COMPOST COLORADO LLC
TERMS OF SERVICE
PLEASE INDICATE ACCEPTANCE BY SELECTING THE “ACCEPT” BUTTON. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON, COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO ACT FOR AND TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THESE TERMS. BY USING OR PURCHASING THE SERVICES, YOU ACCEPT THESE TERMS OF SERVICE. IF YOU DO NOT AGREE, DO NOT USE THE SERVICES.
This Terms of Service (or this “Agreement”) is between you (entity or person, hereinafter referred to as “you” or “Customer”) and Compost Colorado LLC, a Colorado limited liability company (the “Company”) for the compost collection service ordered by you (the “Compost Service”) and, if applicable, the subscription service ordered by you (the “Subscription Service” and together with the Compost Service, the “Services”).
1.1 Compost Service. Subject to the terms and conditions of this Agreement, the Company agrees to provide the Compost Service to Customer as detailed in your order. Each order shall specify the Compost Service contracted for and the applicable fees and other charges as agreed to between the parties. Each order is subject to this Agreement, and in the event of any conflict between this Agreement and the terms of any such order, this Agreement shall prevail.
1.3 Other Limitations. Unless otherwise expressly specified in the order, in the case of a residential Customer, Customer shall not permit access to the Compost Service to more than one (1) household, and in the case of a business Customer, to more than one (1) business. The Compost Service is provided solely for the benefit of Customer. Customer shall not share, sell, resell or otherwise supply the Compost Service to any third parties.
2.1 Responsibilities of the Company. The Company shall: (i) provide the Compost Service in manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) provide one (1) container (“Collection Container”) for Compost Service collection free of charge; (iii) replace the Collection Container with a clean Collection Container to the same location as found after emptying and in same condition once a week; and (iv) provide collection in accordance with the collection schedule. The collection schedule may be modified from time to time by the Company, provided that (x) collection shall occur at least once per week and (y) the Company shall provide written notice to the Customer of any such modification.
2.2 Responsibilities of Customer. Customer shall: (i) be responsible for the storage and maintenance of the Collection Container in between weekly pickups, including providing the Company with a designated pick-up location. Each Customer is responsible for contacting their building manager regarding the Compost Service and identifying a safe spot for pickup and delivery. If the Customer elects to have a Collection Container delivered outside their residence or business, the Company will not be responsible for any stolen Collection Containers and/or Products; (ii) use the Collection Container only for the Compost Service and only in accordance with this Agreement; (iii) comply with all collection instructions provided by the Company on the Company Website or in such other documentation, including, but not limited to, instructions regarding the time, place and manner of making the Collection Container available for the Compost Service; (iv) submit for collection only the compostable materials listed on the Company Website at www.compost-colorado.com or in such other documentation provided by the Company (“Compost Materials”); (v) have sole responsibility for the appropriateness and legality of all materials provided to the Company in connection with the Compost Service; (vi) remain responsible for all composting activities that occur on the Customer’s property; (viii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Compost Service and notify the Company promptly of any such unauthorized use; and (vii) comply with all applicable local, state, federal and foreign laws in using the Compost Service. The Customer acknowledges and agrees that the collection procedures and list of Compost Materials may be updated from time to time by the Company, provided that the Company shall provide written notice to the Customer of any such update(s). Although the Company has no obligation to monitor the Customer’s use of the Compost Service, the Company may do so and, upon prior notice, may refuse to collect any materials it believes in good faith may be (or alleged to be) in violation of the foregoing.
2.3 Limited License to Property. The Company shall have a limited license to enter the property of Customer (and if Customer is not the owner of such property, it shall obtain consent of such owner) for the sole purpose of providing the Compost Service. Although the Company intends to be respectful of landscaping on the property, it shall not be responsible for any damage to any landscaping on the property, except to the extent caused by Company’s gross negligence or intentional misconduct.
2.4 Nonconforming Waste. The Collection Container may only be used for the Compost Materials (as defined in Section 2.2). Material will be considered non-conforming if it has constituents, characteristics, components or properties not included in the definition of Compost Materials. For the sake of clarity, all hazardous waste and all hazardous substances, including but not limited to animal feces or excrement, are not included in the definition of Compost Materials. All such materials will be referred to as “Non-Conforming Waste.” Customer shall retain title to and liability for all Non-Conforming Waste. If the Company determines that any Collection Container contains any Non-Conforming Waste, the Company may, in its sole discretion, at Customer’s sole cost and expense: (i) reject the Collection Container and return it to Customer; (ii) return the Non-Conforming Waste to Customer; or (iii) process the contents of the Collection Container and Customer shall pay for any and all costs associated with processing the Non-Conforming Waste.
3.1 Subscription Plans; Continuous Subscription Plans; Cancellation Policy.
3.1.1 Subscription Plans. The Company offers different Subscription Services for certain composting, recycling, and cleaning products, food products, and other green products (the “Products”), which may be selected by you through your customer account depending on the Products you desire to have delivered, how frequently you would like such Products delivered, and the price for such Subscription Service (a “Subscription Plan”). If your Subscription Plan changes, the applicable price for such Subscription Service may also change. Changes to your Subscription Plan may also result in additional delay, or applicable shipping and handling fees, taxes, or delivery charges. If the Company changes the prices for certain Products or Subscription Services, or other charges associated therewith, it will notify you of such changes, such as by email or a notice posted on the Company Website.
3.1.2 Continuous Subscription Plans. WHEN YOU REGISTER FOR SUBSCRIPTION SERVICES, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT (A) THE COMPANY (OR OUR THIRD-PARTY PAYMENT PROCESSOR) IS AUTHORIZED TO CHARGE YOU ON A WEEKLY BASIS FOR YOUR SUBSCRIPTION PLAN (IN ADDITION TO ANY APPLICABLE TAXES AND OTHER CHARGES) FOR AS LONG AS YOUR SUBSCRIPTION PLAN CONTINUES, (B) THE AMOUNT YOU ARE CHARGED AND THE NUMBER OF PRODUCTS YOU RECEIVE EACH WEEK MAY VARY DEPENDING ON THE PREFERENCES YOU SELECT, AND (C) YOUR SUBSCRIPTION PLAN IS CONTINUOUS UNTIL YOU CANCEL IT OR WE SUSPEND OR STOP PROVIDING ACCESS TO THE COMPANY WEBSITE OR THE PRODUCTS IN ACCORDANCE WITH THESE TERMS. SUBSCRIPTION PLANS ARE ONLY OFFERED TO CUSTOMERS WHO ALSO USE THE COMPOST SERVICES.
3.1.3 Cancellation Policy. YOU MAY CANCEL YOUR SUBSCRIPTION PLAN ONLINE AT ANY TIME BY EMAILING CANCELLATIONS@COMPOSTCOLORADO.COM AND FOLLOWING THE INSTRUCTIONS IN OUR RESPONSE OR BY CONTACTING CUSTOMER SUPPORT. ANY PRODUCTS IDENTIFIED AS “PROCESSING” OR “SHIPPED” ON YOUR UPCOMING PAGE, HOWEVER, CANNOT BE CANCELLED. YOU WILL BE RESPONSIBLE FOR ALL CHARGES (INCLUDING ANY APPLICABLE TAXES AND OTHER CHARGES) INCURRED WITH RESPECT TO ANY PRODUCT IDENTIFIED AS "PROCESSING" OR "SHIPPED" PRIOR TO THE CANCELLATION OF YOUR SUBSCRIPTION PLAN.
In the event you cancel your Subscription Plan, please note that we may still send you promotional communications about certain Products or Subscription Services, unless you opt out of receiving those communications by following the unsubscribe instructions provided on the Company Website.
3.2 Deliveries. If you have elected to sign up for a Subscription Plan, depending on the frequency of your Subscription Plan, the Company will deliver the Products each week in your Collection Container. You shall be solely responsible for washing and sanitizing all Products prior to use. You are responsible for inspecting all Products for any damage or other issues upon delivery. In addition, you are solely responsible for determining the freshness of the Products you receive. In the unlikely event that you have any reason to believe that any Product in your delivery or purchase is not suitable for consumption or use, contact us at firstname.lastname@example.org and discard the item. To maintain the quality and integrity of the Products, we recommend that you immediately refrigerate all perishable Products upon delivery or purchase and follow the U.S. Department of Agriculture’s (“USDA”) instructions on refrigeration and food safety, which can be found here. We recommend that you follow the USDA’s instructions on safe food handling, which can be found here. Failure to follow safe food handling practices and temperature recommendations may increase the risk of foodborne illness. In addition, pregnant women, young children, the elderly and individuals with compromised immune systems should follow the U.S. Food and Drug Administration’s recommendations on food consumption for at-risk groups, which can be found here. In the case of inclement weather or other events beyond our control that interfere with the Company’s ability to deliver the Products and/or the Collection Container, the Company will attempt to deliver your Products and/or the Collection Container as soon as reasonably possible. In some cases, delivery may occur prior to the scheduled delivery date. If timely delivery of your Products and/or the Collection Container is not feasible, the Company may cancel your Services for the period so affected and issue you a credit to be applied to future Services or refund any fees paid for the Services during the period so affected.
3.3 No Resale. You are not permitted to resell the Products and/or the Subscription Services.
CUSTOMER ACCOUNT, FEES AND PAYMENT TERMS
4.2 Service Fees. Customer agrees to pay all fees or charges to Customer’s account as specified in all orders made hereunder. Customer is responsible for providing complete and accurate billing and contact information and notifying the Company of any changes to such information. By providing the Company with your credit card information, you authorize it to automatically charge your credit or debit card for charges that apply to your account. Customer is responsible for paying for the entire term of any order, whether or not the Services are actively used. Customer shall be responsible for paying for all lost, stolen, or damaged Collection Containers.
4.3 Late Payments; Suspension of Service. Customer agrees to pay all fees or charges to Customer’s account per the payment schedule specified in the order. Ten (10) days after the applicable due date, unpaid fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including but not limited to, interest and reasonable attorney’s fees and costs. Customer agrees that the Company may charge such unpaid fees to Customer’s credit card or otherwise invoice Customer for such unpaid fees. If Customer’s account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, the Company reserves the right to suspend the Services provided to Customer until such amounts are paid in full. Customer will continue to be charged for its accounts during any period of suspension.
5.1 Disclaimer. EXCEPT AS MAY BE PROVIDED IN A WARRANTY BY THE MANUFACTURER OF A PRODUCT, ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, OR ANY OTHER MATTER PERTAINING TO THIS AGREEMENT, THE COMPOST SERVICE, THE COLLECTION CONTAINER, THE SUBSCRIPTION SERVICE, AND THE PRODUCTS, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. YOU ARE SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISKS RELATED TO, THE STORAGE AND CARE OF THE COLLECTION CONTAINER, THE PROPER AND SAFE WASHING, HANDLING, USE, STORAGE, AND IF APPLICABLE, CONSUMPTION, OF ALL PRODUCTS. YOU ACKNOWLEDGE THAT ALL PRODUCTS WILL BE DELIVERED IN THE COLLECTION CONTAINERS, AND WHILE THE COLLECTION CONTAINERS WILL BE CLEANED AND WASHED WEEKLY BY THE COMPANY, PRODUCTS DELIVERED IN THE CONTAINERS MAY COME INTO CONTACT WITH RESIDUAL WASTE OR RESIDUAL CLEANING AGENTS.
5.2 Exclusion of Consequential and Related Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY HAVE ANY LIABILITY TO THE CUSTOMER FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. NOTHING IN THIS AGREEMENT SHALL LIMIT A PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY CAUSED BY A PARTY’S NEGLIGENCE, E.G. FOOD CONTAMINATION.
5.3 Liability Limitation. IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE ONE-YEAR PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE. The parties acknowledge that the limitations set forth in this Section are integral to the amount of fees charged in connection with making the Services available to Customer and that were the Company to assume any further liability other than as set forth herein such fees would of necessity be set substantially higher.
5.4 Indemnification. Customer shall defend, indemnify and hold the Company harmless against any loss incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against the Company by a third party alleging Customer’s use of the Services or Products in breach of this Agreement has caused harm to a third party.
6.1 Term. The term of this Agreement commences on the date it is accepted and continues until all of the Services have expired or have otherwise been terminated by the Company or the Customer.
6.2 Termination for Convenience. Either party may terminate this Agreement and the Services at any time, for any reason, upon notice to the other party with respect thereto, and following such termination, Customer shall pay all outstanding services fees owed to the Company through the date of termination. Customers may termination this Agreement and the Services at any time by either (i) going to [________________________.com], or (ii) by logging into your customer account and selecting the tab “Cancel Membership.” If you have any questions regarding termination of this Agreement or the Services, please contact [__________________@_____________].
6.3 Effect of Termination. Upon termination of this Agreement, the Company will collect the Collection Container.
6.4 Surviving Provisions. Each section of this Agreement which by its nature should survive termination will survive termination, including, without limitation, use restrictions, warranty disclaimers, and limitations of liability. Any obligations to make payments of fees accrued or due hereunder prior to termination, including, without limitation, all Service fees due through the end of the applicable term, will survive the termination of this Agreement.
7.1 Binding Arbitration. Except as provided below, any and all disputes arising under or related to this Agreement which cannot be resolved through negotiations between the parties shall be submitted to binding arbitration. If the parties fail to reach a settlement of their dispute within 30 days after the earliest date upon which one of the parties notifies the other(s) in writing of the existence of and its desire to attempt to resolve the dispute, then the dispute shall be promptly submitted to arbitration by a single arbitrator through the American Arbitration Association (“AAA”). The AAA’s Commercial Rules (the “Rules”) and the Federal Arbitration Act shall apply to the proceeding. The decision of the arbitrator shall be final and binding upon the parties, and it may be entered in any court of competent jurisdiction. The arbitration shall take place in Boulder, Colorado or Denver, Colorado. The arbitrator shall have the power to grant equitable relief where available under Colorado law. The arbitrator shall issue a written opinion setting forth his or her decision and the reasons therefore within 30 days after the arbitration proceeding is concluded. Notwithstanding the foregoing, any party may seek to obtain, in aid of the arbitration, an injunction or other appropriate relief from a court to preserve the status quo with respect to any matter pending conclusion of the arbitration proceeding, but no such application to a court shall in any way be permitted to stay or otherwise impede the progress of the arbitration proceeding.
7.2 Prevailing Party. In the event of any arbitration or litigation being filed or instituted between the parties concerning this Agreement, the prevailing party on each claim will be entitled to receive from the other party or parties its attorneys’ fees, witness fees, costs and expenses, court costs and other reasonable expenses, whether or not such controversy, claim or action is prosecuted to judgment or other relief. The “prevailing party” is that party which is awarded judgment or other legal or equitable relief.
8.1 Miscellaneous. There are no third-party beneficiaries to this Agreement. No agency, partnership, joint venture, fiduciary or employment is created as a result of this Agreement. This Agreement shall bind and inure to the benefit of the parties hereto and their successors and assigns. Neither party may assign this Agreement without the express written consent of the other party; provided that the Company may assign this Agreement pursuant to a merger, acquisition or sale of all or substantially all of the Company’s assets. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. A waiver by any party of any term or condition of this Agreement in any one instance shall not be deemed or construed to be a waiver of such term or condition for any similar instance in the future or of any subsequent breach hereof. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The Company shall not be liable for failure of or delay in performing obligations set forth in this Agreement, and shall not be deemed in breach of its obligations, if such failure or delay is due to natural disasters or any causes reasonably beyond its control.
8.2 Entire Agreement. This Agreement, including all orders made in connection herewith, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.
8.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado without regard to the conflicts of law provisions thereof. Each party hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts or arbitrator located in Boulder or Denver, Colorado for any arbitration, action, suit, or proceeding arising out of or relating to this Agreement and the transactions contemplated by this Agreement (and agrees not to commence any arbitration, action, suit, or proceeding relating thereto except in such courts).