Terms
of Service Agreement for Photographers
This
Terms of Service Agreement (the "Agreement") is made by and between Miller's, Inc.
and You, the Photographer relating to the services available at the Site
(defined below). You are referred to
herein as "You" or the "Photographer."
Millerslab.com,
millersalbums.com, millersevents.com, and mpix.com ("Miller's, Inc.") are
websites owned, hosted and/or operated by
1. Provision of Services.
Subject to the terms and conditions of
this Agreement, Miller's agrees to publish the Photographer's images on the Site.
Miller's will offer customers of Photographer online services such as print and
reprint order processing and other services that may be offered by Miller's
from time to time. Miller's shall be
responsible for processing and shipping all orders directly to customers in
accordance with the terms of the order and Miller's guidelines. Miller's shall
notify the Photographer of any returns, refunds, or fee disputes by any
customer.
2. Fees and Compensation.
When ordering prints or other products, Miller's
will require customers of Photographer to pay, in advance, by credit card or
check, the applicable prices for the products shipping and handling as set
forth on the applicable Site.
3. License and Ownership of Work Product. Miller's shall not
gain any ownership interest in the Photographer's images, except that the
Photographer grants Miller's a non-exclusive, royalty-free, worldwide,
perpetual license, with the right to reproduce, distribute, transmit, and publicly
display any materials and other information that Photographer submits to the
Site (the "Submitted Materials") for the purposes of (i) display in
the Photographer's albums or galleries on the Site and (ii) production of
personalized photo finished products or reprints ordered by Photographer and Photographer's
customers, members, or their guests. Miller's disclaims ownership of Submitted
Materials. Millers' license to such
images will terminate when Photographer removes the images from Photographer's
album or gallery.
4. License Grant for Purposes of Image Download. Photographer hereby
grants Miller's a non-exclusive license to sub-license Photographer's images to
Photographer's customers in accordance with the terms of the Terms of Service
for Purchaser's of Photographs, a copy of which Photographer acknowledges
having reviewed and agreed to.
5.
Access to and
Use of the Site
a.
Equipment and Connections.
You are responsible for providing all equipment necessary to access the
internet and the Site. Access to the Site requires a Web browser that meets the
operational needs of the Site. Miller�s
does not guarantee that the Site will be compatible with Your equipment or
software, and You are responsible for assuring such compatibility.
b.
Availability of the Site. The
Site is generally available 24 hours a day, 7 days a week. However, Miller's
retains the right to make the Site unavailable from time to time for any
reason, including scheduled and unscheduled maintenance, as well as equipment
or software failures. You agree that Miller's shall not be liable for any
damages arising from any interruption, suspension or termination of the Site.
c.
Use of Passwords.
Access to and use of the Site is through a combination of a User Name and
Password. No Photographer or other
person is permitted to access the Site using the User Names and Passwords of
any other Photographer, provided that Photographer may permit use of its User
name and Password by its employees for purposes of using the Site on
Photographer's behalf. You are
responsible for all activity on the site that occurs under your User Name and
Password, regardless of whether you have authorized the same.
d.
Information Posted on
the Site. Photographer is solely responsible for information which it
uploads to or posts on the Site, including the Submitted Materials. Miller's
does not regularly review any material uploaded to or posted on the Site by Photographers
or third parties. Photographer agrees that Miller's has no obligation to
monitor content on the Site, or links to other web sites contained on the Site,
and expressly disclaims any responsibility to filter any such content. However,
Miller's may take any action with respect to such content or information as it
deems necessary or appropriate in its sole discretion if Miller's believes such
information may give rise to liability to Miller's or other parties or
interfere with or impair Miller's relationship with any customer or
photographer.
e.
Backup of Submitted Materials. Photographer is responsible for maintaining
adequate back-up copies of the Submitted Materials at a location other than the
Site to limit the potential impact to Photographer of damage to or failure of
the Site or any part thereof.
6. Representations and Warranties. Photographer
represents and warrants that: (a) Photographer has the right and unrestricted
ability to grant the licenses to Miller's as set forth in Sections 3 and 4, and
(b) the Submitted Materials will not infringe upon any copyright, right of
publicity or privacy, or any other proprietary rights of any person, whether
contractual, statutory or common law. Photographer agrees that neither Miller's
nor any of its directors, officers, employees, partners, contractors, service
provider, or agents shall be liable for any damages, whether direct, indirect,
consequential or incidental, arising out of the use of, or the inability to
use, the Submitted Materials. Photographer further acknowledges that he or she
is legally responsible for any challenges made by any third party regarding
copyright, right of publicity or privacy, or any other proprietary right in the
Submitted Materials.
7. Indemnification. Photographer agrees to indemnify, defend and
hold Miller's and its officers, directors, owners, agents, information
providers, contractors, service provider, and licensors (collectively, the
"Miller's Parties") harmless from and against any and all claims,
liability, losses, costs and expenses (including attorneys' fees) incurred by
any Miller's Party in connection with: (i) any use or alleged use of the Site
under Photographer's User Name and Password by any person, whether or not
authorized by Photographer; (ii) any Submitted Materials uploaded under the
Photographer's User Name and Password; (iii) any breach by Photographer of its
obligations, representations and warranties contained herein; or (iv) any claim
that the Submitted Materials violate the intellectual property rights of any
third party. Miller's reserves the right, at Photographer's expense, to assume
the exclusive defense and control of any matter otherwise subject to
indemnification by Photographer, and in such case, Photographer agrees to
cooperate with Miller's defense of such claim.
8. Disclaimer of Warranties. THIS SITE AND ITS CONTENT ARE PROVIDED BY
MILLER'S "AS IS" AND MILLER'S MAKES NO REPRESENTATIONS OR WARRANTIES
OF ANY KIND, EITHER EXPRESS OR IMPLIED, ABOUT THE CONTENT OR SITE INCLUDING,
WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NON-INFRINGEMENT, TO THE FULLEST EXTENT PERMISSIBLE UNDER
APPLICABLE LAW. MILLER'S DOES NOT WARRANT THAT ACCESS TO THE SITE OR ITS
CONTENTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED,
OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR
OTHER HARMFUL COMPONENTS. MILLER'S DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS
REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE OR ANY CONTENT ON THE
SITE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.
ACCORDINGLY, YOU ACKNOWLEDGE THAT YOUR USE OF THIS WEB SITE IS AT YOUR OWN
RISK. YOU (AND NOT MILLER'S) ASSUME THE OBLIGATION TO BACK UP YOUR IMAGES AND
DATA, AND THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION
RESULTING FROM DATA LOSS, DATA CORRUPTION, COMPUTER MALFUNCTION, VIRUSES OR THE
LIKE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE
ABOVE EXCLUSION MAY NOT APPLY TO YOU.
9. Limitation of Liability. MILLER'S SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT
OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION TO ANY DAMAGE OR INJURY
TO BUSINESS EARNINGS, PROFITS OR GOODWILL SUFFERED BY ANY PERSON ARISING FROM
THIS AGREEMENT, OR THE TERMINATION OF THIS AGREEMENT, EVEN IF ADVISED OF THE
POSSIBILITY OF SUCH LOSS. IN NO CASE SHALL MILLER'S BE LIABLE FOR ANY AMOUNT IN
EXCESS OF THE AMOUNTS PAID TO PHOTOGRAPHER UNDER THIS AGREEMENT IN THE SIX
MONTH PERIOD PRECEDING ANY CLAIM.
10. Independent Contractor Relationship. Photographer's
relationship with Miller's is that of an independent contractor, and nothing in
this Agreement is intended to, or should be construed to, create a partnership,
agency, joint venture or employment relationship. Photographer will not be entitled
to any of the benefits, which Miller's may make available to its employees,
including, but not limited to, group health or life insurance, profit-sharing
or retirement benefits. Photographer is not authorized to make any
representation, contract or commitment on behalf of Miller's unless
specifically requested or authorized in writing to do so by Miller's.
Photographer is solely responsible for, and will file, on a timely basis, all
tax returns and payments required to be filed with, or made to, any federal,
state or local tax authority with respect to the performance of services and
receipt of fees under this Agreement. Photographer shall be solely liable for
any failure to pay applicable taxes. Photographer is solely responsible for,
and must maintain adequate records of, expenses incurred in the course of
performing services under this Agreement. No part of Photographer's
compensation will be subject to withholding by Miller's for the payment of any
social security, federal, state or any other employee payroll taxes. To the
extent required or permitted und applicable law, Miller's will regularly report
amounts paid to Photographer by filing the Appropriate Form 1099 with the
Internal Revenue Service.
11. Termination by Miller's.
Miller's may terminate this Agreement with or without cause, at any time as it
deems appropriate in its sole discretion.
Without limiting the foregoing, Miller's reserves the right to
discontinue any accounts that have been inactive for more than sixty (60) days.
Miller's also may terminate this
Agreement immediately upon material breach of Miller's Code of Acceptable
Conduct.
12. Code of Acceptable Conduct. Photographer shall not use the service for
any of the following activities: (i) displaying photos that contain nudity,
obscene or pornographic material of any kind; (ii) posting, photos, captions,
names, posts or descriptions that convey expressions of bigotry, prejudice,
racism, hatred or profanity; (iii) defaming any person or group; (iv) linking
to any site that promotes any of the above; (v) uploading material containing
any virus or other content that may damage the service, the network, or any
other user's equipment or software; (vi) violating any laws, rules, or
regulations of any governmental or other administrative organization having
authority over the service, or users. Miller's
shall be the sole judge of online conduct and may refuse to publish any
photograph at its sole discretion. Photographer agrees to indemnify Miller's
from any and all damages, costs, claims, expenses or other liability (including
reasonable attorneys' fees) arising from or relating to the breach or alleged
breach by Photographer of the provisions of the Code of Acceptable Conduct.
Photographer will also abide by the provisions posted on the Miller's website
in the Terms
of Service and Privacy
Statement, as amended from time to time.
13. Forums. From time to
time the Site may include bulletin boards, chat rooms, or other forums
("Forums") and the information and opinions expressed in the Forums
are not those of Miller's. You are solely responsible for all content you post
on or submit to the Forums. You are aware and acknowledge that Miller's has no
obligation to monitor the Forums and you are not relying upon Miller's.com. to
monitor the Forums. Furthermore, Miller's.com. is not responsible or liable to
any person or entity whatsoever (including, without limitation, persons who may
use or rely on such data or materials or to whom such data or materials may be
furnished) for any loss, damage (whether actual, consequential, punitive or
otherwise), injury, claim, liability or other cause of any kind or character
whatsoever based upon or resulting from any information or opinions provided in
or through the Site. The Forums shall be used only in a noncommercial manner.
You shall not, without our express approval, distribute or otherwise publish
any material containing any solicitation of funds, promotion, advertising, or
solicitation for goods or services. You specifically acknowledge that
soliciting other Miller's.com. users to join or become members of any
commercial online service or other organization is expressly prohibited. By
posting content to any Forum or submitting any content for addition to the
photographs or any other content exhibited on the site, you grant (or warrant
that the owner of such rights has expressly granted) to Miller's a perpetual,
royalty-free, irrevocable, nonexclusive right and license to use, reproduce, modify,
adapt, publish, translate, create derivative works from, and distribute such
content or incorporate such content into any form, medium, or technology now
known or later developed throughout the universe
14. Successors and Assigns.
Photographer may not subcontract or
otherwise delegate its obligations under this Agreement without Miller's prior
written consent. Subject to the foregoing, this Agreement will be for the
benefit of Miller's successors and assigns, and will be binding on
Photographer's permitted assignees.
15. Governing Law. This Agreement shall all be governed and
construed in accordance with the laws of the State of Kansas applicable to
agreements made and to be performed in Kansas, and that any legal action or
proceeding between Miller's and you for any purpose concerning this Agreement
or the parties' obligations hereunder shall be brought exclusively in a federal
or state court of competent jurisdiction sitting in Kansas. Miller's failure to
enforce any provision of this Agreement shall not constitute a waiver of any
provision or right.
16. Severability. Should any provisions of this Agreement be
held by a court of law to be illegal, invalid or unenforceable, the legality,
validity and enforceability of the remaining provisions of this Agreement shall
not be affected or impaired thereby.
17. Waiver. The waiver by Miller's of a breach of any
provision of this Agreement by Photographer shall not operate or be construed
as a waiver of any other or subsequent breach by Photographer.
18. Entire Agreement.
This Agreement constitutes the entire
agreement between the parties relating to this subject matter and supersedes
all prior or contemporaneous oral or written agreements concerning such subject
matter. This Agreement may only be changed by mutual agreement of authorized
representatives of the parties in writing.