This Service Agreement (the “Agreement”) is made and entered into as of the effective date below (the “Effective Date”) between Cactus Cottage Photos, LLC, (the “COMPANY”), a limited liability company located in Arizona performing photo organization services, and the undersigned “Client” (collectively, the “Parties”). The Parties agree:
1.0 Payments: Client agrees to pay the entire price of the Services upon completion of the scanning service.
2.0 Client Obligations: The Client warrants that these Materials may be viewed, duplicated, and archived by Company in the course of performing its contracted services without violating any laws or infringing the rights of any third parties.
3.0. Legal Clearances: The Client is responsible for obtaining all legal clearances required for the performance of services hereunder, including being free to enter into this Agreement. Client warrants not being a party to, or bound by any contract, the terms of which would be inconsistent with or contrary to the terms of this Agreement.
4.0. Prohibited Content: Client agrees not to use, or attempt to use, Company’s Service to process, produce or reproduce Prohibited Content. Generally, “Prohibited Content” includes Content or other material that:
A. Is threatening, profane, abusive, deceptive, pornographic, obscene, defamatory, slanderous, offensive, or otherwise inappropriate.
B. Contains nudity. Company will not accept or process any Content with any nudity, including images that Company, in its sole judgment, deems to be erotic in nature.
C. Could give rise to any civil or criminal liability;
D. Could infringe rights of privacy, publicity, copyrights or other intellectual property
rights without the express written permission of the owner of these rights and the persons (or their parents or legal guardians, where applicable) who are shown in the material if applicable.
E. Advocates illegal activity.
F. Harms anyone, including, but not limited to, minors in any way.
G. Promotes bigotry, racism, hatred or harm against any individual or group.
5.0. Digitization Quality Warranty. Company makes no warranty or guarantee with respect to the quality of the Materials undergoing the scanning and/or backup process. Client acknowledge that quality loss can occur during the digitization process and understands that Company is not responsible for such quality loss.
6.0. Shipping: Company is not liable for the materials while in transit through or in possession of any third party carrier. Due to the nature of the materials no insurance is available for the shipping or the handling of the materials. Company offers no warranty or guarantee against damage or loss while client’s order is in transit.
7.0 Limitation on Liability. Except for the Limited Warranty set forth herein, the services and deliverables are provided to client on an “as is” basis. While company will use commercially reasonable efforts to safeguard materials, client agrees that the use of the services is at the client’s sole risk. The company disclaims, to the fullest extent permissible by law, all other warranties of any kind, including without limitation the implied warranties of merchantability, fitness for a particular purpose and non infringement. We make no warranty that the quality of the services or deliverables will meet your expectations. We disclaim any responsibility for the deletion, failure to store, misdelivery, or untimely delivery of any information or material, including through screen-sharing software, except as expressly set forth in this agreement. Company and its representative shall not be liable for any indirect, incidental, consequential, special, exemplary or punitive damages or losses which client may incur in connection with this agreement or the use of, or inability to use, company’s services. In no event will company be liable for the actions of any third party whose company engages at client’s request to provide additional services, including software or cloud-based services organization or storage services. Client assumes the entire risk of loss and damage due to client’s use of company services, including but not limited to the cost of repairs or corrections to client’s hardware or software.
8.0 Limited Remedy for Loss of Your Entire Order. While company uses its best efforts to carefully handle materials in its possession or control, sometimes unexpected things can happen. Company only assumes the risk of loss of client’s entire order from the limited time that company actually receives client’s entire order physically until the time that company delivers client’s order to a third party carrier for transport or delivery digital Tiles to client. Company does not assume such risk of loss for client’s entire order, if, after receiving client’s order from any third party carrier, company discovers that any or all of the contents of client’s order is damaged or lost. Company does not assume such risk of loss for client’s entire order during a remote screen share. If company loses client’s entire order during the limited period that client’s order is under company’s sole custody and control, client’s sole and complete remedy is company’s payment to client up to one thousand dollars ($1,000) or the full service fee, whichever is less (the “safe handling guarantee”). Client acknowledges the safe handling guarantee is a reasonable approximation of the damages that would be suffered by client from the loss of client’s entire order and is not a penalty. The safe handling guarantee, along with any other quoted guarantees or warranties, only applies if company’s recommend packing instructions are followed.
9.0 Force Majeure: Company shall not be held responsible for delays or nonperformance caused by activities or factors beyond its reasonable care and control, including delays and nonperformance caused by viruses, third-party application or platforms, denials of service, other acts or omissions by third parties, Internet service providers, the Client or its contractors, strikes, physical or electronic lockouts, work slowdowns or stoppages, accidents, Tires, acts of God, terrorism, failure by the Client to timely furnish materials or complete tasks, or faulty performance by the Client or others.
10.0 Confidential Information: Company and the Client shall mutually respect and maintain each other’s confidential information and shall use it only to perform their respective obligations. Confidential information includes all of the Client’s materials. Confidential information also includes any of Company’s proprietary materials, including but not limited to questionnaires, handouts, diagrams, workbooks, logos, slogans, copyrights or trademarks. Confidential information does not include information which is public knowledge, was in the recipient’s possession before receipt, or is independently developed by the recipient.
11.0. Entire Agreement: This document reflects the entire agreement between the Company and the Client, and reflects a complete understanding of the parties with respect to the subject matter. This Agreement supersedes all prior written and oral representations. The Agreement may not be amended, altered or supplemented except in writing signed by both the Company and the Client. This Agreement may not be assigned by the Client.
12.0. Dispute Resolution: If a dispute arises out of this Agreement that cannot be resolved by mutual consent, the Client and Company agree to attempt to mediate in good faith for up to (certain amount of time such as 30 days) after notice given. If the dispute is not so resolved, and in the event of legal action, the prevailing party shall be entitled to recover attorney’s fees and court costs from the other party.
13.0 Severability: If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If the Court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
14.0. Waiver: The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement.
15.0. Applicable Law: This Agreement shall be governed and construed in accordance with the laws of the State of Arizona, without giving effect to any conflicts of laws provisions.
16.0. Binding Effect: This Agreement shall be binding upon the parties hereto and their respective successors and permissible assigns.
17.0 Headings: Headings in this Agreement are for convenience only and do not confer rights or obligations, nor alter any terms of this Agreement.