GENERAL TERMS OF SERVICE
This General Terms of Service (this "TOS"), as may be modified or amended periodically by JOHNSON (as defined below), is a legally binding agreement made by and between JOHNSON and you, personally and, if applicable, on behalf of the entity for whom you are using any of exclusive JOHNSON'S products or services, (collectively, "you" or "your"). This TOS governs your use of all JOHNSON products and services, ("Services") so please read it carefully. The "Effective Date" of this TOS is September 1, 2014.
- The Services and Terms
- The Services.
To use the Services, you must be, and represent and warrant that you are, of legal age (18 years and over) and of legal competence to enter into a binding agreement with JOHNSON, and are not otherwise prohibited from using or receiving the Services in accordance with this TOS. By using the Services on behalf of any third party you are representing to us that you are an authorized representative of that third party and that your use of the Services constitutes their acceptance of this TOS.
- Additional Terms.
JOHNSON provides a wide variety of Services to both consumers and business users. Some Services are subject to additional terms, which are listed below or presented to you when you use such Services. If there is a conflict between these TOS and the additional terms for a particular Service, the additional terms will control for that Service. You may not use any of these Services unless you agree to the applicable additional terms.
- Nature of Services.
JOHNSON provides Services that are, unless otherwise expressly stated, listed on the Exclusive Service Agreement. Service Contractor will be the exclusive operator & service repair provider including pumping, cleaning and disposal for the sewage pumping station, as hereinafter mentioned, said sewage pumping station.
- Changes to Terms.
JOHNSON may periodically modify and supplement these TOS, with or without notice to you. You are responsible for regularly checking these TOS for revisions.
- DISCLAIMERS, EXCLUSIONS, LIMITATIONS, AND INDEMNITY
- DISCLAIMER OF WARRANTIES,
JOHNSON PROVIDES THE SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS, JOHNSON DOES NOT REPRESENT OR WARRANT THAT THE SERVICES, THEIR USE, ANY INFORMATION PROVIDED IN CONNECTION WITH THE SERVICES: (I) WILL BE UNINTERRUPTED OR SECURE, (II) WILL BE FREE OF DEFECTS, DELAYS, INACCURACIES OR ERRORS, (III) WILL MEET YOUR REQUIREMENTS. JOHNSON MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS TOS. AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANABILITY AND NON-INFRINGEMENT. JOHNSON MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY THIRD PARTY PURPOSE MATERIALS, INFORMATION, GOODS, OR SERVICES, WHETHER RECEIVED PROVIDED BY OR IN CONNECTION WITH THE SERVICES OR OTHERWISE. MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY GOODS OR SERVICES WHICH MAY BE PURCHASED OR OBTAINED FROM JOHNSON OR ANY THIRD PARTY AS A RESULT OF USING THE SERVICES.
- EXCLUSION OF DAMAGES,
JOHNSON WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOST PROFITS OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE SERVICES, REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, INCLUDING WITHOUT LIMITATION, THE COST OF ANY GOODS OR SERVICES WHICH MAY BE PURCHASED OR OBTAINED AS A RESULT OF USING THE SERVICES.
- LIMITATION OF LIABILITY.
IN NO EVENT WILL THE AGGREGATE LIABILTY OF JOHNSON ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS TOS OR THE SERVICES EXCEED THE GREATER OF (I) AMOUNTS THAT YOU PAID JOHNSON FOR YOUR USE OF THE SERVICES OR (II) WITH RESPECT TO SERVICES SUBJECT TO ADDITIONAL TERMS, THE AGGREGATE LIABILITY AMOUNT SPECIFIED IN SUCH ADDITIONAL TERMS.
- STATE LAW RIGHTS.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES AS SUCH, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, OR YOU MAY HAVE ADDITIONAL RIGHTS, UNLESS LIMITED OR MODIFIED BY APPLICABLE LAW, THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS APPLY, EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You agree to indemnify, defend and hold JOHNSON and its employees, representative, agents, attorneys, affiliates, directors, officers, members, managers and members ("Indemnified Parties") harmless from any damage, loss, cost or expense (including without limitation, attorneys' fees and costs) incurred in connection with any third party claim, demand or action ("Claim") brought or asserted against any of the Indemnified Parties: (i) alleging facts or circumstances that would constitute a breach by you of any provision of this TOS or (ii) arising from, related to, or connected with your use of the Services. If you are obligated to provide indemnification pursuant to this provision, JOHNSON may, in its sole and absolute discretion, control the disposition of any Claim at your sole cost and expense. Without limiting the foregoing, you may not settle compromise or in any other manner dispose of any Claim without the consent of JOHNSON.
- DISCLAIMER OF WARRANTIES,
- Applicability of Section.
The terms of this Section will apply to all disputes that may arise out of, are connected with or relate to this TOS or the Services, subject only to the following three exceptions: (i) if JOHNSON reasonably believes that you have in any manner acted or failed to act in any manner that may cause harm to JOHNSON or any third party, JOHNSON may seek injunctive or other appropriate relief in any court of competent jurisdiction, (2) certain Services are subject to different dispute resolution provisions, which are provided for in the terms applicable to such Services; or (3) any dispute may, at the option of the claiming party, be resolved in court in Broward County, Florida, but must first be submitted to the informal resolution process in Section 4.ii. Furthermore, in no event will the terms of this Section limit JOHNSON's ability to investigate complaints or reported violations of this TOS or to take any action JOHNSON deems necessary and appropriate to mitigate actions against JOHNSON, including reporting any suspected unlawful activity to law enforcement officials, regulators, or to other third parties.
- Informal Resolution.
If you have any dispute with us or any related third party, arising out of, relating to, or connected with the Services, you agree to contact JOHNSON customer service; provide a brief, written description of the dispute and your contact information (including your username, if your dispute relates to an account); and give JOHNSON 30 days within which to resolve the dispute to your satisfaction.
- Limitation of Actions.
Regardless of any statute or law to the contrary, any claim or cause of action you may have arising out of, relating to, or connected with your use of the Services, must be filed within one (1) calendar year after such claim or cause of action arises, or forever be barred.
- Applicability of Section.
- Force Majeure.
JOHNSON will not be liable for failing to perform under this TOS because of any event beyond its reasonable control that includes, but is not limited to, customer failure to pay or agree to work to be performed by Johnson to maintain the customer's location in compliance with any governmental regulations.
This TOS and the governance, enforcement, and performance hereof will be governed, construed and applied in all respects by the laws of the State of Florida without regard to any provision governing conflicts of law. This TOS (which includes all documents referenced above) supersedes all prior and contemporaneous agreements and understandings between you and JOHNSON relating to the Services. You may not transfer your rights or obligations under this TOS without the prior written consent of JOHNSON. JOHNSON may freely do so, in whole or in part. This TOS will be binding upon the successors and permitted assigns of you and JOHNSON. This TOS does not create any third party beneficiary rights. This TOS will be interpreted as if equally drafted by JOHNSON and you. A party's failure or delay in exercising any right, power or privilege under this TOS will not waive its rights to exercise such right, power, or privilege in the future, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise of such right, power, or privilege, or the exercise of any other right, power or privilege under this TOS. You and JOHNSON are independent contractors, and no agency, partnership, joint venture, employee-employer relationship is intended or created by this TOS. The invalidity or unenforceability of any provision of this TOS will not affect the validity or enforceability of any other provision of this TOS, all of which will remain in full force and effect. The terms "includes" or "including" mean "includes, but is not limited to" and "including, but not limited to" respectively.
By providing your email address, which must be kept current, you agree that JOHNSON may send emails to you related to the Services. If you do not wish to receive general marketing emails, you can opt out by following the instructions in the message. JOHNSON may send any legal notices to you via email, notification by a message to your account or regular mail. To give legal notice to JOHNSON, please send written communication to:
All Liquid Environmental Services LLC
d/b/a Johnson Environmental Services
2850 N. Andrews Avenue
Wilton Manors, Florida 33311
Attention: Matthew E. Morrall, P.A.
- TERMS FOR REGISTERED USERS.
IF YOU ACCESS ANY SERVICE THAT REQUIRES YOU TO CREATE AN ACCOUNT ACCESSIBLE THROUGH A USERNAME AND PASSWORD, THEN IN ADDITION TO THE PROVISIONS OF THE JOHNSON GENERAL TERMS OF SERVICE AND THE TERMS APLICABLE TO ANY OTHER SERVICE THAT YOU ARE USING, THE FOLLOWING ADDITIONAL TERMS WILL APPLY TO YOUR USE OF THE SERVICES.
You are solely responsible for keeping your password and all other account information confidential and for all use of your username and password, including, without limitation, any use by any unauthorized third party, it is your responsibility to maintain the security of your mobile device(s) from unauthorized access.
JOHNSON employees will never ask for your password. If you are asked for your password, or if you believe someone may have obtained your password, you must contact JOHNSON customer service.
JOHNSON, in its sole and absolute discretion, may terminate access to your account for any reason (including reasons related to unlawful or unauthorized usage). JOHNSON has not obligation to retain a record of your account or any data or information that you may have stored for your convenience by means of your account or the Services.
When using the Services, JOHNSON may permit you to store data, preferences set by you, content or other information for your convenience, but JOHNSON is under no obligation to retain any such data, preferences, content or other information, including, without limitation, any coupon that you may have stored.
- ELECTRONIC COMMERCE TERMS.
You, whether personally or on behalf of the entity for whom you are acting as an authorized signatory (collectively, "you" or "your"), are purchasing certain of JOHNSON'S products or services (each, a "Product" or "Service"). Such purchase is subject to the applicable terms provided and indentified below ("Terms"). BY INDICATING YOUR ACCPETANCE OR USING ANY OF THE SERVICES, YOU AGREE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THE TERMS, WHICH CONTAIN BINDING DISPUTE RESOLUTION PROVISIONS AND LIABILITY LIMITATIONS.
- Electronic Acceptance is Binding.
Your indication of your assent to the terms, whether express (e.g., clicking on an "I AGREE" icon) or implicit (i.e., using any Product or Service) constitutes your agreement to the Terms. You agree that such acceptance will have the same force and effect as if you had manually signed a paper version of these terms. All references in the Terms to "signature" or the like will be deemed references to your assent to these terms. You hereby irrevocably waive any "opt-out" rights that you may have under applicable law to use or receive physical copies of these Terms.
- Electronic Transactions.
- Applicable Terms.
- Entire Agreement; Precedence.
- Electronic Acceptance is Binding.
Customer represents that all streets, access roads, curbing, parking lots, enclosures, loading docks and all areas in which Company's vehicles and equipment will or may operate will be adequate to support Company's vehicles at full load and provide sufficient access without damage to such areas or facilities. Company shall not be responsible for damage to Customer's pavement or other driving surfaces resulting from the weight of Company's vehicles and equipment. Customer further agrees that while this Agreement is in force only Company's equipment shall be used for the transportation and disposal of Customer's Waste Materials.
- Warranties and Title:
Customer warrants that waste materials collected by Company will not contain any Unacceptable Waste. Ownership of Waste Materials shall pass to Company when Waste Materials are loaded into Company's equipment and transported from Customer's premises. Ownership and liability for Unacceptable Waste shall remain with Customer throughout the term of this Agreement, irrespective of delivery to Company, and such title shall survive the termination of this Agreement. Customer acknowledges that Company may remove any Unacceptable Waste and assure it proper disposal at Customer's expense. Customer agrees to protect, defend, indemnify and hold harmless all Company indemnified parties from and against all damages caused by or arising out of a breach of any of Customer's representations, warranties or agreements contained in this Agreement, including, without limitation, liabilities for violations of laws or regulations for injury or death to persons or for loss or damage to property or the environment.
- Recycling Services:
Customer hereby grants to Company the exclusive right for Company to provide recycling service to Customer. Company shall then have the exclusive right to provide recycling services to Customer on Company's then standard terms, conditions and prices for such recycling services. Company shall notify Customer of its intention to provide recycling services within 30 days from Customer's notice if Company is collecting Customer's Recyclable Materials and if they are contaminated or unacceptable to the recycling process, Company may, in its discretion 1) reject the material in whole or part, or 2) accept the material and charge Customer for collection, transportation, handling and disposal costs. Company may terminate this Agreement as to the collection and disposition of the Recyclable Materials at any time during the term of this Agreement by sending Customer 30 days written notice. Customer irrevocably assigns to Company all sums received from the disposition of Recyclable Materials.
- Service Changes:
The parties may change the type, size or amount of equipment, the type or frequency of service, and correspondingly the rates by agreement of the parties, which may be evidenced, verbally, in writing or by the parties' actions and practices. This Agreement shall apply to any change of location of Customer within the area in which Company provides collection and recycling for liquid waste and disposal services.
- Charges and Payments:
(i) Charges for regular monthly contractual services provided to existing Customers with approved credit history are due within thirty (30) days of the date of the invoice / statement rendered by Johnson. In the event payment is not received when due, Johnson may, at its sole option, may assess, and Customer shall pay, a late fee equal to the greater of $25.00 or ten (10%) of the payment amount in addition to attorney fees incurred by Johnson in collecting any past due amounts. All unpaid invoices / statements shall carry interest at the highest rate allowed by law until paid in full. In addition, any customer with unapproved credit history by not adhering to these payment terms will be required and agrees to post a credit card or electronic payment, for payment of services in advance including but not limited to past due or balances including additional hours, parts, etc. required to complete the job that could not be unforeseen.
(ii) For services requested by any customer for any unscheduled services other than normal monthly contracted services, the Customer will be required to post advance payment/deposit (credit card, ACH, check, e check) for requested work including all or portions of the estimated parts, labor, disposal, governmental fees, etc. in the amount approved by the Contractor. The costs will be deducted daily from the payment and replenished by the Customer the next day to pay for all expenses as they occur. If the payment/deposit is not replenished, Contractor may stop all work until payment is made, and is not responsible for any damages, fines etc. caused by Customerâ€™s failure to keep payment current. The Contractor has the right to file a lien against the real property it is providing service to for any failures to pay for any services rendered.
- Cost Increase:
Customer acknowledges that inflation; fuel, governmental charges, processing fees, waste composition and other disposal charges to which the Contractor is subject are a significant cost of the service provided. The Contractor may, at any time upon notice to Customer, at its sole and absolute discretion, increase the total unit price of all services provided the Customer pursuant to this Agreement, in an amount equal to the proportionate unit increase/change in waste composition, disposal, processing fees. Fuel costs or any other direct operating expense. Contractor has the right to increase its unit price in this agreement by giving Customer at least ten (10) days written notice. The schedule of charges, in addition to the increases set forth above, shall be adjusted on an annual basis (at the contract anniversary date), to reflect any increase in the Consumer Price Index or 5%, whichever is greater over the preceding contract year. In no event shall any pricing be subject to decrease.
- Responsibility For Equipment Access:
i. Any equipment Company furnishes shall remain Company's property. Customer shall be liable for all loss or damage to such equipment (except for normal wear and tear and for loss or damage resulting from Company's handling of the equipment). Customer shall use the equipment only for its proper and intended purpose and shall not overload (by weight or volume), move or alter the equipment. Customer shall indemnify, defend and hold harmless Company from and against all losses arising from any injury or death to persons or loss or damage to property (including the equipment) arising out of Customer's use, operation or possession of the equipment. Customer shall provide safe, unobstructed access to the equipment on the scheduled collection day. Company may charge an additional fee for any additional collection service required by Customer's failure to provide access.
ii. Disclosure of locations site plan identifying catch basin, storm drains, piping, septic tanks and grease traps: Customer shall be responsible for identifying all locations to be serviced and in the event the Customer does not do so, it will be liable for a search fee by Company employees of $75.00 a location e.g., if four locations are to be serviced then an additional cost of 4 X $75.00 = $300.00 will be charged for such services.
- Damage to Pavement:
Company shall not be responsible for any damages to Customer's pavement, curbing or other driving surfaces resulting from Company's providing service at Customer's location.
If any amount due from Customer is not paid within 60 days after the date of Company's invoice, Company may, without notice and without terminating this Agreement, suspend collection and disposing of Waste Materials until Customer has paid such amount to Company. If Company suspends service, Customer shall pay Company a service interruption fee in an amount determined by Company in its discretion up to $250.00 or the maximum amount allowed by applicable law.
- Renewal Term:
This agreement shall automatically renew for successive (60) month terms unless either party gives written notice of termination of not less than (90) days and no sooner than (180) days prior to the end of the existing term. Any notice of termination under this agreement by the customer shall be void unless sent via certified mail, return receipt requested, and actually received by the Company.
- Right of First Refusal:
Customer hereby grants to Contractor the right of first refusal to match any bona-fide offer Customer receives for any services or repairs the Contractor provides or relating to this agreement; which offer is made during the term or intended to become effective following the expiration of this Agreement. Customer shall give Contractor written notice and copy of such offer and a reasonable opportunity for Contractor to advise Customer that Contractor will match the terms of such offer. If Contractor advises Customer that Contractor is exercising its right of first refusal, Customer agrees to enter into a new Monthly Service Agreement and Repair Service Agreement with the Contractor, in the form then customarily in use by Contractor, incorporating the terms of such offer. If customer fails to give such notice, customer agrees to pay Contractor 24 months times the most recent monthly service charge, or in the case of the repair 80% of the Contractors quote for that repair.
In addition to its above suspension rights, Company may terminate this Agreement immediately by written notice to Customer if (a) any of the information contained in any credit application submitted to the Company in connection with this Agreement is untrue or (b) Customer breaches this Agreement and fails to cure such breach within 10 days after Company gives Customer written notice of the breach. Company's failure to suspend service or terminate this Agreement when Customer fails to timely pay or otherwise breaches this Agreement shall not constitute a waiver of Company's right to suspend service or terminate this Agreement for any future failure to pay or other breach.
- Payment Upon Termination:
If Customer terminates this Agreement before its expiration other than as a result of a breach by Company, or if Company terminates this Agreement as a result of breach by Customer (including nonpayment), Customer and Contractor agrees that, Customer shall be liable to Contractor for liquidated damages in an amount equal to the remaining months on the term or renewal terms eighty percent (80%) of the current monthly service charge in effect as of the date of Customerâ€™s default Customer acknowledges that in the event of such a termination, actual damages to Company would be uncertain and difficult to ascertain, such amount is the best, reasonable and objective estimate of the actual damages to Company. Such amount does not constitute a penalty and such amount is reasonable under the circumstances. Any amount payable under this paragraph shall be in addition to amounts already owing under this Agreement.
- Performance Guarantee:
Contractor shall not be liable for service interruptions or deficiencies beyond the normal control of Contractor, i.e. strikes, Acts of God, etc. In the event of any material default of this Agreement by Contractor, Customer shall give Contractor written notice by U.S. Mail, certified mail, return receipt requested, of such breach and Contractor shall have 48 hours from the time of such receipt of such notice to remedy the default.
If the breach is a violation of local governmental agencies regulations, (such as DERM) the Contractor is obligated to perform services by and has not been remedied to local governmental agencies regulations Customer may terminate this agreement upon 30 days written notice by U.S. certified mail return receipt requested.
- Excused Performance:
Except for Customer's obligation to pay amounts due to Company, any failure or delay in performance due to contingencies beyond a party's reasonable control, including strikes, riots, terrorist acts, compliance with applicable laws or governmental orders, fires, and acts of God, shall not constitute a breach of this Agreement.
- Working Hours:
The Company's normal working hours are from 8:00 a.m. to 4:00 p.m., Monday through Friday, any services incurred before or after these times, provided however that any job commenced during normal working hours that conclude by 4:00 p.m. will not incur any surcharges, will result in a 25% surcharge for said services.