Applicability: These Standard Terms and Conditions (Agreement) will serve as the only mutually approved provisions governing the relationship and expectations of and between Ohio Mobile Shredding (Company) and the Customer represented and bound hereby, unless superseded by a separately executed Confidential Destruction Agreement. Further, this Agreement is limited to the service incident upon which it is presented and shall not extend to other service incidents or group of separate service incidents.
Description of Services: Company will provide the services for the secure destruction of media or materials that is reasonably in accordance with Company’s written and published representations (“Services”). Company will furnish a written verification of the acceptance, transfer and completion of such Services to Customer and a Certificate of Destruction. Purge service is defined as service provided on a one-time or less than five times per year basis. EasyShred℠ service includes all customers with document containers provided by Company and receive at least four (4) regularly scheduled services in a 12 month cycle.
Performance of Services: Company represents and warrants that all Services performed by Company will be in a professional manner in accordance with The National Association for Information Destruction’s NAID AAA Certified® security specifications, written Company Policies and Procedures and reasonable care requirements of applicable state and federal data protection regulations. Company’s compliance with NAID AAA Certified® security specifications is verified through periodic announced and unannounced audits by accredited, authorized third-party security professionals. The NAID AAA Certification Criteria and Audit Methodology, and Company’s Policies and Procedures will be made available to Customer upon Customer’s request.
Services by Third Parties: Company may procure the services of any responsible third party to perform all or part of the Services, insofar as said third party complies with all security standards and procedures required of Company by Customer, and further that said third party shall accept in writing the fiduciary responsibility requisite of the transfer of custody. Company will remain liable for all Services performed for Customer. Company will record all custody transfers and/or the use of any subcontractor to render contracted services to the Customer, and make Customer aware of any use of any subcontractor, including their identity.
Confidentiality: “Confidential Information” means any information relating to Customer’s property, business and affairs. Unless such Confidential Information was previously known to Company free of any obligation to keep it confidential, is subsequently made public by Customer or by a third party having a legal right to make such disclosure, or was known to Company prior to receipt of same from Customer, it shall be held in confidence by Company and shall be used only for the purposes provided in this Agreement. Company shall use the same degree of care to safeguard Customer Confidential Information as it uses to safeguard its own. However, Company may comply with any subpoena or similar order related to materials delivered to Company; provided that it shall, unless prohibited by law, notify Customer promptly of any such subpoena or notice. Customer shall pay Company’s reasonable costs for such compliance.
Red Flag Rule Compliance, Identity Theft Prevention and Detection: In the event that Company is retained to perform information destruction services in connection with “covered accounts” as defined by the regulations listed at 16 C.F.R. § 681.1 et. seq. (the “Red Flag Rule”), and these services are identified by Covered Entity, Company shall have policies and procedures to detect relevant Red Flags that may arise in the performance of the Company’s activities (if any), and shall either report the Red Flags to the (Covered Entity) or to take appropriate steps to prevent or mitigate identity theft in connection with these Red Flags. Company agrees to reasonably cooperate with any subsequent investigation by or on behalf of the Covered Entity related to such notification by Company.
HIPAA Provisions: Company acknowledges that in connection with this engagement with Customer it may have access to protected health information (“PHI”) and therefore may be acting as a “business associate” under the HIPAA Privacy and Security Rules. In connection with this information, BA agrees that it (a) will not use or further disclose PHI other than as permitted to perform these services or as permitted or required by law; (b) will report to Customer, within a reasonable period of time, any use or disclosure of PHI or Breach or Security Incident not provided for by this Agreement and affecting Customer’s PHI of which it becomes aware; (c) will use appropriate safeguards to prevent use or disclosure of PHI other than as permitted by this Agreement; (d) will require that all of its subcontractors and agents to which it provides PHI pursuant to the terms of this Agreement agree to all of the same restrictions and conditions to which BA is bound; (e) will make available for access and amendment PHI that it maintains to the extent this PHI is part of a designated record set; (f) will make available upon Customer’s request an accounting of disclosures in accordance with the Privacy Rule; (h) will make available to the Secretary of Health and Human Services upon reasonable notice the internal records and documentation necessary to determine the Customer’s HIPAA compliance as it relates to this engagement; (i) upon termination of this Agreement will, where feasible, return or destroy all PHI received from Customer under this Agreement; (j) will otherwise meet applicable requirements of the Privacy Rule; (k) will implement administrative, physical, and technical safeguards that reasonably and appropriately protect the confidentiality, integrity, and availability of the electronic PHI that it receives or maintains on behalf of the Customer. BA also will conduct its activities in accordance with reasonable policies and procedures to detect, prevent and mitigate the risk of identity theft where reasonably applicable to BA’s services.
Data Breach Notification: As a condition of employment, all Company employees are required to notify management of any actual or potential unauthorized access to information transferred to Company’s custody. If such information is verified by management to constitute unauthorized access, Company shall fully disclose to Customer all relevant details in a timely manner and reasonably cooperate in any subsequent investigation.
Right to Rely on Instructions: Company may act in reliance upon any instruction, instrument, or signature reasonably believed by Company to be genuine, and may assume that any of Customer’s employees or any employee of Customer’s affiliates or subsidiaries giving any written or verbal notice, request, or instruction has the authority to do so.
Compliance with Contracts, Laws and Regulations: Customer shall be responsible for, and warrant compliance with, all contractual restrictions and all applicable laws, rules and regulations, including but not limited to environmental laws and contractual restrictions and laws governing the confidentiality, retention and disposition of information contained in any materials delivered to Company. Company shall comply with applicable laws, statutes, regulations and ordinances.
Material Descriptions: Itemized lists or descriptions of contents of materials submitted by the Customer to the Company shall be generally considered for recordkeeping, reconciliation, and reference purposes only, and are not to be considered proof that said documents contained on such lists and descriptions are in fact contained in the materials accepted. Company will make provision for validation of such document contents in advance and under special terms and fess at the request of the Customer.
Hazardous Substances: Customer shall not deliver to Company any material considered toxic or dangerous or which is regulated under any federal or state law or regulation relating to hazardous materials. In the event of the accidental or negligent custodial transfer of hazardous or regulated waste, including bio-hazard, Customer agrees to arrange to appropriately, safely and legally assume custody of such hazardous materials at their expense. And further to indemnify the Company from any property damage or personal injury resulting from such transfer of material.
Negotiable Items: Customer agrees to make Company aware in writing and in advance of any instance in which negotiable instruments, including but not limited to checks, bearer bonds, travels checks, or coupons will be presented for destruction, and further, that in absence of such notice, Company incurs no liability related to the restitution for the value of such negotiation such instruments.
Cooperation and Assistance: Customer shall cooperate with Company with regard to the performance of the Services, subject to normal security requirements and in a manner that is not unnecessarily disruptive to Customer’s business operations, by providing to Company such information, data, access to premises, management decisions and approvals as may be reasonable to permit Company to perform the Services hereunder.
Access: Excluding delivery of materials to Company’s facility by Customer, Customer agrees to provide unobstructed access to the materials on the scheduled service day. Company reserves the right to charge a reasonable additional fee for the Customer’s failure to provide such access.
Timeliness: Excluding delivery of materials to Company’s facility, Customer agrees that Company shall be allowed to commence Services within fifteen (15) minutes after Company has made its presence known to Customer. If commencement is in excess of fifteen minutes due to fault of Customer, Company reserves the right to charge an additional fee of $200.00 per hour prorated each fifteen minutes until commencement of Services begins.
Cancellation/Failed Service Attempt (Purge Service): Excluding delivery of materials to Contractor’s facility by Customer, Contractor reserves the right to charge a fee of 50% of the projected fee based on the Customer’s anticipated volume, or a minimum fee of $75.00, whichever is greater, for a failed service attempt resulting from Customer’s failure to provide Contractor with correct and/or sufficient information, and/or for Customer’s failure to be available on the scheduled service day, and/or for Customer’s failure to provide Contractor with a twenty-four (24) hour notice of cancellation. Customer agrees to pay a round trip travel fee from Contractor’s facility at 3275 E. 11th Ave., Columbus, Ohio 43219 of $1.75 per mile if the address of the failed service attempt is outside of Franklin County, Ohio.
Cancellation/Declination of Service/Failed Service Attempt (EasyShred℠ Service): Customer agrees that if Customer’s offices are closed, or if Customer declines scheduled service or fails to provide Contractor with a twenty-four (24) hour notice of cancellation, Contractor shall charge Customer the customary service visit fee. If the service address is outside of Franklin County, Ohio, Contractor shall charge a round trip travel fee from Contractor’s facility at 3275 E. 11th Ave., Columbus, Ohio, 43219 of $1.75 per mile.
Equipment: Customer agrees that any containers furnished by Contractor hereunder shall remain the property of Contractor and Customer shall have no interest in such equipment. Customer shall not overload (by weight or volume), or alter the container(s), and shall use the container(s) only for its intended purpose. Customer shall not place containers in locations involving stairs. In the event Customer has placed containers in locations involving stairs Contractor reserves the right to refuse service and re-schedule the pickup, and shall charge Customer a failed service attempt fee of $75.00. In the event that the container(s) are lost, damaged or destroyed by Customer, Customer agrees to pay for all damage or loss of such container(s) at the current replacement value(s). Contractor shall be responsible for all damage resulting from Contractor’s handling of the container(s).
Rates and Fees (Purge Service): All standard charges for Services under this Agreement are as represented in writing at the time of service or as agreed separately by Company and Customer. The rate and any applicable discount or credit is based on Customer’s description of the content, volume, presentation and location of materials. Customer agrees that Company reserves the right to adjust the rate and any applicable credits or discounts if the content, and/or volume, and/or presentation, and/or location of materials differ from Customer’s description. Rate is based on ground floor or elevator access to materials. Company removal of materials from locations with stairs incurs an additional fee. Turnstiles, basements attics, obstacles, ramps, long distances, difficult or extreme locations and materials presented “loose” (not in boxes) incur additional fees. Excluding delivery of materials to Company’s facility by Customer, Customer agrees to provide parking for Company’s truck. If Customer is not able to provide parking for Company truck on Customer’s premises, Customer agrees to pay fees for parking meter(s), garage, and/or parking lot fees and that such fees shall be added to the invoice. The total cost for the service to be performed is an approximate calculation of the total amount due by Customer before the job has been completed in its entirety. In fact, the final balance due may be higher or lower than the original estimate. Thus, Customer agrees that Company reserves the right to adjust the final balance due and that such invoice shall be accurate based on the proposed pricing.
Rates and Fees (EasyShred℠ Service): Customer may adjust the Type (onsite or offsite) and Frequency of Services at any time with a written notice and the fee shall be adjusted accordingly for that type and frequency. All standard charges for Services under this Agreement are as represented in writing at the time of service or as agreed separately by Company and Customer. Rate is based on ground floor or elevator access to materials. Stairs, turnstiles, basements, attics and other obstacles and difficult or extreme locations incur increased rates. The prices set forth in this Agreement shall remain in effect for the first twelve (12) months of this Agreement. Thereafter, price adjustments shall be made only after thirty (30) days prior written notice. Such notice may be in the form of an invoice. Charges for any service requested by customer that is not specified in this Agreement will be agreed to in writing by Customer and Company prior to rendering of such Service.
Payments: Invoices shall be due and payable within thirty (30) days from receipt of the applicable invoice. Amounts due and not paid within thirty (30) days after Customer’s receipt of the invoice shall bear interest at the rate of one and one-half per cent (1.5%) per month. In the event Customer fails to pay Company all amounts which become due under this Agreement, Customer agrees to pay, in addition to the amount due, all reasonable attorneys’ fees, court costs, and related expenses incurred in the event payment is not made in a timely manner, and proceedings are brought by Company to collect sums owed.
EasyShred℠ Service Trial Period: Services start with a ninety (90) day trial period effective the date the containers are delivered by contractor to customer. During the ninety (90) day trial period, Customer may discontinue service for any reason and have Contractor remove the container(s). If service is discontinued by Customer within the ninety (90) day trial period and documents are stored in the container(s) at the time of the container removal, the documents shall be destroyed by Contractor and the customary shredding charge shall apply. The EasyShred℠ Service customer bulk/purge/boxed document shredding discount is not applicable during the ninety (90) day trial period.
Term (EasyShred℠ Service): The term of this agreement is one year (12 months) from the first day after the Trial Period has been completed. On the anniversary date, the term will automatically renew for successive one (1) year terms unless the Customer discontinues service by written notification to OMS not less than 60 days prior to the end of the current term. In the event of early termination by Customer, Customer shall be responsible for paying the average monthly charges for the remainder of the term, not to exceed six (6) months’ average charges.
EasyShred℠ Service Termination- Compliance/Performance: Either party may terminate this Agreement if the other is in material or repeated breach of any of its obligations hereunder and the breaching party has not cured the breach within sixty (60) days after written notice from the non-breaching party.
EasyShred℠ Service Termination- Payment and Container Removal: In the event of any termination after the ninety (90) day trial period, Customer is responsible for any unpaid charges prior to termination, up to and including the charges for servicing the Customer on the last day of pick-up. Upon termination, Customer shall permit Contractor to retrieve containers at the rate of $25.00 per each and Contractor shall have no further obligation to provide further Services to Customer.
Term (Purge Service): This Agreement shall be in effect for the Effective Date set forth above and for any subsequent dates necessary to complete the Services hereunder.
Presentation of Claims: Customer must present any claim with respect to any Service in writing to Company within a reasonable time and in no case later than three (3) months after the occurrence of the event on which the claim is based.
Arbitration: Any claim, controversy, or dispute arising out of or relating to this Agreement, or any interpretation or breach of this Agreement or performance under this Agreement, including without limitation any dispute concerning the scope of this Article 6, that cannot be resolved within fifteen (15) days by informal discussions between the parties, shall be resolved by submission to final, binding and non-appealable arbitration, without any right by either party to trial de novo in any court. Such arbitration and all pre-hearing, hearing, and post-hearing arbitration procedures, including for discovery, disclosure of arbitrator’s interests, and challenge of designation of any arbitrator, shall be conducted under the Commercial Arbitration Rules of the American Arbitration Association. A single arbitrator shall be selected by the American Arbitration Association.
Insurance: Company shall maintain, throughout the term of this agreement, worker’s compensation insurance, commercial general liability insurance (CGL), and professional liability insurance. Minimum scope and limit of coverage shall be at least as broad as:
- Worker’s Compensation Insurance as required by law.
- Commercial General Liability (CGL) insurance: covering CGL on an occurrence basis, with limits no less than $1,000,000 per accident for bodily injury and property damage.
- Professional Liability (Errors and Omissions): covering professional liability for Services hereunder with limits no less than $1,000,000 per claim. Data breach notification expense incurred by Customer due to Contractor’s actions, including accident, negligence or willful misconduct, shall be considered recoverable damages.
Limitation of Liability: Company shall not be responsible or liable in any manner whatsoever for the release or loss of any materials deposited in bins or otherwise delivered to it for secure destruction unless the release or loss is due to Company’s negligence or willful misconduct. Company’s maximum liability for any and all claims arising with respect to Services provided under this Agreement shall not exceed the aggregate amounts paid by Customer with respect to Services provided at the particular Customer location during the one (1) month preceding the event which gives rise to a claim. In no event shall Company be liable for any consequential, incidental, special or punitive damages, regardless of whether the action is brought in tort, contract or any other theory.
Ownership Warranty: Customer warrants that it is the owner, legal custodian or otherwise has the right to deliver for confidential destruction any and all materials Customer provides Company hereunder. Customer shall reimburse Company for any expenses reasonably incurred by Company (including reasonable legal fees) by reason of Company complying with its obligations under this Agreement to destroy such materials in the event of a dispute concerning the destruction of the materials provided by Customer to Company.
Binding Nature and Assignment: This Agreement shall be binding on the parties and their respective successors and assigns. Except as permitted in Services by Third Parties section above, neither party may assign this Agreement, except to an affiliate, without the prior written consent of the other party, which consent shall not be unreasonably withheld.
Force Majeure: Each party shall be excused from any delay or failure in performance under this Agreement for any period if and to the extent that such delay or failure is caused by acts of God, governmental actions, labor unrest, riots, unusual traffic delays or other causes beyond its control.
Relationship of Parties: Company is acting as an independent contractor hereunder and has the sole right and obligation to supervise, manage, contract, direct, procure, perform, or cause to be performed all work to be performed by Company under this Agreement.
Invalidity: If any provision of this Agreement is declared invalid by any tribunal of competent jurisdiction, then such provision shall automatically be adjusted to the minimum extent necessary to the requirements for validity as declared at such time and as so adjusted shall be deemed a provision of this Agreement as though originally included herein. In the event that the provision invalidated is of such a nature that it cannot be so adjusted, the provision shall be deemed deleted from this Agreement as though such provision had never been included herein. In either case, the remaining provisions of this Agreement shall remain in effect.
Attorney Fees: Company shall be entitled to recover reasonable attorney’s fees and costs in conjunction with any successful action brought to enforce or interpret this Agreement.