Digitizing Service Terms

PLEASE READ THIS AGREEMENT CAREFULLY. IT DESRCIBES YOUR LEGAL RIGHTS AND REMEDIES AND CONTAINS IMPORTANT INFORMATION.

1. Overview

The following digitizing service terms and conditions (“Terms”) are entered into by Advent Media, Inc. (“we”, “us”, and “our”), and the individual or entity agreeing to these Terms (“you” or “your”) and shall be effective as of the date of Acceptance (as defined herein – the “Effective Date”). These Terms govern your requests for quotations or estimates (each a “Service Request”) through the Advent Digitizing website, www.adventdigitizing.com (the “Site”), and the products and services relating to digital media conversion and duplication you may purchase or obtain from us (collectively the “Service” or “Services”). Nothing herein shall be deemed to confer any third-party rights or benefits. You and we are occasionally referred to herein individually as a “Party” and collectively as the “Parties.”

1.1. Additional Terms and Conditions

These Terms hereby incorporate the additional terms and conditions set forth by (i) our website usage terms (available online at https://www.adventdigitizing,com/terms, the “Website Usage Terms”), (ii) our general privacy policy (available online at https://www.adventdigitizing.com/privacy, the “Privacy Policy”), (iii) and an applicable Quote or Service Order (as defined in Section 4.1), each of which are hereby made a part by this reference. These additional terms and conditions may change from time to time. It is your responsibility to check for any such changes to these additional terms and conditions.

1.2. Acceptance of this Agreement

By submitting a Service Request on the Site or issuing a Service Order (as defined in Section 4.1), you hereby agree to these Terms (“Acceptance”). If you do not agree, do not submit a Service Request or issue a Service Order.

You represent and warrant that you have read these Terms prior to submitting a Service Request and are agreeing to them voluntarily.

(a) Consent to Electronic Communications

You also hereby (i) consent to receiving electronic communications from us, as further described in the Privacy Policy, and (ii) agree that any notices, agreements, disclosures, or other communications that we deliver to you electronically will satisfy any legal communication requirements, including that such communications be in writing.

1.3. Electronic or Online Document Availability

These Terms and any additional terms and conditions will be made electronically available by us to you with some terms and conditions being posted on our Site. We will not be required to provide you with physical paper copies of these documents.

1.4. Changes to these Terms

We may, in our sole discretion, update, revise, or change these Terms or any agreements which incorporate these Terms by reference by posting updates online or sending them to you by email to the address you have provided us. You are responsible to check for any such changes. Your use of any Services after such update, revision, or change is made constitutes your acceptance of the updated, revised, or changed terms. We are not responsible or liable for your failure to receive an email notification of an update, revision, or change if it results from (A) your failure to provide us with your current email address or (B) your implementation of any email filtering mechanisms or policies (i.e., spam or junk filters).

2. General Relationship

We will be providing Services as an independent contractor under these Terms. Nothing herein shall be deemed to constitute an employee/employer relationship, partnership, joint venture, agency relationship or otherwise between us and you. The sole and express purpose of these Terms is for the rendering of Services by us to you.

2.1. Non-Exclusive

You agree that our relationship will be non-exclusive. We and our employees, agents, and representatives shall be free to provide services or engage in any form of activity (including, but not limited to, any business, investment, or financial activities) whether for themselves or on behalf of or to other organizations, companies, or individuals who are or are potentially direct or indirect competitors of yours.

3. Digitizing Process

For clarification purposes, you hereby understand that for us to provide this Service, you will be tasked to provide us with various media materials (including but not limited to, videotapes, movie films, audio recordings, photos, slides, or prints – collectively, the “Source Materials”). Once we receive your Source Materials, we will then review, process, and digitize them to modern electronic formats (“Digitized Materials”). The Digitized Materials will then be stored onto flash drives, optical disks, portable hard drives, or other electronic storage devices (the “Storage Devices”) that we supply to you. When complete, you will receive back your original Source Materials as well as the Digitized Materials on the specified Storage Devices.

4. Service Requests, Quotes & Service Orders

This Service is only offered by us to you in accordance with a verifiable Service Request submitted by you through our Site. Your Service Request must include a detailed inventory (quantity, type, runtime, etc.) of the Source Materials you would like us to digitize in order to receive a Quote (as hereinafter defined).

Once we receive your Service Request, we will verify, review, and respond accordingly by phone or email. However, we are under no obligation to do so, and may choose not to respond to any Service Request for any reason. This includes, but is not limited to, Service Requests containing (i) unverifiable information, or (ii) irrelevant content. The decision whether or not to respond to your Service Request will be at our sole and absolute discretion.

4.1. Quotes & Service Orders

Any quotations or estimates for Services provided to you by us (collectively, a “Quote”) will be delivered by email to you in accordance with your Service Request and any later correspondence between us and you. The Quote shall reflect the total amount of Source Materials to be provided, the applicable Services to be rendered, and estimated pricing. The Quote will also contain a service order form codifying the details of the applicable Quote (a “Service Order”) which you may use to order the Services stated therein. Instructions on how to issue the Service Order, and corresponding down payment, will be stated therein.

(a) Validity Period

The Quote shall be valid for either (a) seven (7) days after being provided to you, or (b) until the expiration date shown on the Quote. The details of the Quote, including pricing, is based on the latest information available and is subject to change.

(b) Specific Terms

Depending on the type and nature of the Service Request and/or Quote, the Service Order may contain additional terms and conditions (as stated in Section 1.1) that are specific to your Service Order. We may also provide you with a Service Order that is governed by the terms and conditions of a separate agreement that requires your formal authorization (a “Separate Agreement”). In which case, the terms and conditions of the Separate Agreement shall take full precedence over the Terms stated herein upon your Authorization of the Service Order.

(c) No Obligations

You are under no obligation to issue a Service Order after receiving a Quote from us. Likewise, we are under no obligation to provide any Services to you until you provide Authorization (as defined in Section 4.3).

4.2. Pricing

Services will be provided in accordance with either (i) the estimated pricing shown on an applicable Service Order (“Estimated Pricing”), or (ii) our current list prices set for a specific Service (“List Pricing”).

4.3. Service Authorization

You may order the Services stated in the applicable Quote by issuing an applicable Service Order to us along with a down payment (“Authorization”). Your Authorization will reaffirm your Acceptance of these Terms.

(a) Your Representations

By issuing a Service Order to us, you represent, warrant, and covenant that: (a) you are duly authorized with the legal capacity to provide Authorization; (b) you either are the creator of the Source Materials or have rights to provide us with the Source Materials for duplication; (c) you have obtained the proper duplication licensing and usage rights for Source Materials containing Copyright Protected Content (as defined in Section 10.1); and (d) your Source Materials do not contain any Prohibited Content (as defined in Section 12).

4.4. Final Review & Acceptance

By providing Authorization, you are making an offer to purchase the Services stated in the Service Order which is subject to final review and acceptance by us. We reserve the right to, in our sole discretion, accept or reject any Service Order for any reason without any liability to you. This includes, but is not limited to, (i) fraudulent Authorization, (ii) pricing, typographical, or other errors, and (iii) availability issues (as detailed in Section 5.5). We are not responsible for any errors or omissions in any Quote or Service Order.

Once your Authorization has been approved by us, the applicable Service Order (hereinafter referred to as the “Order”) will constitute a legally binding contract between us and you for the specified Services under these Terms (the “Agreement”).

4.5. Additional Work

We may perform Services not identified in the Order either (i) based on the type, quantity, quality, and program time of Source Materials you provide to us; (ii) as requested by you; or (iii) as disclosed by us to you in advance (“Additional Work”). In the event we render Additional Work, you agree to pay for such Services retrospectively in accordance with the applicable List Pricing rates. Any Additional Work performed by us shall be in connection with the original Order unless we deem the Services requested require your Authorization of a separate Service Order.

5. Digitizing Services

We shall undertake and perform the Services set forth in an accepted Order in accordance with the digitizing process detailed in Section 3. We shall determine, in our sole discretion, the manner and means by which we provide the Services to you under this Agreement.

5.1. Service Location

Services will be rendered in-shop at our physical location (“Service Location”). Details regarding the Service Location, including the street address and driving directions, will be provided to you separately.

5.2. Service Timeframe

We will begin work on the Services for you starting on the date we receive your Source Materials (the “Commencement Date”) and ending on the date we complete or cease processing the Digitized Materials (the “Completion Date” - collectively the “Service Timeframe”). Unless stated in the applicable Order, the Completion Date is currently unknown, and for the purposes of this Agreement, will mean the date in the future that we have completed the rendering of Services. However, for illustration purposes, a typical Service Timeframe is two (2) weeks.

(a) Rush Delivery

If an applicable Order states “Rush Delivery”, the Order will be prioritized in the processing queue, subject to additional Fees, with a typical Service Timeframe of less than one (1) week. Rush Delivery is subject to availability issues (as detailed in Section 5.5) and not an option on any Orders containing (i) large quantities of Source Materials, or (ii) Specialty Materials (as hereinafter defined).

5.3. Source Materials

We shall render the Services specified in the Order in accordance with the applicable Source Materials you provide to us. In the event you provide us with Source Materials that are different than those specified in the Order, we will adjust your Order accordingly as Additional Work. We will handle all the Source Materials that we receive from you with due care and do our best to keep track of your Source Materials during the digitizing process.

(a) Source Material Drop-off or Shipping

You may supply us with your Source Materials by either (i) scheduling an appointment to drop-off in-person at our Service Location, or (ii) drop shipping them to our Service Location through a reputable delivery service (such as FedEx) at your expense, apart from this Agreement.

(b) Labeling & Sequencing

You are responsible for the labelling and sequence ordering of your Source Materials as they will be processed by us accordingly.

(c) Specialty Materials

If you provide us with Source Materials that we are not natively equipped to handle (“Specialty Materials”), we will notify you of the Specialty Materials and whether we can source the necessary playback or viewing hardware. If we can source the necessary hardware, you may either (i) authorize the Additional Work (as hereinafter defined) deemed necessary for the applicable Specialty Materials, or (ii) request we remove the applicable Specialty Materials from the Order, in which case they will be returned to you.

(d) Defective or Untransferable Materials

In the event Source Materials are in an unplayable or defective condition, we will attempt to capture and digitally restore as much as we can. This process may involve Additional Work. However, if any Source Materials are found to be not transferrable due to age, fragility, format, damage, or any other condition we are not responsible for, the applicable Source Materials will be returned to you.

(e) Material Storage Fee

In the event you provide us with a large quantity of Source Materials at one time, we will be permitted to charge reasonable storage and handling fee to hold the Source Materials at our Service Location for the duration of the Service Timeframe (a “Material Storage Fee”). If applicable, the Material Storage Fee will be determined by us upon receiving your Source Materials.

5.4. Digitized Materials & Storage Devices

The Digitized Materials will be processed in accordance with the applicable digital enhancements or other add-ons stated in the Order. Once complete, they will be stored on the applicable Storage Devices stated in the Order.

5.5. Availability

Service pricing and/or availability, as well as the pricing and/or availability of Storage Devices is subject to change without notice. We shall be allowed to make material substitutions as deemed necessary as long as they still substantially meet or exceed the specifications of the Order. However, in all circumstances, we do not make any representation regarding the availability of any Services, which may be changed or discontinued with or without notice.

5.6. Service Contact

Our personnel will be your primary point of contact for any support, inquiries or other requests related to the Services being rendered by us.

6. Confirmation & Delivery

Once we notify you that we reasonably believe that we have completed rendering the Services stated in the Order, we will notify you to arrange for pick-up or delivery (the “Delivery Notice”). We will hold the applicable Source Materials, Digitized Materials and Storage Devices at our Service Location for up to thirty (30) days after providing you with the Delivery Notice.

6.1. Delivery

The risk of loss for any Digitized Materials and Storage Devices passes to you upon Delivery (as hereinafter defined). Title and other applicable rights and warranties to the Digitized Materials and Storage Devices shall be passed to you upon your payment of all applicable Fees. “Delivery” occurs when we (i) provide the Source Materials, Digitized Materials and Storage Devices to a reputable third-party for shipping, or (ii) provide the Source Materials, Digitized Materials and Storage Devices directly to you.

(a) Prerequisite Technology Platforms

You hereby acknowledge and understand that in order to access, retain, or utilize the Digitized Materials or Storage Devices, you may need to obtain and maintain separately, at your expense, compatible hardware, software, service platforms, or other underlying technology (collectively “Prerequisite Platforms”) from a reputable third-party.

(b) Pick-up or Return Shipping

You may retrieve your Source Materials along with the Digitized Materials and Storage Devices stated in the Order by either (i) scheduling an appointment to pick-up in-person at our Service Location, or (ii) having us drop ship them back to you through a reputable delivery service (such as FedEx). Additional Fees apply for drop shipping.

6.2. Abandoned Materials

If we do not hear from you within thirty (30) days after notice of the Completion Date, any of your Source Materials, Digitized Materials or Storage Devices left in our possession will be treated as abandoned and will become our legal property (“Abandoned Materials”). You agree to hold us harmless for any damages or loss of property regarding Abandoned Materials.

6.3. Archiving

Once delivery is complete, you are responsible for your own backup of the digitized materials. We will keep a backup copy of the Digitized Materials for thirty (30) days after Delivery. However, if “Archiving” is stated on an applicable Order, we will keep a backup copy of the Digitized Materials for up to one (1) year after Delivery. You may purchase additional Storage Devices containing your Digitized Materials from us at any time therein.

7. Service Fees & Payment Terms

You agree to remit payment to us for any and all applicable amounts for Services we provide you (collectively “Fees”) in U.S. dollars, and subject to the following terms and conditions:

7.1. Payment in Advance

Partial or full payment in advance (PIA) is required for us to commence rendering Services to you.

7.2. Invoice Interval

We will be entitled to invoice you, either physically or digitally, (i) in-part at any time during the Service Timeframe, or (ii) in-whole upon completion of the applicable Order.

7.3. Invoice Period

The term listed on our invoice(s) will be the number of days you have to pay. Invoice(s) are typically submitted on Net 10, Net 15, or Net 30 terms, unless otherwise stated.

7.4. Method of Payment

We accept the following payment methods: Cash, Check, Credit or Debit Card. Additional processing fees may apply depending on the payment method. We reserve the right to deny the use of any payment method for any abuse or misuse in our sole discretion. Abuse of a payment method may also be grounds for further action including suspension or termination (as detailed in Sections 14 and 15).

7.5. Expenses

We are permitted to charge for all reasonable and necessary costs and expenses incurred in performing the Services, including but not limited to travel, courier services and postage, subject to agreement from you. We are also permitted to charge for any and all expenses incurred by us in exercising any of its rights under this Agreement or applicable law with respect to the collection of a payment default, including attorneys’ fees, court costs, and collection agency fees.

7.6. Penalties

If you do not pay the invoiced and required amount by the date stated in the invoice or as otherwise provided for in this Agreement, we shall be entitled to: (1) charge interest on the outstanding amount at the rate of two percent, monthly (2%, monthly) or the maximum non-usurious rate under applicable law; (2) require you to pay for the Services, or any remaining part of the Services, in advance; (3) cease performance of the Services completely or until payment is made (as detailed in Section 18) at our sole and exclusive discretion; and (4) withdraw or suspend license to intellectual property until sums are paid (as detailed in Section 14).

7.7. No Refunds

All payments to us are nonrefundable. This includes any payment in advance.

7.8. Tax Statement

Any and all charges payable under this Agreement are exclusive of taxes, surcharges, regulatory fees, or other amounts assessed by governments. Taxes imposed upon or required to be paid by us or you shall be the sole and exclusive responsibility of each, respectively.

7.9. Sales Tax Exemption

If you are located in the State of Ohio and are exempt from sales taxes, you must present us with a valid tax exemption certificate. Any tax exemption will apply only after we have received a valid exemption certificate. We reserve the right to determine whether your tax exemption certificate is valid. Tax exemption does not exempt you from applicable surcharges, regulatory fees or other amounts imposed by industry-specific authorities.

7.10. Laws Affecting Electronic Commerce

From time-to-time governments enact laws and levy taxes and tariffs affecting Internet electronic commerce. You agree that you are solely responsible for complying with such laws, taxes, and tariffs, and will hold harmless, protect, and defend us from any claim, suit, penalty, tax, or tariff arising from your exercise of Internet electronic commerce.

7.11. Adjustment for Inflation

If the Order has a Service Timeframe spanning more than sixty (60) days, we are permitted to adjust any and all requisite Fees for inflation as it deems necessary. Any such adjustments will be based on changes to the United States Department of Labor Bureau of Labor Statistics (BLS) Producer Price Index (PPI) or Consumer Price Index (CPI) and will be noted on the invoices submitted by us to you. These adjustments are not negotiable and there will be no decrease in Fees in the case of disinflation.

8. Your Obligations

In accordance with an applicable Order, you hereby agree to cooperate with us and provide access to the resources or data we may reasonably require in fulfilling the assigned tasks of the Order. This includes but is not limited to your obligations to:

• 8.1. Provide the Source Materials relevant to the provision of Services and payment for the provision of Services;
• 8.2. Facilitate or arrange transport of the Source Materials, Digitized Materials or Storage Devices either to or from our Service Location;
• 8.3. Obtain any necessary duplication rights or licenses to the Source Materials, including any Source Materials containing Copyright Protected Content (as defined in Section 10.1); and
• 8.4. Require any staff or agents of yours to cooperate with and assist us as we may need.

9. Service Interruptions or Delays by You

If any action or inaction by you prevents us from or delays us in performing the Services in the Order, we will be entitled to an equitable adjustment in the Service Timeframe and Fees otherwise payable under the applicable Order.

10. Intellectual Property

All rights in and to the Services are expressly reserved by us and our respective licensors. Any Source Materials you provide to us for Services shall remain your property subject to these Terms. Except for the limited duplication rights granted to us by you to process Source Materials as set forth herein, neither you nor we shall acquire any intellectual property rights to the Source Materials or Digitized Materials under these Terms.

10.1. Materials Protected by Copyright

You are solely responsible for any and all Source Materials and Digitized Materials containing content that is the intellectual property of a third-party and protected by U.S. copyright law (“Copyright Protected Content”). By providing or requesting Copyright Protected Content, you hereby acknowledge and affirm to us that you have obtained the proper licensing and usage rights for duplication from the copyright holder(s), as required under U.S. copyright law, for either commercial or personal use (as the case may be).

(a) Fair Use Provisions

If you provide us with Source Materials containing Copyright Protected Content that can only be processed under the fair use provisions of U.S. copyright law (“Fair Use Provisions”), you acknowledge and understand that such Digitized Materials will be for your PERSONAL USE ONLY and may only be stored, viewed, or played back on the physical devices you own. You also acknowledge and understand that you must handle the original Source Materials and the Digitized Materials as one unit. For example, if you decide to sell or transfer ownership of the original Source Materials, you must transfer or destroy the related Digitized Materials at the same time.

11. Risk of Loss for Source Materials

YOU ACKNOWLEDGE AND UNDERSTAND THAT YOU WILL BE PROVIDING SOURCE MATERIALS TO US AT YOUR OWN RISK. YOU ALSO RECOGNIZE THAT YOU MAY NOT RECEIVE YOUR SOURCE MATERIALS BACK AT ALL, OR IN THE SAME CONDITION THAT THEY WERE PROVIDED TO US. BY ISSUING A SERVICE ORDER, YOU ACCEPT THIS RISK. We make no warranty and disclaim all potential liability, regarding all aspects of our Services in the handling of your Source Materials.

11.1. Notification of Loss

If you provide us with a notification stating that you reasonably believe we have damaged, misplaced, or mismatched your Source Materials after they were in our possession within thirty (30) days after Delivery (a “Notification of Loss”), we will review your notification and make a commercially reasonable effort to determine the cause. You hereby agree to assist us during this review process. Once we have made our determination, we will provide a written response to your Notification of Loss. You agree to be bound by our review and determination.

12. Prohibited / Illegal Content and Activity Reporting

You hereby understand and agree that your Source Materials may not contain, under any circumstances, any destructive, obscene, insulting, harassing, violent, sexual, abusive, or any other inappropriate content that violates any federal, state, or local laws or the rights of a third-party (collectively, "Prohibited Content").

We reserve the right to report any illegal content or activities (collectively, “Illegal Content”) detected while providing Services to any and all regulatory, administrative, and/or governmental authorities (“Law Enforcement”) for prosecution. If this provision is acted upon by us, it will be done immediately and without prior notice or consent provided to you.

You hereby waive all proprietary, ownership or other rights in any of your Source Materials containing any Illegal Content and you agree to hold us harmless for any damages or loss of property. You also understand that your contract is subject to immediate termination as detailed in Section 15.

13. Medical Mandates or Restrictions

Under no circumstances shall you mandate, enforce, or compel any of our employees or representatives to (i) divulge or present any personal medical information, medical passports, or vaccine permits, (ii) receive any forced injections or other specific medical treatments, or (iii) participate in any medical experiments (collectively “Medical Mandates”) for us to provide any Services to you. In addition, under no circumstances shall you mandate or enforce any of our employees or representatives to (i) undergo any medical exams or tests (including but not limited to temperature checks, blood tests, urine tests, nasal or throat swabs, or other tests), or (ii) wear any unnecessary protective clothing or equipment (such as face masks or coverings) (collectively “Medical Restrictions”).

Medical Restrictions shall not be construed to include any commonsense advice or requests, such as advising or requesting any employees or representatives refrain from physically visiting their Service Locations if they are or have knowingly been around others exhibiting symptoms of viral illness.

13.1. Service Restrictions

We will not provide any Services to you if you enforce any Medical Mandates or Medical Restrictions for any reason. If we encounter any such restrictions after accepting an Order, we will enact the Force Majeure clause (defined in Section 21.8) of this Agreement immediately and Services will not be rendered until your restrictions are lifted. We may also terminate the applicable Order without any liability to you or any third party.

13.2. Your Liability for Enforcing Medical Mandates or Restrictions

Since, (a) demanding any individuals, employees or representatives divulge their personal medical information, which invades their protected right to privacy and discriminates against them based on their perceived medical status, in contravention of the Americans with Disabilities Act (42 USC §12112(a)); and (b) forced injections without informed consent, in accord with the internationally agreed legal requirement established in the Nuremberg Code of 1947 (https://www.cirp.org/library/ethics/nuremberg/) constitutes a form of battery under U.S. federal and state law, if any of our employees or representatives comply with any Medical Mandates or Medical Restrictions implemented and enforced by you and they suffer death or personal injury as a result, you will be held liable under federal and state laws, including HIPAA, FMLA, and applicable state tort law principles, including torts prohibiting and proscribing invasions of privacy and battery regardless of the status of any Agreements you have entered into with us. These provisions shall override and shall apply in preference to any terms and conditions to the contrary set by you or any of your representatives involved with the Services we provide to you hereunder.

14. Non-Disparagement

In addition to any and all applicable laws preventing tortious interference with a business, you hereby promise, warrant, and represent that neither you nor any of your respective subsidiaries, affiliates, successors, assigns, principals, partners, members, general partners, officers, employees, directors, stockholders, or agents will in any way, either directly or indirectly, through any means or instrumentality, whether written or oral, electronically, or otherwise (including, without limitation, in a television, radio, internet, social media, newspaper or magazine interview, or through the press, media, analysts or other persons, or in any public document or report), publicly criticize, attempt to discredit, disparage, call into disrepute, make ad hominem attacks on or otherwise defame or slander or make, express, transmit, speak, write, verbalize or otherwise communicate in any way (or cause, further, assist, solicit, encourage, support or participate in any of the foregoing), or remark, comment, message, inform, declare, communicate, redistribute, or make any other public statement of any kind, whether verbal, in writing, electronically transferred or otherwise, in any manner (i) that might reasonably be construed to be derogatory or critical of, or negative toward us, or any of our practices, procedures, businesses, business operations, products or services; (ii) that would reasonably be expected to damage our business or reputation; (iii) that reveals, discloses, incorporates, is based upon, discusses, includes or otherwise involves any Confidential Information; (iv) that is intended to malign, harm, disparage, defame or damage our reputation or good name; or (v) that is derogatory, detrimental, or injurious to our goodwill, reputation or business standing (collectively “Disparagement”).

In the event you or your respective subsidiaries, affiliates, successors, assigns, principals, partners, members, general partners, officers, employees, directors, stockholders, or agents engage in any such acts of Disparagement toward us, we shall be entitled to respond without restriction. This includes, but is not limited to, (i) publicly addressing the acts of Disparagement; (ii) seeking immediate injunctive and/or other equitable relief; (iii) pursuing all available legal or equitable rights or remedies to the fullest extent permitted by applicable law (including attorney’s fees and other incurred costs); and (iv) terminating all active Agreements as detailed in Section 15.

14.1. Exceptions

The Disparagement limitations shall not apply (i) to any compelled testimony or production of information, whether by legal process, subpoena or as part of a response to a request for information from any governmental or regulatory authority with jurisdiction over you from whom information is sought, in each case, to the extent required with prior notice to us; or (ii) to any disclosure that you reasonably believe, after consultation with outside counsel, to be legally required by applicable law, rules or regulations. For purposes of clarification, the Disparagement limitations shall not be construed in any way to prohibit, limit, or otherwise restrict, you or your respective subsidiaries, affiliates, successors, assigns, principals, partners, members, general partners, officers, employees, directors, stockholders, or agents from engaging in any internal or private communications that are not intended for public dissemination and do not violate any applicable laws.

15. Suspension of Services

If any Fees payable by you are overdue, they will trigger a “Collection Dispute.” We will attempt to contact you (by phone, e-mail, or mail) to notify you of the Collection Dispute and make arrangements.

If you fail to communicate with us or comply with your obligations with respect to reimbursements, in addition to any other rights and remedies we have (including termination) set forth in this Agreement, we reserve the right to cease performance of any and all Services being provided to you either under any active Agreement between us and you, as the case may be, without any liability.

The suspension of Services will continue until you remit full payment for all outstanding Fees due, including any interest or other penalties (detailed in Section 7.6) as well as all other Fees accrued during the suspension period. You also hereby irrevocably grant us the right, to (i) temporarily disable your access to any applicable Created IP, Physical Media/Equipment or all other property and data belonging or made available to you either in our possession or under our control; and (ii) temporarily revoke any applicable licenses or Proprietary Rights granted to you for any Created IP made by us.

16. Cancellation & Termination

We may cancel any individual Quote, Service Order, or and accepted Order, either with or without notice to you:

• (a) if you commit a material breach of any of these Terms;
• (b) if you fail to provide Source Materials or falsely accuse us of misplacement, destruction, loss, or damage to Source Materials;
• (c) if you fail to pay any Fees you owe us;
• (d) if you engage in any conduct prejudicial or abusive to our business or representatives;
• (e) if we discover any Illegal Content;
• (f) if you cease to do business in the normal course, becoming or being declared insolvent or bankrupt, being the subject of any proceeding relating to liquidation or insolvency which is not dismissed within ninety (90) days, or making an assignment for the benefit of your creditors; or
• (g) for any other reason for which we determine, at our sole discretion, we cannot or should not fulfill the Order.

In any case, if this Agreement is terminated before the expiration of its natural term, you hereby agree to pay any and all applicable Fees for Services rendered up to the date of termination, and for any and all expenditure due for payment after the date of termination for commitments reasonably made and incurred by us related to the rendering of Services prior to the date of termination.

Any termination under this subpart shall not affect the accrued rights or liabilities of either Party under this Agreement or applicable law and shall be without prejudice to any rights or remedies either Party may be entitled to. Any provision or subpart of this Agreement that is meant to continue after termination or come into force at or after termination shall not be affected by this subpart.

16.1. Effect of Termination

In the event of termination not related to a failure to pay, discovery of Illegal Content, Disparagement, or ceasing to do business in the normal course, we shall, in accordance with your written instructions and at your expense, deliver back to you the Source Materials in our possession.

17. Indemnification

TO THE FULLEST EXTENT PERMITTED BY LAW, YOU HEREBY AGREE TO IDEMNIFY, DEFEND, AND HOLD HARMLESS US, OUR AFFILIATES, SUBSIDIARIES AND EACH OF OUR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, OR AGENTS AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIBALITITES, COSTS, DEMANDS, PROCEDDINGS, JUDGMENTS, FINES, AWARDS, AND EXPENSES OF ANY KIND (INCLUDING WITHOUT LIMITATION LEGAL FEES AND COSTS) (COLLECTIVELY “LOSSES”) INCURRED AS A RESULT OF OR RELATED TO: (I) ANY BREACH OF THIS AGREEMENT; (II) ANY ACCESS TO, USE OF, OR ALLEGED USE OF THE SERVICES OR ANY INABILITY TO ACCESS OR USE THE SERVICES, INCLUDING WITHOUT LIMITATION INTERRUPTIONS, CESSATION OR MODIFICATIONS TO ANY ASPECT OF THE SERVICES; (III) ANY CLAIMS BY, ON BEHALF OF, OR AGAINST YOU; (IV) ANY VIOLATIONS OF LAW OR REGULATIONS; (V) ANY ALLEGED INFRINGEMENT OF ANY PROPRIETARY RIGHTS INCLUDING, BUT NOT LIMITED TO, TRADEMARK, COPYRIGHT, PATENT, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY RIGHTS; (VI) ANY UNAUTHORIZED ACCESS TO PERSONAL DATA OR CONFIDENTIAL INFORMATION (INCLUDING VIEWING, EXFILTRATION, OR DELETION THERE OF) OR OTHER BREACH OF SECURITY, PRIVACY OR CONFIDENTIALITY THERETO; AND (VI) ANY OTHER OPERATIONS, TRANSACTIONS OR MATTERS ASSOCIATED WITH THE SERVICES, THIS AGREEMENT, OR RELATIONSHIP BETWEEN US AND YOU. These indemnification obligations apply to you and your Order for our Services.

18. Disclaimers

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE MAKE NO WARRANTIES, EITHER EXPRESSED OR IMPLIED, ABOUT THE SERVICES, SOURCE MATERIALS, DIGITIZED MATERIALS, OR STORAGE DEVICES. THE SERVICES, SOURCE MATERIALS, DIGITIZED MATERIALS, OR STORAGE DEVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE ALSO DISCLAIM ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY. WE MAKE NO WARRANTY OR REPRESENTATION THAT THE SERVICES, SOURCE MATERIALS, DIGITIZED MATERIALS, OR STORAGE DEVICES WILL: (I) BE TIMELY, UNINTERRUPTED, SECURE, OR ERROR-FREE; (II) COMPLETE, INTACT, WITHOUT DEFECT, OR UNDAMAGED; (III) MEET YOUR REQUIREMENTS OR EXPECTATIONS; (IV) BE FULLY COMPLIANT WITH INDUSTRY OR OTHER REGULATIONS; OR (V) BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.

18.1. Third Parties

We are not responsible for and shall not have any liability to you for the actions or practices of any third-party, including, but not limited to delivery service providers, under any circumstances. Each third-party is a completely independent entity and they are solely responsible for their actions, practices, goods, and/or services. Likewise, WE ARE NOT RESPONSIBLE FOR ANY LATE, LOST, DAMAGED OR MISDIRECTED MAIL.

18.2. Source Materials

We shall not have any liability to you or any third-party whatsoever for any damages, loss, disclosure, alteration, decay, or corruption arising from us rendering any Services using your Source Materials, under any circumstances.

18.3. Copyright Protected Content

We are not responsible for and shall not have any liability to you or any third-party whatsoever for any claims resulting from the inclusion, use, or distribution of any materials containing Copyright Protected Content, under any circumstances.

18.4. Exceptions

Under certain circumstances, some jurisdictions do not permit the disclaimers in this section, so they may not apply. However, the disclaimers shall apply to the maximum extent permitted by applicable law. You may have other statutory rights and nothing in this Agreement affects your statutory rights or rights under mandatory laws. The duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by applicable law.

19. Limitation of Liability

To the fullest extent permitted by law, you hereby release us and our representatives from all liability associated with your use of the Digitizing Services and your receipt of the Source Materials, Digitized materials, and/or Storage Devices. In no event shall we be liable to you, your representatives, or any other third party for any damages of any kind under any theory of liability whether based on warranty, contract, tort (including negligence), statute, or any other legal or equitable theory arising out of or related to the Digitizing Services, Source Materials, Digitized Materials, Storage Devices, or this Digitizing Service Agreement, including, but not limited to, (a) any direct, indirect, incidental, special, exemplary, punitive, consequential, or nominal damages; (b) any personal injury, pain and suffering, emotional distress, or clinical outcomes; (c) any loss of profits, revenue, data, use, goodwill, interruption of business, or other intangible losses; (d) any losses related to any aspect of the Digitizing Services, the Source Materials, the Digitized Materials, the Storage Devices, including without limitation any interruption, cessation or modification thereof; (e) any losses related to unavailability, degradation, loss, corruption, theft, alteration, or unauthorized access or alteration of any content information or data; (f) any outer conduct or content of any third-party, including without limitation defamatory, offensive, or unlawful conduct or content; (g) any breach of contract; or (h) any other causes whether or not we have been informed or could foresee of the possibility of such loss or damage. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

20. Dispute Resolution

We and you hereby understand and agree that in the event a dispute arises under this Agreement, the following procedures shall be utilized to resolve the dispute(s). IN ADDITION, EACH PARTY HEREBY UNDERSTANDS AND AGREES THEY ARE WAIVING THEIR RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

20.1. Collection Disputes

We reserve the right to utilize the services of a collection agency or attorney to resolve any Collection Dispute and to recover any Fees owed, plus interest (as detailed in Section 7.6). We expressly reserve the right to pursue any and all available legal or equitable remedies to recover amounts owing under this Agreement.

20.2. Informal Resolution for All Other Disputes

With the exception of the rights reserved and procedures set forth in this Agreement concerning Collection Disputes, should any other disputes arise under this Agreement, the Parties agrees to try to resolve the dispute informally by first sending notice to the respective Party. The respective Party receiving the notice will have sixty (60) days upon receipt of the first notice attempt to resolve the dispute informally via mail, e-mail, phone, or other methods. The notice must (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought. If the dispute cannot be resolved directly in good faith within sixty (60) days of receipt of the first notice, either party may commence an arbitration proceeding.

20.3. Arbitration

In the interest of resolving disputes between the Parties in the most expedient and cost-effective manner, both Parties agree that any and all disputes arising in connection with this Agreement will be resolved by binding arbitration. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. Our agreement to arbitrate disputes includes, but is not limited to, all claims arising out of or relating to any aspect of this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether the claims arise during or after the termination of this Agreement.

Claims shall be submitted to binding arbitration before a mutually agreed upon arbitrator pursuant to the rules of the American Arbitration Association. The Arbitrator’s award shall be final, and judgment may be entered upon in any court having jurisdiction thereof.

(a) Arbitration Fees and Costs

Subject to applicable law, payment of the arbitrator’s fees and costs shall be governed by the arbitrator’s rules. However, if the arbitrator finds that your dispute was frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), you shall reimburse us for all fees and costs that were your obligation to pay under the arbitrator’s rules. Each Party shall pay for their own costs and attorneys' fees, if any. However, if either Party prevails on a claim which affords the prevailing party reasonable attorneys' fees and costs, or if there is a written agreement providing for fees, the arbitrator may award such fees to the prevailing Party as provided by law. Notwithstanding anything in this section to the contrary, we will only pay fees and costs that we are required by law to pay.

20.4. Exceptions

Notwithstanding Subsection 23.3, the Parties both agree that nothing herein will be deemed to waive, preclude, or otherwise limit either Party’s right to (i) bring an individual action in small claims court, (ii) pursue enforcement actions through applicable federal, state, or local agencies where such actions are available, (iii) seek injunctive relief in a court of law, or (iv) to file suit in a court of law to address intellectual property infringement claims.

20.5. Time for Filing

Any claim must be commenced within one (1) year after the date the Party asserting the claim first knows or reasonably should know of the act, omission or default giving rise to the claim. If applicable law prohibits a one (1) year limitation period for asserting claims, any claim must be asserted within the shortest time frame permitted by applicable law.

20.6. Waiver of Class Actions

Both Parties agree that each Party may only resolve disputes on an individual basis and not as a plaintiff or class member in any purported class, collective, consolidated, or representative action including without limitation federal or state class actions or arbitrations. Further, unless both the Parties agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.

21. General Provisions

21.1. Language

All communications made, or notices given pursuant to these Terms shall be in the English language.

21.2. Headings

Headings are for convenience only and shall not be construed to limit or otherwise affect these Terms.

21.3. Counterparts

This Agreement may be executed in counterparts, all of which shall constitute a single agreement.

21.4. Public Announcement

Neither Party will make any public announcement or disclosure about the existence of this Agreement or any of the terms herein without the prior written approval of the other Party.

21.5. Non-Solicitation

During the term of this Agreement and for twelve (12) months following termination of this Agreement, you agree that you shall not solicit for employment (or with any other party) any employee of ours or interfere in the employment relationship between us and any of our employees with whom you have had contact in connection with this Agreement.

21.6. Governing Law

These Terms shall be governed in all respects by the laws of the State of Ohio and any applicable United States federal law. Both Parties consent to the sole and exclusive jurisdiction under the state and federal courts within the State of Ohio without respect to its conflicts of law principles. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature.

21.7. Waiver, Severability and Assignment

Our failure or delay to enforce any provision in these Terms is not a waiver of our right to do so later. If any provision of these Terms is found unenforceable, the remaining provisions will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not delegate, transfer or assign this Agreement or any of your rights or obligations hereunder without prior written consent by us, and any such attempt will be of no effect. We may delegate, transfer, or assign this Agreement or some or all our rights and obligations hereunder, in our sole discretion, to any of our affiliates or subsidiaries or to any purchaser of any of our business or assets associated with the Services, with thirty (30) days prior written notice.

21.8. Events Beyond Our Control (Force Majeure)

Neither Party will be held liable to the other for any losses, damages, failures, or delays in performance due to their inability to perform their obligations under this Agreement, or failure to give notice of the same, due to any causes beyond their reasonable control (“Force Majeure”).

Force Majeure includes, but not limited to, (i) any acts of God; (ii) any law, order, regulation, direction, or request of any government, third-party or other regulating authority having or claiming to have jurisdiction over a Party, its subcontractors and/or its suppliers; (iii) any failure or delay of transportation; (iv) any civil disturbances, insurrections, riots, acts of war, or terrorism, (v) any crashes, fires, floods or other catastrophes including natural disasters; (vi) any strikes or labor disputes; (vii) any inability to access facilities or obtain necessary materials; (viii) any equipment failures; and (ix) any utility (water, electric, gas, etc.) or network (phone, internet, TV) interruptions, failures or shortages.

21.9. Void Where Prohibited

We provide Services from our location in Columbus, Ohio USA to you who are legally and physically established in the United States. Not all information, content, or features discussed, referenced, provided, or offered by us through the Services are available or appropriate for use outside of the United States. We reserve the right to, in our sole discretion, limit the provisioning of Services to any individual, business, organization or geographic area. Any Services either proposed, provided, facilitated, administered, or delivered, either entirely or partially by us is void where prohibited.

21.10. Third-Party Beneficiary Rights

This Agreement creates no third-party beneficiary rights, and no third-party shall have any right or standing to claim benefit or bring an action to enforce this Agreement.

21.11. Entire Agreement

These Terms, together with the Website Usage Terms, Privacy Policy, and the appliable Order constitute the entire agreement between us and you regarding this subject matter and supersedes and replaces any other prior or contemporaneous agreements, or understandings, whether written or oral. You agree that you have not relied upon, and have no remedies in respect of, any term, condition, statement, warranty, or representation except those expressly set out by these Terms.

22. Contact Information

We have tried to make this Agreement fair and straightforward, but feel free to contact us if you have any questions or suggestions regarding this Agreement using the information provided herein.