CheckSammy Terms and Conditions
By clicking the link to these CheckSammy Terms and Conditions (these “Terms”) as provided to you by CheckSammy via text message and replying “Confirm”, you, the legal entity seeking to perform services (“Contractor”) for CheckSammy Inc., a Delaware corporation (“CheckSammy”) or CheckSammy’s Customers, signify to CheckSammy that you have read, understand, and agree to be bound by the terms and conditions below (the “Terms”). If you do not agree to the terms and conditions below, you may not perform services for CheckSammy or its Customers. The individual signifying acceptance of these terms and conditions represents and warrants that he or she has full authority to accept and bind Contractor to the terms and conditions below.
CheckSammy is in the business of contracting with customers (the “Customers”) for the collection, disposal and/or recycling of non-hazardous solid waste (“Waste Materials”). CheckSammy provides such services to the Customers by entering into waste collection services agreements with independent haulers, pursuant to which, the haulers collect, dispose of and/or recycle Waste Materials (the “Services”) from locations identified by CheckSammy.
Contractor is an independent hauler engaged in the business of collection, disposal and/or recycling of Waste Materials, and Contractor is agreeing to collect and dispose of Waste Materials in accordance with these Terms.
NOW, THEREFORE, for good and valid consideration, the parties hereby agree as follows:
Services. Contractor shall collect and dispose of all Waste Materials as requested in writing by CheckSammy from time to time on a case-by-case basis at Customer locations. Services may also include hand pick-ups of loose Waste Materials that may be on the ground outside of a container, or inside of a Customer location. CheckSammy may also request collection and disposal of Waste Materials on a project basis for pickup and disposal of items that require special disposal (e.g., computer components or mobile phones) (“Special Services”). Both Services and Special Services shall be ordered by CheckSammy using a job order with a designated job number (each a “Job Order”), which, upon mutual execution of CheckSammy and Contractor shall be subject to the conditions and requirements of these Terms. The Services and Special Services set forth in this Section 1 are referred to hereinafter as the “Services.” Contractor retains the sole right to control or direct the manner in which the Services described herein are to be performed. Subject to the foregoing, CheckSammy retains the right to request modifications to the Services requested and may stop the Services at any time for any reason.
Waste Materials. Customers have represented and warranted to CheckSammy that (a) all Waste Materials will consist solely of non-hazardous material or solid waste generated by the Customers and (b) that no such Waste Materials will (i) consist of any type of waste or material listed or characterized as hazardous under applicable federal, state, or local laws or regulations (“Hazardous Waste”), or (ii) include any waste that requires special handling including, but not limited to, polychlorinated biphenyl wastes, industrial process wastes, asbestos containing material, petroleum contaminated soils, treated/de-characterized wastes, incinerator ash, medical wastes, demolition debris, any material containing information (in hard copy or electronic format, or otherwise) which information is protected by or regulated under any local, state or federal privacy or data security laws, including, but not limited to the Health Insurance Portability and Accountability Act of 1996, as amended (“HIPAA”), or other regulations or ordinances, and other materials requiring special handling in accordance with any applicable law or regulations (“Special Waste”). Nothing in these Terms authorizes or requires Contractor to provide Services for Hazardous Waste or Special Waste, and Contractor is expressly prohibited under these Terms from providing the Services for Hazardous Waste or Special Waste, unless Contractor performs Special Services pursuant to a Job Order accepted by Contractor that expressly provides for hauling of Hazardous Waste or Special Waste (each, a “Hazard Job Order”). Contractor shall notify CheckSammy immediately upon the discovery that any Hazardous Waste or Special Waste is present in any Waste Materials collected pursuant to these Terms (provided, however, such notification shall not be required for Special Services pursuant to a Hazard Job Order). The applicable Customer shall at all times and for all purposes retain legal title to and liability for all Hazardous Waste and Special Waste not approved for acceptance by CheckSammy. Legal title to all Waste Materials other than those constituting Hazardous Waste and Special Waste shall pass from the applicable Customer to Contractor upon collection by Contractor pursuant to these Terms.
Subcontracting. CheckSammy hereby agrees and acknowledges that Contractor shall perform the Services hereunder through Contractor’s network of third-party subcontractors (each, a “Subcontractor”). Contractor shall cause its Subcontractors to perform in accordance with these Terms. Contractor shall at all times remain liable for the Services provided by any Subcontractor under these Terms and shall indemnify, defend, and hold harmless CheckSammy and any Customer for the failure of any Subcontractor to comply with these Terms.
Representations and Warranties. Contractor agrees to perform Services to the highest standards of its industry. Contractor hereby represents and warrants that (a) Contractor and its Subcontractors are engaged in the business of providing solid waste collection and recycling services and are in full compliance with all applicable federal, state, and local laws; (b) Contractor is an entity validly existing in accordance with the laws of the state of its incorporation or organization, as applicable; (c) these Terms constitute the valid and enforceable obligation of Contractor; and (d) Contractor and its Subcontractors are fully licensed and in good standing to operate in all jurisdictions where Contractor or a Subcontractor is providing Services.
Compliance with Law. During the Term (defined below), Contractor and Subcontractors shall comply with all applicable federal, state, and local laws, regulations and ordinances, including, but not limited to, all environmental protection laws, minimum wage laws and equal employment and nondiscrimination laws. Without limiting the generality of the prior sentence, Contractor and Subcontractors shall handle, load, transport, and dispose of Waste Materials in a safe and workmanlike manner and in full compliance with all applicable federal, state, and local laws, regulations and ordinances and Customer specifications, and Contractor and Subcontractors shall comply with all applicable federal, state, and local laws, regulations and ordinances regulating the operation of landfills for the disposal of Waste Materials. Neither Contractor nor any of its Subcontractors shall dispose of any Waste Materials except in compliance with these Terms.
Prohibition of Scavenging, Salvaging. Neither Contractor nor its Subcontractors shall scavenge, salvage, re-use, donate, resell, recycle, process or repurpose any Waste Materials without the express prior written permission of CheckSammy.
Drug and Alcohol Free Workplace, Safety Requirements and Background Checks. Contractor shall at all times maintain and enforce a drug and alcohol policy with its employees and subcontractors that is no less stringent than required by the U.S. Department of Transportation (“USDOT”) regulations, and or other Applicable State or Federal Law. Contractor, its subcontractors, and its employees shall comply with all safety and health laws and standards required by applicable law as well as industry standards, including, without limitation, USDOT regulations. Contractor will ensure that all background checks have been satisfactorily completed pursuant to applicable state and federal law. Background checks include, without limitation, background checks, I-9 verification, and drug testing. Any violation by Contractor and/or its subcontractors will be considered a material breach of this Agreement.
Payment of Fees. Subject to Section 12 (Billing Procedures), CheckSammy will pay the Contractor the fees as agreed (prior to commencement of the Services) following (i) Contractor’s completion of the Services set forth in the Job Order, and (ii) CheckSammy’s completion of an audit of the Services revealing no deficiencies.. Contractor shall furnish, at its sole cost and expense, all tools, equipment, materials and supplies that are necessary or appropriate to provide the Services and shall be responsible for all disposal and landfill charges and all other fees, costs and expenses. Contractor shall be solely responsible for the costs to obtain all applicable permits, and all license fees, inspection fees, taxes, county, franchise, state, federal, tariff or any other non-sales tax, fees or surcharges of any government authority that may become due and payable as a result of the provision of the Services by Contractor. Once the Services for a given Job Order are agreed to, Contractor shall not increase the fees for such Services without prior written approval from CheckSammy. CheckSammy has no obligation to pay for any unauthorized Services or unauthorized fee increases.
Right to Withhold Payment. CheckSammy reserves the right to withhold or deduct amounts which would otherwise be due to Contractor in order to compensate the Customer and/or CheckSammy for and inconvenience or costs incurred by the Customer or CheckSammy for which Contractor may be responsible.
No Exclusivity or Volume Commitment. CheckSammy makes no commitment to Contractor under these Terms, as to exclusivity (whether territorial, industry, or otherwise) or the volume of Services that may be requested by CheckSammy under these Terms.
Term & Termination.
These Terms shall continue to be in effect so long as Contractor is performing Services, (the “Term.”), provided that all terms provided herein which are intended to survive shall survive termination of the Services.
CheckSammy may terminate these Terms and any Job Order at any time for any reason upon notice of termination prior to commencement of the Services to be performed and pursuant to any Job Order. Contractor may terminate these Terms and reject any subsequent Job Order if (A) CheckSammy is in material breach of its obligations to pay Contractor for the Services in a timely manner as provided in these Terms, (B) Contractor notifies CheckSammy in writing of such material breach and (C) CheckSammy does not cure such material breach within 30 days following CheckSammy’s receipt of such written notice.
Upon notice of termination, Contractor shall (i) complete all Services previously requested by CheckSammy (unless requested otherwise in writing by CheckSammy), and (ii) all amounts due to Contractor will be promptly paid as provided in these Terms.
Billing Procedures. Contractor shall submit requested information and/or dump receipt that includes the disposal location, and the tonnage / weight data within three (3) days after completing any Services. CheckSammy reserves the right to require that Contractor provide additional information regarding the Services performed and shall not be required to tender Payment until such time as the information has been provided and the audit is complete. Contractor shall submit such information to CheckSammy via email. CheckSammy shall have no obligation to pay for Services unless Contractor submits the requested information to Checksammy no later than 30 days after the performance of the Services. Unless Contractor is not otherwise required by CheckSammy to submit an invoice, all invoices must be submitted within 15 days after the last day of the month in which the Services are performed. Each invoice must be accompanied by all applicable supporting documentation for the Services rendered. CheckSammy will pay Contractor within 30 days after the date that CheckSammy receives an invoice; provided, that documentation and the invoice have been properly submitted.
Audit Rights. During the Term and for a period of three years thereafter, or longer if required by any customer services agreement with CheckSammy (“Audit Period”), Contractor shall keep true, complete and accurate books and records of all of the Services provided by Contractor under these Terms, including supporting documentation with respect to all of fees paid hereunder (the “Records”). CheckSammy shall have the right to inspect and audit the Records, the Services, and Contractor’s and any Subcontractor’s compliance with any performance obligation under these Terms at any time during the Audit Period, during normal business hours, upon advance notice to Contractor. If, after conducting an inspection and audit pursuant to this paragraph, CheckSammy determines that it has paid Contractor an amount which is in excess of the amount required to be paid pursuant to these Terms, Contractor shall, within ten days of notice of such overpayment, pay to CheckSammy the full amount of such overpayment. If, as a result of any inspection and audit, CheckSammy discovers that any overpayment for any invoice was in excess of 5% of the amount that should have been billed to CheckSammy, Contractor shall reimburse CheckSammy for all of its fees and expenses, including the fees and expenses of any accountants or legal advisors, that may be incurred in connection with such inspection and audit. If, as a result of any inspection and audit, CheckSammy or Contractor discovers that CheckSammy underpaid Contractor in aggregate for Services rendered to CheckSammy in excess of 5% of the amount that should have been paid by CheckSammy (net of any amounts overbilled to CheckSammy), CheckSammy shall reimburse Contractor for all fees and expenses, including the fees and expenses of any accountants or legal advisors, that may be incurred in connection with such inspection and audit. Any undisputed amounts due to a party hereunder related to such an audit shall be paid promptly upon a party’s receipt of an invoice therefor.
Relationship Between CheckSammy and the Customers. Contractor acknowledges that CheckSammy is not an agent of any Customer. Contractor acknowledges that it is a creditor of CheckSammy only with respect to Services rendered in accordance with these Terms and that Contractor does not have any right, title or interest in any uncollected accounts receivable due to CheckSammy from any of the Customers. CheckSammy agrees that if it permits any Customer to become delinquent in payments to CheckSammy for whatever reason, then CheckSammy shall still be liable for paying Contractor for Services rendered regardless of whether CheckSammy has received payment from the Customer. Notwithstanding the foregoing, in the event a Customer files for bankruptcy protection, and as a result CheckSammy does not receive some or all payment owed for Services rendered, CheckSammy will not be responsible for paying Contractor for Services until CheckSammy has received payment for same from the Customer. CheckSammy shall use commercially reasonable efforts to provide Contractor with prompt notice of any bankruptcy filings by Customers being serviced by Contractor.
No Liens. Contractor agrees that it will not permit any mechanic’s, laborer’s or materialmen’s lien to be filed against the Customer for any labor or material furnished in connection with the provision of the Services. Should any such lien be filed, Contractor shall within ten (10) days after notice from CheckSammy (or creditor if notice is first received from creditor) either pay the lien, or contest the validity or amount of any such lien or claimed lien but only if Contractor shall have such lien bonded off and released of record. In the event that Contractor fails to pay the lien and/or have the lien released, CheckSammy may take such action as it sees fit to discharge the lien. Contractor agrees to cooperate in whatever manner is necessary to allow CheckSammy to discharge the lien, and Contractor shall be responsible for any and all costs incurred by CheckSammy related to said lien discharge.
Indemnification and Insurance.
Indemnification of CheckSammy. Contractor shall indemnify, defend and hold harmless CheckSammy and its affiliates, Customers, and their respective employees, officers, directors, owners, and agents, and any successor thereto, from and against any and all liabilities, penalties, fines, forfeitures, demands, claims, causes of action, suits, and costs and expenses incidental thereto (including court costs and reasonable attorneys’ fees), which are suffered or alleged to have been suffered as a result of (a) any act or omission on the part of Contractor, its Subcontractors, or others whose services are engaged by Contractor or anyone directly or indirectly employed or controlled by either of them in the course of the performance of the Services in accordance with these Terms; (b) any material breach of any covenants, representations or warranties of Contractor or Subcontractor in these Terms; or (c) any negligence of Contractor or any Subcontractor or any of their respective agents or representatives.
Indemnification of Contractor. CheckSammy shall indemnify, defend and hold harmless Contractor and its affiliates and their respective employees, officers, directors, owners, and agents, and any successor thereto, from and against any and all liabilities, penalties, fines, forfeitures, demands, claims, causes of action, suits, and costs and expenses incidental thereto (including court costs and reasonable attorneys’ fees), which are suffered or alleged to have been suffered as a result of any material breach of any representations or warranties by CheckSammy in these Terms.
Insurance. Contractor and Subcontractors shall procure and maintain at their own expense during the Term the following insurance coverages: Comprehensive General Liability of $1,000,000.00 per occurrence, $2,000,000.00 annual aggregate; Automobile Liability for owned, non-owned and hired vehicles of $500,000.00 per occurrence. The Automobile Liability coverage shall include form MCS-90. All policies shall provide CheckSammy with at least 30 days written notice of any changes in coverage or policy cancellation and CheckSammy and the Customers shall be named as “Additional Insureds” under each such policy, except for Workers’ Compensation Contractor shall provide a certificate of insurance to CheckSammy, evidencing the required coverages on or before providing any Services hereunder and promptly thereafter upon CheckSammy’s request. All insurance policies must be written with an insurance company rated “A ”, or better, by A.M. Best Company. The additional insured coverage as extended hereunder will apply on a “primary” basis with respect to the liability arising out of the operations of the insured, and is not limited to liability arising out of written agreements or contracts.
Governing Law. These Terms and the rights, obligations and liabilities of the parties shall be construed, interpreted and enforced in accordance with the internal laws of the State of Texas without application of conflict or choice of law principles applicable thereunder.
Consent to Jurisdiction. EACH PARTY HERETO SHALL BRING ANY ACTION, SUIT OR PROCEEDING IN RESPECT OF ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCLUSIVELY IN THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF TEXAS. EACH PARTY HERETO (A) IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF TEXAS, (B) WAIVES ANY OBJECTION TO LAYING VENUE IN ANY SUCH ACTION OR PROCEEDING IN SUCH COURTS, AND (C) WAIVES ANY OBJECTION THAT SUCH COURTS ARE AN INCONVENIENT FORUM OR DO NOT HAVE JURISDICTION OVER ANY PARTY HERETO. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY HERETO FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING ANY CLAIM FOR LOST PROFITS OR REVENUES) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Assignability/Successors. Except as provided in Section 3, Contractor shall not delegate any of its obligations pursuant to these Terms without the prior written consent of CheckSammy. Contractor may not sell, assign or otherwise transfer or dispose of its rights under these Terms, by operation of law or otherwise, without the prior written consent of CheckSammy. CheckSammy may sell, assign or otherwise transfer or dispose of its rights under these Terms without the consent of the Contractor. Subject to the foregoing, these Terms shall be binding upon and inure to the benefit of the permitted successors and assigns of the parties.
Confidentiality. Each party hereto shall keep strictly confidential and not disclose to any third party any information concerning the business practices and affairs of the other party hereto (including but not limited to Customer names and addresses, details regarding the Services or any Waste Materials, or pricing components and strategies) that the non-disclosing party may learn as a result of these Terms. Any correspondence or discussions between Contractor and any Customer, whether written, oral or electronic, in reference to payments, pricing, terms, service problems, shut-offs, or the like, will constitute a material breach of these Terms. Each party may enforce this paragraph by injunction or specific performance, in addition to any other rights to which such party may be entitled at law or in equity. The foregoing restrictions do not apply to any information that: (i) is in or enters the public domain, through no wrongdoing of Contractor or any third party; (ii) has been disclosed to Contractor by a third party who is not subject to such restriction and who has not directly or indirectly received such information through the wrongdoing of any third party; or (iii) is independently developed or known by Contractor without use of or reference to any CheckSammy files or documents. The terms of this paragraph will survive for five years following any termination of these Terms; provided, however, that to the extent any of the confidentiality obligations in this paragraph pertain to trade secrets, such obligations will survive indefinitely. Neither party shall be liable for disclosure of the disclosing party’s Confidential Information if made in response to a valid order of a court or authorized agency of government or otherwise as required by law, rule or regulation, including without limitation, as necessary to comply with applicable securities regulations; provided that the recipient provides reasonable notice to the disclosing party so that the disclosing party may seek to prevent or limit such disclosure, or to obtain confidential treatment for such disclosure.
Social Media / Online Classifieds / Job Boards. As a Contractor for CheckSammy you are prohibited from sharing customer identifiable information, scope of work details, items collected, cost of service, or any details associated with any Job Order on external social media sites, online classified sites, job boards, or any other website. Every CheckSammy Contractor must be respectful to others when conducting business on behalf of CheckSammy. CheckSammy monitors social media related to our business and our Customers. If we find any statements or claims that are false or misleading, we will contact you for immediate correction. Contractors who violate this or other components of these Terms may be subject to disciplinary and legal action including, but not limited to termination of Services.
Injunctive Relief. The parties hereto acknowledge and agree that irreparable damage would occur in the event any of the provisions of the Terms were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement, and shall be entitled to enforce specifically the provisions of these Terms, in addition to any other remedy to which the parties may be entitled under this Agreement or at law or in equity.
Notices. Except as otherwise specified in these Terms, all notices, demands and other communications to be given or delivered under or by reason of the provisions of these Terms shall be in writing and will be deemed to have been given (a) when personally delivered, (b) one business day after deposit with a nationally recognized overnight courier, specifying next day delivery, (c) three business days after being sent by registered or certified mail, or (iv) if sent by electronic mail during the recipient’s normal business hours, and if not sent during normal business hours, then on the recipient’s next business day. Notices, demands and communications mailed to CheckSammy shall be sent to CheckSammy Inc., 15851 Dallas Parkway, Suite 900, Dallas, TX 75001 and to Contractor, at either the email address, phone number, or the last address on file with the Company, unless another address is specified in writing for notice purposes, Contractor agrees to keep CheckSammy informed at all times of Contractor’s current address.
Non-Solicitation and Non-Circumvention.
During the Term and for a period of six months after the termination or expiration of these Terms, in any state where Contractor performs Services for CheckSammy, Contractor will not either directly or indirectly:
solicit or divert any business, clients, suppliers or Customers away from CheckSammy or CheckSammy’s affiliates; or
induce Customers, clients, suppliers, agents or other persons under contract or otherwise associated or doing business with CheckSammy or its subsidiaries and affiliates to reduce or alter any such association or business with CheckSammy or its affiliates; or
solicit any person working as an employee or contractor of CheckSammy or its affiliates with whom Contractor has had substantial dealings during the Term to (A) terminate or alter such employment or contractor relationship; (B) accept employment, or enter into any contractor arrangement, with any person other than CheckSammy or its affiliates; or (C) to do any act that is inconsistent with the interests of CheckSammy or any of its affiliates; or (D) perform any services for any Customer outside of Contractor’s obligations under these Terms and any Job Order.
Nothing herein shall prohibit Contractor from discussing employment with or hiring any past or present employee or contractor of CheckSammy or its affiliates if such person has responded only to general employment solicitations or advertisements of Contractor, or if such person’s employment or contract with CheckSammy or its Affiliates has been terminated for 30 days or more. Contractor acknowledges and agrees that the names of CheckSammy’s Customers are part of a confidential list that is a trade secret of CheckSammy. Contractor acknowledges that this Section 25 is an essential inducement for CheckSammy to execute and deliver these Terms and that the restrictions on Contractor in this Section 25 are reasonable. CheckSammy may enforce this Section 25 by injunction or specific performance, in addition to any other rights to which such party may be entitled at law or in equity.
Non-Disparagement. Each of the parties hereto will not make any oral, written, or other statement that disparages the other or any of the other’s agents, owners, directors, officers, employees, representatives, successors or assigns, if any, or impedes or damages the other’s ability to do business (“Disparagement”). Nothing in this paragraph prohibits statements that are required by law. The obligations under this paragraph remain in effect during the Term and shall survive termination of this Agreement.
Survival. Upon the expiration or other termination of these Terms, the respective rights and obligations of the parties hereto shall survive such expiration or other termination to the extent necessary to carry out the intentions of the parties under this Agreement.
Miscellaneous. The captions set forth herein are for convenience only and do not affect the meaning of any of the terms set forth herein. No delay or omission by either party in exercising any right under these Terms shall operate as a waiver of that or any other right. A waiver or consent given by either party on any one occasion shall be effective only if in writing and in that instance and shall not be construed as a bar or waiver of any right on any other occasion. In the case any provision of these Terms shall be invalid, illegal or otherwise unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. Each party expressly acknowledges that it has had sufficient opportunity to consult with and receive the advice of an attorney concerning all portions of these Terms. Therefore, each party acknowledges that it has freely and voluntarily agreed to these Terms. In the event of any conflict between these Terms and any Job Order entered into hereunder, the terms of these Terms shall govern. The parties are independent contractors of one another. These Terms and any applicable Job Order entered into hereunder constitute the entire agreement between the parties and supersedes all prior negotiations, arrangements, representations or agreements concerning the subject matter hereof whether written or oral.
Changes to Terms and Conditions. CheckSammy may from time to time vary, amend or replace these terms and conditions and the latest terms and conditions will be posted on CheckSammy’s “Website” with any changes taking effect from the date that changes are posted on the Website. Such changes shall be effective for all Service requests or Job Orders between CheckSammy and the Contractor after the date of posting.