CONTAINER TERMS AND CONDITIONS

These Terms and Conditions (“Terms”) govern your use of the container (the “Container”) that you purchased in connection with a Program. If you have any questions regarding these Terms, consult the appropriate Web Site or call MWS at 1-800-664-1434.

The following definitions shall apply to these Terms: “MWS” means Mercury Waste Solutions; “Program” means, as applicable, the following prepaid container recycling programs: LAMPTRACKER™ , BUCKETTRACKER™, DENTALWASTETRACKER™ , MERCURYTRACKER™, or eSCRAPTRACKER™; “You” or “Customer” means the user of the Container; “Web Site” means www.mwsi.com; “Recycler” means the entity that will process the Recycled Materials; “Recycled Materials” means: (a) for LAMPTRACKER™, mercury containing lamps; (b) for BUCKETTRACKER™, 5 Gallon – mercury containing non-pcb lighting ballasts, 3½ Gallon – dry cell batteries, and 1 Gallon – thermostats; (c) for DENTALWASTETRACKER™, dental amalgam and related items (provided that, prior to shipment to Recycler, You must disinfect all such Recycled Materials); (d) for MERCURYTRACKER™, mercury-containing devices (provided that (i) there is less than 1lb of physical elemental mercury in the Container and (ii) the Customer is a Conditionally Exempt Small Quantity Generator [“CESQG”]), and (d) for eSCRAPTRACKER™ , electronic parts and materials (but not including smoke detectors, items that contain liquids or sludge, thermostats or other items containing liquid mercury, or medical devices contaminated with or containing biohazard material).

USE OF THE CONTAINER CONSTITUTES ACCEPTANCE OF THESE TERMS.

1. RETURNS. If you do not accept these Terms, you may not use the Container or the Program. You may return the Container by doing one of the following within ten (10) days from the day you received it (the “Return Period”): (a) return the Container to the place of purchase; or (b) contact MWS and complete all return instructions.

2. LIMIT ON PROGRAM AVAILABILITY. The Programs are not available to Customers located: (a) outside of the continental United States; (b) in the State of Maine, or (c) for DENTALWASTETRACKER™ and MERCURYTRACKER™, in the States of Arkansas or Rhode Island.

3. TITLE TO CONTAINER. Title to the Container passes to You when you receive it. You represent and warrant that You have good title to all materials in the Container when You ship it to the Recycler. Until MWS receives and accepts the Container: (a) title to and risk of loss of the Container and its contents will remain with Customer; and (b) Customer is solely responsible for the contents of the Container.

4. EXPIRATION OF CONTAINER; UNUSED CONTAINERS. Each Container must be received by Recycler by the expiration date printed on the Container (“Expiration Date”). Recycler has no obligation after the Expiration Date.

5. PACKAGING. Customer shall pack and seal the Container in accordance with the instructions included with the Container (the “Packing Instructions”).

6. SHIPPING. Customer must comply with shipping instructions included with the Container (and on the Web Site). If you have purchased prepaid shipping with your Container, you will either have received a prepaid return shipping label (the “Prepaid Label”) with your Container or you may obtain one via the Web Site.

7. ADDITIONAL CHARGES. MWS reserves the right to bill additional amounts for any of the following: (a) any Container exceeding its specified maximum weight; (b) costs associated with handling any Non Conforming Waste; (c) shipping materials in the wrong Container or mixing materials in a Container; (d) any costs or expenses incurred by Recycler other than the usual and ordinary costs of performing the Recycling Services; (e) any costs related to changes in applicable law occurring after the date of purchase of the Container; or (f) additional shipping charges beyond the amounts prepaid for any Prepaid Label; including, without limitation, damages or expenses caused or incurred as a result of improper packaging, classifying or labeling a Container, increases imposed by the shipper after you purchase a Prepaid Label, and cleanup of the contents of a Container. If the shipper identified on the Prepaid Label will not ship the Container, MWS’s sole obligation will be to refund the actual shipping charge received by MWS. This obligation is conditioned upon receipt of written request for such refund prior to the Expiration Date.

8. NON-CONFORMING WASTE. The Container may only be used for Recycled Materials. A detailed list of the Recycled Materials may be obtained from MWS. Material will be considered nonconforming if it has constituents, characteristics, components or properties not included within the definition of Recycled Materials. All such materials will be referred to as “Non Conforming Waste.” If Recycler determines that any Container contains Non Conforming Waste, Recycler may, at its sole discretion, and at Customer’s sole cost and expense: (a) reject the Container and return it to Customer; (b) return the Non Conforming Waste to Customer; or (c) process the contents of the Container.

9. PAYMENT TERMS. Payments are due within 30 days of the invoice date. A monthly late fee of 1.5% of the past due amount will be charged for any late payments. Prices are subject to change at any time upon notice.

10. WARRANTY. MWS warrants: (a) the design of the Container has passed the and complies with applicable performance standards, including, where applicable, the DOT Performance Oriented Packaging Standards, Section 178; and (b) if the Container is packed, sealed and shipped strictly in accordance with the Packing Instructions, it is adequate to transport Recycled Materials to Recycler’s facility from points within the continental United States under ordinary commercial shipping conditions. Other than as expressly warranted herein, the Container is provided “as is,” and MWS disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose.

11. INDEMNITY. MWS will indemnify Customer from and against any and all claims and damages, causes of action, costs, reasonable attorneys’ fees, losses, or liability arising out of MWS’s breach of these Terms or violation of law. Customer will indemnify, defend (with counsel of MWS’s choosing) and hold harmless, MWS and its directors, shareholders and employees from and against any and all claims and damages, causes of action, costs, reasonable attorneys’ fees, losses, or liability arising from the use, packing and/or shipping of the Container (prior to acceptance by MWS), any contents packaged in the Container, breach of these Terms or violation of any applicable city, county, state or federal law, rule or regulation by Customer or any carrier shipping the Container. This Section will survive any termination of the parties’ relationship.

12. LIMITATION ON LIABILITY. Other than the obligations of MWS set forth in these Terms: (a) neither MWS nor its suppliers, officers, agents, affiliates, shippers, contractors and employees shall be responsible or liable with respect to the Container, or any use thereof, under any theory of contract, negligence, strict liability or other theory; (b) in no event shall MWS be liable or responsible for any matter beyond MWS’ reasonable commercial control; and (c) in no event shall MWS be liable to Customer for any amount in excess of the amount received by MWS for the purchase of this Container.

13. GOVERNING LAW AND VENUE. These Terms will be interpreted in accordance with the laws of the State of Minnesota, without regard to its choice of law provisions, as though all acts and omissions occurred in the State of Minnesota. All disputes arising under this Agreement will be brought in a state or federal court in Minneapolis, Minnesota, and, in such instance, Customer: (a) waives any objection which it might have now or hereafter to the exclusive venue of any such litigation, action or proceeding, (c) irrevocably submits to the exclusive jurisdiction of any such court, (d) waives any claim or defense of inconvenient forum; and (e) waives any right to trial by jury of any claim or cause of action by or against MWS. Any action against MWS under or related to these Terms must be brought within one (1) year after the cause of action accrues, regardless of whether or not Customer has knowledge of such cause of action.

14. FORCE MAJEURE. MWS may modify or cancel its obligations or these Terms, in whole or in part, without charge or penalty, where such suspension or cancellation is necessitated by a casualty or contingency beyond MWS’s reasonable commercial control, including, without limitation, Acts of God, government regulations, acts or omissions of shippers or carriers, labor disputes, floods, fires, civil commotion, embargoes, quotas, or shortage of labor or materials.

15. ENTIRE AGREEMENT; CONSTRUCTION. These Terms constitute your entire agreement with MWS with respect to the purchase and use of any Container, superseding all prior communications, agreements or correspondence between the parties or their representatives; provided, however, obligations which apply to users of Containers set forth on or in the Containers, in the Packing Instructions or on the Web Site are hereby incorporated herein. If any provision in these Terms is determined to be illegal, invalid or unenforceable, the remainder of these Terms will nonetheless survive and govern the rights and obligations of the parties hereto. No provision of the Terms will be deemed waived, amended, or modified by either party unless such waiver, amendment, or modification is in writing signed by the party against whom enforcement is sought. Any additional or different terms or conditions contained in any document furnished by Customer are hereby objected to and rejected by MWS. No representation or statement made by any employee, agent, or representative of MWS shall be binding on MWS to the extent such representation or statement differs from these Terms.

 

 




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