Terms & Conditions
Acceptance. Customer (the party identified as the Customer in Versapay and/or on a Company invoice) accepts these terms and conditions (together with any Company acknowledgment or Company invoice that incorporates these terms; collectively, the “Agreement”), upon the earliest of: (i) two business days after Customer’s receipt of a TOI TOI USA, LLC (“Company”) invoice; (ii) delivery of Equipment including, among others, portable restrooms, trailers, holding tanks, or other equipment provided by Company (collectively or individually, the “Equipment”) to the Customer’s designated site (the “Site”) and use or acceptance thereof by or on behalf of Customer; (iii) acknowledgment or any other conduct or action of Customer (including payment against any invoice, or registration with or logging in to Versapay); or (iv) Company’s performance of any Services Customer has requested. The Agreement is the entire agreement between Company and Customer regarding the Equipment and Services and supersede all prior, contemporaneous or subsequent understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, including any of Customer’s general terms and conditions of purchase regardless of whether or when Customer has submitted its order, purchase order or such terms, and all such terms and conditions which are different from or in addition to this Agreement in are hereby rejected and shall not be binding on Company, and Company hereby objects thereto. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend this Agreement. Provision of the Equipment and Services is expressly conditioned on and limited to Customer’s acceptance of the Agreement. Company may revise and update these terms and conditions and this Agreement from time to time in its sole discretion. All revisions and updates will be posted online, and after posting Customer accepts and agrees to the revised and updated Agreement in the same manner as set forth above. The revised and updated Agreement is effective prospectively from the date posted and applies to all existing Equipment leases and Services. Customer hereby acknowledges that it has read this Agreement in full and understands the terms set forth herein.
Payment Terms. Customer shall pay to Company the rates and charges specified on each invoice (plus applicable taxes and fees) for lease of Equipment, provision of Services, and related charges. Customer shall remit payment of all fees in advance on a monthly basis (unless otherwise specified) in accordance with Company invoice terms. Customer shall pay all charges due to Company during the term (the “Period”) shown on the relevant invoice. All payments must be made in US Dollars by either credit card, EFT, ACH, check, or other payment form set forth on the invoice. Customer’s first invoice is due and payable by credit card payment before Company will begin performance of the Services. All invoices are due and payable 15 days from the date on the invoice. All invoices that have not been paid in full by the due date (including for payment failure) are past due. All invoices are deemed final and undisputed unless Company receives notice of Customer’s dispute (including all relevant details) in writing made pursuant to Section 19 prior to the due date of such invoice. In addition to the payments described above, Customer shall be responsible for and shall pay all additional charges including, without limitation, additional rental fees, fees for additional Service trips, missing or damaged Equipment, additional charges for Services separately requested or made necessary by Customer’s breach of this Agreement, including moving/relocation charges, special service charges, and special delivery and removal charges, and any other fees or expenses incurred by Company in relation to the Equipment or Services. Customer shall pay all taxes, including sales tax, license fees and permit fees arising out of the use of the Equipment. Customer shall pay such taxes whether such taxes are shown on the relevant invoice or whether such taxes are later claimed by a governmental authority. In the event of a claim by a governmental agency for taxes related to the Equipment, Customer shall pay to Company such taxes on demand. Customer shall be liable to Company for all collection expenses (including reasonable attorneys’ fees), and interest at the rate of 1.5% per month, or such lesser rate as may be the maximum lawful rate, on all overdue accounts. Additionally, Company may suspend Services and pick up Equipment without notice or liability to Customer or any third party if Customer’s account becomes overdue. If Customer is enrolled in Auto Pay, Customer authorizes Company to charge Customer’s payment method on Auto Pay for all overdue balances. Company may apply all Customer payments to the oldest outstanding balance on Customer’s account, to additional fees and charges before applying to the lease/Service fee, or in such other manner as Company deems appropriate. For payments by check, Customer authorizes Company to use information from Customer’s check to make a one-time electronic fund transfer from Customer’s account or to process and pay for the transaction as a check. Fees will not be prorated for any reason (e.g., Customer will be charged for the full Period if Equipment is picked up or Services discontinued prior to the end of the Period). Customer’s obligation to pay all fees and other amounts under this Agreement is absolute and unconditional and is not subject to any abatement, counterclaim, defense, deferment, interruption, recoupment, reduction, or setoff for any reason whatsoever. TIME IS OF THE ESSENCE FOR THE PAYMENT OF ALL AMOUNTS UNDER THIS AGREEMENT.
Registration with Versapay; Auto Pay Registration. Customer must promptly register with Versapay (or other system identified by Company for online management of Customer’s account, referred to herein as “Versapay”) to manage its Company account and make payments online. Customer agrees to provide and maintain at all times complete and accurate information in Versapay. All invoices will be distributed by Versapay and Customer shall be responsible for establishing its Versapay account and logging in to Versapay on a regular basis to retrieve information about its account. Customer shall be liable for invoice payment regardless of whether Customer has registered with or logged in to Versapay. Enrollment in Auto Pay is encouraged for convenience but is not required unless Customer’s account becomes past due. Company reserves the right in its sole discretion to require Customer to enroll in and Customer to agree to recurring automatic payment of invoices ("Auto Pay") if at any time Customer has an overdue balance. If required by Company, Customer shall provide and always maintain a valid payment method for its Company account with Versapay and enroll in Auto Pay. If Customer fails to enroll in or maintain Auto Pay as required, Company reserves the right in its sole discretion to discontinue all Services and pick up all Equipment from Customer and initiate collection on Customer’s account. Once Company requires Auto Pay:
Customer must not cancel Auto Pay throughout the entire term of this Agreement. • Customer expressly agrees that Company may charge Customer’s Auto Pay payment method at any time for any overdue balance. • Customer agrees that the only acceptable means to cancel Auto Pay is by notifying the Company in writing (at the address provided in Section 19) and simultaneously requesting pick-up of all Equipment on lease to Customer. Versapay is independent of Company and Company disclaims any liability for management of any party’s information on or by Versapay and the availability/non-availability of Versapay, for which Customer remains solely liable.
Service. Company offers servicing as an option on all portable restrooms if designated on the Customer order or invoice. If Customer orders servicing, Company will remove any domestic septic waste (“DSW”) from portable restrooms and provide any other Equipmentrelated services ordered and agreed upon on the service day(s) scheduled by Company such as replenishment of fresh water, deodorant, toilet paper and the cleaning of the portable toilet unit interiors (“Service” or “Services”). To receive the Service, Customer must keep the Equipment clear of debris and any building materials and ensure that Company’s vehicle is able to come within 15’ of the Equipment. Additionally, Customer shall provide Company timely, sufficient, and unobstructed access to Equipment, including extended hours or after business hours access, as necessary to perform Services. If the Equipment is not accessible due to Site restrictions, Site inaccessibility or other circumstances on the regularly scheduled Service day, the Equipment will not receive Services and Company is excused from providing Services until the next regularly scheduled Service day on which Equipment is safely accessible. If Company is unable to Service the Equipment as scheduled due to a holiday, inclement weather, or similar disruption, Company shall attempt to Service the Equipment on the next available business day subject to Company’s other service commitments. It is your responsibility to ensure that only human waste is permitted in the portable toilet units and that no garbage or toxic materials of any kind are disposed of in the portable toilet units or any other Equipment. Company reserves the right to not Service and remove any Equipment for violation of the foregoing and no refunds will be given for days not Serviced or for removal non-compliant Equipment. Company will not remove any waste other than DSW from portable restrooms. The pricing of Services and Equipment is based upon easy access to Site, firm and level ground and a dry location. Company reserves the right to add additional charges and expenses for all costs associated with obstructed and encumbered access, including, but not limited to failure to provide gate codes. Company will be excused from providing Services to Equipment where inhabitants (such as unhoused) have left units cluttered with clothing, belongings, etc. If Service is provided, there will be an additional charge for removing any such items from the unit(s) and Company shall not be liable for such removal.
Damage Waiver. Pricing includes the benefit of the Company damage waiver program that covers all damage caused by any acts of God to all portable restrooms, hand washing stations and holding tanks. This Damage Waiver does not apply to portable restrooms, hand washing stations and holding tanks contaminated with Hazardous Materials while in the Customer’s possession.
Delivery/Return and Relocation of Equipment. Company will deliver the Equipment to the Site on or about the Period’s commencement. However, delivery times provided by Company are approximate and Company will have no liability for failure or delay in delivery or failure to notify Customer of any delay or non-delivery. Customer is deemed to accept Equipment upon the earlier to occur of Customer’s representative signing or otherwise acknowledging a delivery acknowledgement, use of the Equipment, and 12 hours after delivery of the Equipment. Customer warrants and represents it is solely responsible for and has exercised due diligence and care in selecting a safe location at the Site for placement of any Equipment, and further agrees to direct and supervise the Equipment’s placement. Equipment MUST NOT be placed on sidewalks or other right of ways, in backyards, through gates, up/downstairs, or other areas where Company deems in its sole discretion are potentially dangerous, not easily accessible, or not permitted. Company is not responsible for Customer’s failure to designate unit placement at delivery and Company may place Equipment in its discretion if placement is not designated. Company reserves the right to charge move fees if Company must return to Site to relocate any Equipment after delivery. Relocation of Equipment will be performed at Company’s convenience. Customer shall not, and shall not permit any party other than Company to: • move or relocate any Equipment on a Site; • remove any Equipment from a Site; or • modify any Equipment. In addition to all other remedies, Customer shall pay to Company a relocation/modification fee in the minimum amount of $100 per piece of Equipment per violation of these prohibitions. Customer must contact Company’s Customer Service Department at 1-866-561-3648 to request Equipment move, relocation, removal, pick up and/or return, or modification. Customer is solely responsible for notification and arrangement of these requests in advance of its needs. Company will make reasonable efforts to address such requests at the next regular scheduled Service date and to pick up Equipment within 5 business days of notification, but Customer remains liable for all Equipment and fees until picked up by Company.
Title and Risk of Loss; Equipment Care and Responsibility. This is a true lease and not a sale of the Equipment subject to a security interest. Company always retains title to all Equipment. Customer acquires no ownership, title, property, right, equity or interest in the Equipment other than its leasehold interest solely as lessee subject to all the terms and conditions of the Agreement. Customer shall take no act or make any omission to the contrary. Customer shall not sell, rent, lease, permit any lien to be place on, lose possession of or otherwise encumber the Equipment.
Except for damage and loss covered by the damage waiver and normal wear and tear occurring from intended and normal use of the Equipment, Customer must return all Equipment to Company in the same condition as delivered and Customer bears the risk of loss and damage to Equipment, regardless of cause (including damage caused by third parties while the Equipment is at Customer’s Site or otherwise in Customer care or control). When Company performs at the Customer’s direction, Company is not liable for damage caused to the equipment or damage caused to delivery location or truck access path, except to the extent caused by Company’s sole negligence or willful misconduct. Customer shall promptly notify Company of any loss or damage to the Equipment (in any event within 24 hours of notice thereof) and shall provide Company with copies of all reports relating to same, including police reports, informal investigation reports, and insurance reports. Customer shall exercise all rights available under its insurance required by Section 9 hereof, and Customer shall take all actions necessary to process and pursue all insurance claims. In the event of damage or loss of Equipment, Customer shall pay the lesser of (a) the cost or repair, or (b) the cost of replacement. The cost of replacement of a standard portable toilet is agreed to be $1,000.00, which will be billed to the Customer in the event of loss.
Customer warrants and represents it is familiar with the safe and proper use of the Equipment. Customer acknowledges that Company has no control over the use of the Equipment by Customer, and Customer agrees to comply, at Customer’s sole expense, with all applicable governmental and quasi- governmental laws and guidelines, including ANSI Standard Z4.3 and PASI’s published requirements in its “Guide for Clean Portable Sanitation”, if applicable. Customer further agrees to (i) obtain and comply with all applicable governmental and quasi-governmental licenses, permits, registrations, permissions, and other approvals (“Permits”) applicable to the Equipment (including, but not limited to, Permits allowing the delivery and placement of the Equipment at the Site); and (ii) comply with all applicable Permits held by Company applicable to the Equipment. If Customer (or any party on Customer’s behalf) modifies the Equipment, relocates, removes or otherwise moves the Equipment from or within the Site (regardless of whether Company consented), Customer assumes all responsibility and liability for all losses and costs incurred by Company (in addition to any other remedies or charges levied by Company).Equipment and Service Selection. Customer represents and warrants that it has chosen the type of Equipment, the number of Equipment units, the type of Service and the frequency of Service based on the exercise of its own due diligence and care in assessing its own needs and is not relying on any information provided by Company in making any such choices.
Customer Waivers. To the extent permitted by applicable law, Customer hereby waives any and all rights and remedies conferred upon a lessee by sections 2A-508 through 12A-522 of the UCC, including but not limited to Customer's rights to cancel or repudiate this Agreement and reject or revoke acceptance of the Equipment.
Equipment Contamination. Customer represents, warrants, and covenants that any waste material to be collected in the Equipment or disposed of by Company does not and will not include any radioactive, volatile, biohazardous (excluding noninfectious DSW), flammable, explosive, special waste, or hazardous materials (including but not limited to asbestos, petroleum, paints, and any substance identified by a governmental agency as being hazardous or toxic) or their equivalent (collectively, “Hazardous Materials”). At all times, Customer shall hold all title to and liability for all waste material. Company will not remove tires, Hazardous Materials, or appliances (collectively, “Prohibited Waste”). Customer will be responsible for all removal, cleanup, remediation, fines, penalties, and other costs arising from or relating to the presence of Prohibited Waste attributable to or arising out of Customer’s possession of the Equipment. If Prohibited Waste is found in or around the Equipment, Customer shall arrange and pay for separate removal, disposal and remediation of such waste and Equipment. Customer may not terminate the Period and shall be responsible for all accrued charges until such Prohibited Waste is removed and the Equipment is remediated. Customer will indemnify and hold harmless all Indemnitees for all Losses arising out of violations of this Section 9.
Exclusion of Warranty; Liability Limitation. EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, ALL EQUIPMENT AND SERVICES ARE PROVIDED TO CUSTOMER “AS IS,” “WHERE IS,” AND “WITH ALL FAULTS.” COMPANY HAS MADE AND MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY AGAINST INTERFERENCE; OR (d) WARRANTY AGAINST INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Company shall not be liable for any loss, damage, or expense of any kind or nature caused, directly or indirectly, by the Equipment, Services, or the use or maintenance thereof or the failure or operation thereof, or the repair, service or adjustment thereof, or by any delay or failure to provide any such maintenance, repairs, service or adjustment, or by any interruption of service or loss of use thereof or for any loss of business howsoever caused. Company shall not be liable for any consequential damages as that term is used in U.C.C. Article 2A.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, COMPANY SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY, FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED HEREUNDER, WHETHER IN AN ACTION BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, INCLUDING, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS, OR BENEFITS OF USE OR LOSS OF BUSINESS, REGARDLESS OF WHETHER SUCH LOSSES ARE CONSTRUED TO BE CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, AND EVEN IF LESSOR IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
COMPANY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED HEREUNDER, WHETHER IN AN ACTION BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER LEGAL THEORY SHALL BE LIMITED TO THE TOTAL AMOUNT COMPANY RECEIVES FROM CUSTOMER AS PAYMENT OF FEES UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, IS INTENDED BY THE PARTIES TO BE SEVERABLE FROM ANY OTHER PROVISION AND IS A SEPARABLE AND INDEPENDENT ELEMENT OF RISK ALLOCATION AND IS INTENDED TO BE ENFORCED AS SUCH. THE PARTIES ALSO AGREE THAT, REGARDLESS OF THE FAILURE OF ANY SOLE OR EXCLUSIVE REMEDY APPLICABLE TO THE EQUIPMENT OR SERVICES, CUSTOMER WILL NOT BE ENTITLED TO ANY CONSEQUENTIAL DAMAGES OF WHATSOEVER KIND OR NATURE. THE PARTIES INTEND THE EXCLUSION OF CONSEQUENTIAL DAMAGES AS AN INDEPENDENT AGREEMENT APART FROM ANY SOLE AND EXCLUSIVE REMEDY APPLICABLE TO THE EQUIPMENT AND SERVICES.Indemnification. Except to the extent Customer is not liable under the Damage Waiver program described in Section 5, Customer shall defend, indemnify, and hold harmless Company and its affiliates and their respective directors, officers, employees, and other agents (collectively, "Indemnitees") to the maximum extent permitted by law against any and all losses, injury, death, damages, liabilities, claims, deficiencies, claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or otherwise, whether at law or in equity, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers (collectively, “Losses”) relating to, arising out of, or resulting from any of (a) the rental, lease, sublease, delivery, possession, custody, control, maintenance, use, condition, repair, return, disposition, or operation of any Services, Equipment or any parts thereto, including but not limited to any claims brought against Company by an employee, agent, contractor or representative of Customer, (b) waste material collected from the Equipment or disposed of by Company, (c) any inaccuracy in or breach of any of Customers representations contained in the Agreement; or (d) any breach or non-fulfillment of any covenant, agreement, or obligation to be performed by Customer pursuant to the Agreement (including any movement (including lifting the equipment off of the ground by crane or any other method) of any Equipment by any party other than Company. Customer’s obligations hereunder apply to all Losses regardless of whether same are caused, or are alleged to have been caused, in whole or in part by Company’s or a third party’s acts or omissions. Customer expressly agrees and will cause its insurer to accept a tender by Company to Customer of any claim arising out of the rental, delivery, condition, possession, maintenance, use or operation of the Equipment.
Assumption of Risk; Insurance. Customer assumes all risk of and liability for injury (including death) to any person or property and all other risks and liabilities arising from the rental, lease, sublease, delivery, possession, custody, control, maintenance, use, condition, repair, return, disposition, or operation of any Services, Equipment or any parts thereto. Customer shall, at its own expense and at all times during the term of the Agreement, maintain (i) for each item of Equipment, insurance against loss, theft, and damage in an insured amount for the full replacement value of the item of Equipment (“Property Insurance”), and (ii) comprehensive commercial general liability insurance (“CGL”) with limits of not less than $1,000,000 per occurrence. Customer’s Property Insurance must cover non-owned Equipment while in Customer’s care, custody, and control. Customer’s CGL insurance must be primary and non-contributory with any insurance maintained by Company and must include a waiver of subrogation in favor of Company. Customer shall cause Company to be added as an Additional Insured and Loss Payee on all insurance required by the Agreement. Customer and its agents will cooperate with Company and Customer’s insurers in any claim or suit arising therefrom and will do nothing to impair or invalidate the applicable insurance coverage. The amount, terms and conditions of the insurance maintained by Customer must be reasonably acceptable to Company. Customer agrees to provide Company with Certificates of Insurance (“COI”) evidencing the insurance required by the Agreement. Company’s acceptance of Customer’s COI will not be deemed a waiver or modification of Customer’s insurance, indemnity, or any other obligations under the Agreement. The provisions of this Section 13 are in addition to, and do not limit, qualify, or waive any obligations of Customer under this Agreement, and Customer’s fulfillment of its insurance obligations does not limit Customer’s liability under this Agreement. Customer must notify Company immediately upon notice of any insurance cancellation that could result in damages of any kind or type to company and or exposes company to any liability.
Term and Termination; Survival. The term of this Agreement commences upon Customers acceptance of this Agreement in accordance with Section 1 and continues until the last item of Equipment leased to Customer is returned to Company. Company may terminate this Agreement and immediately remove the Equipment if (i) Customer fails to pay any amount when due, (ii) Customer breaches the Agreement, (iii) there is a loss of or damage to the Equipment, (iv) a lien or any other encumbrance is placed, or is threatened, on any Equipment, (v) a proceeding in bankruptcy or for other protection from creditors is commenced by or against Customer, or (vi) Company’s convenience. Company shall not be responsible for losses due to removal of Company’s Equipment pursuant to this paragraph. All representations, warranties, covenants and indemnities of Customer made or agreed to in this Agreement shall survive the expiration, termination or cancellation of this Agreement for any reason.
Governing Law; Non-Waiver; This Agreement is governed by the laws of the state where the Site is located, without giving effect to principles of conflicts of laws. Each party submits to the jurisdiction of any state or federal court sitting in such state in any action or proceeding arising out of or relating to this Agreement. No failure by Company to exercise any right hereunder shall operate as a waiver of any other right hereunder, and a waiver of any right on one occasion shall not constitute a waiver of any such right on any future occasion. All modifications to this Agreement must be in a writing signed by both parties.
Errors & Omissions. Company reserves the right to correct any erroneous information that may appear in an invoice including, without limitation, Customer’s name or address, or billing.
Conditional Payments. Any payment that Customer sends Company for less than the full balance due that is marked “paid in full” or contains a similar notation, or that Customer otherwise tenders in full satisfaction of a disputed amount, must be sent to the address listed in Section 19. All such markings, notations, or Customer assertions that a payment is full satisfaction shall be of no force or effect and Company reserves all rights regarding these payments (including, without limitation, accepting the payment without effect on the remaining balance, which Customer will still owe). Company, at its discretion, may refuse to accept any such payment by returning it to Customer, not cashing it or destroying it.
Price Adjustments: Quoted or invoiced pricing is not firm for the term of this Agreement. Company reserves the right to impose price increase or additional fees at any time with or without notice to Customer.
Notices. Any required notice to Company shall be in writing delivered to TOI TOI USA, LLC, 1725 Windward Concourse, Suite 250, Alpharetta, GA 30005, Attn: Accounting Department. Any notice given pursuant to this Agreement are deemed duly given when received by a representative of the parties hereto selected.