Terms of Service

1. Term and Termination

The initial term of the Agreement shall begin on the date that the Order is signed by Customer and ByteBack (the "Effective Date") and continues for the time period set forth in the Order, unless terminated earlier in accordance with the Agreement (the "Initial Term"). After that, the Agreement will renew for additional term(s) as set forth in the Order (each, a "Renewal Term", and together with the Initial Term, the "Term"), unless one party notifies the other party at least thirty (30) days prior to the end of the then-current Initial Term or Renewal Term that it does not wish to renew the Agreement. Either party may terminate the Agreement if the other party breaches its material obligations hereunder and does not cure such breach within thirty (30) days after receipt of written notice from the non-breaching party specifying the breach.

2. Scope of Work

ByteBack will provide onsite pickups for IT hardware and complete white glove asset collection, repurposing, remarketing, and sustainable recycling as applicable. ByteBack will provide serialized asset reporting, certificates of destruction by computer serial, and environmental impact reporting in the ByteBack web application.

Submission of Batch Listings

Customer will from time to time during the Term provide ByteBack with listings, descriptions and/or photographs of Products via the web application (in a form reasonably acceptable to ByteBack) that Customer wishes to submit to ByteBack for disposal pursuant to the Agreement (each such listing, a "Batch Listing"). ByteBack will determine, in its sole discretion, which Products are eligible for repurposing or recycling in accordance with ByteBack's then-current eligibility requirements.

Product Acceptance and Title

Title and risk of loss of the Products passes from Customer to ByteBack when ByteBack collects such Products from the Customer location or at an alternative site mutually agreed upon by the parties ("Product Acceptance").

Pick-up

The parties will mutually agree upon the date on which ByteBack will collect the Products. ByteBack is available to collect Products Monday-Friday between the hours of 9 a.m. and 5 p.m. local time of Customer's location. ByteBack reserves the right to refuse pick-up of Ineligible Products at time of pickup. Once the Products are collected by ByteBack, Customer acknowledges and agrees that the Products cannot be returned to Customer for any reason.

Inspection

ByteBack will inspect the Products within thirty (30) days after Product Acceptance to determine final eligibility for repurposing and/or recycling. During such inspection ("Inspection"), ByteBack will determine, in its sole discretion, which Products are eligible for repurposing and which Products are eligible for recycling. Products not eligible for repurposing will be recycled with a recycler. If during Inspection ByteBack determines in its sole reasonable discretion that any Products are not eligible for repurposing or recycling including non-IT equipment such as, but not limited to, kitchen appliances and furniture (the "Ineligible Products"), Customer acknowledges and agrees that ByteBack is permitted to dispose of the Ineligible Products.

3. Media and Data Sanitization

ByteBack shall not access, process or otherwise transmit or take any action or make any use of any data except for the purpose of Product Sanitization.

ByteBack shall either (a) remove any and all data from Products in accordance with the requirements of this paragraph or (b) in the event such data cannot be removed in accordance with the requirements of this paragraph, or otherwise at ByteBack's discretion, physically destroy the Product (collectively, "Product Sanitization"). ByteBack shall implement Product Sanitization measures that meet or exceed the standards set forth in the most current version of the National Institute of Standards and Technology (NIST), Special Publication 800-88, "Guidelines for Media Sanitization," (or any successor NIST publication), Department of Defense (DoD) or other industry standards, and such measures may include, as appropriate, overwriting, purging, shredding, disintegration, incineration, and pulverization.

Customer acknowledges and agrees that ByteBack is not responsible for notifying Customer, or for providing back-ups of, any data on any Products during Inspection.

Customer agrees to unenroll any Products provided to ByteBack hereunder from the Apple Business Manager or similar PC enrollment programs before providing the Products to ByteBack. Customer shall further remove firmware and Extensible Firmware Interface passwords from hardware provided as part of the Products.

4. Application Access

Customer must provide an email account to access the services. Each authorized user, defined as an employee, contractor or agent of Customer who is authorized to use the Application and who has access to the Application, must provide a valid email ("Authorized Users"). Customer is solely responsible for Customer's and its Authorized Users' conduct and the content of any information provided through use of the Services ("Customer Data").

ByteBack will implement appropriate technical and organizational measures designed to protect Customer Data in accordance with relevant data protection and data privacy laws, rules and regulations applicable to ByteBack's Services under the Order ("Applicable Data Protection Laws").

5. Customer Responsibilities

Please do not copy, upload, download or share information or content unless you have the right to do so. Customer, not ByteBack, will be fully responsible and liable for what is copied, shared, uploaded, downloaded or otherwise used while using the Services. Customer may not upload spyware or any other malicious software as part of the Services or use of the Application.

Customer acknowledges that, as between Customer and ByteBack, ByteBack owns and retains all right, title and interest in the Intellectual Property Rights in the Services (including those related to the Application).

Customer is responsible for keeping the password used to access the Application secure and agrees not to provide its password to any third party. Customer is responsible for all activity using its account, whether or not authorized by Customer. Customer should contact ByteBack immediately if any unauthorized use of Customer's account.

6. Confidential Information

The party receiving the Confidential Information (the "Recipient") of the party disclosing the Confidential Information (the "Disclosing Party") shall use the same efforts to protect the Confidential Information from unauthorized disclosure or use as it uses to protect its own confidential information, but not less than a reasonable degree of care. Except as reasonably necessary to exercise its rights and perform its obligations hereunder and as expressly permitted herein, the Recipient shall not use the Confidential Information for any other purpose without the Disclosing Party's approval. "Confidential Information" means information or materials of the Disclosing Party that are marked "confidential" or that a reasonable person under similar circumstances would understand to be confidential in nature.

7. Feedback

Any feedback, comments and/or suggestions about the Services ("Feedback"), shall be owned by ByteBack without any obligation to Customer. Customer agrees that ByteBack may freely use, disclose, reproduce, license, distribute, or otherwise explicit in any manner any Feedback without any obligation to Customer, restriction of any kind (including on account of any Intellectual Property Rights) and without paying any compensation to Customer or any third party.

8. Buyback and Reporting

ByteBack shall pay Customer a Buyback Price for Products (the "Buyback Price") or in lieu of such payment, Customer may direct ByteBack to make an in-kind technology donation in lieu of paying Customer the Buyback Price. The Buyback Price and the amount of the in-kind technology donation is determined by ByteBack, in its sole discretion, in accordance with its then-current policies.

If payment is required to fund a pickup, all payments are to be paid in accordance with the Order and will be due and payable upon commencement of the Services. Payments are mutually agreed by ByteBack and Customer in writing before the collection.

9. Representations and Warranties

Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into the Agreement and to perform its obligations hereunder; (b) the execution of the Agreement and performance of its obligations hereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties.

Customer further represents and warrants that (i) it has all right, title and interest in any and all Products, (ii) the Products and the sale of such Products to ByteBack complies with all applicable laws, statutes and ordinances, (iii) the Products are not counterfeit, stolen or fraudulent and (iv) the Products are free from any liens, encumbrances or other restrictions.

EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN, ALL SERVICES PROVIDED BY BYTEBACK HEREUNDER ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN, BYTEBACK MAKES NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.

10. Indemnification

ByteBack agrees to indemnify, defend and hold harmless Customer and its subsidiaries, affiliates, officers, directors, agents, and employees (the "Customer Indemnified Parties") from any and all claims, liabilities, damages, losses, costs, expenses or fees, including reasonable attorneys' fees (each, a "Claim") arising from death or personal injury to a person or damage to or destruction of any tangible property which the Customer Indemnified Parties may incur or sustain to the extent such Claim results from the negligence or willful misconduct of ByteBack and its personnel. Customer agrees to indemnify, defend and hold harmless ByteBack and its subsidiaries, affiliates, officers, directors, agents, and employees (the "ByteBack Indemnified Parties") from a Claim arising from death or personal injury to a person or damage to or destruction of any tangible property which the ByteBack Indemnified Parties may incur or sustain to the extent such Claim results from the negligence or willful misconduct of Customer and its personnel.

11. Limitation of Liability

EXCEPT FOR THE EXCEPTIONS (AS DEFINED BELOW), THE AGGREGATE LIABILITY OF THE PARTIES SHALL BE LIMITED TO THE BUYBACK PRICE PAID BY BYTEBACK TO CUSTOMER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THAT THE CAUSE OF ACTION GIVING RISE TO LIABILITY OCCURRED.

EXCEPT WITH RESPECT TO THE EXCEPTIONS, NEITHER PARTY IS LIABLE FOR ANY DAMAGES FOR LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, OR LOST DATA, LOSS OR DAMAGE TO THE PRODUCTS WHILE BEING TRANSPORTED, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT OR ANY PORTION THEREOF.

The limitation of liability shall not apply to: (a) damages arising from the gross negligence or willful misconduct of a party; (b) Customer's payment obligations hereunder, and/or (c) Customer's violation of ByteBack's Intellectual Property Rights (collectively, the "Exceptions").

12. Electronic Notices and Transactions

All notices under this Agreement will be in writing and sent to the recipient's address set forth in the Order and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Customer agrees that ByteBack may communicate with Customer via email regarding any potential transaction between Customer and ByteBack.

13. General

If any provision of the Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither party may assign this Agreement or assign or delegate its rights or obligations under the Agreement without the other party's prior written consent.

Both parties agree that the Agreement, including all exhibits and addenda hereto and buyback issued hereunder, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of the Agreement.

The Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. For all disputes arising from or relating to the Agreement, either party shall provide notice of such dispute to the other party, and representatives of the parties shall meet and attempt to in good faith resolve such dispute.

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