Waste Materials

Waste Harmonics customers have represented and warranted to Waste Harmonics that the waste material to be collected and disposed at the locations will consist solely of non-hazardous solid waste generated by the customers, and that none of such solid waste will consist of any radioactive, volatile, corrosive, highly flammable, explosive, infectious, toxic or hazardous material, any medical waste, or any material that requires special treatment or handling (“hazardous waste”). The term “hazardous waste” or “hazardous material” shall include but not be limited to any type of waste or material listed or characterized as hazardous or special by the United States Environmental Protection Agency or by any state agency pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. Section 9601 et seq., the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. 42 U.S.C. Section 6901 et seq., any similar state law regarding the environment, or by any other applicable federal or state law. The Contractor agrees that it shall not knowingly accept any hazardous waste from Customer at any location, and that it shall notify Waste Harmonics immediately upon the discovery that any solid waste collected pursuant to this agreement contains any hazardous waste. Title to all non-hazardous waste shall pass from the Customers to Contractor upon collection. The Customer shall retain title to hazardous waste.

Change In Service Level. In the event of a change in service level, Waste Harmonics and the Contractor agree to negotiate a new price per yard/haul in good faith. However, under no circumstances shall the new price per yard/haul be higher than the previous service level price per yard/haul.

Contractor Billing Procedures

Contractor shall submit invoices to Waste Harmonics. All invoices must be addressed to Waste Harmonics, LLC. 7620 Omnitech Place, Suite 1, Victor, NY 14564 and contain the following information: Invoice number, location address, month of service, container size, and type of service (i.e. trash, Cardboard, etc.). Failure to direct all billings to Waste Harmonics from the date of this agreement will result in service charges incurred for that service. A new account number must be issued to Waste Harmonics for each location. Waste Harmonics will not be responsible for any amounts owed for services provided by Contractor prior to the commencement date of this Agreement. Waste Harmonics shall solely be responsible for the payment for any services rendered after the commencement of this Agreement.

Damage

Contractor agrees that he has reviewed each location for preexisting damage to pavement, buildings, and equipment, and accepts the conditions as is, or has attached an addendum to this agreement of such damage found. Contractor also acknowledges that any excess damage done to Waste Harmonics or Customer equipment, beyond normal wear and tear, will be paid for by contractor whether there is insurance in place covering this type of loss or not. Contractor agrees to protect equipment being held in its care and custody or control from loss, and if damaged, beyond normal wear and tear, contractor will pay for all repairs and/or replacement costs necessary to return the equipment back to service.

Limitation on Collections

As an additional and material inducement to Waste Harmonics to engage Contractor to provide hauling services hereunder, the Contractor agrees that, notwithstanding anything herein to the contrary, Waste Harmonics may withhold payment to the Contractor with respect to services provided to any particular Customer and with respect to a particular Location until Waste Harmonics itself is paid by said Customer with respect to said Location. Contractor agrees not to pursue any collections activities against Waste Harmonics until Waste Harmonics has so collected all sums due from its Customer. Waste Harmonics will inform Contractor of the status of its collections from the Customers. Waste Harmonics will take all commercially reasonable actions it deems appropriate under the circumstances to collect any delinquent accounts, including pursuing a claim in bankruptcy where appropriate. Contractor acknowledges that it is a creditor of Waste Harmonics only with respect to services tendered pursuant to this Agreement, and that Contractor shall not have any right, title or interest in any uncollected accounts receivable due to Waste Harmonics by any Customer. Contractor further acknowledges that Waste Harmonics may from time to time as part of its normal business financing enter into a credit facility with one or more lenders whereby Waste Harmonics assigns its right to receive payment from the Customer as security for Waste Harmonics obligations to the lender under the credit facility. Contractor hereby acknowledges that Contractor shall not have any legal right to any such payment due from Customer. Contractor further acknowledges that any lender that shall advance money to Waste Harmonics in reliance upon the Contractor’s acknowledgements herein shall be entitled to rely upon such acknowledgement, and that Contractor agrees not to interfere with the exercise by such lender of such rights under any financing or financing credit facility agreement with Waste Harmonics relating to amounts due from any Customer.

Stop Service

Waste Harmonics has zero tolerance for stop services. Stop service can result in a change of vendor unless the Subcontractor can prove that he/she made preemptive efforts by notifying a Waste Harmonics representative and observed a ten (10) day waiting period during which there was an acknowledgement from an Waste Harmonics representative of the impending stop service. Significant efforts to cure the stop service should, in good faith, extend the time in order to continue service while attempting to cure the issue to both parties satisfaction. Contractor agrees to notify Waste Harmonics, in writing, by fax or by electronic means of any impending stop service action and allow Waste Harmonics ten (10) days to rectify the situation before placing the account on stop service.

Representations and Warranties

Contractor represents and warrants that it is engaged in the business of transportation and disposal of non-hazardous solid waste and that it will handle, load, transport and dispose of such waste in a safe and workman like manner and in full compliance with all applicable local requirements. Contractor further represents and warrants that it is in full compliance with federal, state and local laws and that it is fully licensed to operate in all jurisdictions in which there is a Location subject to this Agreement.

Indemnification

Contractor agrees to indemnify and hold harmless Waste Harmonics and its present and future employees, officers, directors, owners, agents and respective successors from and against any and all liabilities, penalties, fines, forfeitures, demands, claims, causes of action, suits, and costs and expenses incidental hereto (including costs of defense, settlement and reasonable attorney’s fees) (respectively “liabilities”) which any and all of them may hereafter suffer, incur, be responsible for or pay out as a result of bodily injuries (including death) to any person, damage to any property (public or private), contamination of or adverse effects on the environment, or any violation or alleged violation of statues, ordinances, orders, rules or regulations of any governmental entity or agency, to the extent such are caused by or arise out of breach of any representation or warranties of Contractor, or any negligent act, negligent omission or willful misconduct of Contractor, its employees or agents in the performance of this Agreement.

Arbitration

Any dispute arising under this Agreement shall be submitted to binding arbitration in Rochester, New York under the auspices of the American Arbitrations Association and in accordance with its Commercial Arbitration Rules. The determination by the arbitrator shall be binding on all parties, and shall be enforceable in any court having jurisdiction over the party or property against whom or which enforcement is sought. The fees and expenses of the arbitration shall be borne by the parties in proportion to the issues answered adversely to their contentions or interpretations parties in proportion to the issues answered adversely to the contentions or interpretations.

Independent Contractor

It is intended by the parties hereto create a relationship of “independent contractor”, and Contractor is not, become by reason of its performance hereunder an agent or employee of Waste Harmonics, and no joint enterprise or partnership is intended by this agreement. Neither the Contractor, nor its agents or employees, or the agents or employees of its subcontractors, subsidiaries and affiliates, shall be or become agents, servants or employees of Waste Harmonics by virtue of this agreement or any performance hereunder.

Other Covenants or Contractor

Contractor hereby covenants that it will (1) obtain and pay for all applicable permits, licenses, inspection fees and taxes, (2) obtain, pay for and maintain at Contractor’s expense (a) Comprehensive General Liability Insurance with Combined single limits of $1,000,000 or such limits as Waste Harmonics shall reasonably request, including (without limitation) blanket contractual liability, owner’s and contractor’s protective liability, personal injury, products, completed operations, broad from property damage, (b) owned, or such higher limits as Waste Harmonics shall reasonably request, (c) Workmen’s Compensation in the statutory amount and employer’s liability of $500,000 or such higher limits as Waste Harmonics shall reasonably request. Contractor shall be required to provide a certificate of insurance to Waste Harmonics at Waste Harmonics request, naming Waste Harmonics as an Additional Insured and contractors insurances shall be “primary and non-contributory” over any and all other insurances.

Assignability/Successors

The Contractor may not sell, assign or otherwise transfer or dispose of its rights under this Agreement, by operation of law or otherwise, without the prior written consent of Waste Harmonics which shall not be unreasonably be withheld. Waste Harmonics may sell, assign or otherwise transfer or dispose of its rights under this Agreement without the consent of Contractor. The provisions of this Agreement, subject to the terms and conditions hereof, shall be binding upon and inure to the benefit of the permitted successors and assigns of the parties.

Modifications

This Agreement may not be modified except in writing signed by the parties hereto. However, the parties hereto agree that Waste Harmonics shall at all times have the express unilateral right to add or delete service locations and change other service locations requirements or Exhibit A at any time by providing Contractor with an updated or revised copy of Exhibit A signed and dated by Waste Harmonics. Failure to insist upon strict compliance with any obligation or condition under this Agreement shall not operate as a waiver of, or estoppel with respect to, any subsequent breach.

Non-Solicitation/Confidentiality

Contractor acknowledges that Waste Harmonics has a proprietary interest in its business relationship with the Customers at the Locations. Accordingly, as additional and material inducement to Waste Harmonics to enter into Agreement, Contractor agrees not to enter into any direct contracts with the Customers at the Locations to provide service similar to the service provide under this Agreement with Waste Harmonics. Further, Contractor agrees to keep confidential and not disclose to any third party any concepts, customer bases, financial information or similar information concerning the business of Waste Harmonics that Contractor may learn in connection with providing services under this Agreement. Any direct correspondence or discussions with any Customer, whether written, verbal or electronic, in reference to payments, pricing, terms, service problems, shut-offs, or the like, will constitute an intentional and material breach of this Agreement without further action on the part of Waste Harmonics.

Caption

The captions set forth herein are for convenience only and do not effect the meaning of any of the terms of this Agreement.

Dispute Costs

In the event that Waste Harmonics has to refer any matter to legal counsel for any reason whatsoever, the opposing party shall pay all costs and expenses of such actions, including but not limited to reasonable attorney fees.

Legal Signature

A fax or electronic signature of any party shall be considered to have the same binding legal effect as an original signature. Handwritten or other changes to this Agreement will not be recognized as binding unless signed and dated by Waste Harmonics. Changes not signed off on by Waste Harmonics may render this Agreement null and void at the sole discretion of Waste Harmonics.