Lease and Services Agreement

Audio Scrapbook™ Lease and Services Agreement

This Lease and Services Agreement (this "Agreement") is by and between Wessler Media, LLC dba Audio Scrapbook ("Audio Scrapbook," "we," "us," or "our") and you (the "Customer" "you," or "your"). The terms and conditions of this Agreement (the “Terms”) govern the provision of certain audio guest book services and the lease of accompanying equipment by Audio Scrapbook to Customer. These Terms are subject to change by Audio Scrapbook without prior written notice at any time, in our sole discretion.

Binding Effect. These Terms are a legally binding contract between you and Audio Scrapbook. By placing an order for services from Audio Scrapbook (each, an “Order”), you affirm that you are of legal age to enter into this Agreement, and that you accept and are bound by the these Terms. You affirm that if you place an Order on behalf of an organization or company, you have the legal authority to bind any such organization or company to these Terms. You may not order or obtain services from Audio Scrapbook if you (i) do not agree with the these Terms or (ii) are not at least 18 years of age and of legal age to form a binding contract with Audio Scrapbook.
Services. Pursuant to these Terms, Audio Scrapbook shall provide to Customer the audio guest book services (the "Services"). The Services shall include: (i) the provision of Audio Scrapbook’s audio guest book recording technology; (ii) the processing of the recorded audio (the “Recordings”); (iii) the delivery of such Recordings via digital audio file (the “File”); (iv) the lease (as defined herein) of the accompanying physical telephone equipment (the “Equipment”), as specified in Customer’s Order; and (v) any ancillary services, where applicable and as specified in Customer’s Order.
Order Acceptance and Cancellation.

Acceptance and Cancellation by Audio Scrapbook. All Orders must be accepted by us, or we will not be obligated to provide the Services to you. We may choose not to accept Orders at our sole discretion. We further reserve the right to limit, cancel, or prohibit use of the Services at any time and for any reason, including availability concerns, in our sole discretion.
Cancellation by You. You may cancel your Order by contacting us in writing at info@audioscrapbook.com. Orders cannot be cancelled after Audio Scrapbook has arranged for the shipment of your Order.
Refunds. If you cancel your Order, and Audio Scrapbook confirms such cancellation in writing, more than thirty (30) days prior to the event date specified in your Order (the “Event Date”), you will receive a full refund of the Fees (defined below) paid to Audio Scrapbook. Any such refunds will be processed to the original method of payment used at time of purchase. If you cancel your Order less than thirty (30) days prior to your Event Date, you will not receive any refund or credit, and any Fees (defined below) paid are forfeited.

Equipment Lease.

General. As part of the Services, Audio Scrapbook agrees to lease to Customer, and Customer agrees to lease from Audio Scrapbook, the Equipment specified in Customer’s Order, subject to these Terms (the “Lease”).
Shipments; Delivery. We will arrange for the shipment of the Equipment to you to the address specified in your Order (the “Shipping Address”). You must provide us with an accurate Shipping Address so that we can timely deliver the Equipment to you. You are responsible for providing us with an accurate Shipping Address for deliveries and for keeping the Shipping Address up-to-date. If you provide us with a Shipping Address that is invalid or where you cannot securely accept the Equipment upon delivery, or if you do not keep your Shipping Address up-to-date, you are solely responsible for any resulting loss, theft, or damage to the Equipment. The Equipment shall be scheduled to arrive at the Shipping Address at least three (3) calendar days, but up to seven (7) calendar days, prior to the Event Date. We are not responsible for shipment delays caused by the respective carrier or any other factors beyond our control. We make no representations or warranties with respect to the date upon which delivery of the Equipment will occur. Any shipping or transit time estimates provided are estimates only.
Title; Risk of Loss. The Equipment is, and shall at all times be and remain, the sole and exclusive property of Audio Scrapbook and you shall have no right, title or interest therein or thereto except as expressly set forth in these Terms. Following delivery to the Shipping Address, as between you and us, you will be solely responsible for the condition of the Equipment and shall bear the entire risk of loss and damage until you return such Equipment (including while it is in return transit). If, notwithstanding your obligations in this Section 4.3, you fail to return the Equipment, the Equipment you retain is provided on an “as-is” basis without warranties of any kind, and we reserve the right to continue to seek recovery of the Equipment from you.
Return Shipments. With the delivery of the Equipment, Audio Scrapbook will provide you with pre-paid, pre-addressed packaging that you can use to return the Equipment (“Return Packaging”), as well as instructions for returning the Equipment. You agree to return the Equipment to Audio Scrapbook in the Return Packaging by the cut-off time for the respective courier on the date that is three (3) business days following your Event Date, or on the date otherwise agreed upon by Audio Scrapbook in writing (“Return Shipping Date”). Failure to timely return Equipment is a violation of these Terms, and we may block your future access to the Services, charge your Payment Method for late fees and/or take other legal action, in our sole discretion.
Returning by Mail. If you use the Return Packaging that we provide, you must use the shipping carrier specified on the pre-paid shipping label included with the Return Packaging. We will not be responsible for loss, theft, or damage to Equipment that is shipped back to us using any courier other than the courier that is specified on our Return Packaging, or for any fees or expenses that you incur due to delays in Audio Scrapbook receiving the Equipment. We do not ship Equipment outside of the United States, and you may not return Equipment to us from outside of the United States without our prior written permission. In the event that you lose or damage the Return Packaging that we provide, you will be responsible for returning the Equipment to us in your own packaging, at your own expense.
Couriers. We may from time to time engage third-party couriers (“Couriers”) to facilitate delivery of Equipment. Couriers are independent contractors and not employees, partners, agents, joint ventures, or franchisees of Audio Scrapbook. Audio Scrapbook shall not be liable or responsible for any delivery services provided by Couriers, or any errors or misrepresentations made by any of them. We highly recommend that you provide a secure location where you can physically receive Equipment (including from a Courier), and we do not bear liability for Equipment left unattended, by you, a Courier, or otherwise. You hereby acknowledge that Audio Scrapbook does not supervise, direct, control, or monitor a Courier’s provision of services. Any interactions or disputes between you and a courier are solely between you and that courier. Audio Scrapbook shall have no liability, obligation or responsibility for any interaction between you and any Courier.
Late Fees. If you fail to return ship the Equipment by the cut-off time for the respective courier on the Return Shipping Date in accordance with Section 4.4, you hereby authorize us or our Payment Processor (defined below) to charge your Payment Method (defined below) non-refundable late fees in the amount of $50 USD per day for each day that the Equipment is not return shipped after the Return Shipping Date, up to the full original retail or comparable value of the Equipment.

Use of the Equipment.

Risk of Loss and Damage. Except as otherwise set forth herein, you assume and shall bear the entire risk of loss and damage to the Equipment upon delivery of the Equipment to your Shipping Address. You agree to treat the Equipment with great care. The Lease coverage provided by Audio Scrapbook covers normal wear and tear, but you are responsible for any loss, destruction, or damage to the Equipment for any reason, including due to theft, loss, mysterious disappearance, fire, carelessness, alteration, or any other cause. “Normal wear and tear” means minor scratches and marks or other similar minor damage, as determined in our sole discretion. If you return Equipment that is damaged beyond normal wear and tear, then you hereby authorize us (or our third-party payment processor) to charge your Payment Method (defined below) for the price for repairing or replacing the Equipment, as determined in our sole discretion, up to the original retail price for the respective Equipment.
Condition of Equipment. You acknowledge that the Equipment is in use condition and may be cosmetically flawed. While we make reasonable efforts to depict the Equipment and the respective attributes accurately on our website, you acknowledge that the Equipment, as received by you, may not match color and/or style depicted on our website. You should expect variances in color and/or style.
Audio Scrapbook’s Responsibilities. Audio Scrapbook represents and warrants that: (a) the Equipment is free from known, material defects and is in good working order to the best of its knowledge at the inception of each Lease; and (b) Audio Scrapbook is responsible for the routine maintenance of the Equipment. Should you discover upon delivery that the Equipment is not in good working order, you agree to notify us immediately.

Delivery of the File.

File Delivery. Within a commercially reasonable time, typically between two (2) to four (4) weeks following the Event Date, and after the Equipment is returned pursuant to the Terms set forth in Section 4, and provided you are otherwise in compliance with these Terms, we will process the Recordings, create the File, and send the File to you via email link (the “Link”) at the email address you provided when you placed your Order. The Link will provide you with access to download a digital version of the File. You are solely responsible for accessing the File through the Link, downloading, copying, and/or storing the File within the allotted time period, and maintaining the File after accessing it through the Link. You acknowledge and agree that we will not retain the Recordings or the File for any period longer than ninety (90) days after we email the Link to you at the email address you provided when you placed your Order. You must access and download or otherwise store the File prior to the expiration of such period. All Recordings and Files are deleted from our systems ninety (90) days after such delivery, whether receipt of delivery was confirmed by you or not.
No Representations or Warranties. You acknowledge and agree that Audio Scrapbook makes no representations and provides no warranty of any kind with respect to the quality, content, intelligibility, volume, noise-level, or any other feature of the Recordings or the File. You understand that the quality of the Recordings and the File depend upon a variety of factors outside of Audio Scrapbook’s control, including but not limited to, weather, background noise, power and wireless Internet connectivity, and the speaking voice and volume of the individual using the Equipment. The File is provided to you on an “as-is” basis without any warranty of any kind, all of which are expressly disclaimed. You acknowledge and agree that Audio Scrapbook shall not be responsible nor in any way liable for any of the contents of the Recordings or the File, or their publication or dissemination to unintended or unauthorized third parties.
Intellectual Property. Subject to section 8 and upon payment in full, you shall be the owner of, and hereby are assigned ownership of, any copyright we own in and to the File, provided that you hereby expressly grant Audio Scrapbook a perpetual, non-exclusive, irrevocable, fully-paid, royalty-free, sub-licensable and transferable (in whole or in part) worldwide license to use, reproduce, transmit, display, exhibit, distribute, modify, create derivative works based upon, perform and otherwise exploit such content to the extent necessary to provide the Services and deliver the File to you and to improve or services and offerings to others.

Fees and Expenses; Payment Terms.

Fees. If you place an Order for Services, the fees (“Fees”) will include the Lease charges and shipping and delivery charges (as applicable). The Fees will be at the prices in effect at the time the Order is placed and will be set out in your Order confirmation notice. You authorize us, or our third-party payment processor (“Payment Processor”), to charge your payment card or other payment instrument (“Payment Method”) the Fees associated with your Order. We will charge your Payment Method the amount of the Fees immediately upon your Order. A reservation of Equipment as part of the Services is an order for the Lease of that Equipment, regardless of how far in advance that Equipment is reserved. We reserve the right to suspend or cancel any Order in the event that we are unable to successfully charge the provided Payment Method. We are not responsible for errors by our Payment Processor, and we reserve the right to correct any errors or mistakes that we or our Payment Processor make(s) even if we have or our Payment Processor has already requested or received payment. If we, through our Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
Errors; Inaccuracies. We strive to display accurate price information, however, we may, on occasion, make inadvertent typographical errors, inaccuracies, or omissions related to pricing and availability. We reserve the right to correct any errors, inaccuracies, or omissions at any time and to cancel any Orders arising from such occurrences.
Taxes. Customer shall be responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Customer hereunder except for any taxes imposed on, or with respect to, Audio Scrapbook’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
Payment Terms. Payment terms are within our sole discretion and payment must be received by us, in full, before we accept an Order. You represent and warrant that (i) the credit card information you supply to us is true, correct, and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes, if any, regardless of the amount quoted at the time of your Order.

Intellectual Property.

We and/or our suppliers and licensors own the Services and Equipment (including related software, code, data, and information relating thereto), and proprietary methods and systems used to provide the Services, the materials, text, graphics, data, articles, photos, images, illustrations, information, and other content made available or displayed by us through the Services, and the trademarks, service marks, names, and logos, displayed on and in connection with the Services (collectively, the “ Our IP”).You agree and acknowledge that Our IP is: (i) protected by copyrights, (ii) subject to other intellectual property and proprietary rights and laws, and (iii) owned by us or our suppliers and licensors. Except as expressly permitted in these Terms, Our IP may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, redistributed, or otherwise used in any way without our prior written permission and the prior written permission of our applicable licensors.
Subject to these Terms, we grant to you a non-transferable, non-sublicensable, non-exclusive, revocable, limited right and license to access and use the Services, in each case solely for your own personal, non-commercial use. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in these Terms), create derivative works based on, or otherwise exploit any of Our IP or Services. You may not use our trade names, trademarks, service marks, or logos in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. Nothing contained on the Services should be construed as granting any right to use any trade names, trademarks, service marks, or logos without the express prior written consent of the owner.

Disclaimer of Warranties

Neither Audio Scrapbook nor its licensors, suppliers, partners, parent, subsidiaries, or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives, and agents, and each of their respective successors and assigns (collectively, the “Audio Scrapbook Parties”) make any representations or warranties concerning the Services, Equipment, Recordings, or Files, including without limitation regarding any content contained in or accessed through the Services or any Equipment, Recordings, or Files, and the Audio Scrapbook Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services, Equipment, Recordings, or Files, or any claims, actions, suits procedures, costs, expenses, damages, or liabilities arising out of or in any way related to your participation in or use of the Services, Equipment, Recordings, or Files. We make no warranty that the Services, Equipment, Recordings, or Files will meet your requirements, or that the Services, Equipment, Recordings, or Files will be uninterrupted, functional, timely, secure, or error free; nor do we make any warranty as to the results that may be obtained from the use of the Services, Equipment, Recordings, or Files, or that defects in the Services, Equipment, Recordings, or Files will be corrected. The Services, Equipment, Recordings, or Files may become unavailable due to maintenance or malfunction of computer equipment or other reasons. You understand and agree that you will be solely responsible for any damage to your computer or loss of data, including loss of the Files, which results from the download of any material in any way related to the Services. No advice or information, whether oral or written, obtained by you from us through the Services or otherwise will create any warranty, representation, or guarantee not expressly stated in these Terms.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE SERVICES, EQUIPMENT, RECORDINGS, FILES, AND CONTENT ARE PROVIDED BY AUDIO SCRAPBOOK (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS,” “WHERE IS,” AND “AS AVAILABLE” BASIS, AND AUDIO SCRAPBOOK HEREBY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES, EQUIPMENT, RECORDINGS, FILES, AND/OR CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.

Indemnification. You agree to indemnify and hold the Audio Scrapbook Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses, judgments, fees, and expenses (including attorneys’ fees) arising from or in any way related to any claims, suit, action, or demand (“Claims”) relating to (i) your access to and use of or inability to access or use, the Services, Recordings, or Files, and any Equipment leased from us (including any failure to return such Equipment), (ii) your violation of these Terms, or any applicable law, rules, or regulations, (iii) your infringement, misappropriation, or other violation of any third-party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right, and (iv) any dispute or issue between you and any third party, including any courier, wireless or Internet access provider, or other third party.
LIMITATION OF LIABILITY. NEITHER AUDIO SCRAPBOOK NOR ANY OF AUDIO SCRAPBOOK’S EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, REPRESENTATIVES, DISTRIBUTORS, OR LICENSORS WILL BE LIABLE FOR ANY DAMAGES OF ANY KIND, UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTORY OR OTHERWISE), ARISING FROM OR OTHERWISE RELATED TO YOUR USE OF, OR INABILITY TO USE, THE SERVICES, EQUIPMENT, RECORDINGS, OR FILES, INCLUDING BUT NOT LIMITED TO: (1) DEATH, PERSONAL INJURY, PROPERTY DAMAGE, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, LOST DATA ,OR LOST PROFIT; (2) ATTORNEYS’ FEES; OR (3) ANY OTHER INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, EVEN IF AUDIO SCRAPBOOK HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

WITHOUT LIMITING THE FOREGOING, AUDIO SCRAPBOOK WILL NOT BE LIABLE FOR ANY DAMAGE TO YOUR COMPUTER, TELECOMMUNICATION EQUIPMENT, OR OTHER REAL OR PERSONAL PROPERTY CAUSED BY OR ARISING FROM YOUR ACCESSING OR USE OF, OR INABILITY TO USE, THE SERVICES, EQUIPMENT, RECORDINGS, OR FILES, OR FROM YOUR DOWNLOADING OF ANY RECORDINGS, FILES, CONTENT OR MATERIALS PROVIDED BY AUDIO SCRAPBOOK OR OTHERWISE ASSOCIATED WITH THE SERVICES. AUDIO SCRAPBOOK WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND THAT YOU ALLEGE ARISE OUT OF OR ARE RELATED TO THE SERVICES, EQUIPMENT, RECORDINGS, OR FILES.

IN NO EVENT SHALL THE AGGREGATE LIABILITY OF AUDIO SCRAPBOOK, OR ITS PARENT, EMPLOYEES, SUBSIDIARIES, AFFILIATES, AGENTS, REPRESENTATIVES, DISTRIBUTORS, OR LICENSORS—WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY, OR OTHER THEORY—ARISING OUT OF OR RELATING TO THE SERVICES, EQUIPMENT, RECORDINGS, OR FILES EXCEED THE TOTAL AMOUNT OF FEES YOU PAID TO AUDIO SCRAPBOOK IN THE PAST THREE (3) MONTHS.

CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATION MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

Force Majeure. Audio Scrapbook shall not be liable or responsible to you, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from events outside of Audio Scrapbook’s reasonable control ("Force Majeure Events"), including but not limited to: (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order or law; (e) actions, embargoes, or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; or (g) national or regional emergency.
Miscellaneous.

Entire Agreement; Order of Precedence. This Agreement constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder in any way (including by operation of law or otherwise) without Audio Scrapbook’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations (in whole or in part) without your consent or notice to you.
Amendment and Modification; Waiver. This Agreement may not be amended, modified, or supplemented unless agreed upon in writing by Audio Scrapbook. No failure by Audio Scrapbook to exercise any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof.
Severability. If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable.
Governing Law: Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any other jurisdiction. Any legal suit, action, or proceeding arising out of or related to this Agreement or the Services provided hereunder shall be instituted exclusively in the state or federal courts in Franklin County, Ohio and you irrevocably: (a) submit to the exclusive jurisdiction of such courts; and (b) waive any objection to such courts based on venue or inconvenience.
Notice; Complaints. If you have any questions or complaints regarding the Services or about these Terms, you may contact us at:

Audio Scrapbook

(dba: Wessler Media, LLC)

1140 Gahanna Parkway

Gahanna, OH 43230

info@audioscrapbook.com