Operating Terms and Conditions for Secure Technology Asset Disposition

These terms are effective as of August 12, 2020
The terms and conditions below outline how the provision of Secure Technology Asset Disposition (STAD) Services are to occur. These Operating Terms and Conditions are hereby incorporated into any applicable Work Order and, along with that Work Order and the Master Terms and Conditions, form the full agreement for those Services between the Customer and MCPc.
 
DEFINITIONS

Asset” means any electrical or electronic equipment delivered to MCPc by Customer under the terms of this Agreement, including but not limited to personal computers, laptops, printers, fax machines, servers, and other computer-related peripheral devices.

Asset Audit Report” means a report setting forth the number and description of the Assets, the final disposition of the Assets, and the estimated revenue share of any Assets that can be resold by MCPc.

Certificate” means a certificate of data erasure, destruction and disposal.

Customer Data” means non-public data stored on any Asset.

Facility” means the physical supplier facility designated by MCPc.

Fair Market Value” means a value assigned to an Asset by MCPc’s system based on market conditions, the physical condition of the Asset including age, and the functionality of the Asset.

Service Order” means a request via the customer portal or through e-mail for disposition services.

Subcontractor” means a third party, excluding third-party transportation companies, to whom MCPc has delegated or subcontracted any portion of its obligations arising under this Agreement or the performance of the Services.

Subscribed Services” means services offered on a calendar-based, subscription service model.

Verified Asset” means an asset upon which MCPc has performed a serialized audit.
 

  1. SERVICES
    1. The Parties agree that MCPc is in the business of arranging for the disposition of computer hardware and electrical or electronic equipment.  MCPc will dispose of and/or resell Assets owned by Customer.  The term “Assets” includes the specific Assets identified on a service order.  For purposes of this Word Order, a “Lot” means all Assets that Customer either provides to MCPc at one Customer location (the “Location”) for transportation to a Facility on Customer’s behalf or transports to MCPc from a Location to a Facility.
  2. Assignment
    1. MCPc may assign or subcontract the services to qualified third party service providers.  MCPc will remain responsible for the performance of all services, regardless of whether performed by MCPc or a third-party subcontractor.
  3. Order
    1. Prior to or at the time of delivery of the Assets, Customer will provide MCPc a Service Order via MCPc’s customer portal or email, which will set forth the estimated number and type of Assets, the Location where the Assets will be provided (if MCPc is to arrange for transportation of the Assets to MCPc facility on Customer’s behalf) and the date the Assets will be provided or, if Customer will be arranging for the transportation of the Assets, the anticipated delivery date.  MCPc will acknowledge receipt of any Service Order for Assets to be provided at Customer’s Location and confirm if it is able to meet the requested timeline.
  4. Assets at Customer Location
    1. If Customer de-installs the Assets and requests MCPc receive Assets at the Location, Customer will have the Assets ready for MCPc at the Location’s loading dock or near an exit door on the agreed date.  If Customer provides Assets to MCPc at the Location, MCPc will arrange for transportation of the Assets on behalf of Customer to the Facility.
  5. Delivery to MCPc's Facility
    1. If Customer delivers the Assets to the Facility, Customer will pack the Assets for transport and bear all costs of transporting the Assets to the Facility.
  6. Title
    1. Risk of physical loss or damage to Assets will transfer to MCPc at the point at which MCPc has been given physical custody and control of the Assets and the Assets are Verified Assets. Unless an Asset is to be stored only or redeployed (in which case title will never transfer to MCPc) title to the Asset will transfer to MCPc at the following points:
      1. If the Asset is designated at the point of pick up or in a Work Order to be recycled only, then title will transfer from the Customer to MCPc when the Asset is received by MCPc or delivered to MCPc’s Facility for processing;
      2. If the Asset is to be assessed for remarketing value, then title will transfer when devices are recognized as a verified asset and an initial disposition route is determined (remarking or recycling); or
      3. If the Asset is to be sold on a consignment basis, title to the Assets will at all times remain exclusively with the Customer until MCPc purchases the Assets at the time of sale to the buyer or to MCPc at the end of the consignment period, as the case may be, or MCPc recycles the Assets as authorized by Customer.
    2. MCPc, in its sole discretion, will determine if an Asset is eligible for resale or should be destroyed. If MCPc determines that an Asset should be destroyed, it will arrange for the destruction of the Assets in accordance with applicable laws and regulations.
  7. Risk of loss during storage
    1. MCPc accepts customary, custodial responsibilities for warehousing of the Assets, including appropriate safeguards against unauthorized access. MCPc, however, disclaims and will not have any responsibility for damage caused by acts of God, war, civil commotion, riots, strikes, lockouts or other labor disturbances, accident, fire, water damage, flood or other natural catastrophe.
  8. Reporting Requirements
    1. Within sixty (60) days of receipt of the Assets at the Facility, MCPc will process the Assets and provide Customer with a Certificate and an Asset Audit Report, setting forth the number and description of the Assets, the final disposition of the Assets, and the estimated revenue share of any Assets that can be resold by MCPc.  The Parties agree that MCPc’s verification of Assets provided by Customer, whether at a Location or a Facility as reflected in an Asset Audit Report will be considered the official list of Assets provided. If the volume of assets exceeds MCPc’s capacity threshold (available upon request, as defined by MCPc in its sole discretion), the reporting ability may be impacted, and MCPc will notify Customer in writing of any changes in requirements.
  9. Revenue Share and Professional Services Fees.
    1. MCPc will use commercially reasonable efforts to remarket all Assets received from the Customer.  MCPc will use good faith efforts to assign a Fair Market Value (“FMV”) to each Asset it receives from Customer. If the net proceeds of the sale of the remarketed Asset do not exceed the associated processing, pickup, transportation, and fuel fees and surcharges within a given Lot, MCPc will provide Customer with an invoice setting forth the amount due and owing MCPc for the STAD Services it performs with respect to the given Lot, at the same time it provides the Asset Audit Report. Each invoice is due and payable within thirty (30) days of the date of the invoice. MCPc is not responsible for paying and will not pay any taxes that may be assessed on the Assets, nor is MCPc obligated to make any reports on behalf of Customer with any taxing authority. Customer is not responsible for collection and disbursement of any taxes resulting from the resale of the Assets.
  10. Certificate of Data Erasure, Destruction, and Disposal.
    1. MCPc will provide a Certificate for all Assets it processes.  The Certificate will reference the Lot Number and be delivered with the Asset Audit Report that lists all Assets included and covered within the Certificate.
  11. Fair Market Value:
    1. The fair market value calculation depends heavily on the functionality and cosmetic condition of the Assets. Below is a general description of MCPc’s Asset grading process and requirements.
    2. Grading Conditions
      1. FMV is driven by three key areas: grade or condition of the Asset, components within the Asset, and timing or receipt of the Asset.
      2. All Assets will be given a grade of A, B, C, or D, which is used to determine the FMV.
        1. A = New in Box Asset, “complete” as defined below and functional with like new condition.
        2. B = Used Asset, “complete” as defined below and functional with normal wear and tear.
        3. C = Used Asset missing components or with cosmetic damage that is in excess of normal wear and tear.
        4. D = Used Asset that must be recycled as the most economical method of disposition. Asset is no longer marketable, is missing major components or is so cosmetically damaged that it cannot be resold (FMV = $0).
      3. For a system to be “complete,” the system must have certain components to receive full stated value.
        1. Complete systems include the following components, but are not limited to, the system processor, system memory, system chassis with power supply (battery), one fixed disk drive, keyboard, video adapter/interface, and optical drive (if these drives were manufactured for the make and model of the system received).
        2. Assets found to be non-functional and irreparable are Grade D.
      4. The FMV of Assets missing a component will be the resale value minus the value of that component and the cost of its replacement, as applicable.
      5. FMV provided at the time of the creation of a quote or Order Document are estimates only. Fair market values are subject to change without notice.
      6. Customer acknowledges and agrees that MCPc makes its best estimate on the FMV of Assets and does not guarantee such values. Factors out of MCPc’s control, such as cosmetic condition, functionality, configuration, and market conditions can affect such estimated FMV of Assets.
  12. LIMITATION OF LIABILITY:
    1. In addition to any limitations of liability set forth in the MSA or other master agreement between Customer and MCPc, MCPc and Representatives will have no liability (whether in contract, tort or otherwise) for the security or confidentiality of Customer Data residing on Assets except for (i) the unauthorized disclosure of Customer Data from an Asset hard drive upon which MCPc or Representatives failed to properly perform the data wipe in accordance with the agreed processes and subsequently certified such hard drive as being successfully wiped on the Certificate of Data Erasure, Destruction, and Disposal delivered pursuant to a WORK ORDER or service order (ii) disclosure arising from the loss of an Asset while in MCPc’s custody and only to the extent arising from MCPc’s negligence or willful misconduct. In such cases MCPc and/or Representatives will be liable to Customer for direct damages resulting from such disclosure subject to any liability cap otherwise agreed to by the parties. MCPc’s maximum and sole liability (whether in contract, tort or otherwise) arising out of or in connection with any claim for loss of any Asset will in no event exceed a reasonable fair market valuation or, to the extent available, the valuation thereof set out in the asset audit report in which the item was first discovered as lost.
  13. Indemnification:
    1. Customer will defend, indemnify and hold harmless MCPc, its affiliates, and their respective officers, directors, employees and agents from and against any and all claims, losses, liabilities, damages, expenses or the like (including reasonable attorneys’ fees) (“Losses”) arising out of or relating to any claim that Customer lacks good and marketable title to the Assets free and clear of all liens, claims and encumbrances of any kind.
  14. Warranty of Customer:
    1. Customer represents and warrants that:
      1. It has, and will have at the time of remarketing the Assets, good and marketable title to all the Assets it causes to be delivered to MCPc, free and clear of all security interests, mortgages, liens, pledges, claims, charges or encumbrances;
      2. To the extent that title transfer in Assets is agreed in an Order Document, Customer is duly authorized to transfer title to such Assets to MCPc and that such transfer will not result in a breach by Customer of any agreement or judgment binding upon Customer;
      3. Customer will wipe the Assets of Customer Data or notify MCPc that Customer Data is stored on the Assets and request MCPc to perform data wipe services or destructive recycling services as set forth in an applicable Order Document; and
      4. To the extent Customer is or should reasonably be aware that the Assets contain any hazardous materials, other than hazardous materials that can be reasonably expected to be present in the Assets, Customer will notify MCPc and unless otherwise agreed in an Order Document, none 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
  15. Warranty and disclaimers of MCPc:
    1. If the Assets are remarketed, MCPc disclaims and will not make any representation or warranty with respect to the Assets and MCPc will not be liable for any claims with respect to environmental problems arising out of or in connection with hazardous materials or chemicals contained in the Assets. EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN THE MSA OR GENERAL TERMS AND CONDITIONS, MCPc MAKES NO OTHER REPRESENTATION OR WARRANTY WITH RESPECT TO THE STAD SERVICES PROVIDED HEREUNDER AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
  16. Term and Termination:
    1. Unless Customer has agreed to a Subscribed Service, either Party may terminate this Work Order for any or no reason upon 60 days’ prior written notice to the other Party.  Upon receipt or its issuance of a notice of termination, in the event Customer is not then in breach of the Agreement, MCPc will complete all Services for any Lot already in transit to or delivered to the Facility.  However, unless the Parties agree otherwise in writing, upon receipt or issuance of a notice of termination, MCPc will cease to accept any new requests for Services received from Customer.  Customer will pay all fees and costs and expenses incurred and/or net proceeds for Assets delivered prior to the effective date of termination.