Vital Records®

Standard Terms & Conditions

1. SCOPE

VRC Companies, LLC., doing business as Vital Records Control (“VRC”), shall provide for storage (“Storage”) of records and other materials deposited with VRC (“Deposits”) by the customer as identified in the invoice to which these Standard Terms and Conditions are incorporated by reference (“Customer”), and provide various services related to those Deposits, or shall provide other services including but not limited to document shredding, document imaging, release of information, or other related records management services (collectively “Services”). All Deposits tendered to VRC for record storage, or any Services performed by VRC shall be subject to the fees for Storage (which may be in the form of a Standard Monthly Fee or “SMF”) and for Services ( collectively “Fees”), and the specifications by which Storage and Services shall be performed (“Specifications”), and in accordance with the terms and conditions of this agreement (the “Agreement”).

2. APPLICATION; CONFLICT.

Customer acknowledges that this Agreement accompanies VRC‘s invoices to the Customer for those Fees applicable for Storage or Services (each an “Invoice”), and agrees that in the absence of any previously properly executed agreement for Storage or Services between the Customer and VRC, the terms and conditions of this Agreement shall apply, together with the application of VRC’s then current, standard schedule of Specifications and Fees in effect at the time of the issuance of the Invoice which references this Agreement. Customer agrees that payment of the Invoice that incorporates this Agreement by reference, shall evidence Customer’s acceptance of the terms and conditions of this Agreement. Customer agrees that such standard schedule of Specifications and Fees may be adjusted or appended by VRC without prior Notice to Customer. In the event of conflict between terms and conditions herein and those found in any properly executed, prior or contemporaneous agreement specifically negotiated between Customer and VRC for similar service offerings that are recurring in nature (“Legacy Agreement”), the terms and conditions of the Legacy Agreement shall govern and control.

3. PAYMENT.

Payment for any Invoice shall be due within thirty (30) days of receipt. A finance charge of one and one-half percent (1.5%) per month will be added to any balance not paid within thirty (30) days of invoice receipt. In the event Customer fails to pay any Invoice representing Fees for Storage or Services provided in accordance with the terms hereunder, VRC may suspend all services until such time as Customer has cured such default. If Customer fails to pay Fees for a period of ninety (90) days, VRC may, at its option, after giving thirty (30) days’ notice in accordance with the Notices provision set forth below, destroy such Deposits in accordance with NAID® specifications, all without liability to Customer or third parties claiming relief through or by Customer. Nothing herein shall preclude VRC from recourse through other legal remedies available to it. Customer shall pay all costs actually incurred by VRC in collection of Fees for Storage of Services rendered, including court costs and reasonable attorney’s fees.

4. CONFIDENTIALITY.

VRC and Customer both covenant and agree to keep the any information related to or disclosed by one party to the other in connection with the Services provided confidential, and not to intentionally disclose the existence of the terms and conditions of, or any information related to or disclosed by one party to the other in connection with the Services, to unrelated third parties without express written consent of the disclosing party. ”Confidential Information” means (i) any information concerning or relating to the property, business operations, and affairs of the disclosing party, (ii) this terms and conditions set forth herein, and (iii) any information tendered to VRC for the purpose of destruction. It shall not include information that was previously known to the receiving party free of any obligation to keep it confidential, is subsequently made public by the disclosing party, or is disclosed by a third party having a legal right to make such disclosure.

5. OWNERSHIP; ACCESS; CONTROL OF DEPOSITS.

All Deposits subject to the Services to be performed by VRC shall be and remain the property of Customer. Customer warrants and represents that it is the owner or legal custodian of the Deposits and has full consent and authority, including authorization to collect, maintain, store, and direct disposition as to retention and destruction, and that VRC shall under no circumstances assume a role of a custodian for any Deposits or have any liability under state or federal law with respect to custody such Deposits. Customer’s authorization to destroy all Deposits in Storage shall be deemed an Agreement Termination event. Files, records, computer media and information contained in such Deposits shall be delivered by VRC only to Customer’s agent(s) as identified by Customer to VRC on VRC’s standard authorization form. Authority granted to any person(s) on such form shall constitute, until changed, Customer’s representation that the identified person(s) have full authority to order any service and to deliver to and receive from VRC, the Customer’s files and records, computer media and information contained in such Deposits. If there is no authorization form, any Customer representative will have authority to order any service, destroy Deposits, and receive from VRC the Customer’s files, records, and computer media and information contained in such Deposits. Customer is solely responsible for maintaining the confidentiality of all passwords issued under VRC’s security provisioning platforms, including without limitation restricting the use of any password by Customer’s designated users. Customer shall be solely responsible for all use of the Services accessed through Customer’s password(s).

6. HAZARDOUS MATERIALS RESTRICTIONS.

Customer agrees not to tender to VRC any hazardous materials in cartons, collection bins, or other receptacles, including but not limited to flammable or explosive materials, chemicals, and medical waste materials (“Hazardous Materials”). In the event VRC receives Hazardous Materials in the course of providing Services hereunder, VRC shall notify Customer of each such incident and Customer shall bear the expenses associated with safely returning materials to the point of origin or properly disposing of such Materials by licensed hazardous waste transportation and/or destruction service providers.

7. JUDICIAL AND GOVERNMENTAL ENFORCEMENT – ACCESS.

Customer agrees that Deposits maintained by VRC are subject to examination by law enforcement or others without Customer’s consent upon presentation of a valid search warrant, subpoena, or court order issued by any governmental or judicial body having authority to issue such document, and that VRC is authorized to comply with such requests, at Customer’s expense, provided that VRC notifies Customer promptly upon receipt thereof, unless such notice is prohibited by law. Notwithstanding, provided that VRC shall be entitled to reasonable compensation or expense reimbursement, VRC agrees to cooperate with Customer to limit any subpoena.

8. PERFORMANCE STANDARDS.

VRC shall implement and maintain such reasonable safeguards as a similarly situated commercial service provider in the confidential information destruction industry would to protect Customer’s Confidential Information, and shall destroy all confidential information in accordance with industry accepted standard specifications as promulgated by The International Secure Information Governance & Management Association (“i-SIGMA”), The National Association for Information Destruction (NAID®), and in accordance with applicable state or federal laws or regulations.

9. DEFAULT.

In the event of breach of the material terms, conditions or covenants found herein, the non-breaching party may terminate this Agreement upon written notice to the breaching party of the default, if such default is not cured by the breaching party within thirty (30) days of a written notice of the default, provided that such termination shall be subject to the terms, conditions, and Fees as set forth in this Agreement .

10. TERM; REMEDIES.

Upon default by Customer of any of the terms, conditions or covenants as set forth in this Agreement that remain uncured, or otherwise upon any termination by Customer or VRC unrelated to default (“Termination”), all outstanding installments of any Fees or charges that are or may become due by Customer shall become immediately due and payable by Customer. The term of this Agreement shall be for thirty (30) days (“Term”) and shall automatically extend in equal lengths provided however, that this Agreement may be terminated, by either party upon thirty (30) days’ written Notice, sent by certified mail to the respective address set forth in the Invoice which incorporates this Agreement by reference, that is received by the other (non-terminating) party. Upon expiration or Termination of this Agreement, VRC shall require payment in advance for those applicable Fees required to process the access, and permanent removal or destruction of Deposits, as well as charges for Storage through the period of time required to access and destroy or permanently remove the Deposits. The customer agrees that the maximum quantity of Deposits that is commercially reasonable to access shall be one thousand (1,000) cartons per month, pulled by location order, which such process shall begin sixty (60) days after receipt of Customer’s payment.

11. LIABILITY LIMITATION – SERVICES.

VRC shall not be liable for any breach in providing Services unless such breach results from VRC’s negligence. If VRC becomes liable to Customer for such negligence, VRC’s maximum liability to Customer with respect to such breach in providing Services shall be equal to those Fees paid by Customer for such Services rendered in the twelve (12) months immediately preceding the event that gave rise to the claim.  In no event shall VRC be liable for any indirect, special, consequential, exemplary, punitive, cover or incidental damages, including but not limited to loss of data, loss of revenue, loss of profits or loss of goodwill, regardless of whether any action to obtain such is brought under theory of tort, contract, or any other legal theory.

12.LIABILITY LIMITATION – PROPERTY AS DEPOSITS.

VRC shall not be liable for any loss, damage, or destruction of Customers property stored as Deposits, however caused, unless such loss, damage, or destruction results from VRC’s negligence. If VRC becomes liable to Customer for such negligence, VRC’s liability to Customer (i) with respect to hard-copy records, including film, shall be limited to two dollars ($2.00) per each carton (or other applicable unit of Storage under this Agreement) of Customer’s stored Property as Deposits that is lost, damaged, or destroyed, beyond which value per unit VRC shall not be liable. Customer acknowledges and agrees that its property as Deposits are not insured by VRC against loss, damage, or destruction however caused, and further agrees that it is Customer’s responsibility to obtain its own insurance for any loss, damage or destruction beyond the scope of VRC’s agreed limited liability hereunder if, in Customer’s judgment, there exists a potential for loss or damage in excess of such limitation. Customer shall cause its insurers of the Deposits to waive any right of subrogation against VRC. Customer understands and acknowledges that normal deterioration and aging of all record media occurs with time.  In no event shall VRC be liable for any indirect, special, consequential, exemplary, punitive, cover or incidental damages, including but not limited to loss of data, loss of revenue, loss of profits or loss of goodwill, regardless of whether any action to obtain such is brought under theory of tort, contract, or any other legal theory.

13. LIEN.

VRC is deemed to have a lien on all Deposits in accordance with Uniform Commercial Code Article 7 (“UCC”) and may exercise all rights and security interests available to it as a warehouseman under UCC §7-209, as adopted by the state where Deposits are stored.

14. NOTICES.

All Notices between the parties under this Agreement shall be in writing. Notwithstanding the forgoing, Customer acknowledges and agrees that Fee adjustments, the addition of new Fees, or changes to Fee applications or Specifications shall not require prior Notice to Customer. Customer agrees that all other Notices shall only be given via registered or certified mail sent to the respective address set forth in the Invoice which incorporates this Agreement by reference and shall be deemed effective and given as of the date received.

15. FORCE MAJEURE.

In event either party is unable to perform its obligations under the terms of this Agreement because of acts of God, strikes, governmental actions, pandemics, acts of terrorism, civil unrest, equipment or transmission failure, or other causes reasonably beyond its control, such party shall not be liable for damages to the other resulting from such failure to perform.

16. CAPTIONS; SEVERABILITY; AMENDMENT.

Captions contained in this Agreement are for convenient reference only and shall not be used in interpreting any of the provisions hereof. If one or more of the provisions contained in this Agreement and Exhibits are found to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not be affected. This Agreement may only be modified, or amended by Customer in writing, signed by both Customer and VRC. VRC may amend or modify the terms of this Agreement at any time, without prior Notice, which such amended or modified terms shall supersede and prevail over those found in any prior versions of this Agreement.

 17. MISCELLANEOUS.

Captions contained in this Agreement are for convenient reference only and shall not be used in interpreting any of the provisions hereof. If one or more of the provisions contained in this Agreement and Exhibits are found to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions shall not be affected. Failure of either party to insist upon strict performance of the other party’s obligations hereunder shall not be construed as a waiver of strict performance thereafter of all of the other party’s obligations hereunder and shall not prejudice any remedies as provided herein. Nothing contained in this Agreement shall be deemed or construed as creating the relationship of principal and agent or of partnership or joint venture between the parties hereto. VRC shall be permitted to subcontract all or any portion of its duties under this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and assigns.

18. GOVERNING LAW.

This Agreement, and all matters arising out of or relating to this Agreement, whether founded in contract, tort, or statute, shall be governed by and construed in accordance with the laws of the State of Tennessee, without giving effect to any choice of law provisions or rule (whether of Tennessee or any other jurisdiction) that would cause the application of the laws of any jurisdiction other that the State of Tennessee. In the event either party institutes an action to adjudicate their rights under this agreement, the prevailing party shall be entitled to receive costs, which may include but are not limited to, court costs and reasonable attorney’s fees.

[1] VRC Companies, LLC. is a limited liability company, incorporated in the state of Delaware, with its principal business operations domiciled in the state of Tennessee, and doing business under the following legally established, fictitious names:   Vital Records Control®, VitalScan®, Vital Shred®, VitalChart®, and Vital Vaulting Services.