Service Order Terms & Conditions
Digitize It Media LLC (“Digitize It Media”, “Digitize It Media LLC,” “we,” “us,” or “our”) oversees the website, DigitizeItMedia.com (“Site”) and related services (collectively, our “Services,” further explained in the next paragraph). By placing an order to purchase our Services (an “Order”), you (“Buyer,” “you,” or “your”) agree to these Service Order Terms and Conditions (“Service Order Terms”).
Digitize It Media agrees, on a non-exclusive basis, to provide Services to Buyer, and Buyer shall, on a non-exclusive basis, purchase the Services from Digitize It Media. For purposes of clarity, Buyer understands that Digitize It Media receives from Buyer various personal items, including but not necessarily limited to personal (home-made) movies, film reels, photos, tapes, and audio recordings (“Materials”). Digitize It Media digitizes and in some cases enhances or improves said materials (“Digitized Materials”) and saves the Digitized Materials onto a thumb drive, a DVD, or a server in the cloud. Digitize It Media offers customer service and various communications with each Buyer during this processes. Additionally, Digitize It Media provides tracking and real-time updates to Buyers. All of the foregoing services provided by Digitize It Media are understood variously and collectively as the “Services.”
When a Buyer makes an Order, Digitize It Media will send the Buyer a Confirmation e-mail with an order number (“Order Confirmation”), detailing the Materials provided and Services to be performed. For purposes of clarity, the Buyer agrees and acknowledges that these Service Order Terms prevail over any terms or conditions contained in any Order Confirmation, or other documentation, and these Service Order Terms expressly exclude any terms or variations issued by Buyer whether orally or in writing before, during, and after the provision of Services.
Unlawful Order Submissions and/or Materials
By submitting an Order, you represent and warrant the following to Digitize It Media: (a) no Materials submitted to Digitize It Media LLC are submitted in violation of any copyright laws; (b) any Materials submitted were either created by you, you have the right to permit Digitize It Media to perform duplication services, or you have the permission of the copyright owner to duplicate the submitted Materials; and (c) no Materials submitted are libelous, obscene, offensive, threatening, defamatory, abusive, hateful, sexually exploitative, pornographic or otherwise violate state or federal law or the rights of a third party.
Furthermore, you agree and acknowledge that due to the volume of its operation, Digitize It Media cannot fully inspect all the information within the Materials submitted to it. However, there are instances in which Digitize It Media may discover that the transmission of information to Digitize It Media, the content of such information, and/or your specific request for services with regard to such information within the Materials violates state and/or federal law. In the event of such discovery, Digitize It Media will take any and all steps necessary to comply with its own obligations under applicable law, including, but not limited to, reporting to and complying with relevant authorities.
Risk of loss: Shipping
Digitize It Media does not provide any services related to shipment of the Materials or Digitized Materials to or from its offices. For this reason, any Services purchased from Digitize It Media are made pursuant to a shipment contract. This means that the risk of loss for your Materials passes to Digitize It Media only when the Materials arrive at our offices, and the risk of loss passes back to you when we deliver your Materials and/or Digitized Materials to the shipping carrier (FedEx, USPS, or other common carrier). BY SHIPPING ANY MEDIA TO DIGITIZE IT MEDIA LLC, YOU ACKNOWLEDGE THAT DIGITIZE IT MEDIA LLC IS NOT RESPONSIBLE FOR LATE, LOST, DAMAGED OR MISDIRECTED MAIL. Digitize It Media cannot and does not guarantee that your Materials will not be accidentally damaged while in the possession of the shipping carrier, nor does Digitize It Media assume the risk of loss for your Materials while it is in transit. Instead, the risk of loss remains with you during transit, and you bear all responsibility of loss or damage of your original content until it is received by Digitize It Media.
Digitize It Media accepts returns within thirty (30) days of completion of an Order. An Order is completed (and the thirty (30) days starts) from the date Digitize It Media hands a product to the shipping carrier for shipment to you. Though we are not obligated to do so, we sometimes take returns past the thirty (30) day window at our sole discretion. If you believe you are entitled to a return even though the thirty (30) days has run, please contact us to let us know.
Occasionally, Materials may arrive at our offices in an unplayable or defective condition. If that happens, we will provide a review of the Materials, a re-transfer of the Materials, or pay the shipping to return the Materials to you (as conditions allow). We do not charge any additional fees for review, return shipment, or re-transfers.
If Materials are not transferrable due to age, fragility, format, damage, or any other condition we are not responsible for, your original Materials will be returned. In that case, though, Digitize It Media does not cover the cost of shipping a return order back to our facilities.
Digitize It Media (Digitize It Media LLC) makes every effort to ensure customers are satisfied with the final product (their digitized items). In the event that a customer is not satisfied with the final product or a mistake has been made, customer may request a return per the terms of our return policy (see Return Policy).
Digitize It Media HAS A NO REFUND POLICY. ALL SALES ARE FINAL AND WILL NOT BE REFUNDED. Customers might otherwise wait until their items are digitized and returned to them and then request a refund. Thus our No Refund Policy thus prevents abuse and further encourages satisfactory final product.
Risk of Loss: Missing, Damaged, Misplaced, or Mismatched Materials
Digitize It Media understands and appreciates the sentimental value of your Materials. Helping our Buyers relive, preserve, and enjoy their Materials through our digitization Services is one of our most important goals. From time to time, a Buyer might allege that Digitize It Media has misplaced an item the Buyer purportedly included in the Buyer’s Materials, that Digitize It Media has damaged or destroyed Buyer’s Materials, or that Digitize It Media has placed someone else’s Materials within Buyer’s Materials or Digitized Materials. Every once in a while, we become aware that a Buyer thinks it has sent more Materials to Digitize It Media than it actually did send, only to realize the allegedly missing Materials are still at home with the Buyer.
We have a sophisticated system for receiving Materials, applying barcodes to those Materials, and tracking Materials throughout the provision of our Services. We also take care to handle all Materials that we receive with due care in a commercially reasonable manner. We take special care to ensure that items are not lost or misplaced, however no system is prefect. In the event, that we make a mistake and misplace an item we will make every attempt to resolve the issue and return the item to you. We take special care to ensure your media is protected and handled carefully and professionally in order to maintain its integrity, however you acknowledge and understand it is also possible that your Materials might become damaged during the digitization process. This can happen through no fault, or negligence, of our own, particularly when the Materials you have sent to us are old media files that have already begun decaying before we have received them.
YOU UNDERSTAND THAT THERE IS INHERENT RISK IN SUBMITTING YOUR MATERIALS TO DIGITIZE IT MEDIA, AND YOU RECOGNIZE THAT YOU MAY NOT RECEIVE YOUR MATERIALS BACK, AND/OR YOU MAY NOT RECEIVE YOUR MATERIALS BACK IN THE SAME CONDITION THAT THEY WERE SENT TO US. BY PLACING AN ORDER WITH DIGITIZE IT MEDIA, YOU ACCEPT THIS RISK.
If you send us a notification letting us know that you believe we have misplaced, damaged, or mismatched your Materials, after they were received by us and in our possession, we will review your notification carefully (a “Notification of Loss”). Failure to provide Digitize It Media with a Notification of Loss within thirty (30) days of your receipt of your Materials and Digitized Materials as returned to you shall be deemed a waiver of your right to file a Notification of Loss and shall conclusively demonstrate your acceptance of the Materials and Digitized Materials as returned to you.
You agree to be bound by our review and determination. As further outlined below, Digitize It Media makes no warranty and disclaims all potential liability, with regard to all aspects of our Services in the handling of your Materials.
We may determine that we never received your Materials; that we did not cause damage to your Materials; or that the damage to your Materials during the digitization process was through no fault of Digitize It Media. We may also determine that we have an obligation to you. Once we have made our determination, we will provide a written response to your Notification of Loss. Depending on the situation, we may also choose to replace your Material(s) by offering you an equivalent type of blank media, or the cost of such blank media. We may choose to issue a refund for your Order; we may choose to compensate you for loss or damage; or we may decline, entirely, to issue a refund or provide any compensatory monies.
In the event that we have provided you with mismatched Materials, you agree to return the mismatched Materials to us within fifteen (15) days of your receipt of the return shipping instructions. The costs of shipping will be paid by Digitize It Media.
IN ANY CASE, YOU AGREE TO ACCEPT THE RISK OF SENDING YOUR MATERIALS TO US, AND FURTHER, YOU HEREBY AGREE TO BE BOUND TO OUR DETERMINATION AND ASSESSMENT OF YOUR NOTIFICATION OF LOSS. You agree that you will not disparage, libel, or defame Digitize It Media LLC, and you agree that you will not take any steps to cause reputational damage to our business in contravention of any state or federal laws preventing tortious interference with a business.
Online Storage & 3rd Party Services
Digitize It Media contracts from time to time with other 3rd parties and vendors to provide additional services. Digitize It Media is in no way liable for the function of those providers services. The use and storage of Your Files by Third Party Services will be governed by their privacy policies and terms.
In certain circumstances, we may choose to make your Digitized Materials available to you by providing you with a link to your Digitized Materials, which may be hosted in a cloud environment online, in which case we might use a third-party provider to facilitate this Cloud Digital Delivery (including by way of example, Google, Amazon or YouTube) (collectively, the foregoing service is understood as “Cloud Digital Delivery”).
In the event that we make your Digitized Materials available through Cloud Digital Delivery, you acknowledge and agree that Digitize It Media does not control the online hosting environment, its security, its authenticity, or its integrity. You further acknowledge and agree that Digitize It Media has no responsibility or control over the Cloud Digital Delivery service, and Digitize It Media shall bear no liability for anything that might happen to your Digitized Materials therein. You agree to hold harmless Digitize It Media for any actions related to your Digital Materials in any way, whatsoever, with respect to the Cloud Digital Delivery, including but not limited to, any loss, destruction, corruption to the Digitized Materials, as well as any unavailability, lack of access, or irretrievability that you might experience if your Digitized Materials are offered through Cloud Digital Delivery.
As part of our Services, we offer certain order options for a Buyer between various Digitized Materials (e.g., Digital Access, Thumb Drive, and Disc Set). While our website will allow you to designate your preferred Digitized Material medium, in the event Digitize It Media faces inventory shortages associated with present global supply chain challenges, Digitize It Media cannot guarantee that your designated Digitized Material preference will be fulfilled. In such cases You acknowledge and agree that Digitize It Media may choose an alternative medium of Digitized Materials delivery.
Our Disclaimer of Warranties
THE SERVICES, MATERIALS, AND DIGITIZED MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND.
DIGITIZE IT MEDIA LLC, TOGETHER WITH ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, AND REPRESENTATIVES, HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF TITLE, MERCHANTABILITY, AND NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. WE DISCLAIM ALL WARRANTIES WHETHER ARISING OUT OF LAW, STATUTE, COURSE OF DEALING, TRADE USAGE, OR ANY OTHER RELATIONSHIP. WE MAKE NO WARRANTIES OF ANY KIND REGARDING THE SERVICES, THE MATERIALS, THE DIGITIZED MATERIALS, AND/OR ANY OTHER SERVICES OR PRODUCTS THAT WE PROVIDE. WE MAKE NO WARRANTIES WITH REGARD TO THE ACCURACY, RELIABILITY, COMPLETENESS, QUALITY, FUNCTIONALITY, TIMELINESS, SPEED, OR ACCESSIBILITY OF ANY SERVICES, MATERIALS, DIGITIZED MATERIALS, OR OTHER PRODUCTS AND SERVICES THAT WE PROVIDE. WE DO NOT WARRANT THAT THE SERVICES, MATERIALS, DIGITIZED MATERIALS, OR OTHER PRODUCTS AND SERVICES WILL BE COMPLETE, WITHOUT DEFECT, ACCURATE, INTACT, UNDAMAGED, ERROR-FREE, OR VIRUS-FREE. TO THE EXTENT ANY JURISDICTION DOES NOT PERMIT US TO DISCLAIM WARRANTIES IN THESE WAYS, WE DISCLAIM WARRANTIES TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
Limitation of Liability
TO THE EXTENT PERMITTED BY LAW, YOU HEREBY RELEASE DIGITIZE IT MEDIA LLC, TOGETHER WITH ITS DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, AND REPRESENTATIVES, FROM ALL LIABILITY ASSOCIATED WITH YOUR USE OF THE SERVICES AND YOUR RECEIPT OF THE MATERIALS AND DIGITIZED MATERIALS.
You acknowledge that you are responsible for any actions you take in placing an Order with us. You recognize that placing an Order with us and sending us your Materials are taken solely at your own risk.
IN NO EVENT WILL DIGITIZE IT MEDIA LLC, OUR DIRECTORS, OUR OFFICERS, OUR EMPLOYEES, OUR CONTRACTORS, OUR AGENTS, OR OUR REPRESENTATIVES BE LIABLE FOR DAMAGES OF ANY KIND UNDER ANY LEGAL THEORY OR UNDER ANY EQUITABLE THEORY ARISING OUT OF OR IN CONNECTION WITH YOUR ORDER, THE SERVICES, THE MATERIALS, THE DIGITIZED MATERIALS, AND ANY OTHER SERVICES OR PRODUCTS PROVIDED BY DIGITIZE IT MEDIA LLC, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, CLINICAL OUTCOMES, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF BUSINESS OPPORTUNITIES, OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, OR OTHERWISE, EVEN IF FORESEEABLE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. NO CAUSE OF ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THE SITE OR THE SERVICES MAY BE BROUGHT BY YOU MORE THAN SIX (6) MONTHS AFTER SUCH ACTION HAS ACCRUED.
You will indemnify, defend, and hold harmless Digitize It Media, our licensors and affiliates, and our and their respective directors, officers, employees, contractors, agents, and representatives, from and against any and all claims, causes of action, demands, liabilities, losses, costs, or expenses (including, but not limited to, reasonable attorneys’ fees and expenses) arising out of, in connection with, caused by or resulting from:
your placement of an Order, your submission of Materials, and your communications with Digitize It Media;
your violation of any of the provisions of these Service Order Terms;
any activity related to your accessing the Services, including, without limitation, negligent or wrongful conduct; or
your violation of any third-party right, including, without limitation, any intellectual property right, publicity, confidentiality, property, or privacy right.
For purposes of clarity, these indemnification obligations apply to you and your Order for our Services. We reserve the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with us in asserting any available defenses.
If any loss, damage, delay, or non-performance is a result of acts of God, or natural disaster or catastrophe; pandemic, virus, plague, disease, or quarantine; war, invasion, other hostilities (including acts of terrorism), rebellion, or any other materially disruptive military or political event; embargo or labor dispute; power failures or other disruptions to services and utilities on which Digitize It Media relies (including but not limited to, any outage in hosting services provided by a third-party host for Digitize It Media online services); or any other unforeseen and external occurrence for which Digitize It Media is not responsible and could not predict which is required for the performance of its obligations, then Digitize It Media will not be not be liable for any such loss, damage, delay, or non-performance of services to the full extent excused under applicable law.
Choice of law
This contract is to be governed at all times by the laws of the State of Idaho applicable to agreements made and to be wholly performed within that state, without regard to its conflict of laws provisions or the conflict of laws provisions of any jurisdiction that would cause the application of any law other than those of the State of Idaho.
Arbitration & choice of forum
Any dispute or claim relating in any way to your use of Digitize It Media’s services, or your visit to the Site, will be resolved by binding arbitration rather than in court. You agree that the arbitration will occur before a single arbitrator. You also agree that both parties will be responsible for their own costs and attorney’s fees, unless the claim is frivolous, in which case the arbitrator shall award attorney’s fees.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent at Digitize It Media LLC, Attn: ARBITRATION, 784 S Clearwater Loop, Ste R, Post Falls, ID 83854. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.
You agree that, if possible under all relevant rules, the arbitration will occur in the State of Idaho, in Rexburg, Idaho or as close to it as possible.
Disputes as Individuals; Class Action Waiver
You and Digitize It Media both agree that any dispute resolution proceedings, whether judicial or arbitrated, will be conducted only on an individual basis, and not in a class nor any other consolidated or representative action. YOU AND WE BOTH HEREBY EXPRESSLY WAIVE EACH OF OUR OWN RIGHT(S) TO BRING CLAIM(S) AGAINST THE OTHER AS A CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION, WHETHER A CLASS-ACTION LAWSUIT, CLASS-WIDE ARBITRATION, OR PRIVATE ATTORNEY-GENERAL ACTION(S), OR ANY SIMILAR PROCEEDING IN WHICH SOMEONE IS ACTING IN A REPRESENTATIVE CAPACITY OVER MULTIPLE PARTIES.
If any court or other body of competent jurisdiction declares any part of this Agreement to be unenforceable, then that part will be deemed severed, and the enforceability of the remaining parts will not be affected. The unenforceable part will simply not be considered to be part of this Agreement.