(a) This document, in conjunction with the Scan123™ Services Agreement ("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 use of the Scan123™ Services website ("Site"), are referred to 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 Standard Terms of Service ("TOS") govern the User's use of 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.oacweb.com/agreement/ 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 Terms of Service, and without notice to or the consent of User, provided, however, that Scan123 Corp will use reasonable efforts to give Users 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.
Scan123 Corp is the sole and exclusive owner of all right, title, and interest in the Scan123 Services, including trademarks, copyrights, patents, trade names, trade secrets, and intellectual property rights in the Scan123 software, the name Scan123, and the service mark Scan123.
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 reviewed with its legal counsel, is familiar with and is solely responsible for User's compliance with all federal, state 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. User shall implement and 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"). 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.
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 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 Scan123 Corp and User reach an agreement for a remediation of the issue in writing or Scan123 Corp modifies the Scan123 Services and/or the Site to restore the benefits prior to expiration of such period.
In connection with the use of the Scan123 Services and the Site, User agrees as follows:
(a) The person designated in your Agreement as the "Authorized Contact" shall have primary responsibility for communicating with Scan123 Corp. The Authorized Contact shall have authority to bind User, and Scan123 Corp shall be entitled to rely on all information provided by and all requests of the Authorized Contact. User may change its Authorized Contact by written notice to Scan123 Corp.
(b) User agrees to keep its login(s), password(s) and account number confidential, to allow no other person to use the same except in the presence of User or its authorized employees, 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) Scan123 Corp agrees to take 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 Corp may disclose (without any obligation to do so under the Agreement) such User Information as Scan123 Corp determines is necessary: (a) to comply with any Laws; (b) to perform its obligations under or to enforce the Agreement; (c) to respond to claims that Scan123 Corp or User is engaged (through the Site or otherwise) in activities that violate the rights of third parties or violate any Laws.
(d) User acknowledges and agrees that to use the Scan123 Services, it will need to download software available at the Site, and may need to agree to a standard form of end user license as a condition to using such software.
(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 proprietary right of access and storage. User shall not upload and store business records of any other business entity besides User without the written consent of Scan123 Corp.
(f) Scan123 Corp strongly recommends that User retain originals of all documents it uploads at the Site in a safe and secure area. Scan123 Corp shall have no liability to User for any loss or corruption of documents, files or data stored at the Site, and User waives any and all claims against Scan123 Corp arising therefrom.
(g) User will cooperate with Scan123 Corp as Scan123 Corp deems reasonably necessary to comply with any Laws, including 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 attorney fees, associated with the security breach and will, at User's sole 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 Scan 123 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 or 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.
Within 90 days of the commencement of any renewal term under the Agreement, Scan123 Corp may elect by written notice to User to increase the monthly fee payable by User by up to 5% over the monthly fee in effect immediately prior to such renewal term. Such monthly fee shall also be subject to 2 cents per standard scanned page if User exceeds their Standard Scanned Pages in the User's current plan in Exhibit A to the Agreement.
If any fee for Scan123 Services remains delinquent 10 days after its invoice due date, User shall be assessed an additional late fee of 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 rights and remedies under Section 8.
If User is in default under the Agreement or under these TOS, Scan123 Corp may terminate User's access to the Scan123 Services until User has cured the default. Termination of this Agreement shall not affect the parties' obligations hereunder arising prior to the effective date of the termination.
User executing the Agreement on behalf of User shall indemnify, hold harmless Scan123 Corp, its members, agents, employees and independent contractors (including any Site hosts), successors and assigns from and against any and all claims, demands, liabilities, losses, fines, costs, expenses (including attorney fees at whether at trial or in other proceedings, 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.
User understands and agrees that the Scan123 Services are provided on an "as is" and "as available" basis without warranties of any kind, neither express nor implied, including but not limited to warranties 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 MEMBERS, MANAGERS, EMPLOYEES AND INDEPENDENT CONTRACTORS (INCLUDING 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, 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. If it is determined by any court or arbitrator of competent jurisdiction that any portion of the foregoing exclusion of warranties and liabilities is void or unenforceable, total liability to User shall not, for any reason, exceed the amount paid by User to Scan123 Corp during the previous two-month period.
(a) The provisions of this section and Sections 10-11 shall survive any termination or expiration of the Agreement.
(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 this Agreement nor any of the rights, interests or obligations under the Agreement 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 this agreement 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 United States 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 three (3) 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 Terms of Service 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.