OTHER TERMS FOR RECORD STORAGE, ACCESS AND DELIVERY
- A. CLIENT shall not at any time store with ACCESS any materials that would attract insects or vermin, are highly flammable, explosive, toxic, radioactive, dangerous or illegal to store, or that are otherwise deemed by ACCESS to represent a hazard (“Prohibited Materials”). ACCESS reserves the right, but is not obligated, to inspect any Records and may refuse to accept and/or remove and redeliver to CLIENT any Prohibited Materials. CLIENT shall also not store with ACCESS any memorabilia or collectibles, materials having historical value (such as fossils or historical manuscripts, journals or photographs), artwork, negotiable instruments, jewelry, currency or other items that have intrinsic market value.
- CLIENT shall encrypt all electronic records that include personally identifiable information or protected health information, or any other information where such other information is required by any state or Federal law to be encrypted either in transit or at rest or is otherwise subject to regulation governing its disclosure to third parties, before transmitting or otherwise delivering those records to ACCESS. CLIENT shall use the most rigorous encryption methods reasonably available for the type of records being provided, but in no event less than required by applicable law or otherwise reasonable under prevailing National Institute of Standards and Technologies standards. All encrypted data must be in a format that is unusable, unreadable or indecipherable to unauthorized individuals. ACCESS will not inspect such records to determine whether they are properly encrypted and CLIENT hereby releases and will indemnify ACCESS from any Costs arising from or relating to CLIENT’s breach of this Paragraph 4B.
- ACCESS reserves the right to re-box or refuse any Records that are not in a suitable condition for rack storage.
- ACCESS is not and shall not be deemed a contract or common carrier. The valuation and liability provisions of these Terms and Conditions shall apply to transportation services provided by ACCESS.
- CLIENT agrees that any failure or delay in ACCESS delivering Records or providing other Services within a reasonable period of time shall not constitute a failure of Service or a conversion of goods, nor subject ACCESS to any liability, when such failure or delay results from any act of God (earthquakes, floods, fires, etc.), communication or power system failures, labor disputes, unusual traffic delays or other reason beyond ACCESS’ reasonable control.
- CLIENT acknowledges that each employee or other representative of CLIENT shall have full authority on behalf of CLIENT to order or request any Services unless CLIENT provides specific written instructions to the contrary. Unless CLIENT specifically instructs ACCESS otherwise in writing, CLIENT authorizes ACCESS when performing deliveries to leave Records with any CLIENT representative, e.g. receptionist, who greets the ACCESS courier, even if CLIENT representative may not otherwise be authorized by CLIENT to order or request Services.
- ACCESS shall have the right to refuse Services without liability when ACCESS is doubtful as to a requesting party’s authority, or when CLIENT’s instructions are not complete to ACCESS’ satisfaction. Any order for Services placed via ACCESS’ web-based inventory program shall be deemed a valid order placed by an individual with authority to act on behalf of CLIENT.
- ACCESS may subcontract with any company that is, directly or indirectly, through one or more intermediaries, under the common control of any direct or indirect parent company of ACCESS (each, an “ACCESS Affiliate”), or any responsible third party, to perform all or part of the Services. ACCESS’ use of contract employees shall not be deemed the use of a third party for purposes of this Paragraph. In the event a third party common carrier is used to transport CLIENT’s materials, said carrier and not ACCESS shall be solely responsible for loss or damage to the materials while in the carrier’s possession.
- Additional charges for hoisting, lowering and labor may be added to transportation costs if Records cannot be transported in the customary manner by elevator or stairs from a reasonably accessible location.
- Itemized lists or descriptions of contents of Records submitted to ACCESS or entered by CLIENT in ACCESS’ inventory programs shall be considered for CLIENT’S recordkeeping and reference purposes only and shall not be considered proof that any documents referenced in such lists or descriptions are in fact included in the Records stored at ACCESS.
- Any changes to CLIENT’s locations, Authorization List, and service schedules must be communicated in writing to ACCESS, and accepted by ACCESS in writing, in order to be effective.
- CLIENT REPRESENTATIONS AND WARRANTIES
CLIENT represents and warrants that: (A) it is the owner or legal custodian of all Records and has full authority to store said Records without any restrictions; (B) it has the right to authorize the destruction of the Records for which CLIENT requests such destruction; and (C) unless CLIENT has informed ACCESS in writing otherwise, CLIENT is not a “Covered Entity” or “Business Associate” as defined in 45 CFR Part 160. At such time as CLIENT may become a Covered Entity or Business Associate (if ever), then in the absence of a separate agreement, the terms of the Business Associate Agreement (or Business Associate Subcontractor Agreement if applicable) found at www.informationprotected.com/baa shall be and are specifically incorporated herein by reference and are binding upon the parties as if fully set forth herein. CLIENT hereby releases and will indemnify and hold ACCESS harmless from any Costs arising from or relating to the breach of CLIENT’s representations and warranties in this Paragraph 5. Except as expressly provided in these Terms and Conditions, ACCESS provides all Services AS IS, AS Available and With All Faults, and ACCESS expressly disclaims any and all representations and warranties, including any warranty of suitability, or fitness for a particular purpose, or arising out of a course of dealing.
CLIENT agrees to pay in full to ACCESS all charges invoiced to CLIENT in accordance with ACCESS’ then current price schedule(s) and any applicable Statement(s) of Work, as modified by ACCESS from time to time, which payment shall be made within thirty (30) days of the date of each invoice. Time is of the essence for all payments. CLIENT must give written notice of any dispute with any charge in an invoice within thirty (30) days from the date of the invoice and must pay the undisputed portion of the invoice with its notice or it will have waived the right to dispute the charge. Any disputed amounts resolved in favor of CLIENT will be credited to CLIENT’s account, and amounts payable to ACCESS will be paid within fifteen (15) days of dispute resolution. Amounts not paid by CLIENT when due shall accrue interest at the lesser of 18% per annum, compounded monthly, or the maximum amount allowed by applicable law. CLIENT shall reimburse ACCESS upon invoice for all costs and fees, including reasonable attorneys’ fees, incurred by ACCESS in collecting any amounts past due.
- TERMINATION OF SERVICES
CLIENT shall deliver thirty (30) days’ prior written notice to ACCESS in the event CLIENT desires to terminate all Services. Said notice shall advise whether CLIENT will pick up its Records or request ACCESS to deliver same, together with a delivery address if applicable. All outstanding invoices must be paid as a precondition to termination of Services. Promptly after receipt of said notice and payment of any outstanding invoices, ACCESS will provide an account closing statement containing all applicable charges and an estimated schedule of deliveries (or pickup availability). Storage and other service charges shall continue to accrue after notice of termination until all Records are removed. Prior to the delivery or removal of any Records, CLIENT shall pay in full in good funds the amount owed on the account closing statement including but not limited to retrieval, permanent removal, dock access, delivery or destruction charges. Notwithstanding the termination of Services: (A) all express indemnification obligations and limitations on liability provided herein shall survive, and (B) a party’s liability for breach of these Terms and Conditions occurring prior to such termination shall survive.
- BREACH OF TERMS & CONDITIONS
If CLIENT fails to pay any amount due hereunder when due, or otherwise materially breaches these Terms and Conditions, ACCESS, at its option, may stop providing Services upon written notice and seek recovery of damages resulting from CLIENT’s nonpayment or other breach, or exercise any or all of the following remedies without terminating Services: (A) if any amounts owed by CLIENT are outstanding for forty-five (45) days or more past the invoice date, ACCESS may either (i) redeliver CLIENT’s Records to CLIENT (for which permanent removal, delivery, preparation of inventory reports, data extraction and other charges will apply), or (ii) refuse CLIENT access to Records until all outstanding invoice(s) are paid in full; (B) if CLIENT is in arrears in its payment obligations for a period of three (3) months or longer past the invoice date, ACCESS may destroy the Records at CLIENT’s expense and without liability to CLIENT following ten (10) business days’ advance written notice of such destruction; or (C) exercise such other rights and remedies as may be allowed at law or in equity as if specific remedies were not herein provided. In the event ACCESS takes any actions in accordance with this Paragraph, it shall have no liability to CLIENT, and CLIENT hereby releases and will indemnify ACCESS from any Costs arising from or relating to any actions taken by ACCESS in accordance with this Paragraph, including the disposal or destruction of any materials. All remedies provided herein are cumulative and may, at the election of ACCESS, be exercised alternatively, successively or in any other manner. ACCESS shall be entitled to its reasonable attorneys’ fees, whether or not any litigation or other action is commenced, in the event of any breach by CLIENT of these Terms and Conditions. With respect to ACCESS’ right to dispose of the Records under 8(B) above, CLIENT acknowledges that, because the Records have minimal or no value to a third party and Confidential Information (defined below) may be unlawfully exposed, the sale of the Records would not be reasonably possible, and the disposal of the Records is the only reasonable way for ACCESS to mitigate its damages.
ACCESS acknowledges that it may store and have access to Records that may be of a confidential nature relating to CLIENT’s property, business and affairs, and/or contain personal information of individuals that may be protected by law from unauthorized disclosure. CLIENT acknowledges that it will have access to proprietary and confidential information of ACCESS, including but not limited to pricing, audit reports or attestations, SOPs, financial information and technical information and coding relating to ACCESS’ software and inventory programs as well as its vendors. (The confidential and proprietary information of both parties is hereinafter referred to as “Confidential Information”). Each party shall exercise the same degree of care in safeguarding Confidential Information of the other party that a careful and reasonable company would exercise with respect to similar records of its own. Without limiting the obligations of the parties to safeguard Confidential Information, neither party shall disclose Confidential Information to competitors, customers or potential customers of the other party. The liability of ACCESS for any unauthorized disclosure of any Confidential Information shall be limited as set forth in Paragraph 10 hereof. Access to Confidential Information of a party shall be restricted by the receiving party to those individuals necessary to perform the Services hereunder, each of whom shall be subject to keep the Confidential Information confidential. In the event that a party is under a legal obligation to disclose Confidential Information, that party may do so without breach of these Terms and Conditions so long as, to the extent lawful and reasonably possible, the other party is provided prior written notice. The party legally required to disclose Confidential Information shall be reimbursed legal fees and costs for compliance with any such legal obligation. Confidential Information shall not include information that (A) is or may become publicly available without breach of these Terms and Conditions, (B) was possessed by one party prior to receipt from the other party, or (C) is or becomes lawfully available to a party from a third party free of confidentiality obligations. CLIENT represents and warrants that none of the Records require protection from foreign persons because they contain technical information regarding defense articles and services within the meaning of ITAR/EAR, the International Traffic in Arms Regulations, or technical data within the meaning of the Export Administration Regulations. If any Records do contain such information, CLIENT shall notify ACCESS of the specific Records that contain such information and acknowledges that special storage and service rates shall apply thereto.
- LIABILITY LIMITATIONS
A. Declaration of Valuation. CLIENT declares the value of all Records to be (A) $1.00 per box, carton, linear foot of open shelf files or other hard copy storage unit (or gigabyte of digital records) or (B) the actual replacement cost for the physical media with respect to tapes, cartridges, cassettes or other non-paper media, unless CLIENT declares a different valuation in writing to ACCESS, the receipt of which ACCESS acknowledges in writing, and pays an additional agreed upon fee for the storage of its Records.
B. Stored Records and Electronic Media. ACCESS shall not be liable for any loss or damage to Records, however caused, unless such loss or damage results from a failure by ACCESS to exercise that care that a reasonably careful person would exercise under like circumstances, in which case ACCESS’ liability, if any, for such loss or damage to Records shall not exceed the valuation in Paragraph 10A above. Without limiting the generality of the foregoing, ACCESS is not liable or responsible for (i) loss or damage arising from Acts of God, casualty, gradual deterioration of Records or media, vermin, labor disturbances, any governmental act or other cause beyond its reasonable control, or (ii) the repair, replacement or restoration of lost or damaged images, data or other property. Records are not insured by ACCESS against loss, damage or destruction, however caused. CLIENT must insure all Records at its own expense. CLIENT shall cause such insurers of Records to waive any right of subrogation or any other method of recovery against ACCESS and shall indemnify ACCESS from any loss or damages resulting from its failure to do so.
C. Other Claims. ACCESS’ maximum liability with respect to (i) the unauthorized disclosure of Confidential Information shall be six (6) months of total charges paid by CLIENT; (ii) any Storage or Destruction Services rendered hereunder is six (6) months of charges paid by CLIENT for such Services immediately preceding the service from which the claim arose.
D. Certain Damages. ACCESS WILL NOT IN ANY EVENT BE LIABLE TO CLIENT OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS) RELATED TO THESE TERMS AND CONDITIONS OR ARISING FROM THE SERVICES, UNDER ANY CAUSE OF ACTION WHATSOEVER, INCLUDING CONTRACT, WARRANTY, STRICT LIABILITY, OR NEGLIGENCE, EVEN IF ACCESS HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
E. Other. ACCESS will not be liable for any loss or damage occasioned by any misunderstanding of orders or instructions received from any ostensible CLIENT employee or representative. ACCESS will not be responsible for mis-deliveries made in good faith in reliance on orders given by any ostensible employees or representatives of CLIENT. With respect to obligations not otherwise addressed in this Paragraph 10, ACCESS’ liability shall not exceed the amount paid to ACCESS by CLIENT for such Service for the three (3) month period preceding the claim by CLIENT. The limitations of liability in this Paragraph 10 and otherwise in these Terms and Conditions shall apply irrespective of the cause of loss, damage, or destruction of Records or Services and CLIENT acknowledges that the amounts it is charged for Services reflect that ACCESS is relying on such limitations of liability.
- CLAIMS AND DISPUTE RESOLUTION/ARBITRATION
A. A written claim by CLIENT for loss, damage or destruction of Records must be made not later than thirty (30) days after: (A) redelivery of Records to CLIENT; or (B) CLIENT is notified by ACCESS of loss, damage or destruction of Records; or (C) CLIENT otherwise has notice or knowledge of such loss, damage or destruction, whichever is shorter. Such timely written claim is a condition precedent to recovery. ACCESS and CLIENT shall use reasonable efforts to resolve by negotiation any claim, controversy, or dispute arising out of or relating to the Services, for a period of at least fifteen (15) days after such claim or other dispute arises.
12.If ACCESS and CLIENT are unable to resolve any claim, controversy, or dispute as provided in Paragraph 11(A), then any dispute, claim, or controversy arising out of or relating to these Terms and Conditions or the breach, termination, enforcement, interpretation, or validity thereof, including the determination of the scope or applicability of its dispute resolution provisions shall be determined by binding and final arbitration in San Francisco, California before a single arbitrator. The parties agree: (A) to arbitrate solely on an individual basis, and (B) that these Terms and Conditions do not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. Any arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator has no right to vary, modify or supplement these Terms and Conditions or change or limit ACCESS’ practices, policies or procedures.
ACCESS and CLIENT shall each indemnify the other and the other’s affiliates, employees, officers and directors from and against all Costs for bodily injury, including death, or for damage to real or tangible personal property (other than Records) to the extent negligently caused by the indemnifying party.
- MODIFICATION OF TERMS AND CONDITIONS
ACCESS may modify these Terms and Conditions from time to time. Such modifications shall take effect on the first day of the second month following their publication on www.informationprotected.com/access-service-terms-and-conditions.
All notices required to be given under Paragraphs 7 and 8 of these Terms and Conditions, and claims arising from the Services, shall be in writing and delivered either personally or by registered or by certified mail, postage prepaid, or by recognized overnight courier service to the following addresses: to CLIENT- the address designated by CLIENT for delivery of invoices to CLIENT; to ACCESS- 6818 Patterson Pass Road, Suite A, Livermore, CA 94550 Attention: SVP, Contracts and Administration, or at such other place as either of the parties may from time to time designate in writing in a notice given in accordance with this provision. Notice shall be effective on the date of actual personal service or the third business day after the postmark on the registered or certified mail, as the case may be, or on the date of delivery to such address if sent by recognized overnight courier service.
These Terms and Conditions bind the CLIENT and its transferees, heirs, executors, successors and assigns. ACCESS may transfer custody of all Records and assign all Services to a third party. Notice of such transfer and assignment shall be given to CLIENT following the occurrence of same.
Nothing in these Terms and Conditions, whether express or implied, is intended to create or confer any rights or remedies in favor of any parties other than ACCESS and CLIENT and their respective successors and permitted assigns, nor shall any provision give any third party any rights or remedies against ACCESS or CLIENT.
If any provision of these Terms and Conditions is determined to be illegal or otherwise unenforceable by an arbitrator or a court of competent jurisdiction with respect to a CLIENT then, to that extent it shall be limited, or severed and deleted from these Terms and Conditions, and the remaining portions hereof shall survive, remain in full force and effect and shall, with respect to such CLIENT, be interpreted to give effect to the original intention of these Terms and Conditions.
The failure of either party to otherwise exercise any of its rights hereunder or to require the performance of any term or provision hereof, or the waiver by either party of any breach hereof, shall not prevent a subsequent exercise or enforcement of such rights or be deemed a waiver of any subsequent breach of the same or any other term or provision hereof.
A waiver of any right under these Terms and Conditions shall be effective only if in writing and signed by the authorized officer of party against which such waiver is to be enforced.
These Terms and Conditions and the provision of Services by ACCESS, shall be governed by and construed in accordance with the laws of the State of California, without regard to the principles of the conflicts of law, provided, however, that Paragraph 11 and any arbitration conducted pursuant to the these Terms and Conditions shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). The parties hereby consent to the exclusive jurisdiction of the applicable Federal or California State Courts with jurisdiction of Alameda County, California, as the venue for any legal action arising out of or relating to these Terms and Conditions. CLIENT waives all claims of forum non conveniens.
END OF TERMS AND CONDITIONS
Revised December 1, 2016
1) Change to paragraph 4(A) makes clear clients are not to store artwork, materials having historical value or collectibles, among other items.
2) Change to paragraph 4(B) clarifies and strengthens the encryption requirements of clients storing electronic data that is subject to governmental regulations.
3) Change to section (H) allows Access to service a client with an affiliated company, common carriers and with temporary employees.
4) Paragraphs (I), (J) and (K) added to section 4 which add other conditions related to the storage of client material and charges therefor.
5) Change to section 5 provides that the only warranties and representations binding upon Access are those set forth in the Terms and Conditions.
6) Changes to section 6 provide that time is of the essence for client payments and sets forth new terms under which clients may dispute a charge.
7) Change to section 8 provides that client will release and indemnify Access in the event Access follows the contractual procedures and destroys client’s stored materials for non-payment.
8) Changes to section 9 adds an obligation for client to protect Access’ confidential information. It also adds a client representation that the stored materials do not contain technical information within the meaning of ITAR/EAR, the International Traffic in Arms Regulations, or technical data within the meaning of the Export Administration Regulations.
9) Change to paragraph 10(B) requires client to insure all of clients’ stored materials at client’s expense.
10) Change to paragraph 11(A) decreases the time in which a client must make a claim regarding lost or damaged materials from 90 days to 30 days.
11) Change to paragraph 11(B) changes the mandatory arbitration from the American Arbitration Association to JAMS.