Business Details

Pro-Tek Recycling, Incorporated 
(Document Destruction Contractor No. 15810427000, 
registered with the N.Y.S. Department of State)  

NAID Certified Data Destruction 
Terms and Conditions 

These Terms and Conditions (“Terms”) apply to NAID Certified Data Destruction Services performed by ProTek Recycling, Incorporated, 2550 9th Avenue, Watervliet, New York 12189 (“ProTek”) pursuant to ProTek’s Standard Data Destruction Agreement (“Agreement”).     

1. Services. 
   1. Services to Be Provided. ProTek will provide NAID Certified Data Destruction Services (“Services”) to the Customer that executed the Agreement.  All terms set forth herein are expressly incorporated into the Agreement.  In addition to data destruction, the Services may also include the incidental collection, handling, dismantling, and recycling of electronic devices (“eWaste”). 
   2. Recycled Materials. All electronic devices and other items provided to ProTek shall be considered to be eWaste and shall be processed to the degree and extent deemed necessary or desirable by ProTek, in its sole discretion, including but not limited to reconditioning and/or refurbishing individual devices for reuse, breaking devices down into their component parts, and/or recovering materials from devices or component parts of devices (e.g., silicon, aluminum, copper, etc.). All output from the Services shall be considered “Recycled Materials” for purposes of this Agreement. 
   3. Fees.  ProTek’s fees for Services will be set forth in a Work Order.  Unless otherwise set forth in a Work Order, ProTek’s fee for Services includes the right to take title to and sell Recycled Materials. 
2. Term and Termination.  The Agreement remains in effect until completion of the Services described in the Agreement.  If Customer wishes for ProTek to perform additional Services not described in the Agreement, Customer must execute a new agreement.   
3. Invoices, Payment and Collection. 
   1. Invoices. ProTek will provide an invoice to Customer within (30) days of providing Services.  
   2. Payment. Customer will pay all fees, taxes and other charges stated in the applicable invoice within thirty (30) days of the invoice date.  
   3. Collection of Past Due Amounts. If Customer fails to timely pay amounts due, ProTek shall be entitled to collect (a) one and half percent (1.5%) interest per month or the maximum amount allowable under law (whichever is less), and (b) reasonable collection costs, including attorneys’ fees. 
4. Compliance with Law, Regulations and Industry Standards and Practices.  
   1. Compliance with Laws and Regulations. ProTek will provide the Services in compliance with all applicable laws and regulations. 
   2. Compliance with NAID Standards and Practices. ProTek maintains a AAA certification from the National Association for Information Destruction (“NAID”). All Services will be performed in a professional manner in accordance with applicable NAID standards and practices.   
5. Hazardous Materials.   
   1. Right to Refuse Unapproved Waste. ProTek may, in its sole discretion, refuse to accept eWaste consisting of and/or containing any hazardous or difficult to recycle materials, including but not limited to liquids, chemicals, oils, radioactive materials, fluorescent bulbs, and/or dry power substances (collectively, “Unapproved Waste”).   
   2. Fees for Handling Unapproved Waste. To the extent any eWaste provided to ProTek includes Unapproved Waste, ProTek may, in its sole discretion, choose to dispose of such Unapproved Waste and charge Customer for the reasonable additional costs of disposal and handling incurred by ProTek.  By providing Unapproved Waste to ProTek, Customer expressly agrees to pay ProTek’s reasonable costs of disposal and handling Unapproved Waste.  
6. Title to Items. 
   1. Approved eWaste.  Title to eWaste shall pass to ProTek after ProTek determines that such eWaste does not contain Unapproved Waste. 
   2. Unapproved Waste. Title to and responsibility for any eWaste containing and/or consisting of Unapproved Waste shall, at all times, remain with Customer, unless and until ProTek chooses to dispose of such eWaste pursuant to Section 5.2, above. 
7. Sale or other Disposition of Recycled Materials. Unless otherwise expressly provided in a Work Order, ProTek shall have the right to sell or otherwise transfer all Recycled Materials to any person, in any market, in any form, and in any condition, to the extent allowed under applicable law. 
8. Confidentiality.  The Parties expressly understand and agree that eWaste provided to ProTek contains information that Customer wishes to remain confidential, including but not limited to proprietary information, trade secrets, or other similar information (“Confidential Information”). 
9. Method of Destruction.  
   1. Selection of Destruction Method. eWaste provided to ProTek will be processed in accordance with NAID standards and requirements to render data unreadable and unrecoverable pursuant to one of the following methods: (a) hard drive physical destruction (NAID Endorsement 4.3), (b) solid state device physical destruction (NAID Endorsement 4.4), (c) non-paper physical destruction (NAID Endorsement 4.5), hard drive and/or solid state device overwriting (NAID Endorsement 4.6), or product destruction (NAID Endorsement 4.18).  ProTek may choose the method of data destruction in its sole discretion. 
   2. Identification of Employees.  The Services will be performed by one or more ProTek employees trained to perform the Services in accordance with applicable laws and NAID standards and practices.  The name(s) of the ProTek employee(s) who provide(s) the Services will be maintained by ProTek and provided to Customer along with a Certificate of Destruction upon completion of the Services. 
10. Specially Regulated Data  Certain types of data, including health information and consumer financial information, is subject to detailed regulations relating to the handling and disposal of such data (“Specially Regulated Data”).  It is Customer’s exclusive responsibility to notify ProTek if any eWaste provided to ProTek contains data subject to special legal or regulatory processing requirements.  ProTek reserves the right to require that Customer execute separate agreements governing processing of Specially Regulated Data.
11. Customer Representations and Warranties. 
    1. Customer is duly organized, validly existing, and in good standing under the laws of its jurisdiction and operation.
    2. Customer has full corporate power and authority to negotiate and enter this Agreement, and to perform its obligations hereunder.
    3. All necessary action on the part of Customer has been taken to authorize and approve the execution, delivery, and performance of this Agreement.
    4. Customer has title to eWaste provided to ProTek pursuant to this Agreement.
    5. Customer has all rights to authorize the deletion and/or destruction of data contained on or in any eWaste provided pursuant to this Agreement. 
    6. No data contained on or in any eWaste is Specially Regulated Data subject to any obligation or requirement to preserve such data pursuant to any applicable agreement, regulation, law, or court order.
12. ProTek Representations and Warranties. 
    1. ProTek is duly organized, validly existing, and in good standing under the laws of its jurisdictions of incorporation and operation.
    2. ProTek has full corporate power and authority to negotiate and enter this Agreement, and to perform its obligations hereunder.
    3. All necessary action on the part of ProTek has been taken to authorize and approve the execution, delivery, and performance of this Agreement.
13. Indemnification.
    1. By Customer. Customer will defend, indemnify, and hold harmless ProTek for any third party claims arising from (a) any breach of Customer’s representations and warranties set forth in Section 11, above, (b) any Unapproved Waste provided to ProTek, and (c) any failure by Customer to comply with its obligations pursuant to applicable laws, regulations or agreements relating to the processing and/or disposal of data contained in any eWaste provided to ProTek..  
    2. By ProTek. ProTek will defend, indemnify, and hold harmless Customer for any third party claims arising from any breach of ProTek’s representations and warranties set forth in Section 12, above.  
    3. Disclaimer. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 12, ABOVE, PROTEK EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY TYPE, EXPRESS OR IMPLIED, UNDER THE AGREEMENT AND THESE TERMS.  
    4. Limitation of Liability.
    5. TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, PROTEK SHALL NOT BE LIABLE FOR LOST PROFITS OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES, NOR SHALL PROTEK BE LIABLE FOR PUNITIVE DAMAGES REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY, AND EVEN IF PROTEK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.   
    6. EXCEPT FOR PROTEK’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 13.2, PROTEK SHALL NOT HAVE ANY LIABILITY UNDER THIS AGREEMENT IN EXCESS OF AN AMOUNT EQUAL TO THE LAST TWELVE (12) MONTHS OF FEES PAID BY CLIENT PURSUANT TO AN APPLICABLE WORK ORDER.      
14. Dispute Resolution.  
    1. Arbitration.  Any controversy or claim arising out of or relating to the Agreement, or breach thereof, shall be settled by arbitration administered by American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules.  The arbitration shall be held before a single arbitrator selected by the Parties.  If the Parties are unable to agree on an arbitrator, the AAA case manager will appoint the arbitrator in accordance with AAA rules.  Any judgment on the award rendered by the arbitrator may be entered in any court with jurisdiction over the Party against whom the award is to be enforced.  
    2. Injunctive Relief.  Notwithstanding Section 16.1, nothing in the Agreement prohibits either Party from bringing an action in any court with jurisdiction to obtain injunctive relief where violation of this Agreement would cause irreparable harm and significant injury that may be difficult or impossible to ascertain. 
    3. Limitation of Time to Bring an Action. Any Claim against ProTek must be commenced within one (1) year following occurrence of the event giving rise to said Claim or the right to bring such Claim shall be deemed forfeited and/or waived. 
15. Independent Contractors. The Parties are independent contractors, and each Party’s personnel shall not be deemed to be employees, agents, or subcontractors of the other Party. Nothing contained in this Agreement shall be construed as creating a partnership, joint venture, agency, or other relationship of trust between the Parties.  Neither Party has the authority to bind the other Party or otherwise act as a representative of the other Party. \
16. Miscellaneous. 
    1. Notices. All notices required under the Agreement shall be in writing and deemed delivered when (a) delivered by hand to the Party or (b) when sent by email to the email address for the Party set forth in the signature block below, provided that a copy of such notice is also sent by certified mail or overnight courier to the Party’s address set forth in the signature block below.  Either Party may provide notice of different addresses for receipt of notice after execution of this Agreement. 
    2. Entire Agreement. The Agreement and these Terms are the entire agreement between the Parties and supersedes all prior agreements, whether written or oral, between the Parties concerning the subject matter of the Agreement.
    3. Severability. If any part of the Agreement or these Terms is held to be invalid, then the invalid portion shall be deemed conformed to the minimum requirements of law to the extent possible, and the remaining parts of the Agreement will continue to be enforced according to their terms.  
    4. Waiver. No failure to insist upon or enforce strict performance of the Agreement shall be construed to be a waiver of any provision or right. Neither the course of conduct between the Parties nor trade practice shall act to modify, strike, supplement, or amend any provisions of the Agreement.
    5. Assignment.  The Agreement may not be assigned without the consent of the other Party, which shall not be unreasonably withheld.
    6. Governing Law. The Agreement shall be governed by and construed in accordance with New York State law, without reference to its conflict of law principles.

Pro-Tek Recycling, Incorporated
(Document Destruction Contractor No. 15810427000, 
registered with the N.Y.S. Department of State)
Business Associate Terms and Conditions

These Business Associate Terms and Conditions (“BA Terms”) apply to Data Destruction Services provided by Pro-Teck Recycling Incorporated (“ProTek”) to any ProTek customer (“Customer”) who informs ProTek that Customer is a Covered Entity (“CE”) or Business Associate (“BA”) as those terms are defined in the Health Insurance Portability and Accountability Act (“HIPAA”), the Health Information Technology for Clinical Health Act (“HITECH”), and the regulations promulgated under HIPAA and HITECH (collectively, the “HIPAA Laws and Regulations”). Customer and ProTek are each referred to herein, individually, as a “Party” and, collectively, as the “Parties”.

1. Relationship to Data Destruction Services Agreement. ProTek and Customer are Parties to a Data Destruction Services Agreement (“Services Agreement”). To the extent any provision of these BA Terms conflicts with the provisions of the Services Agreement or any other agreement between the Parties, these BA Terms shall control with respect to the subject matter of these BA Terms and the handling of Protected Health Information (“PHI”) by ProTek.

1. Definitions.
   1. General HIPAA Terms. Terms used, but not otherwise defined, in these BA Terms shall have the same meaning as those terms have under the HIPAA Laws and Regulations, including but not limited to the following: Data Aggregation, Designated Record Set, Health Care Operations, Minimum Necessary, Notice of Privacy Practices, Protected Health Information, Required by Law, Secretary, Subcontractor, and Unsecured Protected Health Information.
   2. Breach. “Breach” shall mean the acquisition, access, use, or disclosure of PHI in a manner not permitted under the HIPAA Laws and Regulations, which compromises the security or privacy of the PHI. “Breach” shall not include:
      1. Any unintentional acquisition, access, use, or disclosure of PHI by an employee or individual acting under the authority of Customer or ProTek, if such acquisition, access, use or disclosure was made in good faith and within the course and scope of employment, authority or other professional relationship of such employee or individual, respectively, with Customer or ProTek, and such information is not further acquired, accessed, used or disclosed in a manner not permitted under the HIPAA Laws and Regulations;
      2. Any inadvertent disclosure by a person who is authorized to access PHI at Customer or ProTek to another person who is authorized to access PHI at Customer or ProTek, respectively, and the information received as a result of such disclosure is not further used or disclosed in a manner not permitted under the HIPAA Laws and Regulations; or
      3. A disclosure of PHI where Customer or ProTek has a good faith belief that the unauthorized person to whom the disclosure was made would not reasonably have been able to retain such information.
   3. Disclosure. “Disclosure” means the release, transfer, provision of, access to, or divulging in any other manner of information outside the entity holding the information.
   4. Discovery. “Discovery” means the time at which a Breach or Security Incident is known, or in the exercise of reasonable diligence, should have been known, to a person (other than the person committing the Breach or causing the Security Incident) who is an officer, director, employee, agent or representative of Customer or ProTek.
   5. Individual. “Individual” shall have the same meaning as the term “individual” in 45 CFR § 160.103 and shall include a person who qualifies as a personal representative in accordance with 45 CFR § 164.502(g).
   6. Security Incident. “Security Incident” means the attempted or successful unauthorized access, use, disclosure, modification, or destruction of information or interference with system operations in an information system.
   7. Use. “Use” of PHI means the sharing, employment, application, utilization, examination, or analysis of such information within an entity that maintains such information.
2. Obligations and Activities of ProTek.
   1. Not to Use or Disclose PHI Unless Permitted.ProTek agrees not to Use or Disclose PHI other than as permitted or required by these BA Terms or as permitted or Required by Law.
   2. Use of Safeguards.ProTek agrees to use reasonable administrative, physical and technical safeguards, and to comply with Subpart C of 45 CFR Part 164 with respect to electronic protected health information (“ePHI”) to prevent Use or Disclosure of PHI other than as permitted or required by these BA Terms or as otherwise permitted or Required by Law.
   3. Mitigation.ProTek agrees to mitigate, to the extent reasonably practicable, any harmful effect that is known to ProTek that results from a Use or Disclosure of PHI by ProTek in violation of the requirements of these BA Terms. 
   4. Breach, Security Incident, Improper Use or Improper Disclosure. ProTek agrees to notify Customer, without unreasonable delay, of any Breach, Security Incident, Improper Use or Improper Disclosure of PHIof which ProTek becomes aware(“Notification”), unless such Notification is prohibited by law. Such Notification shall be made no later thanfive (5)days following the date of Discovery by ProTek. To the extent reasonably possible, the Notification shall include the following information (if known):
      1. date of the Breach, Security Incident, Improper Use or Improper Disclosure;
      2. date of Discovery;
      3. a description of the types of Unsecured PHI involved;
      4. identification of each Individual whose Unsecured PHI has been, or is reasonably believed to have been, accessed, acquired, Used or Disclosed;
      5. any other information as Customer may reasonably request and any other details known to ProTek and necessary to complete an assessment of the risk of harm to each Individual; and
      6. all other notification requirements and obligations set forth in the HIPAA Laws and Regulations.
   5. Subcontractors, Agents and Representatives. ProTek shall enter into a written agreement with any subcontractor or agent of ProTek that comports with the subcontractor contracting requirements under the HIPAA Laws and Regulations. ProTek shall use commercially reasonable effort to assure that any subcontractor or agent agrees that any disclosures of PHI to its subcontractors, agents or other representatives shall only be the Minimum Necessary to perform or fulfill a specific function required or permitted under the subcontract between the subcontractor and ProTek.
   6. Access and Amendments. Due to the nature of the Data Destruction Services provided, ProTekdoes not have an obligation to maintain a designated record set on behalf of Customer (or, in the case where Customer is a Business Associate, the Covered Entity) or to make amendments to any PHI contained on items provided to ProTek. If ProTek receives an access request or request for amendmentfrom an individual prior to ProTek performing Data Destruction Services, ProTek will refrain from destroying the items and will return such items to Customer promptly.
   7. Accounting. Customer acknowledges that ProTek is not required by these BA Terms to make Disclosures of PHI to Individuals or any person other than Customer (or, in the case where Customer is a Business Associate, to the Covered Entity), and that ProTek does not, therefore, expect to maintain documentation of such Disclosures as described in 45 CFR § 164.528. IfProTek does make such Disclosures, it shall document the Disclosures as would be required for the Customer (or, in the case where Customer is a Business Associate, for the Covered Entity) to respond to a request by an Individual for an accounting of Disclosures in accordance with 45 CFR § 164.528 and shall provide such documentation to Customer and/or Covered Entity upon Customer’s and/or Covered Entity’s request. Should an accounting of Disclosures of PHI of a particular individual be requested more than once in any twelve-month period, ProTek may charge Customer a reasonable, cost-based fee.
   8. Compliance with 45 CFR Part 164, Subpart E (Privacy of Individually Identifiable Health Information). To the extent ProTek is to carry out one or more of Covered Entity’s obligations(s) under 45 CFR Part 164, Subpart E, ProTek shall comply with the requirements of Subpart E that apply to the Covered Entity in the performance of such obligations.
   9. Books and Records. ProTek agrees to make its internal practices, books and records available to the Secretary for purposes of determining compliance with the HIPAA Laws and Regulations.
3. Permitted Uses and Disclosures by ProTek.
   1. General. Except as provided in Section 4.3, below, ProTek will not use or disclose PHI without the express written consent of Customer and/or Covered Entity (if Customer is a Business Associate).
   2. Management and Administration.ProTek will not use PHI for the management and administration of ProTek.
   3. Compliance with Law. ProTek may use or disclose PHI as Required by Law.
   4. Minimum Necessary Use. ProTek, and its agents and subcontractors, shall only request, use and disclose the minimum amount of PHI necessary to accomplish the purpose of the request, use or disclosure.
   5. Data Aggregation Services. ProTekwill not provide data aggregation services relating to the health care operations of Customer (or Covered Entity, if Customer is a Business Associate).
4. Obligations of Customer.
   1. No Improper Requests. Customer shall not request that ProTek use or disclose PHI in any manner that would not be permissible under the HIPAA Laws and Regulations.Customer also shall not request that ProTek use or disclose PHI in a manner that would not be permissible if done by Customer (or the Covered Entity, if Customer is a Business Associate).
   2. Privacy Practices Notice. Customer shall notify ProTek of any limitation(s) in the notice of privacy practices of Customer (or the Covered Entity, if Customer is a Business Associate) in accordance with 45 CFR § 164.520, to the extent that such limitation may affect ProTek’s Use or Disclosure of PHI.
   3. Revocation of Permission. Customer shall notify ProTek of any changes in, or revocation of, permission by an Individual to Use or Disclose PHI, to the extent that such changes may affect ProTek’s Use or Disclosure of PHI.
   4. Restrictions on Use or Disclosure. Customer shall notify ProTek of any restriction on the Use or Disclosure of PHI that Customer has agreed to or is required to abide by under 45 CFR § 164.522, to the extent that such restriction may affect ProTek’s Use or Disclosure of PHI.
5. Term and Termination.
   1. Term. These BA Terms shall apply until the Services Agreement terminates or untilProTek is no longer in possession of PHI provided by Customer, whichever date is later; provided, however, that ProTek shall only be required to comply with these BA Terms when in actual possession of items containing PHI.
   2. Future Agreements. The Parties acknowledge and agree that the terms and conditions stipulated in these BA Terms shall apply to any future written or oral agreements between Customer and ProTek that involve the use, maintenance, or disclosure of PHI, whether or notthese BA Termsare specifically incorporated by reference into future agreements between the Parties.
   3. Termination for Cause. Notwithstanding the terms of the Services Agreement and/or any other agreement between the Parties, either Party may terminate the Services Agreementif such Party makes the determination that the other Party has breached a material term of these BA Terms and the other Party reasonably fails to cure and/or mitigate such breach within thirty (30) days of written notice of the existence of an alleged material breach.
   4. Effect of Termination. Upon termination of Services Agreement for any reason, ProTek, with respect to PHI received from Customer, or created, maintained, or received by ProTek on behalf of Customer, shall
   5. Retain only that PHI which is necessary for ProTek to continue its proper management and administration or to carry out its legal responsibilities;
   6. Return to Customer, or securely destroy, the remaining PHI that ProTek still maintains in any form, provided that if ProTek determines in good faith that returning or destroying PHI is infeasible, ProTek shall provide to Customer notification of the conditions that make return or destruction infeasible, and shall extend the protections of these BA Terms to such PHI and further limit uses and disclosures of such PHI to those purposes that make return or destruction infeasible;
      1. Continue to use appropriate safeguards to comply with Subpart C of 45 CFR Part 164 with respect to ePHI to prevent use or disclosure of the PHI, other than as provided for in this Section, for as long as Subcontractor retains the PHI;
      2. Not use or disclose the PHI retained by ProTek other than for the purposes for which such PHI was retained and subject to the same conditions set out in Section 4, above, which applied prior to termination;
      3. Return to Customer, or securely destroy, the PHI retained by ProTek when it is no longer needed by ProTek for its proper management and administration or to carry out its legal responsibilities.
6. Miscellaneous.
   1. Regulatory References. A reference in these BA Terms to a section in the HIPAA Laws and Regulations means the section as then in effect or as amended.
   2. Amendment. These BA Terms may not be amended except by a writing signed by both Parties. The Parties agree to take such action to amend these BA Terms from time-to-time as is necessary for the Parties to comply with the requirements of HIPAA Laws and Regulations or any other applicable law or regulation bearing on the subject matter of these BA Terms.
   3. Interpretation. Any ambiguity in these BA Terms shall be resolved to permit the Parties to comply with the HIPAA Laws and Regulations.
   4. No Third Party Beneficiaries. Nothing express or implied in these BA Terms is intended to confer, nor shall anything herein confer, upon any other person other than the Parties and their respective successors or assigns, any rights, remedies, obligations or liabilities whatsoever.
   5. Independent Contractors; No Agency Relationship. No provision of these BA Terms is intended to create, nor shall it be deemed or construed to create, any employment, agency or joint venture relationship between Customer and ProTek other than that of independent entities contracting with each other hereunder solely for the purpose of effectuating the provisions of these BA Terms. Neither of the Parties nor any of their respective representatives shall be construed to be the agent, employer or representative of the other. In relation to the use, maintenance, and disclosure of PHI that ProTek receives from or on behalf of Customer, ProTek shall not be an agent of Customer. The Parties acknowledge that Customer shall not have authority to direct or control ProTek’s conduct to an extent or in a manner that would give rise to an agency relationship under applicable law.
   6. Disclaimer. ProTek makes no warranty or representation that compliance by Customer with these BA Terms or the HIPAA Laws and Regulations will be adequate or satisfactory for Customer’s own purposes. ProTek is only responsible for decisions made by ProTek regarding the safeguarding of PHI it receives or maintains on behalf of Customer pursuant to the Services Agreement.
   7. Enforceability. If any provision of these BA Terms shall be held invalid or unenforceable, such invalidity or unenforceability shall attach only to such provision and shall not in any way affect or render invalid or unenforceable any other provision of these BA Terms.
   8. Wavier. The waiver by either Party of a breach or violation of any provision in these BA Terms shall not operate as, or be construed to be, a waiver of any subsequent breach of the same or other provision of these BA Terms.
   9. State Law. Nothing in these BA Terms shall be construed to require ProTek to use or disclose PHI without written authorization from an individual who is a subject of the PHI, or written authorization from any other person, where such authorization would be required under state law for such use or disclosure.
   10. Notices. Any notices to be given hereunder to a Party shall be made via certified U.S. Mail or express courier to such Party’s address set forth in the Services Agreement.