These Master Terms and Conditions (“Terms”) are published at: https://drmamericainc.com/terms. DRM may modify these Terms from time to time in its sole and absolute discretion. The version of these Terms in effect on the effective date of a Quote for Services to be performed by DRM or DRM’s Purchase Order for Assets will control the Parties’ rights and obligations.
For purposes of these Terms, the following defined terms have these meanings:
“Asset” means any item delivered to or picked up by DRM from Client, consigned, sold, or given to DRM, under the terms of these Terms, including, without limitation: computers, monitors, laptops, printers, servers, hard drives, storage devices, memory, semiconductors, circuit boards, power and data center equipment, robotic equipment, medical and lab equipment, machines, scrap, e-waste, or the like.
“Affiliate” means a corporation or other business entity anywhere in the world in which a Party owns or controls, directly or indirectly, an equitable interest representing the right to elect the majority of the directors or persons performing similar functions or, if the law of the applicable jurisdiction does not permit such majority interest, then the maximum allowable under such law or which is under common ownership or control with a Party.
“Business Day” means Monday through Friday, excluding standard holidays in the country where the Services are to be performed.
“Client” means a party for which DRM will perform Services and/or from which it will purchase Assets.
“Client Data” means non-public data stored on any Asset.
“Facility” means the physical facility designated by DRM at which DRM will perform Services or from which Assets will be delivered.
“Non-Acceptable Materials” means universal waste materials as set forth by the EPA at: https://www.epa.gov/hw/universal-waste and such other items DRM may designate from time to time in its sole and absolute discretion.
“Relationship Manager” means the employee or agent designated by each Party that represents or acts on behalf of such Party with regard to the matters identified within these Terms.
“Services” means the actions and services DRM will perform on behalf of Client as described in the Quote executed under or in conjunction with these Terms.
“Net Revenue” means the total price a buyer actually pays to DRM for an approved Order of the Assets, net of any discounts, rebates, allowances, returns, and fees, cost and charges such as: transport, handling, decommissioning, assembly/disassembly, build, e-waste recycling, services, refurbishment/restoration, storage, packaging, labor, insurance, value added tax, charges, duties, levies, assessments, permits, processing fees, data wiping, and the like.
“Party” means DRM, Client, and their respective Affiliates individually and “Parties” means such parties collectively.
“Purchase Order” means a written order issued by DRM to Client for the purchase of Assets.
“Representatives” means DRM’s employees, Subcontractors, and agents.
“Quote” or “SOW” means a description of Services as mutually agreed between the Parties in writing setting forth, among other items, the location, service levels, fees, and the like.
“Subcontractor” means a third party to whom DRM has delegated or subcontracted any portion of its obligations arising under these Terms.
“Verified Asset” means an Asset upon which DRM has performed a serialized audit.
2.1 Scope
DRM will perform the Services described in the applicable Quote subject to and in accordance with these Terms and the service levels, specifications, and timeframes as set forth in such Quote.
DRM provides Services as an independent service provider. Unless expressly stated in a Purchase Order issued by DRM, DRM does not purchase Assets under a Quote, and title to all Assets remains with Client.
2.2 Location
Except as the Parties agree otherwise in a Quote, all Services will be performed, whether in part or in whole, by DRM and its Representatives on and from the Facility(ies).
2.3 Documents
All instruments, such as Quotes, acknowledgments, invoices, reports and the like used in conjunction with these Terms will be for the sole purpose of defining the Parties’ respective obligations, describing the Services and Assets, setting the quantities and describing the condition of Assets, setting prices for the Services and Assets, and to this extent only are incorporated as part of these Terms. Any terms or conditions not contained in these Terms or the applicable Quotes will be deemed null and void.
2.4 Incorporation of these Terms
Except as otherwise stated in these Terms, the Parties intend, and hereby agree, that any Quote executed by the Parties will be governed by these Terms as though the provisions of these Terms were set forth in their entirety within such Quote. Any Affiliate of DRM will be primarily liable to Client or its Affiliate under any such Quote entered into by such Affiliate(s).
2.5 Termination of Quotes
Either Party may terminate an individual Quote without cause by providing thirty (30) days prior written notice to the other Party. Either Party may terminate an individual Quote immediately upon written notice if the other Party: (i) materially breaches any provision of these Terms or an applicable Quote and fails to cure such breach within fifteen (15) days of receiving written notice thereof; (ii) becomes insolvent, makes a general assignment for the benefit of creditors, or becomes subject to any voluntary or involuntary bankruptcy or insolvency proceeding; or (iii) ceases to conduct business in the ordinary course.
Upon termination of any Quote: (i) DRM will complete any data destruction or asset disposition services already in progress under the applicable Quote; (ii) each Party will promptly return or destroy any Confidential Information belonging to the other Party that is specific to the terminated Quote; and (iii) Client will remain obligated to pay DRM all fees for any portion of the Services DRM has performed and costs incurred by DRM through the date of termination. Termination of any individual Quote will not affect any other active or future Quote governed by these Terms.
2.6. Invoicing for Services
DRM will invoice Client as mutually agreed and as set out in the applicable Quote at the address set forth therein. DRM’s invoices will separately identify each Service it provided to Client, and any reimbursable costs or expenses charged back to Client by DRM for the applicable Quote. Unless otherwise agreed and set out in any Quote, invoices will include: (i) the net revenue share or commissions payable to Client in respect of any Client Asset resold by DRM; and, (ii) the agreed purchase price payable to Client for any Assets purchased outright by DRM from Client for resale, remarketing, or disposition. If such invoice results in a repayment or net amount due to Client, DRM will first apply a credit against any outstanding amounts due DRM from Client before remitting any remaining balance. DRM reserves the right to adjust the purchase price of any Assets following physical inspection and verification of the Assets’ conditions upon receipt at the Facility, and will provide Client with written notice of any such adjustment prior to finalizing settlement. The unit count and/or weight of Assets to be processed or purchased will be defined as the unit count and/or weight stated on the inventory report supplied by DRM after processing and verification at the Facility, which will be deemed conclusive and binding on both Parties absent manifest error. Client must notify DRM in writing of any dispute within ten (10) days following receipt of such report, or the report will be deemed final and binding.
Invoices will include and list all applicable value-added, sales, use, import, export, and excise taxes and/or fees or tariffs and the like (“Taxes”) that are a statutory obligation of DRM, as separate line items. Client will reimburse DRM for all Taxes levied in conjunction with the Services provided under these Terms.
2.7 Payment Terms
Client must pay DRM only in US Dollars and within thirty (30) days of the date of invoice. Client must effect payment to DRM via bank transfer to the account designated by DRM. DRM reserves the right to assess a late fee on any amounts due but unpaid, at the rate of ten percent (10%) per annum or the maximum rate permitted by law, until payment, including late fees, is paid in full. Invoices outstanding for over sixty (60) days are subject to 1.5% interest compounded monthly or the maximum allowed under Applicable Law. In no event will this provision be construed as a grant of permission for delay of payment.
2.8 Suspension of Services
DRM reserves the right, upon written notice, to suspend Services if Client fails to timely pay any invoice until such amounts are paid in full. In addition to any other remedies available under this Agreement, if any invoice remains unpaid, DRM may automatically deduct and offset any such outstanding amounts, including accrued late fees and reimbursable expenses, from any revenue share, commissions, or other proceeds otherwise payable to Client under any active or future Quote, without further notice or consent from Client. DRM will provide Client with a written statement itemizing any such deductions applied against revenue share proceeds. DRM retains a possessory lien on all Assets in its custody as security for payment of all amounts due and owing under these Terms.
2.9 Remarketing/Revenue Sharing
For any Client Assets resold by DRM as a remarketing service under a Quote, DRM will pay Client within thirty (30) days of the end of the month in which the last items covered in the applicable Quote have been sold under the terms of the Quote via check or ACH payment. Prior to remitting any revenue share or commission proceeds to Client, DRM will first deduct and apply any outstanding amounts owed by Client to DRM, including but not limited to unpaid service fees, reimbursable expenses, or any other amounts due under this Agreement or any applicable Quote. DRM will provide Client with a written settlement statement itemizing the gross revenue share amount, any deductions applied, and the net amount remitted to Client. If any outstanding amounts owed by Client exceed the revenue share proceeds due in a given period, DRM will apply the full revenue share proceeds as a credit against the outstanding balance and Client will remain liable for any remaining deficiency. Client may also elect to apply any revenue share proceeds as an ongoing credit against future DRM service fees incurred under any active Quote.
The Parties acknowledge that Material may generate either: (i) positive value, resulting in payment from DRM to Client; or (ii) negative value, resulting in a disposal charge owed by Client to DRM. All pricing as defined herein means all Positive values indicate payment to Client and Negative values indicate payment to DRM for processing or disposal. Chargeable Services requested by Client will be billed at DRM’s standard rates. The Parties may mutually adjust pricing from time to time based on market conditions or material composition.
2.10 Warranties
DRM represents and warrants that it will perform the Services in a professional and timely manner. If Client deems and Services defective, Client will promptly notify DRM with reasonable proof and documentation and DRM will promptly reperform those Services at no additional fee to Client (“Reperformance Obligations”). DRM will not be responsible for any third party (e.g., OEM, sub-suppliers, and/or other inspection providers) charges, chargebacks, ship-arounds, or the like. DRM EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND COVENANTS, EITHER EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO ANY SERVICES, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. ALL INFORMATION IS PROVIDED TO CLIENT “AS IS WITH ALL FAULTS FOUND. The issuance of information, advice, approvals, instructions or cost projections by DRM, subcontractors, or their respective employees, or other representatives will be deemed expressions of personal opinion only and will not affect the Parties’ respective rights and obligations hereunder unless the same is in writing and signed by an authorized signatory of DRM with the explicit statement that it constitutes an amendment to this Agreement.
3.1 Formation and Acceptance
Each Purchase Order issued by DRM constitutes an offer to purchase Assets from Client subject to these Terms. A Purchase Order becomes binding upon the earlier of: (i) Client’s written acknowledgment; or (ii) Client’s delivery or tender of Assets. Any additional or conflicting terms proposed by Client are rejected unless expressly agreed in writing by DRM.
3.2 Pricing; Inspection; Adjustment
All pricing is subject to verification of quantity, condition, configuration, and market conditions upon receipt and inspection at the Facility. DRM reserves the right to: (i) reclassify Assets based on condition, completeness, or functionality; and, (ii) adjust pricing based on verified inventory and grading reject Assets that do not conform to the agreed description. No pricing is final until completion of inspection and issuance of DRM’s settlement report. The inventory report generated by DRM following inspection will be deemed conclusive and binding absent manifest error, provided that Client must notify DRM of any dispute within ten (10) days of receipt.
3.3 Title and Risk of Loss
Title and risk of loss will transfer to DRM only upon: (i) physical receipt at the Facility; and, (ii) completion of inspection and acceptance. Until such acceptance, all right, title, and risk of loss remains with Client.
3.4 Delivery; Packaging; Compliance
The Parties will mutually agree in the Quote how the Assets will be de-racked, packed, palletized, and made ready for secure transport. If Client elects to prepare packing independently, Client must: (i) properly package and label all Assets in accordance with industry standards; (ii) comply with all applicable transportation and hazardous material laws; (iii) ensure Assets conform to descriptions provided, and (iiii) and assume all responsibility for damages occurring in transit due to insufficient, inadequate, improper packing. Non-conforming shipments may be rejected or repriced.
Assets will be transported using the methods as stated in the applicable Quote.
3.5 Rejection Rights
DRM may, in its sole discretion: (i) reject non-conforming Assets; (ii) return such Assets at Client’s expense; and, (iii) require Client to remove or dispose of rejected Assets.
3.6 No Reliance; Market Risk
Client acknowledges: (i) secondary market pricing is volatile; (ii) DRM makes no guarantee of resale value; and, (iii) pricing reflects current market conditions at time of inspection.
3.7 Data Responsibility
Unless expressly set forth in a Quote:
Client is solely responsible for removal of all Client Data prior to delivery or pickup of Assets. DRM has no obligation to perform data sanitization.
3.8 Setoff
DRM may offset any amounts owed to Client against: (i) unpaid service fees; (ii) prior balances; and, (iii) any obligations under these Terms, any Quote, or any other agreement between the Parties.
3.9 No Continuing Obligations
Upon completion of the transaction, DRM has no obligation to provide resale reporting, revenue sharing, or ongoing accounting with respect to purchased Assets. DRM may resell, recycle, or otherwise dispose of Assets in its sole discretion.
3.10 Completion
If the Services do not include DRM purchasing Assets, the project will be deemed complete once all of the Assets have been remarketed, auctioned, delivered to an e-waste facility, or destroyed. If DRM is purchasing Assets from Client, the project will be deemed complete once Assets have been received in good order and become Verified Assets, delivered to e-Waste facility, or destroyed and and Client has paid DRM in full for all applicable fees due for Services, and DRM has paid Client for any assets it is acquiring.
3.11 Scheduling and Changes
a. Lead Time and Scheduling
All new projects require a minimum of ten (10) business days’ lead time for scheduling. Recurring projects may be scheduled on seventy-two (72) hours’ notice. Projects requiring scheduling on shorter notice will be subject to an expedited scheduling fee. Projects requiring materials procurement or third-party services are subject to the lead time of the applicable vendor. DRM will perform the Services during normal business hours, 08:00–17:00 local time. No work will be performed outside of these hours unless expressly agreed to in this Quote. If on-site delays of more than thirty (30) minutes occur in gaining access to Assets, additional fees may apply.
b. Rescheduling and Cancellation
Projects may be rescheduled up to forty-eight (48) business hours before the project start time without penalty. Rescheduling with less than forty-eight (48) business hours’ notice will be subject to a penalty equal to fifteen percent (15%) of the total project cost or $350.00, whichever is greater. Projects that are cancelled or rescheduled on the same date as the project start date will be subject to a cancellation fee equal to fifty percent (50%) of the quoted project cost. Inclement weather that materially interferes with transportation may cause delays or rescheduling without penalty.
c. Change Orders
Any changes to the scope, schedule, budget, or acceptance criteria of a Quote are subject to a mutually agreed written Change Request. Each Change Request will include:
If there is any change in the scope discovered after the DRM team has arrived on-site (e.g., additional hardware identified or on-site contact requests rescheduling), DRM technician(s) will:
Proceed with accommodating the change, provided the change does not increase total project costs by more than ten percent (10%) without prior written Client approval for which additional fees shall be charged to the Client.
3.12 Project-Specific Assumptions
The following assumptions govern the performance of all Quotes. Client’s failure to satisfy any applicable assumption may impact project scope, timeline, or cost.
The following terms and conditions will apply regardless of whether DRM is performing Services for or purchasing Assets from Client.
4.1 Material Handling, Data Sanitization, and Destruction
Inspection and Acceptance
DRM has the right, but not the obligation, to inspect all deliveries of materials prior to acceptance. If DRM accepts delivery, responsibility for such material will transfer to DRM; provided, however, that any Non-Acceptable Material surrendered, delivered to, or inadvertently accepted by DRM will remain the sole responsibility of Client, regardless of acceptance. The handling, management, and disposition of any such Non-Acceptable Material will be governed by the terms and conditions of these Terms.
Non-Acceptable Materials
DRM reserves the right to refuse collection of Non-Acceptable Materials. DRM will quarantine and return to Client any material delivered to DRM that contains or is found to contain Non-Acceptable Materials at Client’s sole cost and expense. If any Non-Acceptable Material cannot be returned to Client, DRM will reasonably determine the disposition of such material and invoice Client for the costs associated with such disposition.
Data Sanitization and Destruction
In accordance with industry standards, all data-bearing devices and components received by DRM will be processed using one of the following methods prior to resale or disposition:
(a) Logical Sanitization. DRM will sanitize all data-bearing devices using overwriting software compliant with NIST Special Publication 800-88, employing a minimum of one (1) overwrite pass to ensure permanent deletion of all user data from storage media, unless an alternative method is requested by Client in writing and set forth in the applicable Quote. Alternative sanitization methods may be subject to additional fees as detailed in the applicable Quote. DRM will issue a Certificate of Erasure to Client for each shipment of data-bearing devices received from Client.
(b) Physical Destruction. DRM will physically destroy data-bearing devices using the Shred-Tech ST-5 Hard Drive Shredder, or equivalent equipment, utilizing methods and settings designed to render all data irrecoverable. Upon Client’s request, DRM will issue a Certificate of Destruction for each applicable Inbound Lot, subject to additional fees as detailed in the applicable Quote. Upon completion of physical destruction, DRM will provide Client with a log of recorded serial numbers for all destroyed devices, unless Client has executed a written Opt-Out with respect to such reporting obligation.
(c) Recycling. All recycling activities are performed in compliance with local and national regulations. All e-waste shall be processed in accordance with R2v3, stewards, ADISA, or ISO 14001 standards, when requested in a Quote, subject to availability for project, region, or country. To maximize material recovery value and reduce the world’s reliance on mining raw materials, recycled assets may undergo parts harvesting as part of the downstream process.
(d) Third-Party Subcontracting. DRM reserves the right, in its sole discretion, to subcontract logical sanitization and/or physical destruction services to a qualified third-party subcontractor, as identified in the applicable Quote. Any such Subcontractor will employ the logical sanitization and physical destruction methods specified in these Terms.
Client Data
Client is solely responsible for backing up or archiving any Client Data prior to providing any Assets to DRM. Client acknowledges and agrees that DRM will have no responsibility to back up or archive any Client Data that may be stored on any of the Assets. Following receipt of the Assets at the Facility, DRM will process the Assets and, if specified in the Quote, perform a data wipe of any data-bearing Asset using the standards set forth in the applicable Quote. The Parties will comply with the DRM Cybersecurity Policy as set forth on the DRM website.
Eligibility for Remarketing
DRM retains the right to resell any Assets received unless otherwise stated in the Quote.
DRM, in its sole discretion, will determine if an Asset is eligible for resale or should be recycled consistent with commercially reasonable industry practices and any express Client instructions set forth in the applicable Quote. If DRM determines that an Asset should be recycled, it will arrange for the remediation of the Assets in accordance with all applicable laws and regulations.
Inspection and Acceptance or Rejection
DRM will have the right to inspect and accept or reject Assets and Materials delivered to its Facility. Non-accepted Assets and Materials remain the responsibility of Client. Assets and materials that contain any such components will be quarantined and returned to Client at Client’s sole cost and expense. If non-accepted Assets and materials cannot be returned to Client, disposition will be subject to additional charges as determined by DRM and fully invoiced to Client.
4.2 Insurance
Each Party will, at its own expense, secure and maintain commercially reasonable insurance coverage appropriate to its obligations hereunder.
4.3. Confidentiality
Neither Party will publish, reproduce, circulate or otherwise distribute or disclose any oral, written, graphic or machine readable information provided by the other Party, including, but not limited to, information which relates to forecasts, sales, results, status of third party relationships, the nature or status of any disputes related to transactions governed by this Agreement, prices, general business, financial or technical information, the Services, current or prospective customers, any other terms, material or communication related to the Services or any material or information furnished to it by the other Party which is marked “confidential” or otherwise marked to indicate its proprietary nature or which under the circumstances surrounding disclosure, the receiving Party ought to reasonably understand such information to be confidential (collectively, “Confidential Information”).
Each Party’s Confidential Information will only be used by the other Party in its performance, and it will not be disclosed by such other Party, except to those employees, Affiliates or agents of such other Party who have a need to know and an obligation to comply with the terms of this clause. Each Party agrees that it will take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the other Party in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized under this Agreement to have any such information. Such measures will include, but not be limited to, the highest degree of care that the receiving Party uses to protect its own confidential information of a similar nature, which will be no less than reasonable care. Each Party further agrees to promptly notify the disclosing Party in writing of any actual or suspected misuse, misappropriation or unauthorized disclosure of the other Party’s Confidential Information which may come to the receiving Party’s attention.
Notwithstanding the foregoing, each Party may disclose information concerning this Agreement and the transactions contemplated hereby, including providing a copy of this Agreement to: (a) potential business partners, investors or investment bankers and to their respective employees, agents, attorneys and auditors in connection with their due diligence review of such Party; and (b) such Party’s professional advisors in connection with tax audits, legal advice or related matters, in all cases provided such parties have a “need to know” such Confidential Information and are subject to the confidentiality restrictions of this Agreement. If any of the following apply to any information, such information will not be considered as a Party’s Confidential Information: (i) it is or becomes available to the public through no breach of this Agreement or wrongful act of a Party; (ii) it is already in the possession of each Party and not subject to any agreement of confidence between the Parties as evidenced by contemporaneous written documentation; (iii) it is received from a third party without restriction for the benefit of such receiving Party and without breach of this Agreement; or (iv) it is independently developed by a Party without reference to the other Party’s Confidential Information and by persons who do not have access to such Party’s Confidential Information. Each Party may disclose the other Party’s Confidential Information as required by such Party in connection with legal proceedings or dispute resolution as set forth herein, as well as pursuant to a requirement of a duly empowered government agency or a court of competent jurisdiction or otherwise as may be required by law after due notice and a reasonable opportunity to intervene is given to the Party whose Confidential Information is subject to disclosure. Upon termination of the relationship, except as otherwise expressly set herein, if requested by the other Party, each Party will destroy all of the other Party’s Confidential Information and so certify in writing at such other Party’s direction. The obligations of this provision will survive the completion of the Services and/or termination or expiration of this Agreement. The obligations of the Parties pursuant to this Section will be without limitation of any ongoing obligations of the Parties or their affiliates under any separate non-disclosure agreement.
The obligations set forth in this clause will continue, with respect to trade secrets (as defined by applicable law), for so long as such Confidential Information remains a trade secret under law. With respect to all other Confidential Information, the obligations in this clause will continue for a period of four (4) years disclosure; provided, however, that to the extent the Confidential Information includes any personally identifying information of any individual, Receiving Party’s confidentiality obligation will be perpetual with respect to that Confidential Information.
Nothing contained in these Terms, or in any Quote will restrict DRM from using any ideas, concepts, know-how, methodologies, processes, technologies, or techniques relating to the Services to serve other DRM clients, provided that in doing so DRM does not breach its obligations under these Terms.
4.4 Intellectual Property
As between the parties, DRM will retain all right, title, and interest in and to its pre-existing and independently developed methodologies, processes, software, tools, and know-how used in connection with the performance of the Services (collectively, “DRM Proprietary Materials”). Nothing in these Terms will be construed as transferring, assigning, or granting to Client any ownership interest or license in or to any DRM Proprietary Materials, except as may be expressly set forth herein.
4.5 Representations and Warranties
Each Party represents and warrants to the other that: (a) it has full corporate or similar power and authority and has taken all action necessary to enter into and perform its obligations under these Terms and each Quote; (b) the person executing these Terms on its behalf is duly authorized and empowered to execute and deliver these Terms; (c) these Terms constitute the legal, valid, and binding obligation of such Party and are enforceable against it in accordance with their terms; (d) no consent or authorization of, filing with, or other act by or in respect of any governmental authority is required in connection with the execution, delivery, performance, validity, or enforceability of these Terms; and (e) the execution, performance, and delivery of these Terms will not result in such Party violating any applicable law or breaching or otherwise impairing any of its obligations.
DRM warrants that: (a) it will perform the Services with commercially reasonable care; and (b) it will maintain, or will ensure that DRM’s subcontractor(s) will maintain, in force all memberships, licenses, registrations, approvals, and certifications required to perform the Services in accordance with all applicable laws and regulations applicable to the Services to be performed in the territory in which the Services are to be provided. DRM makes no other representations or warranties and disclaims all other representations and warranties, whether express or implied, including, but not limited to, any implied warranties of merchantability or fitness for a particular purpose, satisfactory quality, infringement, course of dealing, usage, or trade practice.
Client represents and warrants that: (a) Client has good and marketable title to the Assets free and clear of all liens, claims, and encumbrances of any kind; (b) to the extent that title transfer of Assets is agreed in a Quote, Client is duly authorized to transfer title to such Assets to DRM and that such transfer will not result in a breach by Client of any agreement or judgment binding upon Client; (c) Client will wipe the Assets of Client Data, or notify DRM that Client Data is stored on the Assets and request DRM to perform data wipe services or destructive recycling services as set forth in an applicable Quote; all data-bearing device Assets capable of storing Client Data are encrypted to the extent reasonably necessary to protect Client Data from unauthorized access; (d) to the extent Client is or should reasonably be aware that the Assets contain any hazardous materials, Client will notify DRM if any of the Assets contain any product or substance whose presence, use, transportation, or release, either by itself or in combination with other materials, is either potentially injurious to the public health, safety, or welfare, or regulated or monitored by any governmental authority; and (e) Client will provide DRM and Representatives with clean and safe working conditions if it is necessary for them to enter any of Client’s facilities in the course of performance of the Services.
4.6 Limited Liability
The Parties’ liabilities under these Terms, even if advised of the possibility of such liability, will be at all times subject to the following limitations and exclusions:
DRM and its Representatives will not be liable (whether in contract, tort, or otherwise) for maintenance or corruption of data or software, or compliance with third-party requirements that may apply to data on any Asset.
DRM will have no liability whatsoever for any loss, exposure, or breach of Client Data unless: (i) the applicable data destruction service was expressly set forth in a fully executed Quote; and (ii) Client has fully complied with all of its obligations regarding encryption, labeling, and data identification. Under no circumstances will DRM be liable for any latent or residual data that is not reasonably discoverable through commercially reasonable forensic or sanitization processes.
DRM and its Representatives will have no liability whatsoever (whether in contract, tort, or otherwise) for any breaches, delays, failures, or errors arising out of or related to: (i) any loss or disclosure of Client Data from unencrypted Assets; (ii) any actions or instructions of any third party acting under Client’s direction, unless DRM has been expressly advised in writing that such third party was retained by DRM in connection with the provision of the Services; (iii) inaccurate, incomplete, or misleading instructions provided by Client; (iv) errors or defects in any third-party software, databases, or hardware with which a deliverable is created or used, or upon which a deliverable or the Services otherwise rely; (v) any failure by Client to properly identify, label, or segregate Assets prior to pickup or delivery to the Facility, including the inclusion of Assets not listed or described in the applicable Quote; (vi) any data or information residing on Assets that Client failed to disclose or identify prior to the commencement of Services, including hidden partitions, encrypted volumes, or embedded storage media not reasonably visible through standard inspection processes; (vii) any delay or failure resulting from Client’s failure to provide timely access to its premises, personnel, or Assets necessary for DRM to perform the Services; (viii) any force majeure event, including acts of God, natural disasters, pandemic, war, civil unrest, governmental action, labor disputes, or any other cause beyond DRM’s reasonable control; (ix) any breach, delay, or failure arising from Client’s use of any deliverable or processed Asset in a manner inconsistent with DRM’s written instructions or recommendations; (x) any loss, theft, damage, or compromise of Assets occurring prior to DRM’s physical receipt and written verification at the Facility; or (xi) any regulatory fines, penalties, or compliance failures arising from Client’s failure to accurately represent the nature, classification, ownership, or chain of custody of Assets prior to or during DRM’s engagement of Services.
DRM and its Representatives will only be liable for the security or confidentiality of Client Data residing on Assets in instances of: (i) the unauthorized disclosure of Client Data from a Verified Asset data-bearing device upon which DRM or its Representatives failed to properly perform the data wipe in accordance with the agreed processes in these Terms; or (ii) disclosure arising from the loss of a Verified Asset while in DRM’s custody and only to the extent arising from DRM’s breach of its responsibilities under these Terms.
DRM’s maximum and sole liability (whether in contract, tort, or otherwise) arising out of or in connection with any claim for loss of or damage to any Asset (not including claims for Client Data losses or disclosures) will in no event exceed a reasonable fair market valuation of the Asset as determined by DRM or, to the extent available, the valuation thereof set out in the Asset Audit Report in which the item was first discovered as lost or damaged.
Except for Excluded Liabilities (as defined in Section 11.7 below), neither Party will be liable under these Terms for any consequential, special, indirect, incidental, liquidated, or punitive (if applicable) damages, including but not limited to claims for lost profits, loss of business, lost revenue, reputational damage, or loss of corporate valuation. Further, except for Excluded Liabilities, each Party’s aggregate liability under these Terms will be limited to the total amount of fees paid or payable to DRM from the Quote under which the liability has arisen during the twelve (12) month period preceding the event giving rise to such liability, and the recovery of such amount will be the claiming Party’s sole and exclusive remedy.
Neither Party’s liability will be limited to the extent arising from fraud, bodily injury, or death arising from its gross negligence or any other loss that cannot be limited under applicable law (collectively, the “Excluded Liabilities”). In the event applicable law prohibits in any part any limitation of liability hereunder, the Parties agree that such limitation will be modified, without further action of either Party, so as to broadly apply to the maximum effect allowed by applicable law.
The Parties understand and agree that the foregoing exclusions and limitations of liability represent the Parties’ agreement as to the allocation of risk between them in connection with their respective obligations under these Terms. The fees payable to DRM reflect, and are set in reliance upon, this allocation of risk and the exclusions and limitations of liability set forth in these Terms.
4.7 Non-Circumvention and Protection of Business Relationships
Client acknowledges and agrees that during the Term of these Terms and for a period of one (1) year following its expiration or termination, neither it nor any of its agents, employees, officers, directors, representatives, or Affiliates will directly or indirectly, for itself or on behalf of any other person or entity: (a) bypass, circumvent, or attempt to circumvent DRM to transact business, enter into any commercial relationship, or negotiate a contract with any “Protected Contact” (as defined below); or (b) use any proprietary, confidential, or business information furnished by DRM to initiate, solicit, or engage in any business relationship with a Protected Contact outside the scope and involvement of these Terms. For purposes of this Section, a “Protected Contact” means any third-party client, customer, supplier, investor, or other business opportunity or entity that was first introduced or revealed by DRM to Client in connection with the performance of these Terms.
The Parties agree that a breach of this Section would result in DRM incurring damages that are difficult, if not impossible, to ascertain. Therefore, the Parties agree that if Client breaches this Section, Client will pay to DRM, as liquidated damages and not as a penalty, a sum equal to thirty percent (30%) of the total gross revenue, compensation, or commission derived from any transaction, directly or indirectly, with the Protected Contact in question. The payment of such liquidated damages will not limit DRM’s right to seek injunctive relief to stop the breach.
4.8 Force Majeure
Neither Party will be liable for any delay or failure to perform or loss or liability due to any cause beyond its reasonable control. Causes include, but are not limited to, events of national emergency, strikes, lock-outs or other labor disputes, epidemics or pandemics, war, criminal acts, acts of terrorism, acts of God, acts of the Client or third parties, interruptions of all avenues of transportation, materials or facilities, or delay or failure of any supplier critical to the delivery for Services. If a Party is unable to wholly or partially perform because of any cause beyond its reasonable control, then it may suspend or terminate its performance under these Terms.
4.9 Indemnity
Each Party (“Indemnifying Party”) will indemnify, defend, and hold the other Party, its Affiliates, and their respective officers, directors, employees, agents, and subcontractors (“Indemnified Parties”) harmless from and against any and all losses, damages, expenses, or liabilities (including costs of defense, settlement, and reasonable attorneys’ fees) (“Losses”) that arise from third-party claims, demands, proceedings, suits, or causes of action of any kind (collectively, “Claims”) to the extent attributable to: (a) bodily injury or damage to tangible personal property (not including data) caused by negligent acts or omissions or reckless or willful misconduct of the Party or its employees, agents, or subcontractors; or (b) violations of any national, federal, provincial, state, or local law, statute, regulation, rule, ordinance, order, or government directive by the Party or any person engaged by the Party to perform any portion of its obligations, including, without limitation, those relating to the environment or public health. Client agrees that it must defend, indemnify, and hold harmless DRM Indemnified Parties from and against any and all Claims and Losses incurred as a result of, or arising out of, or relating to the Assets, including, but not limited to, any claim that Client lacks good and marketable title to the Assets free and clear of all liens, claims, and encumbrances of any kind, or any Services or actions taken by DRM regarding the Assets at the request of, and consistent with, instructions provided by Client. DRM will have no obligation to indemnify for claims arising from Client’s instructions, specifications, or failure to comply with applicable law.
The Indemnified Party will notify the Indemnifying Party in writing as promptly as practicable after the Indemnified Party receives notice of a Claim for which indemnification is or may be sought under these Terms. Failure to provide such notice will relieve the Indemnifying Party of its indemnity obligations to the extent such failure prejudices the Indemnifying Party. The Indemnifying Party will have the right to assume control, in a manner not adverse to the Indemnified Party, of the defense and settlement of the Claim. The Indemnified Party will extend reasonable cooperation in connection with such defense. The Indemnifying Party will not admit liability or enter into any settlement of a Claim that adversely affects the Indemnified Party’s rights or interests without the Indemnified Party’s prior written consent.
4.10 Risk Of Loss, Transfer of Title, Client Data, and Disposition Of Assets
The following provisions govern shipment, delivery, and risk of loss and will apply irrespective of any trade usage, course of dealing, or standard shipping terms.
(a) DRM-Arranged Pickup
If DRM, its Affiliate, or its designated carrier arranges for pickup of Assets from Client’s facility, then (i) delivery will be deemed to occur, and risk of loss will transfer, only upon DRM’s physical receipt and control of the Assets at the Facility and verification as a Verified Asset; (ii) Client bears all risk of loss, damage, or data compromise prior to loading, and during transit to the Facility, regardless of whether DRM arranged transportation; (iii) DRM’s coordination of transportation is performed solely as a convenience and will not be deemed to shift risk of loss prior to receipt at the Facility.
(b) Client-Arranged Transportation
If Client arranges transportation of Assets to the Facility, then: (i) delivery will be deemed to occur only upon physical receipt and acceptance of the Assets at the Facility; (ii) Client bears all risk of loss, damage, or delay during transit, and, until the Assets are received and verified by DRM.
Any loss, damage, or discrepancy identified upon receipt may result in rejection, reclassification, or, pricing adjustment in accordance with these Terms.
(c) No Transfer of Risk Upon Pickup Alone
Notwithstanding anything to the contrary, pickup, possession by a carrier, or issuance of a bill of lading will not constitute delivery or transfer of risk to DRM unless and until the Assets are received and accepted at the Facility.
(d) Title Transfer (Cross-Reference)
Transfer of title will occur solely as provided in Section 3 (Purchase Orders); or the applicable Quote, and will not be affected by shipping terms alone.
(e) Packaging and Loading Responsibility
Client is responsible for: (i) proper packaging, labeling, and preparation of Assets for transport; (ii) safe loading of Assets at its facility (unless otherwise agreed in writing); and, (iii) compliance with all applicable transportation and hazardous materials laws.
DRM will not be responsible for damage resulting from improper packaging, loading, or preparation.
(f) Optional Insurance
Unless otherwise agreed in writing: (i) Client is responsible for obtaining any desired transit insurance; and, (ii) DRM has no obligation to insure Assets prior to acceptance at the Facility.
4.11 Right to Subcontract
DRM is entitled to subcontract any portion of the Services to its Subcontractors but will remain primarily liable to Client. DRM may engage Subcontractors globally and will not be required to disclose their identities except upon reasonable written request and subject to confidentiality obligations consistent with those set forth in Section 9 of these Terms.
4.12 Independent Contractor
Nothing in these Terms, or any quote for service, invoice, or attachments, will be construed to create a partnership, joint venture, or agency relationship between the parties. The duties and responsibilities of DRM will be performed by DRM as an independent contractor and not as an agent of Client. Accordingly, neither Party will be authorized to act in the name or on behalf of, or otherwise bind the other Party.
4.13 Governing Law; Venue; Disputes
These Terms will be governed by, and construed in accordance with, the laws of the State of Texas, without regard to its conflict of laws principles.
If a dispute arises under these Terms, the Parties agree to first attempt to resolve the dispute with the assistance of a mutually agreed-upon mediator. All costs and fees associated with the mediation, other than attorneys’ fees, will be shared equally by the Parties. If the dispute is not resolved through mediation, the Parties agree to submit the dispute to binding arbitration under the rules of the American Arbitration Association. Both mediation and arbitration will take place within Tarrant County, Texas. The prevailing Party will be entitled to recover its costs and reasonable attorneys’ fees.
In the event that the arbitration provisions of these Terms are held to be inapplicable, invalid, or unenforceable for any reason, or in the event of any legal action permitted to be brought in a court of law under these Terms, the Parties agree that any such legal action will be commenced and maintained exclusively in the state or federal courts located in Tarrant County, Texas. The Parties hereby irrevocably submit to the exclusive personal jurisdiction of such courts and waive any objection based on forum non conveniens.
THE PARTIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
4.14 Entire Agreement, Precedence, And Amendment
These Terms, including all related executed Statements of Work (Quotes) and Purchase Orders, constitute the final and entire understanding between the Parties regarding the subject matter herein. It supersedes all prior or contemporaneous communications, negotiations, and agreements, whether oral, written, or electronic, including any prior confidentiality or non-disclosure agreements.
4.15 Order Of Precedence
If there is any direct conflict or ambiguity between the governing documents, the following order of priority will control: (1) these Terms; then (2) the applicable Purchase Order with respect to any Asset purchase transactions; then, (iii) the applicable Quote.
4.16 Invalidation Of Supplemental And Administrative Terms
Any terms or conditions included in an email service request, or similar transactional document, are for administrative purposes only (e.g., tracking numbers, quantities, or billing addresses). Any “fine print,” “boilerplate,” or “terms and conditions” contained in such documents that conflict with, contradict, or attempt to add to these Terms or an executed Quote will be void and of no effect, regardless of whether the receiving Party signs or acknowledges such document.
4.17 Formal Amendments Only
No amendment, change, waiver, or discharge of these Terms or any Quote will be valid unless it is: (i) made in a formal writing; (ii) expressly states the intent to modify these Terms; and (iii) signed by an authorized representative of the Party against whom enforcement is sought. Informal communications, including email threads or verbal discussions, will not constitute a valid amendment or waiver.
4.18 Binding Effect
These Terms will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
4.19 No Third-Party Beneficiaries
These Terms are entered into solely for the benefit of the Parties hereto, and no provision of these Terms will be deemed to confer upon third parties any remedy, claim, liability, cause of action, or other right or obligation in excess of those existing without reference to these Terms.
4.20 Assignment
Except with respect to DRM’s right to subcontract under these Terms, neither Party will have the right to assign its rights or obligations under these Terms without the prior written consent of the other Party; provided, however, that DRM may assign its rights and obligations to an Affiliate. Notwithstanding the foregoing, either Party may assign or transfer these Terms upon a change of control or pursuant to a sale of all or substantially all the equity or assets of the assigning party.
4.21 Waiver
The delay or failure by either Party to exercise or enforce any of its rights under these Terms will not constitute or be deemed a waiver of that Party’s right thereafter to enforce those rights, nor will any single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.
4.22 Attorney Fees
If either Party resorts to legal action for the redress of a breach of this Agreement, the prevailing Party will be entitled to an award of all costs and reasonable attorney fees.
4.23 Survival
Provisions contained in these Terms that by their sense and context are intended to survive completion of performance, expiration, termination, or cancellation of these Terms, including without limitation, indemnity, limitation of liability, and confidentiality, will so survive.
4.24 Notices
All notices and communications required or otherwise provided under these Terms will be in writing and will be deemed given when delivered to the address provided in the Quote by registered or certified United States mail, return receipt requested, postage prepaid.
4.25 Severability
If any provision of these Terms is declared invalid or unenforceable by a court of competent jurisdiction, all other provisions will remain in full force and effect and no provision will be deemed dependent upon any other provision unless so specified.