Terms and Conditions

1. APPLICABILITY OF THESE TERMS AND CONDITIONS

The terms and conditions provided below (the “Terms and Conditions”) shall apply to and govern any Services (as defined below) performed by Team Support Services, LLC, a Michigan limited liability company doing business as Abraxas Worldwide (“ABRAXAS”) on behalf of any person or entity (the “CLIENT”) in the absence of a currently enforceable written agreement between the CLIENT and ABRAXAS with respect to such Services. The tendering of any items for storage by the CLIENT to ABRAXAS (or any predecessor of ABRAXAS) and/or the actual custody by ABRAXAS of any items of CLIENT for storage, and/or the request for other Services from ABRAXAS, and/or the payment by CLIENT for any such Services, shall constitute acceptance by CLIENT of all of these Terms and Conditions. If CLIENT issues a purchase order, memorandum, or any other instrument purporting to cover Services that is not accepted in writing by an authorized officer of ABRAXAS, then such purchase order, memorandum, or other instrument shall be for CLIENT’s internal purposes only and is not binding upon ABRAXAS whether communicated before or after commencement of Services. Any currently enforceable agreement between CLIENT and ABRAXAS regarding the Services shall supersede these Terms and Conditions. 

2.DEFINITIONS

As used herein, the following terms have the following definitions:

  • “Client Representative” means a senior representative of CLIENT’s management responsible for determining the scope of the Services and will be responsible for reviewing, supervising, and approving ABRAXAS’ performance of Services.
  • “Deliverables” means any work product to be delivered by Services Provider to CLIENT as set forth on an applicable SOW. 
  • “Facility” means the facility located at 701 E. Milham Ave., Portage, MI 49002.
  • “Parties” means ABRAXAS and CLIENT.
  • “Records” means any documents, media, electronic items, or other acceptable record types CLIENT places with ABRAXAS for deposit, storage, and/or destruction. 
  • “Services” means the various storage, archival, and destruction services to be performed by ABRAXAS and/or a third party vendor, as the case may be, on behalf of CLIENT as set forth on one or more SOW as set forth below. 
  • “SOW” means any statement of work, order, or quote issued and/or executed by ABRAXAS that is or has been provided to CLIENT.

3. ACCEPTANCE OF SERVICES

Unless otherwise agreed to by ABRAXAS, satisfactory completion, and acceptance of any conversion, managed, or professional services and/or Deliverables shall be deemed to have been delivered and accepted by CLIENT if CLIENT does not object in writing to such services or Deliverables within thirty (30) days of receipt by CLIENT.

4. CHANGE ORDERS

Any changes that affect the Services set forth in an SOW will be documented and agreed upon in writing by the Parties. Because a change could affect the cost, schedule, or other terms of a SOW, the Parties must approve each change in writing (a “Change Order”) before implementing the change. While a change is being reviewed and until the Parties execute the Change Order, the Parties will continue to proceed in accordance with the SOW then in effect unless otherwise agreed to in writing. 

5. ORDER OF PRIORITY

In the event of a conflict between these Terms and Conditions and any SOW the order of precedence will be: (i) these Terms and Conditions, and (ii) the SOW; provided, however, that a conflicting term in a SOW or will take precedence over these Terms and Conditions if the document containing the conflicting term (a) is signed by an authorized representative of both Parties, (b) expressly states that the Parties intend to override or replace a provision of these Terms and Conditions that it overrides, and (c) the document identifies the particular provision in these Terms and Conditions. All other conflicting terms are hereby rejected even if set forth in a writing executed by ABRAXAS.

6. ABRAXAS RESPONSIBILITIES

  • ABRAXAS shall perform all Services in accordance with these Terms and Conditions, applicable industry standards as determined by ABRAXAS in its reasonable discretion, and applicable law.
  • ABRAXAS will provide destruction services only if requested by CLIENT. ABRAXAS will not destroy any Records without CLIENT’s written or electronic authorization.
  • ABRAXAS shall have the right, in its sole discretion, to refuse Services without liability when ABRAXAS is doubtful as to a requesting party’s authority, or when CLIENT’s instructions are not complete to ABRAXAS’ satisfaction. Any order for Services placed via ABRAXAS’s web-based inventory program shall be deemed a valid order placed by an individual with authority to act on behalf of CLIENT.
  • ABRAXAS may delegate any duty or obligation to a company that is, directly or indirectly, through one or more intermediaries, under the common control of any direct or indirect parent company of ABRAXAS (each, an “Abraxas Affiliate”), or any responsible third-party, to perform all or part of the Services. ABRAXAS’ 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 ABRAXAS shall be solely responsible for loss or damage to the materials while in the carrier’s possession.

7. CLIENT RESPONSIBILITIES 

CLIENT shall cooperate with ABRAXAS, including without limitation:

  • Designating a Client Representative knowledgeable in all laws, regulations, and industry practices applicable to each respective SOW. The Client Representative will determine and approve the risk, scope, and expected timeframe of Services to be performed, and the Client Representative will coordinate, review, and approve ABRAXAS’ performance of Services. The Client Representative will be responsible for promptly evaluating any Deliverables or the results of the Services and for reporting any issues or deficiencies to ABRAXAS and the appropriate level of the CLIENT’s management.
  • Responding promptly to inquiries from ABRAXAS relating to information, instructions, or approvals needed by ABRAXAS to fulfill its obligations under these Terms and Condition or any SOW.
  • To the extent CLIENT or its employees or contractors (collectively, “Client Personnel”) access the Facility for any reason, CLIENT and any and all Client Personnel shall at all times comply with ABRAXAS’ policies and procedures, including without limitation, ABRAXAS’ Facility policies, data policies, registration procedures, and security procedures. Such policies and procedures shall be made available by ABRAXAS to CLIENT upon written request. If CLIENT requires an audit of ABRAXAS’ facility and standards, a virtual audit package will be provided upon request annually. If CLIENT requires physical access to ABRAXAS’ facilities to perform an audit, such access shall be limited to one (1) audit every three (3) years. Any physical audit shall be subject to ABRAXAS’ customary charges for assisting with such audit, as well as charges for additional Services performed by ABRAXAS in connection therewith.
  • Taking actions required for the Services to be performed as soon as possible, including obtaining any required licenses or consents, so that any CLIENT-related delays are kept to a minimum. 
  • CLIENT will release, indemnify, and hold ABRAXAS and its third party vendor(s), as the case may be, harmless from and against any liability, expenses, fines or penalties, damages, or costs, including legal fees and costs of defense, arising from or relating to the destruction of Records pursuant to CLIENT’s written or electronic authorization, including those arising from or relating to the destruction of any materials tendered for destruction.
  • CLIENT shall not at any time store with ABRAXAS any materials that would attract insects or vermin, are highly flammable other than paper, explosive, toxic, radioactive, dangerous, or illegal to possess or store, or that are otherwise deemed by ABRAXAS, in its sole discretion, to represent a hazard (“Prohibited Materials”). ABRAXAS 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 provide or store with ABRAXAS 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 will release, indemnify, and hold harmless ABRAXAS from any Costs arising from or relating to CLIENT’s breach of this Section 7.F.
  • CLIENT shall encrypt all electronic records that include personally identifiable information, sensitive financial information, protected health information, or any other information where such other information is required by any local, state, or federal law, rule, or regulation 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 ABRAXAS. All encrypted data must be in a format that is unusable, unreadable, or indecipherable to unauthorized individuals. ABRAXAS will not inspect such records to determine whether they are properly encrypted, and CLIENT will release, indemnify, and hold harmless ABRAXAS from any Costs arising from or relating to CLIENT’s breach of this Section 7.G.
  • ABRAXAS reserves the right to re-box or refuse any Records that are not in a suitable condition for rack storage.
  • ABRAXAS is not and shall not be deemed a contract or common carrier for any purpose. The valuation and liability provisions of these Terms and Conditions shall apply to transportation services provided by ABRAXAS.
  • CLIENT agrees that any failure or delay in ABRAXAS 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 ABRAXAS 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, epidemic or pandemic, unusual traffic delays, or other reason beyond ABRAXAS’ reasonable control.
  • CLIENT acknowledges that each Client Representative 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 ABRAXAS otherwise in writing, CLIENT authorizes ABRAXAS when performing deliveries to leave Records with any CLIENT employee or agent, e.g. receptionist, who greets the ABRAXAS courier, even if such employee or agent is not a Client Representative authorized by CLIENT to order or request Services.
  • CLIENT agrees that ABRAXAS may charge additional fees for hoisting, lowering, and labor if Records cannot be transported in the customary manner by elevator or stairs from a reasonably accessible location.
  • CLIENT agrees that itemized lists or descriptions of contents of Records submitted to ABRAXAS or entered by CLIENT in ABRAXAS’s 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 ABRAXAS.
  • CLIENT will communicate any modifications to its locations, user authorization list, and service schedules in writing to ABRAXAS; such modifications must be accepted by ABRAXAS in writing, in order to be effective.

8. FEES AND PAYMENT

  • ABRAXAS shall submit invoices for Services performed on a monthly, quarterly, or annual basis, as selected by ABRAXAS. ABRAXAS may bill CLIENT for Services in advance or in arrears, as selected by ABRAXAS. If billing is done annually in advance of the Services, ABRAXAS reserves the right to adjust such billing at the end of the billing period. CLIENT agrees to pay in full to ABRAXAS all charges invoiced to CLIENT in accordance with ABRAXAS’ then current price schedule(s) (which may be set forth in one or more SOW’s), within net thirty (30) days of the date of each invoice. ABRAXAS may modify the price schedule upon thirty (30) days’ prior written notice (which may be by first class mail or email). Unless agreed to otherwise, CLIENT shall render payment by Automated Clearing House (ACH). 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 ABRAXAS will be paid within fifteen (15) days of dispute resolution. Payments received may be applied to the oldest invoices due. 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 ABRAXAS upon invoice for all costs and fees, including reasonable attorneys’ fees, incurred by ABRAXAS in collecting any amounts past due. CLIENT shall have no right to offset any claim against any amounts due ABRAXAS.
  • CLIENT shall reimburse ABRAXAS for all expenses incurred by ABRAXAS in performing the Services in accordance with these Terms and Conditions, any SOW, and each invoice. Should CLIENT require any documentation in support of any such expense, it shall request such documentation within 30 days of the date of the invoice containing the expense. Should CLIENT not make a request within 30 days of the date of the invoice, the expense shall be deemed approved and reimbursement shall be due. 

9. TERMINATION OF SERVICES 

  • ABRAXAS may terminate any or all Services and/or any SOW: (1) for convenience upon thirty (30) days written notice to CLIENT, or (2) if an Event of Default occurs.
  • Either Party may terminate any or all Services and/or any SOW: (1) on mutual written agreement of the Parties; (2) on the occurrence of any breach of these Terms and Conditions or any SOW, other than an Event of Default, that is not cured within thirty (30) days after receipt of written notice of the breach; or (3) if either Party is declared bankrupt or insolvent, or makes an assignment for the benefit of its creditors, or if a receiver is appointed or any proceedings are commenced, voluntarily or involuntarily, by or against either Party under any bankruptcy or similar law. 
  • If the Services or any SOW expire or are terminated, the obligations of the Parties shall terminate simultaneously therewith, other than (i) CLIENT’s obligation to pay Services provider all fees and reimbursable expenses for Services performed on or before the termination date; and (ii) any other obligations under these Terms and Conditions and/or any SOW that expressly survive termination or expiration of the Services and/or SOW, including without limitation Sections 11, 12, 14, and 15 of these Terms and Conditions. Promptly after receipt of said notice and payment of any outstanding invoices, ABRAXAS will provide a Permanent Record Removal Agreement that must be signed by CLIENT prior to the delivery of its Records. Upon the termination of the Services and/or any SOW, the signing of such statement, and payment of all outstanding invoices, CLIENT may pick up its Records or request that ABRAXAS deliver its Records at the CLIENT’s sole cost and expense. CLIENT will continue to incur charges until all Records are removed from ABRAXAS’s facilities. 

10. INDEPENDENT CONTRACTOR

It is expressly understood and agreed that the Parties are contractors independent of each other, that no Party has the authority to bind any other Party, or incur any obligations on behalf of any other Party, and that nothing in these Terms and Conditions, in any SOW, or otherwise is intended to cause any Party to be deemed an agent, representative, joint venture, partner, employee, or servant of any other Party for any purpose whatsoever, absent an agreement other than an SOW defining such a relationship between the Parties. CLIENT acknowledges and agrees that it shall not control the manner, means or methods by which ABRAXAS performs any Services. The Parties agree that no third-party or organization is intended to utilize or rely on any Services rendered or Deliverables provided pursuant to these Terms and Conditions and/or under any SOW. 

11. CONFIDENTIALITY

  • The obligations in this Section 11 survive the termination of Services and/or any SOW.
  • “Confidential Information” is defined as “all proprietary, confidential, or non-public information of a Party, including without limitation, information regarding customers, clients, suppliers, business sources, and business development identities and sales volume; company financial data; potential growth and development plans and strategies; marketplace strategies; and trade secrets, technical expertise, knowhow, and methods. As used herein, “Disclosing Party” is the Party disclosing Confidential Information and “Receiving Party” is the Party receiving Confidential Information. “Confidential Information” does not include any information that: (a) was in a Receiving Party’s possession before receipt from the Disclosing Party; (b) was developed by the Receiving Party without use of or reliance on the Disclosing Party’s Confidential Information; (c) becomes publicly known without breach by the Receiving Party; or (d) was received in good faith from a third party not subject to a confidentiality agreement. Receiving Party may disclose Disclosing Party’s Confidential Information if and to the extent that such disclosure is required by applicable law or judicial order, provided that, to the extent legally permissible, the Receiving Party provides the Disclosing Party a reasonable opportunity to review the disclosure before it is made and to interpose its own objection to the disclosure, and provided that Receiving Party only shares the minimal amount of Confidential Information necessary to comply with the applicable law or order. Any Confidential Information disclosed pursuant to this Section 11.B. shall remain otherwise subject to the confidentiality and non-use provisions set forth in these Terms and Conditions.
  • Any Confidential Information transmitted to a Receiving Party pursuant to these Terms and Conditions or any SOW shall be maintained by said Party in the same manner in which it protects its own Confidential Information of like kind. In no event shall such Receiving Party take less than reasonable precautions to prevent the unauthorized disclosure or use of any other Party’s Confidential Information. Confidential Information shall only be disclosed to a Receiving Party’s employees, independent contractors, or professional advisors who need to know the Confidential Information in order to assist the Receiving Party in some component of the Receiving Party’s obligations under these Terms and Conditions or any SOW. The Receiving Party shall notify any authorized recipient of Confidential Information as to the confidential nature of the Confidential Information and ensure that said subsequent recipient agrees to be bound by all terms of these Terms and Conditions applicable to the Confidential Information and dissemination of the same, and any applicable restrictive covenants and agreed-upon equitable relief for a violation or potential violation of these Terms and Conditions and/or any SOW.
  • The Parties agree that it would be difficult to establish a specific value of the damages of a breach of this Section 11. Therefore, without necessity of proving damages or irreparable harm, a Party claiming a breach of this Section 11 shall be entitled to obtain equitable relief in the form of specific performance, temporary restraining order, temporary and permanent injunction, or any other equitable remedy which may be available. Nothing herein shall be construed as prohibiting a non-breaching Party from pursuing any other remedies that may be available for such breach or threatened breach, including an action for damages.

12. INTELLECTUAL PROPERTY RIGHTS.

Any intellectual property or proprietary products or services used by ABRAXAS in connection with the Services are and shall remain the exclusive property of ABRAXAS or the third parties from whom ABRAXAS has secured the right to use such products or services.

13. CLIENT-PROVIDED AND THIRD-PARTY MATERIALS

CLIENT represents and warrants that ABRAXAS has the right to use any and all materials and records (“Client-Provided Materials”) provided by CLIENT to ABRAXAS for its use in fulfilling its obligations under these Terms and Conditions and any SOWs, and such Client-Provided Materials shall not infringe on any person’s or entity’s proprietary, intellectual property, or other rights under any federal, state, local, or other laws (including, without limitation, trade secret, copyright, trademark, and U.S. patent rights). 

14. INDEMNIFICATION

ABRAXAS 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.

15. NO WARRANTIES AND LIMITATION OF LIABILITY

  • ABRAXAS SPECIFICALLY DISCLAIMS, AND CLIENT HEREBY EXPRESSLY WAIVES, ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO ALL SERVICES AND DELIVERABLES PERFORMED UNDER THIS THESE TERMS AND CONDITIONS AND ANY UNDERLYING SOW, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
  • 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 any non-paper media, unless CLIENT declares a different valuation in writing to ABRAXAS, the receipt of which ABRAXAS acknowledges in writing, and for which CLIENT pays an additional agreed upon fee for the storage of its Records.
  • ABRAXAS shall not be liable for any loss or damage to Records, however caused, unless such loss or damage results from a failure by ABRAXAS to exercise that care that a reasonably careful person would exercise under like circumstances, in which case ABRAXAS’s liability, if any, for such loss or damage to Records shall not exceed the valuation in Section 15.B. above. Without limiting the generality of the foregoing, ABRAXAS 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 ABRAXAS 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 ABRAXAS and shall indemnify ABRAXAS from any loss or damages resulting from its failure to do so.
  • ABRAXAS’s maximum liability with respect to (i) the unauthorized disclosure of Confidential Information shall be six (6) months of total charges paid by CLIENT relating to such Records; (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.
  • IN NO EVENT SHALL ABRAXAS BE LIABLE TO CLIENT OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT ABRAXAS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL ABRAXAS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS AND ANY AND ALL SOWS ENTERED INTO HEREUNDER OR IN CONNECTION HEREWITH, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED: (I) FOR ANY CLAIM RELATING TO OR ARISING OUT OF LOSS OF OR DAMAGE TO CLIENT’S RECORDS BEING STORED BY ABRAXAS (EACH, A “STORAGE CLAIM”), THE COST TO REPLACE THE PAPER AND CONTAINERS DAMAGED OR DESTROYED WITH MATERIAL OF LIKE QUALITY (WITH THE EXCEPTION OF THE FOREGOING LIABILITY FOR COST OF REPLACEMENT, ABRAXAS SHALL NOT BE RESPONSIBLE FOR THE PERFORMANCE OF ANY RE-CREATION, COPYING OR REPLACEMENT OF ANY RECORDS OR CONTAINER); OR (II) FOR ANY CLAIM THIS IS NOT A STORAGE CLAIM, THE AGGREGATE AMOUNTS PAID TO ABRAXAS PURSUANT TO THE APPLICABLE SOW IN THE SIX-MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
  • ABRAXAS 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, including a designated Client Representative. ABRAXAS will not be responsible for misdeliveries 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 Section 15.F., ABRAXAS’s liability shall not exceed the amount paid to ABRAXAS by CLIENT for such Service for the three (3) month period preceding the claim by CLIENT. The limitations of liability in this Section 15 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 ABRAXAS is relying on such limitations of liability.

16. BREACH 

CLIENT shall be in default under these Term and Conditions and under any related SOW upon the occurrence of any of the following events (each an “Event of Default”): 

  • Failure to pay any amount due by the due date on any SOW or other invoice;
  • If any oral or written warranty, representation, certificate, or statement in these Terms and Conditions or any related agreement between the Parties is false in any material respect when made or at any time; or
  • Any failure to perform any obligation under these Term and Conditions or any related agreement between the Parties, other than a failure to timely pay any amount due hereunder or under any SOW, and such failure to perform or default in performance continues beyond any applicable grace or cure period, and, if none is provided, then beyond a ten (10) day cure period.

Upon the occurrence of an Event of Default, ABRAXAS may, in its sole discretion, cease providing Services upon written notice to CLIENT 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 sixty (60) days or more past the invoice date, ABRAXAS 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 or suspend Services and CLIENT’s access to Records until all outstanding invoice(s) are paid in full. If Services are suspended, CLIENT will remain responsible for payment of all charges accruing during such suspension; (B) if CLIENT is in arrears in its payment obligations for a period of three (3) months or longer past the invoice date, Records will be deemed abandoned and ABRAXAS may destroy the Records at CLIENT’s expense and without liability to CLIENT, following thirty (30) business days’ advance written notice of such destruction; and/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 ABRAXAS takes any actions in accordance with this Section 16, it shall have no liability to CLIENT, and CLIENT hereby will release, indemnify, and hold harmless ABRAXAS from any Costs arising from or relating to any actions taken by ABRAXAS in accordance with this Section 16, including the disposal or destruction of any materials. All remedies provided herein are cumulative and may, at the election of ABRAXAS, be exercised alternatively, successively, or in any other manner. ABRAXAS 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 or any SOW. With respect to ABRAXAS’s right to dispose of the Records as set forth 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 ABRAXAS to mitigate its damages. 

17. APPLICABLE LAW, JURISDICTION, AND VENUE; DISPUTE RESOLUTION 

  • The Services, these Terms and Conditions and any SOW shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to its principles of conflicts of laws. CLIENT irrevocably submits to the exclusive jurisdiction of the courts of the State of Michigan located in Kalamazoo County, Michigan, and the United States District Court for the Western District of Michigan for the purpose of any suit, action, proceeding, or judgment relating to or arising out of the Services, these Terms and Conditions, or any SOW, which have not been resolved pursuant to Section 17.C. below. CLIENT irrevocably consents to the jurisdiction of any such court in any such suit, action, or proceeding and to the laying of venue in such court.  CLIENT irrevocably waives any objection to the laying of venue of any such suit, action, or proceeding brought in such courts and irrevocably waives any claim that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.
  • Any 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 ABRAXAS 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. Notwithstanding the foregoing, no action, regardless of form, arising out of or in connection with the Services (other than an action by ABRAXAS for any amount due to ABRAXAS) may be brought more than one year after the cause of action has arisen, except as may otherwise be required by applicable law. ABRAXAS 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.
  • If ABRAXAS and CLIENT are unable to resolve any claim, controversy, or dispute as provided in Section 17.B., then any dispute, claim, or controversy arising out of or relating to the Services, these Terms and Conditions, or any SOW, or the breach, termination, enforcement, interpretation, or validity hereof or thereof, including the determination of the scope or applicability of its dispute resolution provisions, shall be determined by binding and final arbitration in Kalamazoo County, Michigan, 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 the American Arbitration Association pursuant to its Commercial Arbitration Rules and Procedures. This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction as set forth in Section 17.A. The arbitrator has no right to vary, modify or supplement these Terms and Conditions or any SOW or change or limit ABRAXAS’s  practices, policies, or procedures

18. SURVIVAL 

Provisions surviving termination or expiration of the Services and/or any SOW are those which on their face affect rights and obligations after termination or expiration and also include provisions concerning indemnification, confidentiality, warranty and choice of law and venue.

19. REPRESENTATIONS AND WARRANTIES

CLIENT hereby represents, warrants, and covenants to ABRAXAS that: (a) it is  duly incorporated, validly existing and it is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization, or qualification is required for it to perform its obligations under these Terms and Conditions and any SOW; (b) it has taken all necessary actions on its part to authorize the execution, delivery, and performance of the obligations undertaken in these Terms and Conditions and/or any SOW; (c) it is not a party to, and will not enter into, any agreement or understanding and it knows of no law, rule, regulation, or guideline that would prohibit it from entering into and performing these Term and Conditions and/or any SOW, or that would conflict with these Terms and Conditions and/or any SOW; (d) no approval, action, or authorization by any governmental authority or agency is required for its execution and performance of these Terms and Conditions and/or any SOW or, if it is, such approval, action or authorization has been obtained; (e) it is the owner or legal custodian of all Records and has full authority, without any restrictions, to store and make decisions regarding Services to said Records; (f) it has the right to authorize the destruction of the Records for which CLIENT requests such destruction; (g) unless CLIENT has informed ABRAXAS 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), CLIENT will notify ABRAXAS of the same and agrees that it will enter into a Business Associate Agreement (or Business Associate Subcontractor Agreement if applicable) satisfactory to ABRAXAS which shall be and is specifically incorporated herein by reference and are binding upon the parties as if fully set forth herein; (h) unless CLIENT has informed ABRAXAS in writing otherwise, neither CLIENT nor any of its Records are subject to the EU General Data Protection Regulation (“GDPR”); (i) all instructions CLIENT issues to ABRAXAS with respect to the processing of CLIENT Records will comply with all applicable local, state, and federal laws, rules, and regulations; (F) the performance by ABRAXAS of any order or instruction that CLIENT gives to ABRAXAS with respect to CLIENT Records will not violate GDPR or any applicable laws. At such time as CLIENT’s Records become subject to GDPR (if ever), CLIENT will notify ABRAXAS of the same and agrees that it will enter into a Data Processing Agreement satisfactory to ABRAXAS which shall be and is specifically incorporated herein by reference and are binding upon the Parties as if fully set forth herein. CLIENT will release, indemnify and hold harmless ABRAXAS from any Costs arising from or relating to the breach of CLIENT’s  representations and warranties in this Section 19; and (j) the Deliverables and Services are intended for use only in accordance with all applicable local, state, and federal laws, rules, and regulations and CLIENT will not use, nor permit to be used, the Deliverables and Services for any unlawful use or purpose, including but not limited to unfair competition or infringing on the intellectual property rights of third parties. 

ABRAXAS provides all Services as is, as available, and with all faults, and ABRAXAS 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.

20. MODIFICATION OF TERMS AND CONDITIONS

ABRAXAS may modify these Terms and Conditions from time to time. Such modifications shall be posted on https://abraxasworldwide.com/terms, and shall take effect on the first day of the second month following their publication.

21. MISCELLANEOUS

All notices required to be given under these Terms and Conditions and/or any SOW, 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 ABRAXAS – 701 E. Milham Ave., Portage, MI 49002, 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. ABRAXAS 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 ABRAXAS and CLIENT and their respective successors and permitted assigns, nor shall any provision give any third party any rights or remedies against ABRAXAS 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.

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