UPDATED AS OF OCTOBER 26, 2020
PLEASE REVIEW THESE TERMS OF SERVICE CAREFULLY BEFORE PROCEEDING. PLACING AN ORDER FOR SERVICE SHALL CONSTITUTE YOUR ACCEPTANCE OF THESE TERMS OF SERVICE. THIS IS A LEGALLY BINDING AGREEMENT.
ALL E-WASTE SERVICES ARE SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS.
In consideration of the covenants and undertakings of the parties hereto and other good and valuable consideration, the receipt of which being hereby acknowledged, the parties hereto agree to the following:
Services. Upon the terms and subject to the conditions set forth in this Agreement, Customer hereby engages ERI on an exclusive basis as an independent contractor to render exclusive electronic recycling services with respect to the material set forth above.
- ERI shall dismantle, shred, physically destroy, and/or recycle all e-Waste collected by Customer and provided to ERI using standard methods approved in the industry and shall fully comply with all applicable laws, rules, regulations, certificates, standards, orders and ordinances.
- ERI shall inspect the shipment and delivery receipt upon acceptance of each load to ensure that the receipt and shipment documentation accurately reflect the composition of materials in each load. ERI shall inspect all packages and skids-pallets, when applicable, to confirm that the correct e-Waste have been received. ERI shall advise Customer of any discrepancies.
- ERI may visually and manually screen each load for hazardous components. ERI shall not be required to accept any of the following materials for processing: liquids, chemicals, oils, radioactive devices, or biological or infectious waste. ERI shall not be required to accept for processing: batteries, fluorescent bulbs, and/or dry powder substances and to the extent any hazardous components or unauthorized waste are sent by Customer to ERI, ERI may, in its sole discretion, return such items to Customer for proper disposal or ERI may dispose of such material and invoice Customer for the actual costs of disposal and handling.
- ERI shall have the right to sell into global markets any commodities generated from recycling e-Waste so long as permitted under applicable laws. These markets include, but are not limited to, North America, Europe, South America, and Asia. Any such sale by ERI shall conform to the export control laws and regulations of the United States.
- Term and Termination. The Agreement will automatically renew for consecutive one (1) year term (“Subsequent Term”) upon the expiration of the Initial Term unless (i) a written notice of non-renewal is given by either Party to the other Party at least thirty (30) calendar days prior to the expiration of the term then in effect or (ii) the Agreement is otherwise terminated by either Party with or without cause upon thirty (30) days’ prior written notice to the other Party.
- Right of First Refusal. Customer grants to ERI a right of first refusal to match any offer relating to services similar to those provided hereunder which Customer receives (or intends to make) upon termination of this Agreement for any reason and Customer shall give ERI prompt written notice of any such offer and a reasonable opportunity to respond.
- Payment. In the event of a dispute with respect to such invoice, Customer shall provide written notice of such dispute to ERI, together with any undisputed amounts owed, on or before the due date for such payments.
- Transfer of Title. Risk of physical loss or damage to Customer material will transfer to ERI upon ERI taking physical custody/control of the material and the contents are verified by ERI. Title to the material being sent to ERI for processing shall transfer to ERI upon receipt of the material by ERI at ERI’s Facility for processing. To the extent Customer is shipping any media containing sensitive personal information (such as personal, financial or health information), it is recommended that the Customer retain a copy of the data and secure the data on the media through encryption or other technological means. ERI shall not be liable or responsible for loss of, damage to, or irretrievability of data stored on media of any type, or for loss of information, including without limitation personal, health or financial information, sent to ERI for recycling and/or destruction. Customer’s itemized inventory list or description of contents submitted by Customer to ERI shall be considered for reference purposes only and is not to be considered a complete inventory or asset list unless agreed upon in writing by ERI upon receipt and confirmation of inventory. For the avoidance of doubt, ERI shall not accept title to non-conforming material. For purposes hereof, Customer material will be deemed non-conforming if it contains constituents or possesses characteristics or properties that do not conform to the descriptions or specifications set forth herein. To the extent non-conforming materials are sent by Customer to ERI, ERI may, in its sole discretion, return such items to Customer at Customer’s cost for proper disposal or ERI may dispose of such material and invoice Customer for the actual costs of disposal and handling (ERI rate sheet available upon request).
- Governing Law/Binding Dispute Resolution. The Agreement shall be governed by and construed in accordance with the internal laws of the State of California applicable to agreements made and to be performed entirely within such state, without regard to the conflicts of law principles of such state. The Parties shall submit all disputes, claims or demands of any kind relating to or arising out of this Agreement (“Controversy”) to a three-step dispute resolution process. The three-step process shall (i) begin with informal negotiation conducted in good faith; (ii) be followed, if necessary, by mediation in a mutually agreeable location, not to be unreasonably withheld, initiated by a written demand of one Party served on the other, and if the mediator determines that the Controversy cannot be resolved by mediation or if either Party shall make a written demand therefor, then; (iii) the Controversy shall be submitted to binding arbitration in a mutually agreeable location, not to be unreasonably withheld, conducted by a neutral arbitrator, in accordance with the rules and regulations of the American Arbitration Association. The arbitration award shall include attorney’s fees and costs pursuant to this Agreement, and any damages or remedies otherwise available under applicable law, shall be supported by written conclusions of law and fact. Application may be had by any Party to any court of general jurisdiction for entry of judgment based on the arbitration award. The foregoing notwithstanding, either Party may maintain, for the purpose of obtaining a provisional remedy or provisional relief, any underlying action or claim on which such affirmative relief may be based.
- Indemnification. Each party agrees to indemnify, save harmless, and defend the other, its affiliates, officers, directors, shareholders, employees and agents (each an “indemnitee”) from and against any and all liabilities, claims, penalties, forfeitures, suits, and the costs and expenses incident thereto (including costs of defense, settlement, and reasonable attorney’s fees), which an indemnitee may hereafter incur, become responsible for, or pay out as a result of death or bodily injuries to any person, destruction or damage to any personal property, or any violation of governmental laws, regulations, or order to the extent caused by the other’s breach of this Agreement or by any negligent act, negligent omission or willful misconduct of the other, its agents, employees or subcontractors in the performance of this Agreement. The obligations described in this paragraph shall survive termination/expiration of this Agreement. Indemnification obligations shall be capped at the amounts actually paid out by a party’s insurance carriers and shall not exceed the contract sum paid for electronic recycling services.
- Limitation of Remedies, Liability and Damages. NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. LIABILITY AND DAMAGES SHALL NOT EXCEED THE CONTRACT SUM PAID FOR ELECTRONIC RECYCLING SERVICES.
- Confidentiality. Each party shall hold confidential all confidential and trade secret information relating to the business of the other party and its affiliated and subsidiary companies disclosed to it by reason of this Agreement, including the terms of this Agreement, and will not disclose any of such information to any person or entity unless legally compelled to do so. Provided, however, that to the extent that a party may become so legally compelled, such party may only disclose the information if such party shall first afford the other party the opportunity to obtain an appropriate protective order or other satisfactory assurance of confidential treatment for the information required to be disclosed.
- Force Majeure. If ERI is prevented from complying, either totally or in part, with any of the terms or provisions of this Agreement by reason of fire, flood, storm, strike, lockout or other labor trouble, any law, order, proclamation, regulation, ordinance, demand or requirement of any governmental authority, riot, war, rebellion or other causes beyond the reasonable control of ERI, or other acts of God, then upon written notice to Customer, the affected provisions and/or other requirements of this Agreement shall be suspended during the period of such disability and ERI shall have no liability to Customer in connection therewith. ERI shall use reasonable efforts to remove the disability within thirty (30) calendar days of giving notice.
ERI Insurance Policies. ERI has the following policies in place:
Travelers Insurance Company- AM Best Rated A+ 15
- Commercial General Liability- $1,000,000 per occurrence/ $2,000,000 aggregate
- Commercial Auto Insurance- $1,000,000 Combined Single Limit
- Workers Compensation- All States, Statutory Limits
- Commercial Excess Liability- Limits available upon request
Endurance American Specialty Insurance Company- AM Best Rated A15
- Environmental Impairment Liability Policy (Pollution) Limits available upon request
National Union Fire Insurance Company of Pittsburgh (AIG)- AM Best Rated A15
Specialty Risk Protector Policy Including- Limits available upon request
- Specialty Professional Liability
- Media Content
- Security and Privacy Liability
- Regulatory Action
- Cyber Extortion
- Specialty Risk Protector Policy Including- Limits available upon request
- Travelers Insurance Company- AM Best Rated A+ 15
- Nondisparagement. During and after the Term of this Agreement, neither party will make, or cause to be made, any statement or disclosure, whether direct or indirect, express or implied, oral or written, to any person, including without limitation any member of the press or public, if such statement is intended or will have the effect of disparaging, ridiculing or defaming the other party, any of its affiliated entities, past or present officers, directors, or employees, or products and services offered or owned by such other party.
- Notices. Unless otherwise indicated herein, all notices, requests, demands or other communications to Customer and ERI shall be deemed to have been given or made immediately if by either facsimile or email, or when deposited in the mail, via registered or certified mail, return receipt requested, postage prepaid, or when delivered to an overnight delivery service.
- Miscellaneous. (a) Assignment; Successors and Assigns. This Agreement is not assignable by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld. A transfer by a party of substantially all of its assets to another entity (whether in one transaction or a series of transactions), or the merger or consolidation of a party with another entity, or the transfer of a controlling ownership interest of such party, will be deemed to constitute an assignment of this Agreement. (b) Waiver. No delay or omission in the exercise of any right or remedy hereunder shall impair such right or remedy or be construed to be a waiver of or acquiescence in any default. (c) Counterparts. This Agreement may be executed in counterparts; each of which will be deemed to be an original, but all of which together will be deemed to be one and the same instrument. This Agreement may also be executed by exchange of facsimile transmissions between the parties. (d) Entire Agreement; Modifications. This Agreement and all attachments hereto contain the entire agreement and understanding between the parties and supersede any prior agreements, understandings, or discussions between the parties. It may not hereafter be added to, altered or modified except by written instrument signed by both parties.