Information Management & Securities, LLC dba IMS Shredding
STANDARD TERMS AND CONDITIONS
Information Management & Securities, LLC (dba IMS Shredding) (Company) (facility located at 4720 East Liberty Street, Mexico, Missouri 65265) hereby agrees to provide the services described in these standard terms and conditions and in the schedules and attachments hereto (all together, this “Agreement”) as Customer Company (Client) requests, subject to all terms and conditions herein, including those incorporated as schedules and attachments hereto, from and after this date hereof ____________________ (Effective Date). Unless modified by specific provisions set forth in a Service Schedule signed by both parties, the following terms and conditions shall apply to this Agreement.
ARTICLE 1 — GENERAL TERMS AND CONDITIONS
1.1 GENERAL – The provisions of this Article 1—General Terms and Conditions—shall apply to all services provided by Company to the Client. The provisions of Article 2 shall apply to the specific service described therein. From and after the Effective Date, the Company may provide one or more service schedules describing certain services to be provided by Company and the fees for such services (each a “Service Schedule”) these Service Schedules may be provided to Client prior to the Effective Date in the form of a proposal of service. Company shall provide the services identified on the Service Schedule. Any additional services not listed on a Service Schedule shall unless otherwise agreed in writing, be deemed to be held under the terms of this Agreement and invoiced at Company’s current rates. Transportation surcharges may apply when the average price of diesel fuel, as measured by www.missourigasprices.com for Mexico, MO, is $3.25 or more per gallon. Unless otherwise agreed in writing by Company and Client, Company, at its sole discretion, shall be entitled to utilize a third party to provide some or all of the services hereunder. For purposes of the compliance audit, but not more than annually, the Client may request in writing a list of third parties utilized by the Company to provide services.
1.2 RATES – Client agrees to pay Company for its services according to the fees set forth in the applicable signed proposal between Company and Client. Rates may be changed by Company upon thirty (30) days’ notice to the Client. All invoices issued under this Agreement are due within thirty (30) calendar days following the invoice date. If Client fails to pay any invoice in full by the due date, Client shall be liable for interest which will accrue at the rate of nine percent (9%) per annum (or such lesser rate as may be the highest legally permissible rate under the laws of the jurisdiction governing this Agreement), and Client shall also be liable for all expenses incurred in collecting charges which are in arrears, including reasonable attorneys’ fees and costs. If Company should neglect to promptly charge for any service, Client shall remain responsible for such charge(s) and pay them promptly upon notification. Reference Exhibit A, Uniform Commercial Code 400.7-202.
1.3 TERM – Unless sooner terminated as provided herein, the term of this Agreement shall commence on the Effective Date and continue until an Authorized Representative gives Company reasonable (not less than 60 days) advance written notice of a termination date. In the event that Company continues to store any of Client’s documents and other paper products owned by Client that are collected and temporarily stored which are eligible for paper shredding (“Shred Materials”) after termination, the terms of this Agreement shall continue to apply until all of Client’s Shred Materials have been removed from Company’s facilities. Upon termination, any services performed including, but not limited to, retrieval, delivery, or destruction of the Shred Materials shall be paid by Client as set forth in the Service Schedule and shall be paid by certified check prior to or concurrently with the performance of such services.
1.4.1 The occurrence of any one or more of the following events by Client shall constitute a default (“Event of Default”):
1.4.2 Upon the occurrence of an Event of Default, Company, at its sole option, may exercise any or all of the following remedies:
1.4.3 In the event Company takes any action pursuant to this Section, it shall have no liability to Client or anyone claiming through Client. The exercise by Company of any one or more of the remedies provided in this Agreement shall not prevent the subsequent exercise by Company of any one or more of the other remedies herein provided. All remedies provided for in this Agreement are cumulative and may, at the election of Company, be exercised alternatively, successively or in any other manner and are in addition to any of the rights provided by law. Company shall be entitled to include all reasonable attorneys’ fees and costs incurred in connection with the enforcement of this Agreement.
1.5 INDEMNIFICATION – Unless caused solely by the gross negligence or willful misconduct of Company, Client agrees to fully indemnify and hold harmless Company, its affiliated companies, and its and their officers, employees, and agents for any liability, cost, or expense, including reasonable attorneys’ fees and costs, that Company may suffer or incur as a result of claims, demands, costs or judgments arising out of its relations with Client or third parties pursuant to this Agreement.
Reference attached Exhibit A, Uniform Commercial Code 400.7-202.
1.7 CONFIDENTIALITY – Company shall exercise the same standard of care in safeguarding Shred Materials that a reasonably careful person would exercise under like circumstances but, unless otherwise agreed, is not liable for damages that could not have been avoided by the exercise of such care. Company may comply with any subpoena or similar order related to the Shred Materials, provided that Company notifies Client promptly upon receipt thereof unless such notice is prohibited by law. Client shall pay Company’s reasonable charges, including attorneys’ fees and costs, for such compliance.
1.8 LIMITATIONS OF LIABILITY
Value of Deposits. Client declares and represents to Company, for purposes of this Agreement, that with respect to hard-copy (paper) records, microfilm, and microfiche sent to Company for shredding pursuant to this Agreement, based on the standard industry practice and the Uniform Commercial Code pertaining to Warehouse’s Liability, such items have no monetary value. Reference attached Exhibit A, Uniform Commercial Code 400.7-202.
IMS Shredding is not responsible for the contents of the Shred Material, other than the console, cart, box, or carton itself.
Limitation of Liability. Subject to the limitations set forth in this section 1.8, Company’s liability, if any, for loss or destruction of, or damage to, Shred Materials (as defined herein) is limited to the value of each deposit as described above, or as otherwise set forth herein. Other limitations on Company’s liability to Client are set forth in the following provisions of this Agreement.
Company shall not be liable for any loss or damage to Material TO BE SHREDDED or in connection with the performance of any services hereunder, however, caused, unless such loss, damage, or claim resulted from the failure by Company to exercise such care in regard thereto as a reasonably careful person would exercise in like circumstances. Company is not responsible for the repair, replacement, or restoration of lost or damaged property, subject to the conditions and limitations imposed by this Agreement. Company’s liability, if any, with respect to the specific Company services provided under a Service Schedule OR RELATED TO A SPECIFIC SERVICE PROVIDED BY COMPANY TO CLIENT is limited as set forth in this Section 1.8 and the respective Article below pertaining to such service. In the event of a conflict between the provisions of Article 2 and this Section 1.8, the terms of THIS SECTION 1.8 shall control.
Notwithstanding anything to the contrary set forth in this Agreement, in no event shall Company’s liability to Client for any and all claims asserted against Company, whether arising out of contract, tort, statute, or otherwise, exceed THE LESSER OF two thousand five hundred dollars ($2,500.00) or ONE DOLLAR [$1] U.S. PER CARTON. Company shall not be liable for any loss of profit or special, indirect, incidental, punitive, or consequential damages of any kind, including without limitation LOST PROFITS, LOSS OF USE, DATA/INFORMATION BREACH NOTIFICATION REQUIREMENTS TO THIRD PARTIES UNDER STATE AND/OR FEDERAL LAW, LOST DATA/INFORMATION, AND RECONSTRUCTION, REGARDLESS OF THE FORM OF THE CLAIM AND REGARDLESS OF WHETHER ANY SUCH DAMAGES WERE FORESEEABLE. CLIENT SHALL CAUSE ITS INSURERS OF SHRED MATERIAL TO WAIVE ANY RIGHT OF SUBROGATION AGAINST COMPANY.
Shred Materials are not insured by Company against loss or injury, however, caused. Claims by Client for loss or damage must be presented in writing to Company within a reasonable time and in no event longer than sixty (60) days after Client is notified by Company or otherwise receives notice that such loss or damage has occurred, whichever time is shorter. No action or suit may be maintained by Client or others against Company, unless a timely written claim has been submitted by Client to Company, and unless such action or suit is commenced either within nine (9) months after the date of delivery by Company of the applicable Shred Materials or within nine (9) months after Client is notified or otherwise receives notice of the events that give rise to Client’s claim, whichever is shorter.
1.10 ARBITRATION SOLE REMEDY – As to any dispute or controversy which under the terms hereof is hereby made subject to arbitration, no suit at law or in equity based on such dispute or controversy shall be instituted by either party hereto, other than to enforce the award of the arbitrators.
Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration in accordance with the Rules of the American Arbitration Association under its Commercial Arbitration Rules, and judgment upon the award rendered by the arbitrator(s) may be entered in any Court having jurisdiction thereof.
1.11 FORCE MAJEURE – Neither Party will be held responsible for delays in the performance of its obligations hereunder (other than the obligation to pay money) when caused by strikes, lockouts, labor disputes, acts of God, epidemics or pandemics, inability to obtain labor or materials or reasonable substitutes therefor, governmental restrictions, governmental regulations, governmental controls, delay in issuance of permits, enemy or hostile governmental action, civil commotion, fire or other casualty, and other circumstances or causes beyond the reasonable control of the parties. In the case of epidemics or pandemics, Company will comply with all State and Federal mandates in regard to stay-at-home orders or sanitization of materials, as well as the personnel handling Customer material, to reduce or mitigate any potential infectious threats. This may include suspension of services, and the use of disinfectant spray on boxes, cartons, consoles, or carts prior to or after transport to Company vehicles or places of business.
1.12 MISCELLANEOUS – This instrument (together with any Service Schedules, proposals of service, and other schedules attached and documents incorporated herein) constitutes the entire agreement between the parties and supersedes any and all prior agreements, arrangements, understandings, and representations, whether oral or written, between the parties. Each party agrees that its rights and obligations under this Agreement may not be assigned or otherwise transferred to a Third Party without the prior written consent of the other Party hereto. Notwithstanding the foregoing, either Party may transfer or assign its rights and obligations under this Agreement to (a) an Affiliate, subject to the prior notice to the other Party and the assigning Party remaining responsible for such Affiliate’s performance, or (b) a successor to all or substantially all of its business or assets relating to this Agreement whether by sale, merger, operation of law or otherwise, without the prior written consent of the other Party; provided that such assignee or transferee has agreed to be bound by the terms and conditions of this Agreement. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors, and assigns. Except as otherwise provided in this Agreement, no modification of this Agreement shall be binding on a party unless in writing, attached hereto, and signed by the party against which it is sought to be enforced. In the event of any conflict between the terms of this Agreement and any subsequent document signed by the parties, the parties intend for the terms of this Agreement to control unless such subsequent document specifically makes reference to amending the terms of this Agreement. No waiver of any right or remedy shall be effective unless in writing and nevertheless, shall not operate as a waiver of any other right or remedy on a future occasion. Every provision of this Agreement is intended to be severable. If any term or provision is illegal, invalid, or unenforceable, there shall be added automatically as part of this Agreement, a provision as similar in terms as necessary to render such provision legal, valid and enforceable. This Agreement shall be constructed in accordance with the laws of Missouri without giving effect to its conflict of laws or principles. In addition, Company shall have and may exercise, all rights granted to a warehouseman by the Uniform Commercial Code as adopted in Missouri. All notices under this Agreement shall be in writing. Unless delivered personally, all notices shall be addressed to the appropriate addresses noted herein, or as otherwise noted in writing in accordance with this provision. Notices shall be effective upon receipt unless mailed by certified or registered mail, in which event notices shall be deemed to have been received as of the third business day after the date of posting. All words and phrases in this Agreement shall be construed to include the singular or plural number, and the masculine, feminine or neuter gender, as the context requires. Nothing in this Agreement shall be deemed or construed to constitute or create a partnership, association, joint venture, agency, or fiduciary relationship between the parties hereto.
ARTICLE 2 — SHREDDING SERVICES
2.1 SCOPE – The provisions of this Article 2 apply to any destruction services provided by Company to Client.
2.2 GENERAL – Company shall service the shred containers, if applicable, supplied to Client by Company (“Shred Containers”) as described in this Article 2. Company shall shred all Client Materials collected in Shred Containers. Company will stage Shred Containers at Client’s premises as requested by Client. The initial quantity of Shred Containers is noted on the applicable Service Schedule. Prior to any service call, Client may request removal, change of location, or staging of additional Shred Containers. Company reserves the right to recall any Shred Container that has not been serviced in the prior ninety (90) calendar days or if the client fails to pay in accordance with Article 1.2, and Company will note the recall of such Shred Container on the accompanying service order. Client will be notified prior to the removal of any Shred Container. Shred Containers shall remain the property of Company. In the event of damage, destruction, or loss of a Shred Container, Client shall pay Company for the final collection and replacement of the Shred Container (as noted in Service Schedule). Company shall also offer purge service for Shred Containers, boxes, or cartons as requested by Client or in accordance with the Service Schedule.
2.2.A IMPROPER USE – Shred Containers shall be used only for the collection and temporary storage of documents and other paper products owned by Client that are eligible for paper shredding (“Shred Materials”). Contamination or commingling of Shred Materials with non-paper products (such as plastic, spiral binders, large clips, CDs, electronics waste, or common trash) may render paper ineligible for shredding. Company shall have the right to refuse or return to Client any Shred Container containing materials that are not Shred Materials; Client shall be responsible for any charges related to returning Shred Materials to Client or for the cost of alternate disposal of such materials by Company. A contaminated console fee will apply. The contaminated console fee is shown in Service Schedule.
2.2.B. REGULATORY REQUIREMENTS – Client acknowledges that Client is aware of its obligation to properly dispose of “consumer information” as defined in the Fair and Accurate Credit Transactions Act (“FACTA”) and any other information the disposal of which is regulated by any laws or regulations governing the disposal of information, including, without limitation, those commonly known as Gramm Leach Bliley Act (“GLBA”), Health Insurance Portability and Accountability Act (“HIPAA”), and related rules promulgated by the US Department of Health and Human Services and the Federal Trade Commission or similar state and federal laws designed to prevent identity theft, (“Privacy Laws”). Unless otherwise specified by Client in writing, all Materials picked up or received by Company shall be assumed to require secure destruction. Client is responsible for reviewing the Privacy Laws to determine if shredding is adequate under the Privacy Laws to which the Shred Materials (or other materials in a Shred Container and/or box and/or carton) may be subject. Company makes no representation, certification, or agreement as to the compliance of shredding with Privacy Laws.
2.2.C. DESIGNATION OF MATERIALS FOR DESTRUCTION – Client agrees that, upon deposit of Shred Materials (or other materials) in a Shred Container, box, or carton, it has irrevocably authorized Company to dispose of the Shred Materials (or other materials) by shredding. As part of the processing of Shred Materials, Company may commingle Shred Materials of Client with other materials to be shredded.
Additionally, as part of a service call, Company will collect other containers constructed of, and containing, paper products that are eligible for paper shredding (“Boxes”), if requested by Client prior to the service call as noted in Section 2.2. Any items provided by Client to Company in Boxes shall be subject to the terms of this Agreement. The destruction of electronic media, including drives, computers, monitors, etc. are not included in this paper shredding contract. Should the Client have a need for the destruction of materials, a separate quote would be generated, along with any additional terms and conditions.
2.3 LIMITATION OF LIABILITY – Notwithstanding anything contained in the Agreement to the contrary, Company shall not have, and Client hereby releases Company from, any responsibility for the handling, storage, or processing of Shred Materials unless a claimed loss (including, without limitation, breach of Privacy Laws) results solely from the gross negligence or willful misconduct of Company.
Please see attached Exhibits A and B, Uniform Commercial Code regulations, which were used as references to compile this document.
Exhibit A – Universal Commercial Code 400.7-202
Form of warehouse receipt–essential terms–optional terms.
400.7-202. (1) A warehouse receipt need not be in any particular form.
(2) Unless a warehouse receipt embodies within its written or printed terms each of the following, the warehouseman is liable for damages caused by the omission to a person injured thereby:
(a) the location of the warehouse where the goods are stored;
(b) the date of issue of the receipt;
(c) the consecutive number of the receipt;
(d) a statement whether the goods received will be delivered to the bearer, to a specified person, or to a specified person or his order;
(e) the rate of storage and handling charges, except that where goods are stored under a field warehousing arrangement a statement of that fact is sufficient on a nonnegotiable receipt;
(f) a description of the goods or of the packages containing them;
(g) the signature of the warehouseman, which may be made by his authorized agent;
(h) if the receipt is issued for goods of which the warehouseman is owner, either solely or jointly or in common with others, the fact of such ownership; and
(i) a statement of the amount of advances made and of liabilities incurred for which the warehouseman claims a lien or security interest (section 400.7-209). If the precise amount of such advances made or of such liabilities incurred is, at the time of the issue of the receipt, unknown to the warehouseman or to his agent who issues it, a statement of the fact that advances have been made or liabilities incurred, and the purpose thereof is sufficient.
(3) A warehouseman may insert in his receipt any other terms which are not contrary to the provisions of this chapter and do not impair his obligation of delivery (section 400.7-403) or his duty of care (section 400.7-204). Any contrary provisions shall be ineffective.
Exhibit B – Universal Commercial Code 400.7-204
Duty of care–contractual limitation of warehouseman’s liability.
400.7-204. (1) A warehouseman is liable for damages for loss of or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful man would exercise under like circumstances but unless otherwise agreed he is not liable for damages which could not have been avoided by the exercise of such care.
(2) Damages may be limited by a term in the warehouse receipt or storage agreement limiting the amount of liability in case of loss or damage, and setting forth a specific liability per article or item, or value per unit of weight, beyond which the warehouseman shall not be liable; provided, however, that such liability may on written request of the bailor at the time of signing such storage agreement or within a reasonable time after receipt of the warehouse receipt be increased on part or all of the goods thereunder, in which event increased rates may be charged based on such increased valuation but that no such increase shall be permitted contrary to a lawful limitation of liability contained in the warehouseman’s tariff if any. No such limitation is effective with respect to the warehouseman’s liability for conversion to his own use.
(3) Reasonable provisions as to the time and manner of presenting claims and instituting actions based on the bailment may be included in the warehouse receipt or tariff.
(4) This section does not impair or repeal any existing statute of this state which imposes a higher responsibility upon the warehouseman or invalidates contractual limitations which would be permissible under this article.