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THESE GENERAL TERMS AND CONDITIONS FOR SERVICES (these “Service Terms”) apply to all business transactions (the “Agreement”) between Sanitation Specialists, Inc., a Nevada corporation (“Supplier”) and its customers (“Customer”) regarding the performance of sanitation services by Supplier (the “Services”). Supplier and Customer may each be referred to as a “Party” and, shall collectively be referred to as the “Parties” when both are referenced in these Service Terms.
All capitalized terms used in these Service Terms shall have the meanings set forth below. Other capitalized terms used herein are defined where they are used and have the meanings so indicated. Capitalized terms used but not defined in these Service Terms shall have the meanings assigned to them elsewhere in the Agreement.
“Agreement” | means all contracts between Customer and Supplier regarding the provision of the Services, including, without limitation, any: (1) agreement, statement of work, service commitment, or letter of intent signed by the Parties; (2) quote, proposal, order, or request that is accepted by Supplier; (3) invoice or notice of fee adjustment issued by Supplier; or (4) other document evidencing each Party’s assent to a transaction for the Services. |
“Customer” | means the recipient of the Services under the Agreement, including any person or entity who accepts Supplier’s offer for provision of the Services, or who submits an order for the Services that is accepted by Supplier. |
“Extra Billing Work” | means any task that excluded from the Services and subject to additional compensation if provided by Supplier, including any task that is not identified in an SOW or not Supplier’s responsibility under the Agreement. |
“Service Terms” | means these General Terms and Conditions for Services. |
“Services” | means the sanitation services provided to Customer by Supplier pursuant to the Agreement and specified in an SOW. |
“SOW” | means a statement of work or an addendum to the Agreement, entered into by the Parties, describing the Services to be provided by Supplier, and the fees to be paid by Customer, under that SOW. |
“Supplier” | means Sanitation Specialists, Inc., a Nevada corporation. |
These Service Terms set forth the terms and conditions applicable to the Services and constitute a material part of the Agreement, including each SOW made pursuant thereto, unless expressly agreed to otherwise in writing. These Services Terms shall be attached to and incorporated in the Agreement upon written notice to Customer.
All transactions for the Services are governed by these Service Terms, except as provided otherwise in the Agreement. Should any terms herein conflict with any terms set forth in the Agreement, the terms of the Agreement shall govern. Any additional terms and conditions of Customer that deviate from these Service Terms are objected to and disallowed. Notwithstanding the foregoing, any such counterproposal by Customer shall not operate as a rejection of the Agreement or an offer to purchase the Services, but as a rejection of the additional or different term(s). Supplier may modify these Services Terms with respect to future Services upon written notice to Customer, which shall be deemed accepted if Customer does not object in writing within two weeks after receipt of such notice.
Customer’s order or request for the Services shall constitute an offer to purchase such Services according to these Service Terms. No Agreement shall be formed or binding on Supplier unless Supplier has: (1) expressly offered to sell the Services to Customer in a written quote or proposal; or (2) accepted an offer from Customer by written instrument or, if not by written instrument, by provision of the Services (which shall only be binding as to the Services actually provided by Supplier). Supplier’s performance of the Services is expressly limited to and conditioned upon Customer’s acceptance of these Service Terms. Customer’s request for, or acceptance of, the Services shall conclusively affirm Customer’s agreement and assent to these Service Terms.
The term of these Service Terms (the “Term”) shall be for the period set forth in the Agreement. If no such period is specified in the Agreement, the Term shall begin on commencement of the Services and conclude upon completion of the Services. The term of each SOW (an “SOW Term”) will be for the period set forth therein. Except as otherwise provided in the Agreement, the “Term” shall collectively include each applicable SOW Term.
Either Party may terminate these Service Terms at any time with or without cause by giving thirty (30) days prior written notice to the other Party. Termination of these Service Terms for any reason shall not discharge Customer’s liability for payment of any outstanding invoice amounts at the time of such termination.
The Services will be described in one or more written statements of work (each an “SOW”), together with any exhibits or schedules referenced therein, which shall incorporate these Service Terms and be a part of the Agreement. Supplier shall perform the Services described in an SOW and according to its responsibilities under the Agreement.
Any task that is not explicitly identified in an SOW, or not Supplier’s responsibility under the Agreement, shall be excluded from the Services. Upon request, Supplier may, in its sole discretion, perform work that is excluded from the Services in exchange for additional compensation (“Extra Billing Work”). Customer’s request for, or acceptance of, Extra Billing Work shall constitute assent to payment of additional compensation as set forth herein.
Customer shall fully cooperate with Supplier and provide all reasonable assistance necessary for the Services.
Customer shall provide timely access to its facilities and release all areas to Supplier in a “sanitation-ready” condition (i.e., prior to the Services: remove trash; remove or cover product and work-in-progress; waterproof sensitive equipment; teardown or disassemble processing equipment; remove all production and maintenance personnel). Customer agrees to furnish, without charge, adequate space and utilities for use by Supplier’s personnel while performing the Services, including, but not limited to, administrative space, lockable storage, high-speed internet, lighting, electrical power, ventilation, air pressure, and water (in sufficient supply and under pressure as needed).
Customer shall comply with all applicable manufacturing and food safety laws, rules, regulations, and standards, including, but not limited to, Current Good Manufacturing Practice (as set forth in 21 CFR Ch. I, Subch. B, Pts. 110 and 117). Customer shall develop and maintain a written food safety plan, including master sanitation schedule and sanitation standard operating procedures, to control identified hazards and limit sources of contamination in its food production environments. Customer is solely responsible for the hygienic design and maintenance of its facilities. Customer will conduct adenosine triphosphate (“ATP”) testing to monitor the Services and verify compliance with food safety standards.
Customer shall provide Supplier’s personnel with a safe working environment in compliance with all applicable occupational, environmental, health, and safety laws, rules, regulations, government orders, and standards. Customer agrees to promptly correct unsafe conditions and cooperate with Supplier as needed to maintain a safe work environment.
Customer shall furnish, at its sole cost and expense, the following items necessary for the Services: (1) sanitation chemicals and chemical dispensing equipment; (2) hoses and nozzles; (3) plastic bags for waterproofing and protection of sensitive electrical equipment; (4) ladders or platforms for high-reach areas; (5) scissor lifts, boom lifts, and forklifts; and (6) any items necessary to facilitate the Services that are not identified in an SOW as being provided by Supplier.
Customer will obtain and maintain in force, at its own expense, all licenses, permits, insurance and approvals required for its performance under these Service Terms.
As consideration for Supplier’s performance of the Services, Customer agrees to pay Supplier the fees set forth in an SOW and/or invoices issued by Supplier. Customer shall pay Supplier additional compensation for Extra Billing Work at the rates set forth in an SOW and/or according to Supplier’s then-current rates. In addition to the fees, Customer shall reimburse Supplier for all reasonably necessary expenses incurred in connection with Supplier’s performance of the Services or Extra Billing Work. All fees and expenses are exclusive of taxes, levies, duties, and governmental charges (except for Supplier’s income taxes), which amounts will be billed to and paid by Customer.
Supplier reserves the right to adjust all fees and rates for the Services (collectively, the “Base Fee”) on at least an annual basis or upon expiration of an SOW Term (each an “Anniversary Date”). The minimum rate for such adjustment (“Fee Adjustment”) shall be equal to the percent change in the Consumer Price Index (“CPI”) during the twelve (12) month period immediately preceding each Anniversary Date. As used herein, “CPI” shall mean the Consumer Price Index for All Urban Consumer published by the U.S. Bureau of Labor Statistics and will use the U.S. City Average for All Items (Reference Base 1982-84=100). In no event, however, shall any Fee Adjustment result in a decrease of the Base Fee. Supplier will provide Customer with written notice prior to any Fee Adjustment, which shall be deemed accepted if Customer does not object in writing within two weeks after receipt of such notice. Notwithstanding the foregoing, Supplier reserves the right to adjust the Base Fee immediately upon any change in scope of work implemented by Customer.
Supplier will invoice Customer each week for the Services and any applicable Extra Billing Work or expenses. Customer shall pay all Supplier invoices within ten (10) days from the date of each invoice. All payments due hereunder must be made by wire transfer, certified check, bank check, or such other method as may be agreed upon by Supplier. Customer shall have no right of offset or withholding under these Service Terms, and no deduction of amounts due from Customer to Supplier shall be made without Supplier’s prior written approval. Any amounts not paid by Customer when due shall be subject to a monthly finance charge of one and one-half percent (1.5%) per month, or the highest interest rate allowable by law (whichever is less). Termination of the Services shall not discharge Customer’s liability for payment of any outstanding invoice amounts due at the time of such termination.
The Services to be performed hereunder are cleaning and sanitation services. Supplier does not warrant in any form the results or achievements of the Services provided or the resulting work product and deliverables. Supplier warrants that the Services will be performed by qualified personnel in a professional and workmanlike manner in accordance with generally accepted industry standards and practices. Supplier shall comply with all statutes, ordinances, regulations and laws of all federal, state, county, municipal or local governments applicable to performing the Services hereunder.
THE WARRANTY SET FORTH ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICES, WORK PRODUCT OR DELIVERABLES PROVIDED UNDER THESE SERVICE TERMS, OR AS TO THE RESULTS WHICH MAY BE OBTAINED THEREFROM. SUPPLIER DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PURPOSE, OR AGAINST INFRINGEMENT. SUPPLIER SHALL NOT BE LIABLE FOR ANY SERVICES, WORK PRODUCT, OR DELIVERABLES PROVIDED BY THIRD-PARTY VENDORS IDENTIFIED OR REFERRED TO CUSTOMER BY SUPPLIER DURING THE TERM HEREOF, PURSUANT TO ANY SOW OR OTHERWISE. CUSTOMER’S EXCLUSIVE REMEDY FOR BREACH OF THIS AGREEMENT IS REPERFORMANCE OF THE SERVICES, OR IF REPERFORMANCE IS NOT POSSIBLE OR CONFORMING, REFUND OF AMOUNTS PAID UNDER THIS AGREEMENT FOR SUCH NON-CONFORMING SERVICES.
During the Term, either Party (the “Disclosing Party”) may disclose or make available to the other Party (the “Receiving Party”), whether orally, electronically, visually, or in physical form or otherwise, certain non-public, economically, and competitively valuable data, information, and documentation of a confidential, proprietary, or secret nature, which is or may be related to the present or future business of the Disclosing Party (“Confidential Information”). “Confidential Information” shall include, without limitation, all: (1) information concerning the Disclosing Party’s employees which is not easily identifiable or obtained; (2) information concerning the Disclosing Party’s business operations or activities including, but not limited to, technical advice or knowledge, trade secrets, intellectual property, processes, policies, procedures, techniques, financial information and records, pricing or cost information, sales or marketing strategies, business associates, customers, suppliers, projects or proposals, and summaries or originals of any documents related to the services, products, or operations of the Disclosing Party; (3) the terms of any agreement, including the Agreement, and the discussions, negotiations, and proposals related to any agreement between the Parties or these Service Terms; and (4) all non-public, proprietary, or confidential information disclosed by the Disclosing Party to the Receiving Party related to the Disclosing Party’s business or activities which is (i) marked as confidential at the time of disclosure, or (ii) unmarked (e.g., disclosed orally or visually) but identified as confidential at the time of disclosure, or (iii) due to the nature of the information or the circumstances of disclosure, would be understood by a reasonable person to be confidential. All Confidential Information shall remain the sole and exclusive property of the Disclosing Party regardless of any disclosure to the Receiving Party.
The Receiving Party shall maintain the Confidential Information in strict confidence and limit disclosure to its employees, subcontractors, consultants, and representatives who have a need to know such information to perform these Service Terms or the Agreement. The Receiving Party shall only use Confidential Information in furtherance of its performance of these Service Terms or the Agreement, and not for any other purpose or for the benefit of any third party. The Receiving Party’s obligation to protect Confidential Information hereunder shall survive termination of these Service Terms. These confidentiality obligations shall not apply to any information which: (1) was lawfully in Receiving Party’s possession before receipt from Disclosing Party; (2) is or becomes generally available to the public through no fault of the Receiving Party; or (3) is disclosed by Receiving Party with the prior written consent of the Disclosing Party. In no event shall Supplier’s use or disclosure of information regarding or relating to the development, improvement, or use of any of Supplier’s products or services be subject to any limitation or restriction under these Service Terms. If the Receiving Party is confronted with legal action to disclose Confidential Information it shall, unless prohibited by applicable law, provide prompt written notice to the Disclosing Party to allow the Disclosing Party an opportunity to seek a protective order or other relief it deems appropriate. If disclosure is nonetheless required, the Receiving Party shall limit its disclosure to only that portion of the Confidential Information which it is advised by its legal counsel must be disclosed. The Receiving Party shall promptly return or, at the Disclosing Party’s option, certify destruction of all copies of Confidential Information at any time upon request or within ten (10) days following the termination of these Service Terms or the Agreement.
During the Term, and for a period of one (1) year after the Term, Customer agrees not to directly or indirectly solicit, employ, or attempt to hire any current employee of Supplier. Customer acknowledges that the identity and contact information of Supplier’s employees are trade secrets protected by the confidentiality restrictions set forth in these Service Terms. Without in any way restricting any person’s right to freely accept or change employment, if Customer actively solicits or hires any employee of Supplier in violation of this Section, then Customer shall pay liquidated damages to Supplier in an amount equal to thirty percent (30%) of the employee’s then-current annual base salary paid by Supplier, which shall be due within ten (10) days of any such violation (i.e., hire date). The Parties agree that the foregoing liquidated damages are reasonable in light of the difficulty in ascertaining Supplier’s actual damages resulting from Customer’s violation of this Section, and that these liquidated damages will in no way be construed as a penalty.
Customer shall indemnify, defend, and hold harmless Supplier, along with Supplier’s affiliates and their respective officers, directors, employees, and agents, against all damages, claims, liabilities, losses, and other expenses, including without limitation attorneys’ fees and related costs, whether or not a lawsuit or other proceeding is filed, arising from or related to: (1) any negligence, willful misconduct, or breach of these Service Terms, the Agreement, or an SOW by Customer or any of its agents; (2) any violation of applicable law, ordinance, rule, or regulation by Customer or any of its agents; or (3) any provision of inaccurate, erroneous, or incomplete information by or on behalf of Customer hereunder. Supplier shall provide Customer with prompt notice of any claim and give complete control of its defense to Customer. Supplier shall also cooperate in all reasonable respects with Customer, its insurance company, and its legal counsel in its defense of such claim at Customer’s sole expense. Customer may not settle any potential suit hereunder without Supplier’s prior written approval, which shall not to be unreasonably withheld, conditioned, or delayed. If Customer fails to promptly indemnify and defend a covered claim, Supplier shall have the right to defend itself, and in such case, Customer shall promptly reimburse Supplier for all of Supplier’s associated costs and expenses. SECTION 7.1 OF THESE SERVICE TERMS STATES THE ENTIRE OBLIGATION AND EXCLUSIVE REMEDIES WITH RESPECT TO THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREUNDER.
Each Party hereby agrees to waive its right of recovery against the other Party for any damages caused by an occurrence insured against by the Parties’ respective insurance carriers. This waiver shall apply to claims under or through a Party as a result of any asserted right of subrogation, including any insurance carrier subrogated to the rights of an insured, to the fullest extent allowed by such Party’s insurance carriers.
Neither Party shall be liable hereunder for any failure or delay in the performance of its obligations under these Service Terms, except for the payment of money, if such failure or delay is on account of causes beyond its reasonable control, including civil commotion, war, fires, floods, accident, earthquakes, inclement weather, telecommunications line failures, electrical outages, network failures, governmental regulations or controls, casualty, strikes or wide spread labor disputes, terrorism, epidemics or pandemics, acts of God, or other similar or different occurrences beyond the reasonable control of the Party so defaulting or delaying in the performance of these Service Terms (each a “Force Majeure Event”), for so long as such Force Majeure Event is in effect. Each Party shall use reasonable efforts to notify the other Party of the occurrence of any Force Majeure Event within seven (7) days of its occurrence.
IN NO EVENT SHALL SUPPLIER BE LIABLE UNDER THESE SERVICE TERMS TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, LOSS OF PRODUCTION, LOSS OF MANAGEMENT OR OPERATION TIME, LOSS OF BUSINESS OR LOST BUSINESS OPPORTUNITIES, LOSS OF GOODWILL OR REPUTATION, INCONVENIENCE, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES OR IF ADVISED THAT SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. SUPPLIER’S ENTIRE AGGREGATE LIABILITY FOR ANY CLAIMS RELATING TO THE SERVICES OR THESE SERVICE TERMS SHALL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO SUPPLIER UNDER THESE SERVICE TERMS IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. THIS SECTION SHALL SURVIVE THE TERMINATION OF THESE SERVICE TERMS.
NO ACTION SHALL BE BROUGHT FOR ANY CLAIM RELATING TO OR ARISING OUT OF THESE SERVICE TERMS MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION, EXCEPT FOR MONEY DUE ON AN OPEN ACCOUNT.
Any dispute, controversy, or claim arising from or related to these Service Terms, which cannot be amicably resolved by the Parties, shall be solely and finally settled by neutral, binding arbitration. Arbitration shall be conducted on a confidential basis and in accordance with the then-governing rules of the American Arbitration Association. Judgment upon the award rendered may be entered and enforced in a court with jurisdiction under these Service Terms. The prevailing Party in any arbitration shall be entitled to recover its reasonable attorneys’ fees and related costs in accordance with these Service Terms. This Section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to these Service Terms, except that a Party may seek injunctive relief in any court of competent jurisdiction if such action is necessary to avoid irreparable harm.
The terms and provisions of these Service Terms will be construed, interpreted, and governed by the laws of the State of California, without giving effect to any choice or conflict of law provision or rule (whether in the State of California or in any other jurisdiction). Any suit, arbitration, mediation, or other remedial process arising from or related to these Service Terms, shall be filed in Monterey, California, and the Parties consent to the personal and exclusive jurisdiction and venue of these courts or forums.
If any action, suit, arbitration, or other proceeding in court is instituted relating to enforcement of these Service Terms or any rights hereunder, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs (including expert fees and costs) from the other Party.
If Customer should fail in any manner to fulfill the terms and conditions hereof, Supplier may at its option withhold or cease performing the Services until any default by Customer is cured, and such withholding shall not be considered a breach of Supplier’s obligations hereunder or under the Agreement. The rights and remedies of Supplier under these Service Terms shall be in addition to, and not in lieu of, any other rights or remedies available to Supplier, whether provided by law or equity.
The relationship of the Parties is that of non-exclusive independent contractors. Supplier may represent, perform services for, and contract with other additional clients, persons, or companies as Supplier, in its discretion, deems fit.
Nothing expressed or implied herein is intended, or shall be construed, to confer upon or give any person or entity, other than the Parties, any rights, remedies, obligations, or liabilities under or by reason of these Service Terms. Should any third-party institute proceedings, these Service Terms shall not provide any such person or entity with any remedy, claim, liability, reimbursement, cause of action, or other right.
Neither Party shall assign or transfer these Service Terms or any portion thereof without the written consent of the other Party, which shall not be unreasonably withheld.
These Service Terms are the sole and exclusive statement of the Parties’ understanding and agreement with respect to the transactions contemplated herein, notwithstanding any other terms that may be contained in the Agreement, an SOW, or other document received from Customer or submitted to Supplier. Supplier may modify these Services Terms with respect to future Services upon written notice to Customer, which shall be deemed accepted if Customer does not object in writing within two weeks after receipt of such notice. No provision of these Service Terms may be waived unless in writing signed by Supplier. No waiver shall be deemed to occur as a result of Supplier’s failure to enforce any term or condition contained herein. Waiver of any provision in these Service Terms by Supplier shall not be deemed to be a waiver of any other provision herein. The provisions of these Service Terms are severable, and should any provision be unenforceable for any reason, the balance nonetheless shall remain in full force and effect. The paragraph headings are for convenience only and shall not be used in interpreting or construing these Service Terms.
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