We will provide our services in digitizing photographic or video content provided by you (“Your Content”), and other services you may request, as detailed on the Order Sheet (the “Services”), and delivering the results of the Services (the “Deliverables”). If we determine that we cannot perform some or all of the Services for any reason, including due to the fragile or poor condition of Your Content, we will refund any Service Fees (as defined below) you have already paid. We will endeavor to deliver the Deliverables by the target delivery time stated on the Order Sheet or as you and we might otherwise agree, but we do not guarantee that the target delivery time will be met.
2. Your Content.
Solely that we may provide the Services and deliver the Deliverables, you hereby grant to us a limited, non-exclusive, royalty-free license to copy and make derivative works of Your Content. You retain all rights, including copyright, in Your Content. We will not use Your Content for marketing purposes without your express written permission. Use of Your Content will be solely to perform the Services of this contract and we will not share Your Content with any outside parties at any time for any reason. After handover of Your Content to the Client at the conclusion of the Services we will destroy any and all Content in our possession including online. You represent and warrant that you have all rights necessary to submit Your Content to us and to grant us this license, and that our provision of the Services will not violate the rights, including copyrights, of any third party.
3. Service Fees.
You agree to pay the fees for the Services as set forth on the Order Sheet (the “Service Fees”). The Service Fees may be subject to increase or decrease if you request additional services, we determine that Your Content type and/or size is different than initially estimated, or if the actual shipping/delivery charges are higher than estimated. We will notify you of any significant Service Fee increase. If you do not agree to the increased Service Fees, you may terminate this Agreement and we will return Your Content and refund any Service Fees already paid. Please note that you also agree to pay the following: $10 fee for any project scope changes requested; a $0.10/foot fee for any film reels with sound strips; a 25% surcharge for us to handle any moldy or excessively dirty items. If you do not approve your project
estimate and pay your deposit within 45 days of initial drop off/delivery, or do not pick up your project within 90 days of being notified of completion, we may ship your contents back to you without permission and charge you related shipping and handling fees. Please note that your credit card will be kept on file and that EverPresent may charge your credit card at any time upon completion of the deliverable.
We will not be liable for, and do not warrantee or guarantee against, the misdirection, loss, or theft of, or damage to, Your Content or the Deliverables, or any other materials, while they are in transit through or in possession or under the control of any third party carrier in connection with shipment by you to us or by us to you. Due to the nature of Your Content, insurance is unavailable for the shipping or handling of your order. You have the option to pick up your Deliverables directly from us upon completion. If you fail to pick up your Deliverables within 30 days of our notice to you that they are complete, we may charge storage fees. On your request, we will ship your Deliverables to the address you provide by the carrier of our choosing and at your expense.
5. Limited Remedy for Loss of Your Content.
We assume the risk of loss of or damage to Your Content only from the time that we actually receive it until the time that we deliver it and/or the Deliverables to a third party carrier for transport or a third party service provider who will provide additional services. We do not assume such risk of loss of or damage to Your Content, if, after receiving Your Content from any third party carrier, we discover that any or all of Your Content is damaged or lost. If Your Content is lost or damaged while it is in our sole custody and control, your sole and complete remedy for any such loss or damage is our payment to you in the amount of up to one thousand dollars ($1,000) (the “Safe Handling Guarantee”). The Safe Handling Guarantee and any other stated guarantees or warranties only apply if you follow our recommended packaging instructions. You may find packaging instructions at: everpresent.com/mail-in-customers.
6. Limited Warranty.
We make no warranty or guarantee with respect to the quality of the Deliverables. You acknowledge that because of the quality loss that often occurs during the digitization process, the quality of the Deliverables may not be as good as the materials you provide to us. Notwithstanding the foregoing, if you have any concerns regarding the Deliverables that do not relate to quality loss and you communicate your concerns to us within thirty (30) days of receiving the Deliverables, we will use commercially reasonable efforts to resolve the matter. If we are unable to resolve the matter, your sole and exclusive remedy will be a refund of the Service Fees. WE DISCLAIM ALL RESPONSIBILITY FOR, AND THIS LIMITED WARRANTY DOES NOT APPLY TO, ANY ISSUES COMMUNICATED TO US FOLLOWING THE EXPIRATION OF THIS THIRTY (30) DAY PERIOD.
7. Disclaimer; Limitation of Liability.
EXCEPT FOR THE LIMITED WARRANTY SET FORTH HEREIN, THE SERVICES AND DELIVERABLES ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT FOR THE SAFE HANDLING GUARANTEE, YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR SOLE RISK. WE DISCLAIM, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, ALL WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. 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, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT. IN NO EVENT WILL WE BE LIABLE FOR THE ACTIONS OF ANY THIRD PARTY WHOM WE ENGAGE AT YOU REQUEST TO PROVIDE ADDITIONAL SERVICES.