and distinct covenants and provisions.  The invalidity or unenforceability of any such covenant or provision as written shall not invalidate or render unenforceable the remaining covenants or provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such covenant or provision in any other jurisdiction. Customer understands, consents and agrees that this Section shall inure to the benefit of TSR and its successors and assigns including, without limitation, any entity or individual that has purchased or acquired all of TSR’s assets or business or into which TSR may be consolidated or merged.

 

11.           Miscellaneous.

 

11.1        Waiver. The failure at any time to enforce any provision of the Agreement or failure to exercise any right herein granted does not constitute a waiver of such provision or of such right thereafter to enforce any or all of the provisions of the Agreement. Either Party may waive any default by the other Party under the Agreement only by an instrument in writing to that effect and no such waiver will extend to any subsequent or other default by the other Party. No failure or delay on the part of either Party to exercise any right hereunder operates as a waiver thereof. Either Party may elect to selectively and successively enforce its rights hereunder, such rights being cumulative and not alternative.

 

11.2        Entire Contract. This Agreement (including the Pricing Agreement and Addenda) constitutes the entire agreement between the Parties with respect to the matters herein, and integrates, merges, and supersedes all prior negotiations, representations, or agreements relating thereto, whether written or oral, except to the extent they are expressly incorporated herein. The provisions of the Agreement are to be construed and interpreted as consistent whenever possible. 

 

11.3        Notices. Except where otherwise expressly authorized, notice will be in writing and will be delivered in person, sent by overnight courier for next business day delivery, or sent by certified mail, return receipt requested and postage paid to the intended recipient at the address set forth in the Pricing Agreement. Either Party may change the address information by providing written notice to the other Party. Notice is effective upon delivery, or if delivery is refused, when delivery is attempted, or if mailed, the date of mailing. 

 

11.4        Right to Amend.  TSR reserves the right to update, modify, amend, add or remove terms of, or otherwise alter this Agreement at any time without notice of any kind. To the extent any changes in local, state, or federal laws or requirements result in increased costs to TSR, TSR may raise Customer pricing to account for such increases by providing not less than thirty (30) days’ notice prior to the price change being put into effect. 

 

11.5        Amendment or Modification. Except as otherwise provided herein, no amendments, changes, alterations, variations, or modifications to the Agreement will be effective unless in writing and signed by the Parties hereto.

 

11.6        Governing Law. The Agreement and any arbitration proceeding will be governed by the laws of the State of Minnesota. 

 

11.7        Force Majeure. Notwithstanding anything to the contrary herein contained, it is agreed that either party hereto will be relieved of its obligations hereunder in the event and to the extent that its performance hereof is delayed or prevented by any cause beyond its control and not caused by the party claiming relief hereunder, including, without limitation, acts of god, public enemies, war, insurrection, acts or orders of governmental authorities, fire, flood, explosion, riots, strikes or the recovery from such cause (“Force majeure”). TSR agrees that where relief is obtained under this provision to make reasonable efforts to resume Services. TSR further agrees to consult with and advise Customer of any anticipated delay or failure, as reasonably soon after it becomes aware of such anticipated delay or failure or the possibility thereof caused by any Force Majeure.

 

11.8        Employees and Contractors. The employees and contractors of TSR engaged in performing Services hereunder will be considered employees or contractors of TSR for all purposes and will under no circumstances be deemed to be employees of Customer. Customer will have no supervisory power or control over any such TSR’s employees or contractors. Likewise, the employees and contractors of Customer engaged in performing Services hereunder will be considered employees or contractors of Customer for all purposes and will under no circumstances be deemed to be employees of TSR. TSR will have no supervisory power or control over any such Customer’s employees or contractors.  

 

11.9        Severability. If any term, covenant, condition, or provision of the Agreement is held to be invalid, void, or unenforceable, the remainder of the provisions hereof will remain in full force and effect and will in no way be affected, impaired, or invalidated thereby.

 

11.10     Construction. Each Party has had the opportunity to fully and equally participate in the preparation, negotiation, review and approval of the Agreement and for construction purposes, the Agreement will be considered to be jointly drafted by the Parties.

 

11.11     Authorization. Each Party represents and warrants that it has full power and authority to enter into the Agreement and to perform its obligations set forth herein. The representative(s) signing the Pricing Agreement on behalf of each Party represents that he/she has the authority to execute the Pricing Agreement on behalf of the applicable Party and to bind it to its contractual obligations hereunder.

 

11.12     Electronic Signatures. Unless otherwise prohibited by law, the Parties agree that an electronic copy of a signed contract, or an electronically signed contract, has the same force and legal effect as a contract executed with an original ink signature. The term “electronically signed contract” means a contract that is executed by applying an electronic signature using technology approved by TSR.

 

11.13     Survival of Terms. All Services performed and deliverables provided pursuant to the Agreement are subject to the terms, conditions, price and rates set forth herein, notwithstanding the expiration of the initial Term of the Agreement or any extension thereof. Further, the terms, conditions and warranties contained in the Agreement that by their sense and context are intended to survive the completion of the performance, cancellation or termination of the Agreement will so survive.

 

 


 

Addendum A – Collection Point, Containers and Delivery

 

1.1           Each month, Monday – Friday, 7:30 a.m. – 3:00 p.m., excepting holidays, or during such hours as determined to be available by TSR, Customer may deliver to the authorized Collection Point a Container or Containers holding acceptable Units which shall be unloaded by TSR and the Container released back to the Customer. The Container's condition upon arrival will be assumed to be acceptable to the Customer, and TSR will not be held accountable for any change in its condition. Any wear and tear resulting from the normal process of unloading is to be expected and will not be the responsibility of TSR. Upon completion of the unloading process, the Container will be returned to the Customer. Customer must first make a Dock Appointment with TSR not less than 48 business hours in advance of the anticipated delivery. Customers who arrive without Dock Appointments will not be assured service and will be serviced on an ‘as-available’ basis if and when TSR staff become available, after all appointments have been completed. During its regular business hours, TSR will use its reasonable efforts to unload the Container in a timely manner. However, under no circumstance will TSR be responsible for any costs incurred by Customer due to delay in the unloading of a Container. Containers or Trailers left onsite without pre-approval are subject to storage fees.

 

1.2           Customer shall only use Containers and Trailers that are in good and usable condition, less ordinary wear and tear. Customer shall repair or replace any defective Containers, and trailers and floors of all Containers shall be in a working and serviceable condition to allow Units to be loaded and unloads in a safe manner. Trailer and floors must be able to support up to 8,000 pounds and be allow use of a forklift in the Container and trailer.       

 

1.3           While at the authorized Collection Point, Customer’s Transporter shall at all times drive and act in a safe and professional manner. All drivers entering TSR’s premises must adhere to the highest standards of professionalism and safety, including compliance with all relevant rules and regulations. This involves respectful interactions, observing traffic directions, wearing appropriate safety gear, and not being under the influence of any impairing substances. The Customer will be held accountable for their drivers' behavior, and any failure to meet these standards, resulting in damage or injury, may lead to liability for the Customer.

 

1.4           Container shall only contain approved Units and shall be free of other materials or debris. Any debris that is either dumped on site or in a Container will be removed and/or disposed of at the cost of the Customer, and Customer shall also be responsible for any additional cost associated with handling and storing of the materials prior to disposal.

 

1.5           Containers shall at all times be on a lawfully licensed and Department of Transportation compliant inspected Trailer of appropriate size and capacity to transport Container.

 

1.6           Customer’s Transporter shall remain at the authorized Collection Point at all times while Container and/or Trailer is at authorized Collection Point from delivery to pickup of Container, unless arrangements for a drop of materials and or “drop and hook” of a trailer have been made in writing, in advanced, and in that instance, pick up of Container must be made within 24 hours following its delivery or Customer may be subject to storage fee and/or subject to being moved by an authorized carrier for TSR at the cost to the Customer.

 

1.7           All transporters entering TSR’s premises must be properly licensed and insured in accordance with applicable laws and regulations. The Customer is responsible for ensuring their transporters meet these requirements and may be asked to provide proof of such credentials upon request. Failure to meet these standards may result in the denial of access to TSR’s premises and potential liability for the Customer.

 

1.8           TSR may refuse, at its sole discretion, delivery of all or some of the contents of any Container. Any partial loads or mixed loads will need to be approved by TSR prior to acceptance.

 

1.9           Customer may deliver the Container(s) to TSR during those times and dates set by TSR.  

 

1.10        All shipments must be accompanied by a Bill of Lading that contains the count of Units to be recycled. If no Bill of Lading is provided TSR will provide one upon receipt of materials at its facility.  Additional charges may apply in cases of discrepancies between BOL count and actual Unit counts at the facility. Charges will be based on the actual number of Units received, verified and documented at the facility by authorized TSR Receiving staff.  Any discrepancies on the counts by TSR Staff must be disputed within 30 days or Customer waves right to dispute, and any outstanding balances must be cleared before the acceptance of additional Units. Upon request, TSR will make available Bills of Lading and Certificates of Recycling


 

 

Addendum B – Mattress and Box Springs Pickup Services

 

1.1           Customer shall request Pickup from TSR when Customer has the minimum number of Units required by the Pricing Agreement ready for pickup at the approved aggregation site. Additional charges may apply.

1.2           By Customer choosing the Milk-Run pick up option, TSR will make reasonable effort to determine a mutually agreeable time for pickup at the approved Customer's location.  Milk-Run service offering, and any activation fees, deposits, and additional services fees are based on the availability of sufficient minimum number of Units on a route with multiple authorized collection locations.  TSR shall work with Customer to determine an agreed upon periodic scheduled time for pickups. TSR will have no liability for any other cost, loss or damage incurred by Customer because of TSR’s inability to arrive at the requested time. Cancellations by Customer require 24 hours advance notice or Customer will be subject to a cancellation fee

1.3           In the circumstance where a Milk-Run option falls outside of the agreed upon distance of 75 miles (one-way distance from processing facility to pick up location) an additional transportation charge will apply.

1.4           In the case of a “Special Request” pickup or service request that does not fall under the Milk-Run pickup definition, TSR will work with Customer to determine a mutually agreeable time to schedule the pickup.  TSR shall provide the driver and additional staffing necessary for the loading of the approved Units. 

1.5            At all approved pickup locations, Customer shall provide TSR and maintain a site with a safe, clear and unobstructed access The access to the approved Container must provide for an adequate turning radius by TSR.  No Units shall be stored near an approved Container but must always be placed within the approved Container.  

1.6           TSR shall load the approved Units into the truck in a professional and workmanlike manner.  TSR will provide a Bill of Lading that contains the count of Units to be recycled upon receipt of materials at the Customer’s pickup location.  Additional charges may apply in cases of discrepancies between BOL count and actual unit counts at the facility if units are loaded by the Customer prior to the TSR driver arriving to pick up a trailer. Charges will be based on the actual number of units received, verified and documented at the facility by authorized TSR Receiving staff.  Any discrepancies on the counts by TSR Staff must be disputed within 30 days or Customer waves right to dispute. and any outstanding balances must be cleared before the acceptance of additional Units. Upon request, TSR will make available Bills of Lading and Certificates of Recycling.


 

Addendum C – Rental Collection Container

 

1.1           Tough Stuff Recycling will provide a Container or Trailer that is in good, usable condition and weather tight for the purposes of storing Units for recycling. Any approved Container or Trailor provided will be subject to a one-time fee and security deposit to be determined by TSR.

1.2           Customer shall only use the approved Container or Trailer to hold, stage, and store acceptable Units. Customer shall maintain the approved Container so that at all times, it must be free of other non-Unit related materials or debris.

1.3           The Containers and Trailers used will be lawfully licensed and Department of Transportation compliant.

1.4           The approved Containers or Trailers will be dropped by Tough Stuff Recycling transportation services providers at a specific drop location on Customer’s site that is safe, easily accessible, flat, and not near any gas or power connections.  Acceptability shall be at the sole discretion of Tough Stuff Recycling.   Once placed, the Container will remain at the fixed drop location at all times until Tough Stuff Recycling’s approved transporter picks up the Container. 

1.5           Customer shall not attempt to move, transport, or otherwise disturb the Container or Trailer unless permission is approved by Tough Stuff Recycling.  Unauthorized attempts at moving Containers or Trailers could cause significant damage to Containers or Trailers and risk serious harm to any individual engaged in moving the Container.

1.6           The rental rate for the Container shall be exclusive of an initial one-time fee that shall provide for the delivery and pickup of the Container. The same fee shall be charged in the event Customer requests the relocation of a Container.

1.7           Upon cancellation of the Container rental agreement or cessation of service, The Container must be returned to TSR in the same condition as it was when it was dropped, less ordinary wear and tear.  Customer will be liable for any damage to the Container and shall promptly pay Tough Stuff Recycling the cost of repair or replacement of the Container, including but not limited to damage to the floors, sides (outside and inside), doors and locking mechanisms.


 

ADDENDUM D – Terms Governing Use of TSR Website

 

Terms and Conditions

This Addendum D, and the Terms and Conditions (collectively the “Terms”), govern visitors to TSR’s website, http://toughstuffrecycling.com, any webpages within and part of TSR’s website, and any predecessor or successor websites operated by TSR (the “Website”). You agree to these Terms, as they may be modified from time to time by us. If you do not agree to these Terms and our Privacy Policy, you may not use the Website. If you breach these Terms or our Privacy Policy, we may terminate your access to the Website. The form of Acknowledgement and Agreement to Terms is found at the end of this document.

 

User Conduct

 

You agree that you will comply with these Terms and that you will not engage in conduct or communications with or with respect to the Website that: (a) are obscene, fraudulent, indecent, defamatory, abusive, harassing, or threatening to others; (b) contain viruses, malware, worms, time bombs, cancelbots, or other disabling devices or other harmful component that may damage, intercept, expropriate or interfere with any system, data, or personal information; (c) advocate or encourage any illegal activity; (d) infringe on the copyright, patent, trademark, trade secret, right of publicity, or other intellectual property or proprietary right of any third party; (e) violate the privacy of individuals, including, but not limited to, other users of the Website; or (f) violate any applicable local, state, national or international law.

 

You also agree that you will not (g) attempt to gain unauthorized access to any portion or feature of the Website or our systems, networks or servers by hacking, password “mining” or any other illegitimate means. You agree not to (h) access, acquire, copy, monitor or circumvent any portion of our Website, systems, networks or servers to obtain or attempt to obtain any content, materials, documents, or information through any means not purposely made available through the Website. We reserve the right to bar any such activity or use in our discretion.

 

By uploading, sending, posting or otherwise providing any information or material, you grant us an unrestricted, irrevocable, worldwide, non-exclusive license to reproduce, display, perform, modify, transmit, distribute, or use it in our sole discretion. You agree that we are free to use any ideas, concepts, know-how or techniques that you provide us for any purpose, including to create derivative works.

 

Third Party Websites and Information

 

Our Website may have links to other websites or make reference to information, documents, software, materials and/or services provided by other parties. We have no control over these websites or resources, nor do we sponsor or endorse them by implication. You agree that we are not responsible or liable for any content, advertising, or other materials available through these third-party websites and resources, and that we are not responsible or liable, directly or indirectly, for any damage or loss caused to you by your use of or reliance on any content, goods, or services available through a third-party website or internet resource. If a third-party website links to our Website, the third party agrees pursuant to these Terms to remove and/or disable such link should we so demand.

 

Intellectual Property

 

The entire content of the Website, including but not limited to text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music, artwork, and computer code, and the design, structure, selection, coordination, expression, “look and feel” and arrangement of such content (collectively, “Content”) is owned controlled, or licensed by or to Tough Stuff Recycling.

 

The Website and the Content, except for that in the public domain, is protected from unauthorized copying and dissemination by Canadian and United States laws for copyright, trademark, trade dress, unfair competition, as well as international conventions and other intellectual property laws.

 

All page headers, custom graphics, button icons, and scripts are service marks, trademarks, and/or trade dress of Tough Stuff Recycling or its licensors and may not be copied, imitated, or used, in whole or in part, without our prior written permission.

 

We will grant you permission to use portions of the Website, provided that you do not change or delete any proprietary notices from downloaded or printed materials; copy or post such information on any networked computer; broadcast it in any media; or make any representations or warranties relating to such documents or the Content.

 

Other than this limited permission, you may not copy, reproduce, republish, upload, post, publicly display, encode, translate, transmit or distribute, in any way (including “mirroring”) to any other computer, server, website, medium or commercial enterprise, any part of the Website or any Content without our express prior written consent.

 

Nothing on the Website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Website or the Content except permitted or consented by these Terms.

 

Digital Millennium Copyright Act Notice

 

We respect the intellectual property rights of others and expect users of the Website to do the same. We will investigate reports of alleged infringement and will take appropriate action to remove or disable access to any material found likely to be infringing.

 

If you believe our Website infringes your copyright, please provide the following information:

 

A physical or electronic signature of the person authorized to act on behalf of the owner of an exclusive copyright that has allegedly been infringed; a description of the copyrighted work that you believe has been infringed; the location on the Websites of this allegedly infringing material; your address, telephone number and email address and any other pertinent information sufficient to allow us to contact you; a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or are authorized to act on the copyright owner’s behalf.

 

Notices of claimed copyright infringement should be directed to:

 

By mail

Tough Stuff Recycling

145 Authority Drive

Fitchburg MA. 01420

 

By email

infringement@toughstuffrecycling.com

(Please include “Notice of Infringement” in the subject line.)

 

No Warranties

 

THIS WEBSITE AND ITS CONTENT IS FOR GENERAL INFORMATION ONLY AND PROVIDED “AS IS” WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND.

 

WE DO NOT WARRANT THAT YOUR USE OF THE WEBSITE WILL BE UNINTERRUPTED OR WITHOUT PROBLEMS OR ERRORS, THAT DEFECTS IN OR ON THE WEBSITE WILL BE CORRECTED, OR THAT THE WEBSITE OR THE SERVERS THAT MAKE THE WEBSITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME THE ENTIRE RISK OF ANY RELIANCE ON THE WEBSITE OR THE SITE CONTENT.

 

WE DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS REGARDING THE WEBSITE OR THE WEBSITE CONTENT, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, SECURITY, QUALITY, TIMELINESS, AVAILABILITY, COMPLETENESS, RELIABILITY, ACCURACY, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT WE ARE IN FACT AWARE OF ANY SUCH PURPOSE).

 

WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF TITLE AND/OR NON-INFRINGEMENT WITH RESPECT TO THE WEBSITE OR THE WEBSITE CONTENT.

 

Limitation of Liability

 

UNDER NO CIRCUMSTANCES SHALL TOUGH STUFF RECYCLING, ITS AFFILIATES OR ITS SUBSIDIARIES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SPONSORS OR AGENTS BE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THE WEBSITE, OR INFORMATION CONTAINED WITHIN THE WEBSITE, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION APPLIES WHETHER THE DAMAGES ARE BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE.

 

YOUR SOLE REMEDY FOR DISSATISFACTION WITH THIS WEBSITE IS TO STOP USING THE SITE. NOTWITHSTANDING THESE LIMITATIONS, ANY LIABILITY WITH RESPECT TO THE WEBSITE OR ITS CONTENT SHALL BE LIMITED TO THE COST INCURRED BY YOUR USE OF THE WEBSITE, IF ANY, OR $100, WHICHEVER IS LESS.

 

SOME JURISDICTIONS PROHIBIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY IN WHOLE OR IN PART TO YOU.

 

Any claim under these Terms must be brought within one (1) year after the cause of action arises, or such claim or cause of action is barred, and any claim by you is subject to the Limitation of Liability set forth above. Claims related to the terms, conditions and warranties of actual purchased goods and services are not subject to this limitation.

 

Contact Us

 

If you have any questions about these Terms, You can contact us by email at info@toughstuffrecycling.com

 

ACKNOWLEDGEMENT AND AGREEMENT TO SERVICE TERMS

 

By creating an Account with us, you represent and warrant that:

 

You are 18 years of age or older and competent to contract; your identity and any other information you provide is accurate and complete; you are legally authorized to contract on behalf of yourself, your household, or your company or organization; and your use of the Website will not violate any applicable laws or regulations.

 

BY USING OUR WEBSITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREED TO THESE TERMS AND OUR PRIVACY POLICY

 

YOU REPRESENT THAT YOU ARE NOT RELYING ON ANY REPRESENTATION OR STATEMENT REGARDING THE WEBSITE OTHER THAN THOSE EXPRESSLY SET FORTH IN THESE TERMS.

 

YOU AGREE THAT YOUR ACCEPTANCE IN OUR WEBSITE PORTAL HAS THE SAME FORCE AND EFFECT AS AN AGREEMENT SIGNED IN WRITING.

 

YOU AGREE TO RECEIVE ALL REQUIRED NOTICES ELECTRONICALLY, EITHER BY OUR POSTING SUCH NOTICES ON THE WEBSITE OR BY SENDING SUCH NOTICES TO YOUR EMAIL ADDRESS.

 

Last Updated: February 2025