SCRAP SALES, INDEMNIFICATION, & RELEASE OF LIABILITY AGREEMENT
This Scrap Sales, Indemnification, and Release of Liability Agreement governs all sales of Recyclable Scrap Metal (as defined below) between You (“Seller”) and EMR (USA Holdings) Inc. and all affiliated entities in the United States (collectively, “Buyer,” “we,” or “us”).
- RECYCLABLE SCRAP METAL. Buyer is in the business of scrap metal recycling. Seller acknowledges that Buyer is not in the business of waste disposal and that only recyclable scrap metal material exempt from federal, state, and local solid and hazardous waste disposal requirements (“Recyclable Scrap Metal”) shall be offered for sale to Buyer.
- NO OBLIGATION TO PURCHASE OR SELL. This Agreement does not obligate Buyer to buy Recyclable Scrap Metal, nor does it obligate Seller to sell Recyclable Scrap Metal. Buyer may refuse to buy any Recyclable Scrap Metal offered for sale by Seller for any reason, including if Buyer determines, in its sole discretion, that the material is nonconforming to Buyer’s requirements or is otherwise defected.
- RELATIONSHIP OF THE PARTIES. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.
- OWNERSHIP OF RECYCLABLE SCRAP MATERIAL. Seller represents that Seller is the lawful owner of the Recyclable Scrap Metal it proposes to sell to Buyer and that Seller has the legal authority to sell the Recyclable Scrap Metal to Buyer. If Seller is delivering recyclable building materials (e.g. metal pipes, wire), Seller certifies that it is the Owner of the premises from which such recyclable building materials originated or Seller is a licensed construction contractor or subcontractor with legal authority to sell such material to Buyer.
- SELLER’S PROOF OF IDENTIFICATION AND CONSENT TO PROVIDE SIGNATURES AND OTHER INFORMATION. In addition to providing valid proof of federal or state photographic identification (“ID Card”) to Buyer to conduct any transactions, Seller agrees that upon making any deliveries of Recyclable Scrap Metal to Buyer, it will provide Seller’s ID Card to Buyer at Buyer’s facility at any time upon Buyer’s request. Seller also agrees to provide its signature and upon request of Buyer on any Buyer documents as a pre-condition to receiving any payment from Buyer for the Recyclable Scrap Metal.
- AGREEMENT TO BE PHOTOGRAPHED. Seller consents to Buyer’s collection of photographs of Seller, Seller’s vehicle (including any passengers), Seller’s license plate, and the Recyclable Scrap metal Seller proposes to sell to Buyer.
- PRICE & PAYMENT. Buyer, in its sole discretion, sets prices at which it shall purchase any Recyclable Scrap Metal. The Price includes all transportation costs to the Buyer’s facility, insurance and fees and applicable taxes. Buyer is not obligated to pay seller any monies above the Price. Buyer shall make all payments in United States Dollars. Payment shall not be due to Seller until Buyer completes its Quality and Quantity Inspection and is otherwise satisfied that Seller has complied with all terms and conditions herein.
- WARRANTIES. Seller warrants all Recyclable Scrap Metal will: (a) conform to applicable specifications; (b) be fit for their intended purpose; (c) be free and clear of all liens, security interests, or other encumbrances; and (d) otherwise be in compliance with applicable law. Seller further warrants that Seller is the rightful owner (or owner’s representative of the Recyclable Scrap Metal offered for sale.
These warranties survive any delivery, inspection, acceptance, or payment of or for the Recyclable Scrap Metal by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Recyclable Scrap Metal with the warranties.
- COMPLIANCE WITH LAW. Seller shall comply with all applicable laws, regulations, and ordinances. Seller shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
- ENVIRONMENTAL REQUIREMENTS. The federal Clean Air Act, 42 U.S.C. § 7401 et seq. (including section 608) and its implementing regulations at 40 C.F.R. Part 82 (including 40 C.F.R. Part 82, Subpart F), requires the proper recovery and disposal of refrigerants and nonexempt refrigerant substitutes from Recyclable Scrap Metal prior to recycling. Seller certifies that any Recyclable Scrap Metal containing refrigerants or non-exempt refrigerant substitutes as those terms are defined at 40 C.F.R. § 82.32(f), 40 C.F.R. § 82.152, and 40 C.F.R. 82.154(a) shall be recovered by Seller and disposed of by Seller in accordance with 40 C.F.R. § 82.155(a) and all applicable laws prior to delivery to Buyer. The federal Toxic Substances Control Act (“TSCA”), 15 U.S.C. § 2601 et seq. and its implementing regulations at 40 CFR Part 761, governs the removal and disposal of polychlorinated biphenyls (“PCBs”).
Seller certifies that all PCB capacitors, PCB small capacitors or any other PCB containing equipment shall be removed from all Recyclable Scrap Metal by Seller and disposed of by Seller in accordance with all applicable laws prior to delivery to Buyer. Seller certifies that all mercury switches shall be removed from any end-of-life vehicles by Seller and disposed of by Seller in accordance with all existing and proposed laws and regulations prior to delivery to Buyer, regardless of whether Seller delivers the vehicle to Buyer prior to the crushing, flattening, shredding, or baling of the vehicle. Other federal, state, and local laws, regulations and ordinances also affect the chemical and physical requirements for Recyclable Scrap Metal delivered to the Buyer by the Seller. Seller certifies that it will not deliver to Buyer Recyclable Scrap Metal that does not conform to such physical or chemical requirements and shall remove any substances necessary to achieve such conformance. Seller represents and warrants that all Recyclable Scrap Metal delivered to Buyer shall conform to the foregoing requirements.
- CERTIFICATION RE REFRIGERANTS. Seller hereby certifies that the Seller shall be responsible for recovering refrigerants in accordance with all applicable regulations, including 40 C.F.R. § 82.155(a), prior to delivery of any motor vehicle containing motor vehicles air conditioners (“MVAC”), MVAC-like appliances, or small appliances as those terms are defined at 40 C.F.R. § 82.152, to Buyer, and that Seller will recover refrigerants in accordance with such regulations prior to delivery of any items to Buyer. Seller further certifies that the Seller will remove PCB capacitors, mercury switches, fluids and any other materials listed on the Seller’s List of Prohibited Materials prior to delivery of any items to Buyer. Notwithstanding any warranty or limitation of warranty herein, Seller certifies that to the best of Seller’s knowledge, all refrigerant (including but not limited to chlorofluorocarbons (“CFCs”), hydrochlorofluorocarbons (“HCFCs”), and hydrofluorocarbons (“HFCs”), as defined in 40 CFR Part 82, Subpart F, pursuant to the Clean Air Act Amendments) that had not leaked previously have been recovered from the appliance or shipment of appliances delivered under this Agreement in accordance with 40 CFR Part 82.155(a). Otherwise, in accordance with 40 CFR §82.155(b)(2)(iii)),
Seller will provide to Buyer a signed written statement that all refrigerant in the appliance had leaked out due to system failures, accidents, or other unavoidable occurrences not caused by a person’s negligence or deliberate acts such as cutting refrigerant lines. Seller agrees to provide Buyer with such certification whenever requested by Buyer and prior to the delivery of any Recyclable Scrap Metal to Buyer.
- PROTECTION OF BUYER’S CONFIDENTIAL INFORMATION. All non-public, confidential, or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section.
- PROHIBITED MATERIALS: Seller certifies that it shall inspect all Recyclable Scrap Metal prior to delivery to Buyer, as required by law or otherwise, to ensure that Recyclable Scrap Metal does not contain Prohibited Scrap items set forth below:
- Airbag canisters
- Asbestos or asbestos containing materials, including any wire or cable that contains asbestos
- Cracked and/or broken lead acid batteries
- NiCad, lithium ion, or other batteries that are not lead acid type
- Explosive or flammable materials
- Poisons, infectious materials, or chemicals in solid, powder, liquid, or gaseous form
- Fluorescent lights including ballasts
- Any “Hazardous Waste” or “Hazardous Substances” as defined by any applicable federal, state, or local legal requirement
- Mercury or any mercury containing device or material
- PCB capacitors, PCB capacitor bearing materials, PCB containing transformers, and any other PCB containing device or material
- Radioactive materials
- Vehicle used oil filters
- Free-flowing liquids associated with scrap (i.e. gasoline, oil, paint, antifreeze, lubricants, water)
- Non-metal materials (i.e. garbage, wood, concrete, plastic, glass cardboard, paper)
- Pressurized or closed containers (i.e. propane tanks, compressed gas tanks, aerosol cans, intact/ uncut storage tanks)
- Catalytic convertors that are not part of an entire motor vehicle.
- Metal property of a telephone company, an electric company, a cable company, a water company, another utility, or a railroad marked or otherwise identified as such.
- Copper wire that has been burned to remove the insulation, unless verifiable documentation is provided that the source of the copper wire was in a building destroyed by fire.
- Utility access covers, manhole covers, storm drain covers, or aluminum irrigation pipe, purchase unless the seller is a company that deals in the manufacture or sale of the aforementioned products.
- Grave markers, vases, memorials, statues, plaques, or other bronze objects used at a cemetery or other location where deceased persons are interred or memorialized or any other metal historic markers or monuments or the attached support or post to either, unless the seller is a company that deals in the manufacture or sale of the aforementioned products.
- Ventilation fans or similar fans designed to supply fresh air to workers in confined spaces such as underground mines or other similar circumstances.
- RELEASE & WAIVER OF RIGHT TO SUE. Seller access to the certain Buyer’s premises equipment and and/or vehicles (The “Property”) allowed in this Agreement is made at Seller’s sole risks to the fullest extent permitted by law. Seller, on behalf of him/herself and on behalf of Seller’s employer, heirs, executors, administrators, assignees or any other person claiming on Seller’s behalf hereby freely and voluntarily releases, waives, relinquishes and forever discharges each of the Company Indemnified Parties from any and all liability for any and all claims, losses, liabilities, suits, damages, fines, demands or expenses, legal and otherwise relating to (ii) death or bodily injury of any kind to Seller to the extent caused by Seller’s negligence or willful misconduct and (ii) Seller’s property incident to, arising, directly or indirectly, out of or in any way connected with or related to Seller’s access, entry onto or presence upon the Property
- INDEMINIFICATION. Seller shall indemnify, defend and hold harmless Buyer and its officers directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party/awarded against Indemnified Party (collectively, “Losses”), relating to/arising out of or resulting from any claim of a third party or Buyer arising out of or occurring in connection with the products purchased from Seller or Seller’s negligence, willful misconduct, or breach of this Agreement. Seller shall not enter into any settlement without Buyer’s or Indemnified Party’s prior written consent.
- TERM & TERMINATION. This Agreement shall continue in perpetuity unless otherwise terminated. In addition to any remedies that may be provided under this Agreement, Buyer may terminate this Agreement for any reason with immediate effect upon notice to Seller, either before or after the acceptance of the Recyclable Scrap Metal. If Buyer terminates this Agreement for any reason, Seller’s sole and exclusive remedy is payment for the Recyclable Scrap Metal received and accepted by Buyer prior to the termination.
- SURVIVAL. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties shall survive the termination of this Agreement; and (b) any other provision that, to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement.
- SEVERABILITY. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction; provided, however, that if any fundamental term or provision of this Agreement is invalid, illegal, or unenforceable, the remainder of this Agreement shall be unenforceable.
- AMENDMENTS. Buyer may amend this Agreement at any time upon notice to Seller.
- WAIVER. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- CUMULATIVE REMEDIES. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise.
- ASSIGNMENT. Seller may not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign, transfer, or subcontract any or all of its rights or obligations under this Agreement without Seller’s prior written consent.
- SUCCESSORS AND ASSIGNS. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns.
- NO THIRD-PARTY BENEFICIARIES. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
- CHOICE OF LAW. This Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State New Jersey, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New Jersey.
- CHOICE OF FORUM. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in the courts of the State of New Jersey. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
