Service Agreement Terms and Conditions

1.           General.   These terms and conditions (the “T&C”) apply to all sales of diesel fuel, gasoline, heating oil, propane, DEF, lubricants, and any other products (collectively or individually, “Products”) and related delivery, and equipment rentals or other services by Diverse Infrastructure, LLC (“DI”) to the customer identified in a Service Agreement (the “Customer”).

2.           Controlling Document. In the event of a conflict, this Agreement shall control over different, additional, or conflicting terms in any purchase order, document, oral understanding, digital message, or communication of any kind relating to the subject matter hereof.

3.           Pricing.  DI’s pricing will be set forth in its Service Agreement and will fluctuate based on changes in market conditions in accordance with the Service Agreement. 

4.           Right of Access. DI and its subcontractors may enter any delivery location to deliver Products or to provide services, and to inspect, service, or remove its tanks and other rented equipment (the “Equipment”), and to inspect and repair any damage to such Equipment or to the property at issue. Customer shall not block any Equipment or otherwise impede DI, its subcontractors, or agents from doing so.

5.           Permits. If required at Customer’s job site under applicable law, Customer will, at its sole cost, obtain and pay for any permits.

6.           Payment, Credit terms and Limits. DI may establish, deny, modify, or revoke credit terms and limits in its sole discretion. Customer shall pay all invoices in accordance with DI’s credit terms, methods and limits. DI will notify Customer of initial credit terms and limits, if any, and changes thereto.

7.            Delivery Tickets and Service Work Orders. DI shall provide a metered delivery ticket or a service work order, as applicable, along with its invoices.  DI need not get customer’s signature on any delivery ticket unless DI expressly agrees to do so in writing in its Service Agreement and in such case, customer shall pay the associated demurrage charge at DI’s prevailing rates for additional time associated with obtaining any such required signatures, regardless of whether so specified in the Service Agreement. 

8.           Taxes. Unless otherwise in the Service Agreement, on-road diesel fuel and gasoline prices include all taxes, and off-road diesel pricing, as well as the prices for all other products and services exclude sales tax, gross receipt tax, petroleum products tax, and any other such taxes, which will be billed separately. Absent a valid tax exemption certificate provided in advance of delivery, tax will be billed to Customer and once billed will not be refunded. It is Customer’s obligation to timely provide exemption certificates in advance of deliveries.

9.           Term. Except as set forth in a Service Agreement, if DI rents Equipment to Customer the rental term shall be for one month, which shall renew automatically from month-to-month unless cancelled by DI or by Customer upon not less than seven (7) days prior written notice (which may be by email to a valid DI email address). Equipment rent shall not be pro-rated under any circumstance.

10.       Insurance. Customer shall provide property insurance and shall provide DI with a certificate naming DI as additional insured and loss payee, with respect to all Equipment rented from DI, in amounts satisfactory to cover damage, theft and other casualties, in DI’s discretion. 

11.       Damage; Indemnification. Each party shall indemnify, defend, and hold harmless the other party, its members, agents, shareholders, subcontractors, employees, and representatives from and against all claims, damages and liabilities of any nature arising out of or related to such indemnifying party’s negligence, reckless or intentional misconduct hereunder.  Customer shall be responsible for the cost of any damage to the Equipment caused in whole or in part by Customer, or for lost or misplaced Equipment, while in its possession, custody, or control. Repairs shall be billed portal-to-portal at DI’s then prevailing rates for parts and labor and Equipment, which are available upon request by Customer.

12.       Exclusive Right to Service Equipment.  Customer shall not permit anyone other than DI, or DI’s approved subcontractors acting on DI’s behalf, to deliver any Products into any tank or other Equipment rented to Customer by DI, nor to move, repair, adjust or modify the Equipment.

13.       Additional Customer Responsibilities. Customer shall pay standby charges (demurrage) for delivery/pick-up for standby time at DI’s prevailing rates, which are available upon request. Customer is solely responsible for providing and paying for all required labor in connection with the operation of rented Equipment. Customer is responsible for all labor and equipment required for lifting and off-loading of Equipment if needed.

14.       No Refunds or Prorations. ALL PRODUCTS ARE SOLD UPON DELIVERY AND EQUIPMENT IS RENTED UPON DI’S RECEIPT OF AN EXECUTED SERVICE AGREEMENT BY THE CUSTOMER.  THERE ARE NO REFUNDS OR REBATES OF ANY KIND FOR FUEL OR OTHER PRODUCTS REMAINING IN FUEL OR PROPANE TANK(S) UPON REMOVAL OF THE TANKS FOR ANY REASON, NOR FOR THE REMOVAL OF EQUIPMENT DURING THE APPLCIABLE RENTAL TERM.

15.        Term.  Except as provided in Section 9 above, or as otherwise provided in the Service Agreement, Customer may terminate service at any time upon written notice to DI (which may be by email to a valid DI email address).

16.       Waivers; Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DI DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS, EQUIPMENT OR SERVICE, NOW OR HEREAFTER SUPPLIED PURSUANT TO THIS AGREEMENT OR ANY CHARGE ORDER WHERE APPLICABLE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Under no circumstances shall either party be liable to the other or any person for lost profits, incidental, consequential or special damages, business interruption damages or punitive damages arising out or relating in any way to this Agreement, including but not limited to DI’s performance or failure to perform obligations under this Agreement or otherwise, and regardless of whether a claim or remedy is sought in contract, tort (including negligence, recklessness and strict liability) or otherwise. In the event of DI’s or its subcontractor’s negligence, recklessness or intentional acts or omissions, DI’s and its subcontractors’ liability to any legal person including Customer shall be limited to the amount billed and received by DI in connection with the specific act or omission giving rise to the claim. Customer agrees that DI is not an insurer and that DI’s prices contemplate that the exclusion and limitation of liability in this Section 16 will be enforced.

17.       Force Majeure. DI shall not be responsible for any delay or damages caused by events or circumstances beyond DI’s reasonable control, including without limitation, acts of God, fires, storms, floods, wars, hostilities, terrorism, epidemics, pandemics, compliance with laws or regulations, and/or DI’s inability to obtain products from its customary suppliers, lack of or inadequate transportation facilities, or other similar causes.

18.       Severability. If any part of this Agreement is determined to be invalid or unenforceable, the remainder of it will continue to be valid and enforceable.

19.       Assignment. Customer may not assign this Agreement without DI’s prior written consent. DI may assign this Agreement, or delegate or subcontract its duties, without notice to or consent from the Customer.

20.       Notice.  Notice to DI shall be by recognized overnight courier to: Diverse Infrastructure, LLC, Attn: CEO, 1250 Easton Rd., Suite 102S, Horsham, PA 19044 or by email to legal@diverseinfrastructure.com.  Delivery of notice to Customer shall be at the billing address set forth in the applicable Service Agreement or by email to a valid email address for the Customer contained in a Service Agreement. Either party may change its address for Notice by providing the other party with notice of such change in accordance with this Section 20.

21.       Delays.   DI’s delay in enforcement of any breach by Customer shall not constitute waiver as to such breach or any future breach.

22.       Applicable Law; Venue. Pennsylvania law shall govern this Agreement without regard to its conflict of laws principles. Any dispute arising out of or related to this Agreement shall be originated exclusively in the state courts in Montgomery County, PA or the United States District Court for the Eastern District of Pennsylvania located in Philadelphia, PA, as applicable. No party shall challenge the original personal jurisdiction of such courts or assert forum non conveniens or its equivalent as a defense to the laying of venue in such courts.

23.       Remedies. Upon Customer’s breach of this Agreement, Company may, with or without prior notice, modify pricing, remove rented Equipment at Customer’s cost, cease service, file a lien, impose late fees, recover damages and interest at the maximum rate allowable by law and reasonable legal fees and costs as well as injunctive relief where appropriate. The rights and remedies under these T&Cs are cumulative and the use of any one right or remedy by any party shall not preclude or waive its right to use any or all other remedies. Said rights and remedies are given in addition to any other rights the parties may have by law.

24.       Representations and Warranties. Each party (a) is a legal entity, duly organized, validly existing and in good standing under the laws of its state or incorporation or organization, as applicable; (b) the signatories to a Service Agreement are duly authorized to execute such Service Agreement and each party has taken all actions necessary to authorize the execution, delivery and performance of such Agreement and any change orders to such Service Agreement; and (c) the Service Agreement and these T&Cs are binding on and enforceable against each party in accordance with their terms.

25.       Counterparts. A Service Agreement or change order thereto may be executed in multiple counterparts, each of which shall be deemed an original and all of which shall constitute one and the same agreement and such counterparts may be executed and delivered by fax or other electronic signature (including portable document format) by either of the parties and the receiving party may rely on the receipt of such document so executed and delivered electronically or by facsimile as if the original had been received.

26.       Acceptance.  By accepting or using fuel delivered by DI, Customer accepts these terms and conditions and those contained in the applicable Service Agreement, regardless of whether Customer has signed such Service Agreement.

27.       Final Agreement; Amendment. Each Service Agreement together with any change orders thereto, and these T&Cs, which are incorporated into each Service Agreement and each change order thereto, constitute the final understanding between DI and the Customer and supersedes and replaces any other agreements, statements, or understandings.  The Service Agreement and any change orders thereto may only be amended in a writing agreed to by both parties.