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THESE TERMS AND CONDITIONS (these “Terms and Conditions”), and the Order to which they are linked (the “Order”), are a binding contract between the customer named in the Order (the “Customer”) and Fast Photo Scans, LLC (the “Company“).

THESE TERMS AND CONDITIONS AND THE ORDER (COLLECTIVELY, THE “AGREEMENT”) TAKE EFFECT WHEN YOU CLICK THE “I ACCEPT” BUTTON ON THE ORDER. BY CLICKING ON THE “I ACCEPT” BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THE AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY IT.

IF YOU DO NOT AGREE TO THE AGREEMENT, PLEASE SELECT THE “I DECLINE” BUTTON ON THE ORDER. IF YOU DO NOT ACCEPT THE AGREEMENT, YOU MAY NOT RECEIVE THE SERVICES.

1. 1. Order: Company will provide, and Customer will obtain, the Services identified in the Order.

1. 1. Payment. Customer shall pay Company for the Services as specified in the Order. If, as a result of the photographs or documents that Customer provides to Company for the purpose of Company providing the Services (“Customer Materials”), the quantity of scanned images of Customer Materials (the “Scanned Images”) will exceed the quantity of Scanned Images specified in the Order, then Customer immediately upon notice of such excess also shall pay to Company an amount equal to such excess multiplied by the price per Scanned Image specified in the Order. Additionally, Customer agrees to reimburse Company for reasonable out-of-pocket expenses incurred by Company in connection with performing the Services. All payments shall be in U.S. dollars, unless otherwise agreed by the parties. Unless otherwise expressly provided in the Order, Customer shall pay Company all amounts due under the Agreement on or before the Effective Date.If Customer elects to pay such amounts by a credit card, Customer represents and warrants that (i) the credit card information the Customer supplies to Company is true, correct, and complete, (ii) Customer is duly authorized to use the credit card for the purchase and (iii) charges incurred by Customer will be honored by the credit card company. Amounts not paid when due will accrue interest at the rate of 1.5% per month, or the maximum allowed by law, whichever is less. Customer shall pay all expenses (including reasonable attorney’s fees) incurred by Company in connection with collection of late payments. Fees for Services exclude, and Customer will make all payments of such fees to Company free and clear of, all applicable sales, use, excise and other similar taxes, duties and charges of any kind imposed by any governmental authority (“Taxes”); provided, that, Customer shall not be responsible for any Taxes imposed on, or with respect to, Company’s income, revenues, gross receipts, personal or real property or other assets. When applicable, Company may include any Taxes that Company is required to collect as a separate line item on an invoice. In addition to all other remedies available under this Agreement or at law (which Company does not waive by the exercise of any rights hereunder), Company shall be entitled to suspend the performance of any Services if Customer fails to pay any amounts when due hereunder and such failure continues for 10 days following written notice thereof. Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Company, whether relating to Company’s breach, bankruptcy or otherwise.

1. 1. Warranties. Company warrants to Customer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION, COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Company shall not be liable for a breach of the warranty set forth in this section unless: (i) Customer gives written notice of the defective Services, reasonably described, to Company within 30 days of the time when Customer discovers or ought to have discovered the defect and (ii) Company reasonably verifies Customer’s claim that the Services are defective. Subject to the requirements of this section, Company shall, in its sole discretion, either repair or reperform such defective Services. THE REMEDIES SET FORTH IN THIS SECTION SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND COMPANY’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION.

1. 1. Limitation on Liability. IN NO EVENT SHALL COMPANY BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE OR DAMAGE TO CUSTOMER MATERIALS, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO COMPANY FOR THE SERVICES SOLD HEREUNDER.

1. 1. Intellectual Property. Customer represents and warrants that Customer (i) owns all right, title and interest, including all intellectual property rights, in the Customer Materials or (ii) has obtained full and adequate permission from the owner of the Customer Materials to grant the following license. Customer hereby grants Company a non-exclusive, royalty-free, worldwide license to reproduce and otherwise use the Customer Materials and to perform all acts with respect to the Customer Materials as may be necessary for Company to provide the Services. Subject to the payment of the fees and expenses for Services performed in accordance with this Agreement, and any previously existing third party rights, Customer shall have all ownership right, title and interest in and to the Scanned Images and Company sells, assigns, and transfers to Customer and Customer’s successors and assigns, the entire right, title and interest in the Scanned Images.

1. 1. Cancellation:

       

      1. 1. 24 Hours Before Company Pick Up. If Customer by notice to Company cancels the Order at least 24 hours before the pick up by Company of the Customer Materials (the “Company Pick Up”), then Company will refund to Customer all fees paid by Customer under the Order.
      1. 1. Before, But Less Than 24 Hours Before, Company Pick Up. If Customer by notice to Company cancels the Order before, but less than 24 hours before, the  Company Pick Up, then Company will refund to Customer all fees paid by Customer under the Order except the fee paid by Customer for the Company Pick Up.
      1. 1. Upon or After Company Pick Up. If Customer cancels the Order upon or after the Company Pick Up, no fees paid by Customer under the Order will be refunded.

1. 1. Miscellaneous:

1. 1. 1. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice“) shall be in writing and addressed, if to Customer, at the address for notices set forth in the Order and, if to Company, to Legal@FastPhotoScans.com or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered (i) by personal delivery, (ii) nationally recognized overnight courier (with all fees pre-paid), (iii) email (with confirmation of transmission) or (iv) certified or registered mail (in each case, return receipt requested, postage prepaid); provided, that any notice in connection with a legal suit, action or proceeding arising out of or relating to this Agreement shall be to the physical address of the party receiving such notice. Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party and (b) if the party giving the Notice has complied with the requirements of this section.

1. 1. 1. Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

1. 1. 1. Relationship of Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

1. 1. 1. Timeliness and Cooperation. Company shall use reasonable efforts to meet any performance dates to render the Services specified in the Order, and any such dates shall be estimates only. With respect to the Services, Customer shall (i) cooperate with Company in all matters relating to the Services; (ii) respond promptly to any Company request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Company to perform Services in accordance with the requirements of this Agreement; and (iii) provide such Customer materials or information as Company may reasonably request and Customer considers reasonably necessary to carry out the Services in a timely manner and ensure that such Customer materials or information are complete and accurate in all material respects. If Company’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer, Company shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

1. 1. 1. Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Company hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party“) reasonable control, including, without limitation, the following (“Force Majeure Events“): (a) flood, fire, earthquake, epidemic, pandemic or explosion; (b) telecommunication breakdowns, power outages or shortages; and (c) other events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 30 consecutive days following written notice given by it under this section, either party may thereafter terminate this Agreement upon 10 days’ written notice.

1. 1. 1. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

1. 1. 1. Waiver. No waiver by either party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

1. 1. 1. Amendment. This Agreement may only be amended or modified in a writing stating specifically that it amends this Agreement and is signed by each party.

1. 1. 1. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Company. Any purported assignment or delegation in violation of this section is null and void.

1. 1. 1. Survival. Provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.

1. 1. 1. Attorney’s Fees. In the event that any party institutes any legal suit, action or proceeding against the other party arising out of or relating to this Agreement, the prevailing party in the suit, action or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys’ fees and expenses and court costs.

1. 1. 1. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Oregon without giving effect to any choice or conflict of law provision or rule (whether of the State of Oregon or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Oregon.

1. 1. 1. Jury Trial Waiver. Each party acknowledges and agrees that any controversy that may arise under this Agreement is likely to involve complicated and difficult issues and, thus, each such party irrevocably and unconditionally waives any right to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby. Each party to this Agreement certifies and acknowledges that (a) no representative of any other party has represented, expressly or otherwise, that such other party would not seek to enforce the foregoing waiver in the event of a legal action, (b) such party has considered the implications of this waiver, (c) such party makes this waiver voluntarily and (d) such party has been induced to enter into this Agreement by, among other things, the waivers and certifications in this Section.

1. 1. 1. Entirety. This Agreement, composed of the Order and these Terms and Conditions, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in these Terms and Conditions and the Order (other than an exception expressly set forth as such), the statements in the Order shall prevail.

1. 1. Headings. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.

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