The initial term of the Agreement shall begin on the date that the Order is signed by Customer and Revivn (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 (and if such notice is provided, the Agreement shall expire at the end of the then-current Initial Term or Renewal Term). 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. Upon termination or expiration of this Agreement for any reason, Revivn shall complete the processing of any Batch Listings in process as of the effective date of expiration or termination of the Agreement, which processing shall be performed in accordance with the Agreement. Customer’s use of the Application (as defined in Section 2 below) shall cease upon termination or expiration of the Agreement, and Customer shall be responsible for exporting its data out of the Application prior to termination or expiration of the Agreement. Revivn is not responsible for retaining Customer’s data in the Application after termination or expiration of the Agreement. The following provisions of the Terms of Service shall survive any expiration or termination of the Agreement: Sections 1, 5 (to the extent any amounts remain due and payable), 6, 7, 9, 10, 11 and 12.
Customer will from time to time during the Term provide Revivn with listings, descriptions and/or photographs of Products (in a form reasonably acceptable to Revivn) that Customer wishes to submit to Revivn for repurposing, recycling or disposal pursuant to the Agreement (each such listing, a “Batch Listing”), as further described on Exhibit A attached hereto and incorporated by reference herein. Revivn will determine, in its sole discretion, which Products are eligible for repurposing or recycling in accordance with Revivn’s then-current eligibility requirements. Revivn may change its eligibility requirements at any time without notice.
During the Term, Revivn hereby grants to Customer a limited, terminable, royalty-free, non-exclusive right to use Revivn’s web application (the “Application”) solely for Customer’s internal use to facilitate Customer’s interactions with Revivn pursuant to this Agreement. All rights in the Application not expressly granted to Customer in the preceding sentence are reserved by Revivn. Customer shall not license, disclose, sublicense, sell, resell, transfer, assign, distribute, copy, reverse engineer, modify, make derivative works of, make available to third parties, use to create a similar or competitive product, or otherwise commercially exploit the Application.
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 Revivn 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, and do not include any third-party software which may not be transferred or for which royalties are due.
Revivn further represents and warrants that the Services will be performed in a professional manner in accordance with industry standards. If Customer reasonably believes that Revivn has not complied with the representation and warranty in the immediately preceding sentence, Customer shall notify Revivn within thirty (30) days after the Services are performed, and in such case Revivn shall as its sole obligation and Customer’s sole remedy for Revivn not complying with such representation and warranty, reperform the nonconforming Services for Customer.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN, ALL SERVICES PROVIDED BY REVIVN HEREUNDER ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED HEREIN, REVIVN 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. Without limiting the foregoing, Revivn is licensing the Application to Customer on an “as is” and “as available” basis, and Revivn does not warrant the functionality or availability of the Application.
Revivn 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 Revivn and its personnel. Customer agrees to indemnify, defend and hold harmless Revivn and its subsidiaries, affiliates, officers, directors, agents, and employees (the “Revivn 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 Revivn Indemnified Parties may incur or sustain to the extent such Claim results from the negligence or willful misconduct of Customer and its personnel. The indemnified party agrees to (i) promptly notify the indemnifying party in writing of any Claim; (ii) promptly give the indemnifying party the right to control and direct the investigation, preparation, defense and settlement of such Claim, with counsel of the indemnifying party’s own choosing (provided that the indemnified party shall have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim); and (iii) give assistance and full cooperation for the defense of same.
Customer agrees that during the Term, it will provide Revivn with a right of first refusal to recycle or repurpose all of Customer’s products that are eligible for repurposing or recycling, for repurposing, recycling or disposal by Revivn pursuant to this Agreement.
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. Notwithstanding the foregoing, Customer agrees that Revivn may communicate with Customer via email regarding any potential transaction between Customer and Revivn. Customer agrees to keep a contact email address current and to ensure emails sent by Revivn to Customer are not stopped by spam filters or other types of email blocking software.
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; provided however, that: (a) either party may assign the Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise, and the party undergoing such transaction shall promptly notify the other party of the occurrence of such transaction. If Customer is undergoing such transaction and it results in a material increased use of the Application and/or additional free Product pickups, Revivn reserves the right to charge a fee for such increased usage or pickups; and (b) Revivn may use subcontractors in the performance of its obligations hereunder. Any assignment or attempted assignment by either party otherwise than in accordance with this Section shall be null and void. Both parties agree that the Agreement, including all exhibits and addenda hereto and Transparency Reports 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. Except for revisions to the Terms of Service as contemplated above, all waivers and modifications to the Agreement must be in a writing signed by both parties. To the extent of any conflict or inconsistency between the provisions in the body of the Agreement and any exhibit or addendum hereto or any Transparency Reports, the terms of the Agreement shall prevail with respect to the conflict. No agency, partnership, joint venture, or employment is created as a result of the Agreement and a party does not have any authority of any kind to bind the other party in any respect whatsoever. Each party shall be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event shall automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Upon the occurrence of any Force Majeure Event, the affected party shall give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform. The Agreement shall be governed by the laws of the State of New York 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. If the representatives are unable to resolve the dispute within fifteen (15) business days, the dispute shall be escalated to senior executives of each party, who will meet and in good faith attempt to resolve the dispute within fifteen (15) business days. If the senior executives are unable to resolve the dispute, either party may submit the dispute to binding arbitration as described herein. Subject to the internal dispute resolution process describe above, each party agrees that disputes arising from or relating to the Agreement will be submitted to binding arbitration in accordance with the Federal Arbitration Act and shall be administered by the American Arbitration Association under its then-prevailing commercial rules and shall be conducted in New York, New York. Each party shall bear the cost of preparing and prosecuting its case. The arbitrator shall have no power or authority to alter or modify the Agreement, including, without limitation, the limitation of liability set forth above. All claims must be arbitrated individually, and there will be no consolidation or class treatment of any claims. This paragraph is subject to the United States Arbitration Act. The arbitrator shall apply the substantive law of New York and shall limit any remedies to those provided in this Agreement. Customer agrees not to participate in a class action or class-wide arbitration for any claims covered by the Agreement to arbitration, and Customer hereby acknowledges and agrees that it is giving up its right to participate as a class representative or class member on any class claim Customer may have against Revivn, including, without limitation, any right to class arbitration or any consolidation of individual arbitrations.
The party receiving the Confidential Information, as defined below (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. Revivn may use Confidential Information that has been aggregated with the information of other customers for its internal purposes, including for the purpose of improving its products and services. The Recipient shall not disclose the Confidential Information to third parties other than to its subcontractors and representatives who have a need to know such Confidential Information in order to perform this Agreement and are subject to confidentiality obligations comparable to those contained herein. Notwithstanding the foregoing, the Recipient may disclose the Confidential Information pursuant to a subpoena or other judicial, governmental or regulatory demand or request, provided that if permitted to do so under the terms of such demand or request, the Recipient shall notify the Disclosing Party of the demand or request and reasonably cooperate with the Disclosing Party (at the Disclosing Party’s cost and expense) in order to permit the Disclosing Party to seek a protective order. If Revivn is required to produce documents or information of Customer pursuant to such a demand or request, Customer shall reimburse Revivn for its reasonable costs in complying with such demand or request. “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. Confidential Information does not include information that is already known to the Recipient at the time of disclosure, that becomes publicly known through no fault of the Recipient, or that is independently developed by the Recipient without the use of the Disclosing Party’s Confidential Information. Without limitation, the Application, the Transparency Report and the Buyback Price constitute Revivn’s Confidential Information. At the request of the Disclosing Party, subject to Section 1 above, the Recipient shall return or destroy the Confidential Information, except for copies that are stored in back up media or other electronic data storage systems, latent data and metadata (that may be retained by the Recipient and destroyed in accordance with the Recipient’s document retention policies).
Schedule of Product Inspections and Accepted Products
Customer will provide Revivn with Batch Listings from time to time during the Term, beginning with the initial Batch Listing, which will be provided within ten (10) days after the Effective Date.
Products accepted by Revivn as of the Effective Date include, but are not limited to, the following:
Computer peripherals including keyboards, touchpads, mice
Prohibited Products as of the Effective Date include, but are not limited to, the following:
Commercial photocopy machines
Other kitchen appliances
All Products, including items not specifically identified above, must be approved by Revivn in accordance with the Agreement.