Avail Recovery Solutions
Terms of Service
Thank you for your interest in Avail Recovery Solutions, LLC (“Avail”).
Unless you as Customer have another valid agreement with Avail applicable to Avail’s Services (defined below), the following terms and conditions, together with any associated statements of work (“SOW”), which are incorporated herein by reference, (collectively, the “Agreement”), create a contract between you and Avail and govern your use of the Services. If there is a conflict between these terms and conditions and any SOW, these terms and conditions will prevail.
By utilizing Avail’s Services, you agree to the terms and conditions below. If you are accepting these terms and conditions on behalf of another person or legal entity, you represent and warrant that you have full authority to bind that person or legal entity to the terms and conditions. If you do not agree to these terms and conditions, then do not use the Services.
- Our Services. The Agreement governs your use of Avail’s information-technology services, which may include clearing, purging and destroying electronic-storage media; refurbishing, reselling and disposing of such media and other hardware components; and delivering certain information-technology services, as may be further described in applicable schedules of work (collectively, the “Services”).
- Fees and Payment Terms.
- In exchange for the Services, you agree to pay Avail such compensation as set forth in the applicable SOWs (“Fees”). You must pay all undisputed invoices within thirty (30) days of receipt.
- You must reimburse Avail for all pre-approved expenses incurred in connection with performing the Services, e.g., materials, hardware, training.
- If you fail to pay Avail within five business days from the date payment is due, then Avail may, without limiting and in addition to its other available remedies, assess a late- payment charge at the rate of two percent per month or the maximum rate allowed by applicable law, whichever is less. If you fail to make a payment, you will be responsible for all reasonable expenses (including attorneys’ fees) incurred by Avail in collecting such amounts.
- All Fees are exclusive of any federal, state, or local sales or use taxes, or any other taxes or fees assessed on, or in connection with any of the Services (“Taxes”). You are solely responsible for any applicable Taxes arising out of, or in connection with, the Services, excepting only taxes based on Avail’s income or revenue.
- Ownership of Materials Related to Services.
- Conditioned on your full payment of all due Fees, and subject to Section 3(b) herein, materials prepared and delivered by Avail to you under the Agreement (the “Deliverables”) will be considered works made for hire. All rights, title, and interests of such Deliverables are assigned to you as your sole and exclusive property.
- Notwithstanding anything to the contrary herein, as between Avail and you, Avail solely and exclusively owns all right, title and interest in and to all of the following: (i) methods and processes used, developed or acquired by or for Avail in or for the provision of Services (“Company Methods”); (ii) data, modules, components, designs, utilities, subsets, objects, program listings, algorithms, tools, models, diagrams, analysis frameworks, leading practices, and specifications embedded or included within the Deliverables (“Direct Technical Elements”); (iii) data, information or materials developed, used or acquired by or for Avail other than in response to your requirements (“Background Technology”); and (iv) all documentation, records, data, materials, concepts, information, inventions, improvements, enhancements, extensions, derivative works, designs, programs, formulas, know-how, and writings relating to the foregoing (i) through (iii). Avail reserves all rights to all of the foregoing, and nothing in the Agreement or either party’s performance thereof grants to you any right, title or interest in or to the foregoing, except that, to the extent any Background Technology or Direct Technical Elements are embedded or included within Deliverables, Avail grants you a nonexclusive, perpetual, royalty-free, license to use, copy, modify, distribute and display such Background Technology or Direct Technical Elements, as applicable, to the extent necessary to use the Deliverables in accordance with the terms of the Agreement.
- Avail may use any reports, comments, ratings, reviews and suggestions in any form regarding the Services that you provide to Avail (collectively, the “Feedback”). You grant Avail a worldwide, non-exclusive, irrevocable, perpetual, royalty-free right and license to incorporate and use the Feedback.
- Independent Contractor. You and Avail are independent contractors, and nothing in the Agreement will be construed to create a joint venture, partnership, agency, or other employment relationship between us.
- Confidential Information.
- Either you or Avail (the “Disclosing Party”) may from time to time disclose Confidential Information to the other (the “Recipient”). “Confidential Information” means all nonpublic information concerning the business, technology, and strategies of the Disclosing Party which is conveyed to the Recipient orally or in tangible form and is either marked as “confidential” or which, due to the circumstances surrounding its disclosure or its nature or sensitivity, should have been understood by the Recipient as intended to be treated as “confidential” and subject to the undertakings of the Agreement. Recipient will keep in confidence and trust and will not disclose or disseminate, or permit any employee, agent or other party working under Recipient’s direction to disclose or disseminate the existence, source, content or substance of any Confidential Information to any other party. Recipient may use Confidential Information of the Disclosing Party only as necessary for the performance of the Agreement. The parties will take all reasonable measures to protect the Confidential Information of the other party, and in any event no less than the measures it takes to protect its own Confidential Information. The foregoing duty will survive any expiration or earlier termination of the Agreement.
- The commitments in the Agreement do not impose any obligations on Recipient with respect to any portion of the received information which: (i) is now generally known or available or which hereafter, through no act or failure to act on the part of Recipient, becomes generally known or available; (ii) is rightfully known to Recipient at the time of receiving such information; (iii) is furnished to Recipient by a third party without restriction on disclosure and without a breach by such third party of any confidentiality undertaking with respect thereto; (iv) is independently developed by Recipient or its representatives without the use of Confidential Information; or (v) is required to be disclosed by operation of law or by an instrumentality of the government, including but not limited to any court, tribunal or administrative agency; provided that, in the case of any disclosure required by court order, the Recipient must give the Disclosing Party as much advance notice as is reasonably practicable and legally permissible under the circumstances so as to permit the Disclosing Party to take commercially reasonable actions at its own expense to prevent disclosure. You and Avail acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure or use of Confidential Information, and either party may seek, without waiving any other rights or remedies, such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. At Disclosing Party’s option, Recipient must promptly either destroy all Confidential Information in tangible form in its possession, or return all such copies to Disclosing Party, and in either event provide a written certification confirming the same, promptly upon Disclosing Party’s written request.
- Security. Avail will take commercially reasonable administrative, physical and electronic measures designed to safeguard and protect your materials and data from unauthorized access, use, modification, or disclosure. If you so request, Avail will sanitize your data in accordance with Avail’s then-existing information-security policies.
- Nonsolicitation of Employees. During the Term, and for a period of one year thereafter, neither party will solicit the employment of, contract for the services of, nor hire, any person employed by the other party during the Term; provided, that hired employees of the other party made through general solicitations will not constitute a breach of this section.
- Customer Responsibilities. In addition to any Customer obligations and responsibilities described in an SOW, you agree that you will provide to Avail’s support team such Customer information and system access as reasonably required for Avail to perform the Services.
- Transfer of Title. For Services where Avail will take possession of physical assets belonging to Customer as identified in an SOW (the “Assets”), with the intent for Avail to resell or dispose of such assets, title to the Assets will transfer to Avail upon full payment of the Assets by Avail to Customer in accordance with the applicable SOW.
- Representations and Warranties.
- Each party represents and warrants that: (a) it has full power and authority to enter into and perform the Agreement; (b) its execution and performance of the Agreement do not and will not violate any agreement to which such party is a party or by which it is otherwise bound; and (c) it will perform its obligations or exercise its rights hereunder in compliance with all applicable federal, state, and local laws and regulations.
- Avail holds certifications for its Occupational Health and Safety Management System, its Responsible Recycling System, and its Environmental Management System. Avail will provide the Services in a professional and workmanlike manner, in accordance with applicable professional standards.
- EXCEPT AS OTHERWISE SET FORTH HEREIN, AVAIL’S SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND CUSTOMER’S USE OF COMPANY’S SERVICES IS AT ITS OWN RISK. EXCEPT AS OTHERWISE SET FORTH HEREIN, AVAIL DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES.
- Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES WILL THE PARTIES BE LIABILE TO EACH OTHER OR THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, AGENTS, EMPLOYEES, SHAREHOLDERS, OR AFFILIATES, FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION COSTS, REMOVAL AND/OR REINSTALLATION COSTS, REPROCUREMENT COSTS, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION OR LOSS OF CUSTOMERS, HOWEVER CAUSED, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF THE AFFECTED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. AVAIL WILL NOT BE LIABLE TO CUSTOMER FOR ANY DELAY, LOSSES, OR DAMAGES ARISING FROM ACTS OR OMISSIONS OF THIRD PARTIES OR CUSTOMER. TO THE EXTENT PERMISSIBLE BY LAW, AVAIL’S AGGREGATE LIABILITY TO CUSTOMER ARISING OUT OF THIS AGREEMENT WILL BE LIMITED TO THE COMPENSATION RECEIVED BY AVAIL UNDER THE AGREEMENT IN THE TWELVE MONTHS PRECEDING THE ALLEGED LOSS OR DAMAGE. MOREOVER, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ALL CLAIMS OF DEFECTIVE SERVICES WILL BE, AT AVAIL’S SOLE AND ABSOLUTE DISCRETION, FOR AVAIL TO EITHER (A) RE-PERFORM SUCH SERVICES, OR (B) REFUND THE DUE AMOUNT OF FEES PAID BY CUSTOMER TO AVAIL.
- Each party will indemnify, defend and hold harmless the other party, its employees, principals, partners, members, shareholders, and agents, from and against any and all third-party claims, liability, demands, losses, damages or expense (including without limitation reasonable attorney’s fees and costs) (collectively, “Losses”) relating to the indemnifying party’s (i) breach of the Agreement, (ii) negligence or willful misconduct, or (iii) violation of applicable federal, state, or local laws or regulations.
- Customer will indemnify and defend Avail from any third-party claim alleging that Avail’s compliance with Customer’s specifications or instructions infringe any intellectual property rights in the country where the Services were provided.
- The indemnifying party may not enter into any settlement that would admit wrongdoing by or impose any liability on the part of the indemnified party, or impose any obligation on the indemnified party, without the indemnified party’s prior written consent. In all cases, the indemnifying party’s obligation to indemnify, defend, and hold harmless will not apply to the extent the Losses are due to the breach of the Agreement by, or the negligence or willful misconduct of, the indemnified party.
- Term and Termination.
- The term of the Agreement (“Term”) will commence on the Effective Date and continue unless and until terminated as provided below. If an SOW provides for a different term, such SOW term will control with respect to that SOW only.
- Termination for Convenience. Either party may terminate the Agreement or any applicable SOW for any reason by providing sixty (60) days’ written notice to the other party. If an SOW provides for a different termination notice period, the SOW termination clause will control for that SOW only.
- Termination for Breach. Either party may terminate the Agreement upon fifteen (15) days’ written notice if the other party materially breaches any provision of the Agreement, and such breach is not cured within such fifteen-day period.
- Termination for Bankruptcy. Either party may terminate the Agreement effective upon delivery of written notice to the other party if (i) the other party becomes insolvent, enters into receivership, is the subject of a voluntary or involuntary bankruptcy proceeding, or makes an assignment for the benefit of creditors; or (ii) a substantial part of the other party’s property becomes subject to any levy, seizure, assignment or sale for or by any creditor or government agency.
- Payments Due. Termination of the Agreement will not release either party from its obligation to make payment of all amounts due and payable through the effective date of termination. Upon termination of the Agreement for any reason, Customer must immediately pay all fees due and owing to Avail through the effective date of termination.
- Effects of Termination. The Agreement and the rights and obligations granted therein are effective until terminated; provided, however, that (a) provisions which by their terms contemplate survival will survive any termination of the Agreement, and (b) termination will not relieve either party from any liability arising from any breach of the Agreement.
During the Term, each party will maintain insurance in such amounts and coverages as are customary for their respective industries, written by insurers rated at least “A-” or higher by the latest edition of A.M. Best or equivalent, and authorized to do business in the applicable jurisdiction, to include at a minimum the following: (a) commercial general liability in amounts not less than $2 million per occurrence and $3 million annual aggregate, (b) automobile liability of $1 million combined single limit, and (c) workers’ compensation insurance in such amounts as required by applicable law. Additionally, Avail will maintain during the Term errors & omissions & cyber insurance in an amount not less than $5 million per incident and $5 million aggregate.
- If the scope of Services is expanded, revised, or modified, you and Avail will execute an amended or new SOW. You and Avail will work together to set an estimated timeline for the Services. Delays in approvals or payment, or changes to plans or materials may alter this timeline. Avail is not be responsible or liable for delays or timeline changes arising out of or due to your actions or inactions.
- Non-Exclusive Relationship. This is a non-exclusive arrangement. Avail may provide the same or similar services to other customers, and Customer may utilize other information-technology service providers.
- Force Majeure. Neither party will be liable to the other for any delay or failure to perform as required by the Agreement to the extent that such delay or failure to perform is caused by circumstances reasonably beyond either party’s control, including without limitation adverse weather, flood, fire or other casualty; epidemic or pandemic; or any law, order or requirement of any governmental agency or authority. Performance time will be considered extended for a period equivalent to the time lost because of any such circumstance.
- All notices provided for by the Agreement must be in writing and are deemed to have been given when delivered by overnight courier, by electronic transmission with confirmed receipt of delivery, or three days after mailing by certified or registered mail, postage prepaid, return receipt requested, addressed to the respective party as stated above or to such changed address as the party may have provided by notice.
- If any term or provision of the Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of the Agreement will not be affected.
- Entire Agreement; Amendment; Waiver. The Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersede any prior or contemporaneous agreement or understanding, whether written or oral, if any, between the Parties. The Agreement is the result of both parties’ review, discussion and negotiation; therefore, any uncertainties or ambiguities will not be interpreted against a party by virtue of its actual role in preparing the Agreement. The Agreement may be modified only by a further written agreement signed by both Parties. No waiver of breach of any provision of the Agreement by either party will constitute a waiver of any subsequent breach of the same or any other provision, and no waiver will be effective unless made in writing and signed by an officer of the waiving party.
- Governing Law; Arbitration. The Agreement will be governed by and construed in accordance with the laws of the State of Arizona. The parties agree to first attempt to resolve disputes informally. If the Parties are unable to resolve a dispute after sixty (60) days, the parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief which may be brought in federal or state courts situated in Maricopa County, Arizona) arising out of or in connection with or relating to the Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration under the Optional Expedited Arbitration Procedures then in effect for JAMS. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Maricopa County, Arizona, unless the Parties agree otherwise. Each party will be responsible for paying its applicable JAMS filing, administrative and arbitrator fees in accordance with JAMS rules. The parties agree to maintain the confidential nature of the arbitration proceeding (including hearings) and the award, except as necessary in connection with a judgment entry of an award, a judicial challenge to an award of its enforcement, or unless otherwise required by law or judicial decision. Nothing in this Section prevents a party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its confidential information, intellectual property rights or other proprietary rights.
- Expenses and Attorneys’ Fees: If an action is brought to enforce any provision of this Agreement or to declare a breach hereof, the prevailing party will be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred thereby.
- Assignment; Binding Effect. Neither party may assign the Agreement without the prior written consent of the other party, excepting only assignments to any successor in interest as a result of a merger or a stock or asset purchase. Any attempted assignment in violation of this provision will be deemed void. The Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns. There are no intended third-party beneficiaries of any right or obligation assumed by the parties.