Terms of Service

Terms of Service

Thank you for your interest in the ECHG, LLC family of IT asset-disposition companies—Avail Recovery Solutions, LLC; ITAD USA Holdings, LLC and Teladvance, LLC (collectively, “ITAD”).

Unless you as the Customer have another valid agreement with ITAD applicable to ITAD’s Services (defined below), the following terms of service, together with any associated statements of work (“SOW”), which are incorporated herein by reference, (collectively, the “Agreement”), create a contract between you and ITAD and govern your use of the Services. If there is a conflict between these terms and any SOW, these terms will prevail unless an SOW expressly provides that it is modifying these terms with respect to such SOW, in which case the modified terms will apply only to such SOW.

By utilizing ITAD’s Services, you agree to the terms of service below. You and ITAD are sometimes referred to herein individually as a “party,” and collectively as the “parties.”

1. Our Services. This Agreement governs your use of ITAD’s information-technology services, which may include clearing, purging and destroying electronic-storage media; refurbishing, reselling and disposing of such media and other IT assets and hardware components; and delivering certain information-technology services, as may be further described in applicable SOWs (collectively, the “Services”).

2. Fees and Payment Terms.

(a) In exchange for the Services, you agree to pay ITAD such compensation as set forth in the applicable SOWs (“Fees”). You must pay all undisputed invoices within thirty (30) days of receipt.

(b) You must reimburse ITAD for all pre-approved expenses incurred in connection with performing the Services.

(c) If you fail to pay ITAD within fifteen business days from the date payment is due, then ITAD may, without limiting and in addition to its other available remedies, assess 2% late-payment interest 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 ITAD in collecting such amounts.

(d) 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 ITAD’s income or revenue.

3. Ownership of Materials Related to Services.

(a) Conditioned on your full payment of all due Fees, and subject to Section 3(b) herein, materials prepared and delivered by ITAD to you under this 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.

(b) Notwithstanding anything to the contrary herein, as between ITAD and you, ITAD 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 ITAD 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 ITAD 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). ITAD reserves all rights to all of the foregoing, and nothing in this 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, ITAD 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 this Agreement.

4. Confidential Information.

(a) Either you or ITAD (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, clients, 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 this 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 this 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 Recipient may disclose Confidential Information, however, to the extent compelled by operation of law or by an instrumentality of the government (e.g., court, tribunal, administrative agency) to do so, provided that the Recipient (i) gives the Disclosing Party prior written notice of the compelled disclosure (to the extent legally permitted) so as to permit the Disclosing Party to take action to protect its interests; (ii) discloses only so much of the Confidential Information as is minimally necessary to comply with the compelled disclosure; and (iii) provides reasonable assistance to the Disclosing Party in its efforts to contest the disclosure. With respect to Confidential Information comprising the identity of ITAD vendors or customers, you further agree that you will not, either directly or indirectly, for yourself or on behalf of another person or entity, solicit business from or induce or encourage any such ITAD vendors or customers to alter or terminate their relationships with ITAD. The foregoing confidentiality-related duties will survive any expiration or earlier termination of this Agreement for a period of three years, except with respect to Disclosing Party trade secrets, which will survive and continue until such Confidential Information is no longer considered a trade secret under applicable laws.

(b) Confidential Information does not include 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; or (iv) is independently developed by Recipient or its representatives without the use of Confidential Information. You and ITAD 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.

5. Security. ITAD will take commercially reasonable administrative, physical and electronic measures designed to safeguard and protect your IT assets, materials and data from unauthorized access, use, modification, or disclosure.

6. 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.

7. Access. You agree to provide ITAD’s support team such Customer-system access as is reasonably necessary for ITAD to perform the Services.

8. Transfer of Title; Risk of Loss. For Services where ITAD will take possession of your identified physical IT assets (“Assets”) for resale or disposal, title to such Assets will transfer to ITAD upon full payment (if any) for the Assets by ITAD to you in accordance with the applicable SOW; or if no payment is due, upon receipt of the Assets by ITAD. You bear the risk of loss for all Assets until such time as the Assets are picked up by ITAD. If the Assets are transported by a third party, then you bear the risk of loss until such time as the Assets are received by ITAD at its Texas facility.

9. Representations and Warranties; Disclaimer. ITAD represents and warrants that it will comply with all applicable federal, state and local laws and regulations in performing its obligations under this Agreement; it is qualified to do business in the geographies in which it will perform its obligations under this Agreement; and it will obtain all necessary licenses and permits, and satisfy other applicable legal, regulatory and administrative requirements necessary to perform the Services. You represent and warrant that you (a) have good and marketable title to, and full authority to sell and transfer ownership of materials that you provide to ITAD pursuant to this Agreement, (b) will not provide to ITAD any hazardous or radioactive materials, and (c) have all power and authority necessary to perform your obligations under this Agreement.

NO REPRESENTATION OR WARRANTY, WHETHER EXPRESS OR IMPLIED, WILL BE BINDING UPON ITAD UNLESS EXPRESSED IN WRITING HEREIN. ITAD SPECIFICALLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES THAT ARE NOT EXPRESSED IN WRITING HEREIN.

10. Limitation of Liability; Remedy. IN NO EVENT WILL THE PARTIES BE LIABLE TO EACH OTHER FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, EVEN IF THE AFFECTED PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF ITAD IS FOUND TO BE LIABLE TO YOU FOR ANY DAMAGE OR LOSS ARISING OUT OF ITS SERVICES, ITAD’S LIABILITY WILL IN NO EVENT EXCEED THE TOTAL COMPENSATION PAID BY YOU TO ITAD IN THE TWELVE MONTHS PRIOR TO THE DATE OF YOUR INITIAL CLAIM. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR CLAIMS OF DEFECTIVE SERVICES WILL BE, AT ITAD’S SOLE AND ABSOLUTE DISCRETION, FOR ITAD TO EITHER (A) RE-PERFORM SUCH SERVICES, OR (B) REFUND THE DUE AMOUNT OF FEES PAID BY CUSTOMER TO ITAD.

11. Indemnification.

(a) 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 attorneys’ fees and costs) (collectively, “Losses”) relating to the indemnifying party’s (i) breach of this Agreement, (ii) negligence or willful misconduct, or (iii) violation of applicable federal, state, or local laws or regulations.

(b) You will indemnify and defend ITAD from any third-party claim alleging that ITAD’s compliance with your specifications or instructions infringe any intellectual property rights in the country where the Services were provided.

(c) 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 this Agreement by, or the negligence or willful misconduct of the indemnified party.

12. Term and Termination. This Agreement and the rights and obligations granted herein are effective until the Services are terminated by written notice to the nonterminating party; provided, however, that (a) provisions which by their terms contemplate survival will survive any such termination, and (b) termination will not release either party from liability for breach of this Agreement or from obligations to make payment of undisputed amounts due and payable through the effective date of termination.

13. Governing Law; Arbitration. This Agreement will be governed by, interpreted, construed and enforced in accordance with the laws of the State of Texas, excluding its choice-of-law rules.

ANY CONTROVERSY, CLAIM OR DISPUTE BETWEEN THE PARTIES ARISING IN ANY WAY FROM ANY DEALINGS OR TRANSACTIONS BETWEEN THEM OR FROM THIS AGREEMENT, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE (COLLECTIVELY, A “DISPUTE”) MUST BE RESOLVED EXCLUSIVELY BY BINDING ARBITRATION PURSUANT TO THE FEDERAL ARBITRATION ACT, IF APPLICABLE, OR OTHERWISE PURSUANT TO THE TEXAS GENERAL ARBITRATION ACT, CONDUCTED IN THE ENGLISH LANGUAGE BEFORE A SINGLE ARBITRATOR IN DALLAS, TEXAS. THE ARBITRATION WILL BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION PURSUANT TO ITS COMMERCIAL ARBITRATION RULES. THE ARBITRATION WILL ALSO BE GOVERNED BY THE APPLICABLE PROVISIONS OF THIS AGREEMENT. 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 ON AN AWARD, A JUDICIAL CHALLENGE TO AN AWARD OR ITS ENFORCEMENT, OR UNLESS OTHERWISE REQUIRED BY LAW OR JUDICIAL DECISION. THE ARBITRATOR DOES NOT HAVE AUTHORITY TO (A) RENDER A DECISION WHICH CONTAINS A REVERSIBLE ERROR OF STATE OR FEDERAL LAW, OR (B) APPLY A CAUSE OF ACTION OR REMEDY NOT EXPRESSLY PROVIDED FOR UNDER EXISTING STATE OR FEDERAL LAW. ITAD DOES NOT CONSENT TO ANY CLASS ARBITRATION OR REPRESENTATIVE ARBITRATION PROCEEDING. THE PARTIES WAIVE ANY RIGHT TO ARBITRATE ANY DISPUTE OR TO PURSUE RELIEF AGAINST THE OTHER IN A CLASS ARBITRATION OR OTHER REPRESENTATIVE PROCEEDING AND AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY. FURTHER, UNLESS THE PARTIES AGREE OTHERWISE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. ANY DECISION RENDERED IN SUCH ARBITRATION IS BINDING ON EACH PARTY, AND JUDGMENT MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION. FEES AND EXPENSES OF THE ARBITRATOR AND ARBITRATION WILL BE DIVIDED EQUALLY BETWEEN THE PARTIES. YOU AND ITAD WILL EACH BE RESPONSIBLE FOR THEIR OWN ATTORNEYS’ FEES AND COSTS, AND THE ARBITRATOR HAS NO DISCRETION TO SHIFT ATTORNEYS’ FEES OR COSTS OF CUSTOMER TO ITAD.

14. Miscellaneous.

(a) Modifications. To modify the scope of Services, the parties must execute an amended or new SOW.

(b) Nonexclusive Relationship; Independent contractors. This is a non-exclusive arrangement. ITAD may provide the same or similar services to other customers, and you may utilize other information-technology service providers. You and ITAD are independent contractors, and nothing in this Agreement will be construed to create a joint venture, partnership, agency, or other employment relationship between us.

(c) Force Majeure. Neither party will be liable to the other for any delay or failure to perform as required by this 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.

(d) Notices. All notices provided for by this 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 at the address provided by such party.

(e) Severability. If any term or provision of this Agreement is held to be illegal or unenforceable, the validity or enforceability of the remainder of this Agreement will not be affected unless the exclusion of such term or provision materially impairs the benefits of the remaining provisions hereof.

(f) Entire Agreement; Amendment; Waiver. This Agreement (including incorporated SOWs) 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. This Agreement may be modified only by a further written agreement signed by both Parties. No waiver of breach of any provision of this 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.

(g) Assignment; Binding Effect. Neither party may assign this Agreement without the prior written consent of the other party, except to affiliates or successors 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. This 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.