1. INTRODUCTION; ACCEPTANCE OF TERMS; MODIFICATIONS THERETO.
(a) These Standard Terms of Service ("TOS"), together with the Scan123™ Services Agreement (the "Agreement") sets out the terms under which Scan123 Corporation ("Scan123 Corp") will provide the User with document scanning, storage and management services. Such services, including, without limitation, use of the Scan123™ Services website ("Site") and software, are referred to herein collectively as the "Scan123 Services." Persons who have entered into an Agreement with Scan123 Corp are sometimes referred to in these TOS as the "User."
(b) These TOS govern the Scan123 Services and supersede and replace any prior Terms of Service applicable to the Scan123 Services. The most recent version of the TOS is available at http://www.scan123.com/terms-of-service/ or at such other address as Scan123 Corp may designate from time to time.
(c) Scan123 Corp reserves the right at any time to update, amend or restate these TOS, and without notice to or the consent of User, provided, however, that Scan123 Corp will use reasonable efforts to give Users ten (10) days prior notice of any such updates, amendments or restatements, and thereafter offer Users the opportunity to accept or reject such changes through a click-wrap or click-through interface. Acceptance of changes to the TOS are a requirement to continued use of the Scan123 Services.
2. OWNERSHIP AND CONFIDENTIALITY.
Scan123 Corp is the sole and exclusive owner of all right, title, and interest in the Scan123 Services, including, without limitation, trademarks, copyrights, patents, trade names, trade secrets, and intellectual property rights in the Scan123 software, the name Scan123, and the service mark Scan123. User shall not claim any ownership rights in any intellectual property of Scan123 Corp.
(a) All non-public, confidential or proprietary information of Scan123 Corp, including, without limitation, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, "Confidential Information"), disclosed by Scan123 Corp to User, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the provision of the Scan123 Services, the Agreement or these TOS, is confidential, and shall not be disclosed or copied by User without the prior written consent of Scan123 Corp. Confidential Information does not include information that is: (i) in the public domain; (ii) known to User at the time of disclosure; or (iii) rightfully obtained by User on a non-confidential basis from a third party that is in rightful possession of such information.
(b) Customer agrees to use the Confidential Information only to make use of the Scan123 Services and for no other use.
(c) Scan123 Corp shall be entitled to injunctive relief for any violation of this Section.
3. USER'S REPRESENTATIONS AND WARRANTIES.
User represents and warrants to Scan123 Corp that (a) User had all corporate, company or other authority required to enter into the Agreement and the individual(s) who executed the Agreement and who accepted these TOS on behalf of User was authorized to do so, (b) User is familiar with and is solely responsible for User's compliance with all federal, state, provincial, or local laws regarding data security (collectively, "Laws"), applicable to its business, to its use of the Scan123 Services, or User's activities in connection therewith, (c) User has implemented and will maintain reasonable security procedures and practices to protect all personal information from unauthorized access, destruction, use, modification or disclosure. User will comply with all Laws, whether now existing or hereafter enacted, relating to security of personal information and/or data, data breaches and/or privacy (collectively, "Data Breach Laws"), (d) User will immediately notify Scan123 Corp if User becomes aware that any unlawful or unauthorized acquisition of computerized data or other security breach with respect to the Site or any business records, documents, information or data uploaded to the Site has occurred or may have occurred, and (e) User will remit all amounts owed to Scan123 Corp pursuant to these TOS and the Agreement (including any Taxes) as required hereunder and thereunder.
4. CHANGES TO THE SCAN123 SERVICES.
Scan123 Corp reserves the right at any time to revise and modify the Scan123 Services and/or the Site, and to alter features, specifications, capabilities, functions, and other characteristics of the same, without notice to or the consent of User, provided, however, that Scan123 Corp will use reasonable efforts to give Users ten (10) days prior notice of any such updates, amendments or restatements. If any such action materially and adversely affects the benefits User might reasonably be expected to obtain from the Scan123 Services or the Site, User's sole and exclusive remedy shall be to give Scan123 Corp notice of termination specifying the basis therefore in reasonable detail, which termination shall be effective thirty (30) days after it is given, unless, prior to the expiration of such thirty (30) day period, (a) Scan123 Corp and User reach an agreement for a remediation of the issue in writing or (b) Scan123 Corp modifies the Scan123 Services and/or the Site to restore the benefits.
5. USE OF THE SCAN123 SERVICES.
In connection with the use of the Scan123 Services and the Site, User agrees as follows:
(a) The person signing the Agreement on behalf of User hereby affirms that such person has all requisite power and authority to execute the Agreement for and on behalf of User and to bind User to the terms of these TOS, the Agreement and all other obligations thereunder and hereunder. Upon execution of the Agreement by User and Scan123 Corp, these TOS and the Agreement shall be valid and binding obligations on User and Scan123 Corp.
(b) User agrees to keep its login(s), password(s) and account number confidential, to use effective ones that are not easily guessed or discoverable, to allow no other person to use the same, and to notify Scan123 Corp promptly if User has any reason to believe that any third party has unauthorized access to User's account or has otherwise gained unauthorized access to the Site. User is responsible for any and all use of the Scan123 Services or the Site occurring under User's login(s) or account number, whether authorized or unauthorized.
(c) Certain Scan123 software is available for download and use by User (if desired by User) in connection with the Scan123 Services, and in connection therewith User hereby acknowledges and agrees that, subject to and conditioned on User's compliance with the terms and conditions of these TOS and the Agreement:
(d) User will not use third-party software to access Scan123 Corp software or the Scan123 Services unless expressly approved in writing by Scan123 Corp in advance.
(e) User shall use the Scan123 Services only to upload and store business records of the User and will not upload any documents that are obscene or illegal or to which it does not have a right to access, use and store. User shall not upload and store business records of any other business entity besides User (as contemplated by the Agreement) without the prior written consent of Scan123 Corp.
(f) User shall be solely responsible for complying with all rules, Laws and regulations applicable to its business, including, without limitation, Laws pertaining to the retention of documents.
(g) User will cooperate with Scan123 Corp as Scan123 Corp deems reasonably necessary to comply with any Laws, including, without limitation, notifying any persons whose personal information may have been accessed, disclosed, used or otherwise affected by a security breach. Unless the security breach was the direct result of Scan123 Corp's gross negligence or willful misconduct, User will reimburse Scan123 Corp for all of its costs and expenses, including, without limitation, attorney fees, associated with the security breach and will, at User's sole cost and expense, take such actions as Scan123 Corp may require to comply with Laws in the event of a security breach.
The following terms are applicable to Scan123 services and Site, User agrees as follows: Standard Scanned Page (SSP) is 250 kilobytes.
User acknowledges that the Scan123 Services may be unavailable from time to time to resolve technical problems, to upgrade software, or to otherwise ensure safe and efficient delivery of the Scan123 Services. Service interruptions may also occur due to power interruptions, problems with service providers subcontracted by Scan123 Corp, or other conditions beyond Scan123 Corp's control. User waives any and all claims against Scan123 Corp arising from any of the foregoing. Scan123 Corp will use reasonable efforts to minimize the time during which the Scan123 Services are unavailable for such reasons. User may be entitled to deduct a reasonable, proportionate amount from its monthly dues for unavailability extending beyond 24 consecutive hours, unless caused by, or resulting from, cuts or circumstances beyond the reasonable control of Scan123 Corp.
8. INCREASED MONTHLY FEE.
Within ninety (90) days of the commencement of any renewal term under the Agreement or once every twelve (12) months of the Term, Scan123 Corp may elect by written notice to User to increase the monthly fee payable by User by up to five percent (5%) over the monthly fee in effect immediately prior to such renewal term. Such monthly fee shall also be subject to additional fees at Scan123 published undiscounted pricing plans, as such may be adjusted from time-to-time, if User exceeds their Standard Scanned Pages in the User's current plan. The current undiscounted pricing plans are available at: https://app.scan123.com/agreement/standardplanpricing
9. LATE FEE.
If any fee for Scan123 Services or other amount owed hereunder remains delinquent ten (10) days after its invoice due date, User shall be assessed an additional late fee of five percent (5%) of the delinquent amount (subject to a minimum of $35) for each month of delinquency, without waiving Scan123 Corp's other rights and remedies under the Agreement or these TOS. The above late fees represent Scan123 Corp's estimate of its reasonable damages incurred in connection with late payments and are in addition to Scan123 Corp's other rights and remedies.
Scan123 Corp may terminate User's access to the Scan123 Services and the Agreement and accelerate all amounts owed by User to Scan123 Corp for the then-remaining Term if User: (a) fails to pay any amount when due under the Agreement and this TOS; (b) has not otherwise performed or complied with any of the terms of the Agreement or this TOS, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Termination of this Agreement shall not affect the parties' obligations hereunder arising prior to the effective date of the termination.
User shall indemnify and hold harmless Scan123 Corp, its stockholders, board of directors, officers, agents, employees and independent contractors (including, without limitation, any Site hosts), successors and assigns from and against any and all claims, demands, liabilities, losses, fines, costs, expenses (including, without limitation, attorney fees whether before, during or at trial or in any other proceedings, negotiations or otherwise, on appeal or in any bankruptcy proceeding) and damages directly or indirectly arising out of or related to (a) the breach of any representation, warranty or covenant by User under the Agreement or these TOS, (b) the failure of User, its employees or agents to comply with any Laws, including, without limitation, Data Breach Laws, and (c) the use or misuse by User, its employees or agents of the Scan123 Services or the Site.
12. DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY.
User understands and agrees that, except as expressly set forth herein or in the Agreement, the Scan123 Services are provided on an "as is" and "as available" basis without warranties or conditions of any kind, neither express nor implied, including, without limitation, warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement. Scan123 Corp makes no representations or warranties that the User's use of the Scan123 Services will comply with applicable Laws. The User acknowledges that it is the User's sole responsibility to ensure such compliance. SCAN123 CORP, ITS STOCKHOLDERS, BOARD OF DIRECTORS, OFFICERS, EMPLOYEES AND INDEPENDENT CONTRACTORS (INCLUDING, WITHOUT LIMITATION, SITE HOSTS) AND THEIR SUCCESSORS AND ASSIGNS SHALL NOT BE LIABLE FOR ANY LOSS OF BUSINESS, PROFITS OR GOODWILL, FOR LOSS OR CORRUPTION OF DOCUMENTS, FILES OR DATA STORED AT THE SITE, FOR INTERRUPTION OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE, ARISING FROM ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, EVEN IF AWARE OF THE RISK OF SUCH DAMAGES, RESULTING IN ANY WAY FROM USER'S USE OF OR INABILITY TO USE THE SITE OR THE SCAN123 SERVICES. THE TOTAL LIABILITY OF SCAN123 CORP FOR ANY REASON UNDER ANY LEGAL THEORY SHALL NOT EXCEED THE AMOUNT PAID BY USER TO SCAN123 CORP DURING THE PREVIOUS TWELVE-MONTH PERIOD.
The parties acknowledge that Scan123 has set its prices and entered into this Agreement in reliance on the limitations of liability and disclaimers of warranties and damages set forth herein, and that the same form a fundamental and essential basis of the bargain between the parties.
User is responsible for payment of any and all sales, use, excise and any other taxes, duties and charges of any kind or nature (collectively, "Taxes") imposed by any federal, state, provincial, local or foreign governmental entity on any amounts payable by User under the Agreement or these TOS, but excluding any Taxes due on Scan123 Corp's income or gross receipts, which shall be the responsibility of Scan123 Corp. Notwithstanding the foregoing, if Scan123 Corp (in its reasonable discretion) has a legal obligation to pay or collect Taxes for which User is responsible under this section, the amount of such Taxes shall be invoiced to User and paid to Scan123 Corp by User within thirty (30) days (or such other time period set forth in the invoice issued to User by Scan123 Corp) unless User provides Scan123 Corp with a valid tax exemption certificate authorized by the appropriate taxing authority or such other documentation as Scan123 Corp may reasonably request.
14. PRIVACY AND SECURITY.
(b) Scan123 will not use, disclose or retain Personal Information in any way except pursuant to User instructions or to the extent necessary to perform the services under this Agreement.
(c) Scan 123 uses various security measures to prevent the unauthorized use and disclosure of Personal Information. Details are available on request.
(d) Scan123 will promptly notify the User of any requests for disclosure of Personal Information relating to User’s use of the Scan123 Services by any party and of any accidental or unauthorized access to such information.
(e) Scan123 will promptly notify the User of any actual or suspected breach of security affecting Personal Information relating to User’s use of the Scan123 Services and cooperate with User so User can comply with any relevant breach notification obligations.
(f) Scan123 agrees to take commercially reasonable actions to prevent disclosure of or access to User Information and will not disclose such User Information to any third party without the written consent of User; provided, however, that notwithstanding the foregoing, Scan123 may disclose (without any obligation to do so under the Agreement) such User Information as Scan123 determines is necessary: (i) to comply with any Laws; (ii) to perform its obligations under or to enforce the Agreement; (iii) to respond to claims that Scan123 or User is engaged (through the Site or otherwise) in activities that violate the rights of third parties or violate any Laws.
15. OTHER LEGAL PROVISIONS.
(a) The provisions of this section and Sections 10-13 shall survive any termination or expiration of the Agreement and these TOS.
(b) No agency relationship, partnership or joint venture is created nor intended to be created by the Agreement or TOS or the granting of rights to User hereunder.
(c) Neither the Agreement, these TOS nor any of the rights, interests or obligations under the Agreement or these TOS shall be assigned, in whole or in part, by operation of law or otherwise, by either party without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign the Agreement and these TOS upon written notice to the other party to an entity that acquires all or substantially all of the equity interests or assets of such party, whether by merger, reorganization, acquisition, sale or otherwise. Any purported assignment in violation of this provision shall be null and void.
(d) Except as otherwise expressly provided in the Agreement or TOS, all notices or other communications required or permitted hereunder shall be in writing and shall be sent by first-class mail (with postage prepaid), by e-mail, or by facsimile (with a copy by first-class mail, with postage prepaid) and shall be deemed received and effective five (5) days after the date of posting, if mailed, upon receipt of confirmation of successful sending, if sent by e-mail, and upon receipt of confirmation of successful facsimile transmission, if sent by facsimile.
(e) The Agreement and TOS shall be governed by and construed under the laws of the State of Oregon (without regard to conflicts of laws principles), and any and all disputes arising under or relating to these TOS or the Agreement shall be resolved by binding arbitration in Portland, Oregon under the auspices of the Arbitration Service of Portland. User consents in advance to such jurisdiction and venue and waives any objection it may have based upon lack of personal jurisdiction, improper venue or forum non conveniens.
(f) The Agreement and TOS set forth the entire agreement and understanding of the parties and supersede all prior agreements and understandings relating to the subject matter hereof. No modification of the Agreement and TOS offered by User shall become binding unless documented in a writing signed by User and Scan123 Corp.
(g) If any provision of the Agreement or TOS is held to be invalid, such event shall not affect, in any respect whatsoever, the validity of the remainder of the Agreement or TOS, and the remainder shall be construed without the invalid provision so as to carry out the intent of the parties to the extent possible without the invalid provision.
(h) Scan123 Corp's failure to insist upon or enforce strict performance of any provision of the Agreement or TOS shall not be construed as a waiver of any provision or right, nor shall the course of conduct between the parties modify any provision of the Agreement or TOS.
(i) Neither party shall be liable to the other for any delay or failure in performance under the Agreement or TOS resulting directly or indirectly from acts of nature or causes beyond its reasonable control.
(j) If any party hereto brings an action or proceeding for the declaration of the rights of the parties hereunder, for injunctive relief or for an alleged breach or default of, or any other action arising out of the Agreement or TOS, the prevailing party in any such action shall be entitled to an award of reasonable attorneys' fees and any court costs incurred in such action or proceeding in addition to any other damages or relief awarded, regardless of whether such action proceeds to final judgment.