XXXXXXXXX.XXX, INC.
CO-BRANDED MARKETING AGREEMENT
This Agreement is made this __May 12,1999___________________ (the
"Effective Date") between Netopia, Inc. a Delaware corporation, having a place
of business at 0000 Xxxxxxx Xxxxxx Xxxx, Xxxxxxx, XX 00000 ("Partner"), and
XxxxxXxxx.xxx, Inc., a Nevada corporation having a place of business at 000
Xxxxxx Xxxx Xxxxx Xxxxx #000, Xxxxxxxx, Xxxxxxxxxx 00000 ("XxxxxXxxx.xxx").
RE CITALS
A. XxxxxXxxx.xxx offers certain proprietary software for the uploading,
editing and management of photos and images (the "Software") and services for
creation, maintenance and storage of on-line digital photo albums via its
XxxxxXxxx.xxx web site (the "Service").
B. XxxxxXxxx.xxx and Partner desire to provide the Service to Partner's
customers through the creation of a Co-Branded XxxxxXxxx.xxx site on
XxxxxXxxx.xxx's server (having the URL address xxxx://xxx.XxxxxXxxx.xxx/xxxxxxx
to enable Partner's visitors and customers ("Visitors") to register to use
services or view photo albums from XxxxxXxxx.xxx.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the parties agree as follows:
1. CO-BRANDING.
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1.1 Co-Branded Pages. Upon the Effective Date, XxxxxXxxx.xxx will
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promptly develop (a) a co-branded version of the standard Premium XxxxxXxxx.xxx
service offering (the "Co-Branded Pages") at the URL address
xxxx://xxx.XxxxxXxxx.xxx/xxxxxxx showing the logo of Partner. The Co-Branded
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Pages will offer users all of the functionality and look and feel of
XxxxxXxxx.xxx's standard Premium service offering with the sole exception of
adding Partner's logo. During the term of this Agreement, the Partner will
maintain Links on the Partners home page/front page, toolbar/menu bar, and other
appropriate locations to be agreed upon by XxxxxXxxx.xxx and Partner.
XxxxxXxxx.xxx reserves the right to make any additional page modifications to
the Co-Branded Pages after the initial design or refuse to include any design or
elements that interfere with the operations of the Co-Branded Pages or the
Service, provided, however, that the Co-Branded Pages at all times will offer
users all of the functionality and look and feel of XxxxxXxxx.xxx's standard
Premium service.
2. MARKETING BY PARTNER. Partner will provide a logo on visible areas
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of Partner's pages with a link to the Co-branded Pages. Partner will email all
current users announcing new photo and album sharing capability. Partner agrees
to place the PhotoLoft offer on customers' private pages.
3. MARKETING BY XXXXXXXXX.XXX. XxxxxXxxx.xxx shall offer Partner's
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customers a free Premium XxxxxXxxx.xxx account for a period of one (1) year.
Partner's customers will be identified by the co-branded entrance page which
will be referred to from Partner's site. Every image posted by Partner's
customer will be identified as having been posted by Partner's customer. Every
time that image is viewed by any user on the XxxxxXxxx.xxx branded site, a logo
of the Partner containing that image will also be displayed to that user. The
size and placement of the logo will be at the discretion of the XxxxxXxxx.xxx.
4. CO-PROMOTION: Upon completion of the Co-Branded Pages, the
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Co-Branded Software and associated links, XxxxxXxxx.xxx and Partner will issue a
joint press release. In addition, Partner will notify its installed base of
customers of the availability of XxxxxXxxx.xxx via e-mail or other mutually
agreed upon method.
Initials of XxxxxXxxx.xxx _____ Initials of Partner _____ 1
5. LICENSES AND OWNERSHIP.
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5.1 Licenses by XxxxxXxxx.xxx to Partner. During the term of this
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Agreement XxxxxXxxx.xxx hereby grants to Partner a non-exclusive, worldwide,
nontransferable, royalty free license to use XxxxxXxxx.xxx's trademarks and
logos, as the same may be modified from time to time by XxxxxXxxx.xxx, only for
the purposes of this Agreement. All representations of the XxxxxXxxx.xxx
trademarks and logos that Partner uses will be exact copies of those provided by
XxxxxXxxx.xxx, or shall first be submitted to XxxxxXxxx.xxx for approval.
XxxxxXxxx.xxx will supply Partner with electronic versions of the XxxxxXxxx.xxx
trademarks and logos for Partner's use.
5.2 Licenses by Partner to XxxxxXxxx.xxx. During the term of this
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Agreement Partner hereby grants XxxxxXxxx.xxx a nonexclusive, worldwide,
nontransferable, royalty free license to use Partner's trademarks and logos, as
the same may be modified from time to time by Partner, only for the purposes of
this Agreement. All representations of the Partner trademarks and logos that
XxxxxXxxx.xxx uses will be exact copies of those provided by Partner, or shall
first be submitted to Partner for approval. Partner will supply XxxxxXxxx.xxx
with electronic versions of the Partner trademarks and logos for XxxxxXxxx.xxx's
use.
5.3 Ownership by XxxxxXxxx.xxx. XxxxxXxxx.xxx shall own all right,
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title, and interest in the XxxxxXxxx.xxx trademarks and logos, the Co-Branded
Pages, the services offered by XxxxxXxxx.xxx at xxx.XxxxxXxxx.xxx and all
Intellectual Property Rights therein, including any derivatives, improvements
thereof. For purposes of this Agreement, "Intellectual Property Rights" shall
mean all patent rights, copyrights, trademarks, service marks, trade dress,
trade secrets and other intangible rights. XxxxxXxxx.xxx disclaims any
ownership interest in the images and content posted by its members to the
Partner Co-Branded area and the Service.
5.4 Ownership by Partner. Partner shall own all right, title, and
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interest in Partner's trademarks and logos, and all Intellectual Property Rights
therein, including any derivatives, or improvements thereof.
5.5 Joint Ownership. XxxxxXxxx.xxx and Partner shall jointly own the
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data regarding the persons accessing the Co Branded Pages. Neither party shall
be required to account to the other party, or share any of the profits from the
use, if any, of such data.
5.6 No Implied Licenses. Except as specifically and clearly
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set forth in this Agreement, neither party shall be granted any right or license
to any of the other party's property, including intellectual property in its
respective software, web site or any portions thereof.
6. PAYMENT: The business terms for this Agreement are defined in
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Exhibit A.
7. REPRESENTATIONS AND WARRANTIES.
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7.1 Representations and Warranties of Partner. Partner hereby
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represents and warrants to XxxxxXxxx.xxx that: (i) Partner has the full power
and authority to enter into this Agreement and to carry out its obligations
under this Agreement; (ii) Partner has the full power and authority to grant the
rights and licenses granted to XxxxxXxxx.xxx in this Agreement; and (iii)
Partner owns the Partner trademarks and logos.
7.2 Representations and Warranties of XxxxxXxxx.xxx. XxxxxXxxx.xxx
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hereby represents and warrants to Partner that (i) Xxxxxxxx.xxx has the full
power and authority to enter into this Agreement and to carry out its
obligations under this Agreement; (ii) XxxxxXxxx.xxx has the full power and
authority to grant the rights and licenses granted to Partner in this Agreement;
and (iii) XxxxxXxxx.xxx owns the XxxxxXxxx.xxx trademarks and logos.
Initials of XxxxxXxxx.xxx _____ Initials of Partner _____ 2
7.3 THE XXXXXXXXX.XXX SERVICES FURNISHED AS A RESULT OF OR UNDER
THIS AGREEMENT ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT ANY WARRANTIES OR
REPRESENTATIONS EXPRESS, IMPLIED OR STATUTORY; INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF QUALITY, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. NOR ARE THERE ANY WARRANTIES CREATED BY A COURSE OF
DEALING, COURSE OF PERFORMANCE OR TRADE USAGE. XXXXXXXXX.XXX DOES NOT WARRANT
THAT THE SERVICES, WILL MEET PARTNER'S OR ANY END USERS' NEEDS OR BE FREE FROM
ERRORS, OR THAT THE OPERATION OF ITS WEB PAGES WILL BE UNINTERRUPTED. THE
FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT.
8. COVENANTS.
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8.1 Adult Content. XxxxxXxxx.xxx shall make reasonable commercial
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efforts to prevent pornographic material from being publicly viewable on the
Co-Branded Pages. Accordingly, all members registering through the Co-Branded
Pages shall agree to be bound by the Member Agreement attached hereto as Exhibit
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B.
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8.2 Member Data. During the term of this Agreement, any members
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entering via the Co-Branded pages shall provide only such information as is
necessary to register to access the Service in the same manner as if such member
was entering the Service through the XxxxxXxxx.xxx branded site.
8.3 Technical Support. XxxxxXxxx.xxx shall provide technical support
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to the users of the Co-Branded Pages. Technical support shall be provided
through e-mail. In order to obtain support, users shall send their questions,
comments or requests to xxxxxxx@xxxxxxxxx.xxx. XxxxxXxxx.xxx shall use
reasonable efforts to respond in a timely manner. XxxxxXxxx.xxx shall also
provide technical support to Partner. Support to Partner shall be provided by
e-mail and telephone. Telephone support shall be provided Monday through Friday
9:00a.m to 5:00 p.m. Pacific Standard Time, except for holidays. Evening and
weekend support shall be provided via pager.
9. CONFIDENTIALITY.
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9.1 Agreement as Confidential Information. The parties shall treat the
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terms and conditions of this Agreement as Confidential Information. Each party
shall obtain the other's consent prior to any publication, presentation, public
announcement or press release concerning the existence or terms and conditions
of this Agreement.
9.2 Confidential Information. "Confidential Information" means all
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information identified in written or oral format by the Disclosing Party as
confidential, trade secret or proprietary information, and, if disclosed orally,
summarized in written format within thirty (30) days of disclosure. "Disclosing
Party" is the party disclosing Confidential Information. "Receiving Party" is
the party receiving Confidential Information. The Receiving Party shall not
disclose the Confidential Information to any third party other than persons in
the direct employ of the Receiving Party who have a need to have access to and
knowledge of the Confidential Information solely for the purpose authorized
above. Each party shall take appropriate measures by instruction and agreement
prior to disclosure to such employees to assure against unauthorized use or
disclosure. The Receiving Party shall have no obligation with respect to
information which (i) was rightfully in possession of or known to the Receiving
Party without any obligation of confidentiality prior to receiving it from the
Disclosing Party; (ii) is, or subsequently becomes, legally and publicly
available without breach of this Agreement; (iii) is rightfully obtained by the
Receiving Party from a source other than the Disclosing Party without any
obligation of confidentiality; (iv) is disclosed by the Receiving Party under a
valid order created by a court or government agency, provided that the Receiving
Party provides prior written notice to the Disclosing Party of such obligation
and the opportunity to oppose such disclosure. Upon written demand of the
Disclosing Party, the Receiving Party shall cease using the Confidential
Information and return the Confidential Information and all copies, notes or
extracts thereof to the Disclosing Party within seven (7) days of receipt of
notice.
Initials of XxxxxXxxx.xxx _____ Initials of Partner _____ 3
10. INDEMNITY AND LIMITATION OF LIABILITY.
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10.1 Indemnification by Partner. Partner shall defend, indemnify and
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hold XxxxxXxxx.xxx harmless from any and all damages, liabilities, costs and
expenses (including, but not limited to reasonable attorneys' fees) incurred by
XxxxxXxxx.xxx as a result of (i) any breach of this Agreement; (ii) any claim
that the Partner trademarks or logos or any part thereof, infringes or
misappropriates any Intellectual Property Right of a third party; (iii) any
claim arising out of XxxxxXxxx.xxx 's display of Partner's trademark or logos.
XxxxxXxxx.xxx shall provide Partner with written notice of the claim and permit
Partner to control the defense, settlement, adjustment or compromise of any such
claim. XxxxxXxxx.xxx may employ counsel at its own expense to assist it with
respect to any such claim; provided, however, that if such counsel is necessary
because of a conflict of interest of either Partner or its counsel or because
Partner does not assume control, Partner will bear the expense of such counsel.
10.2 Indemnification by XxxxxXxxx.xxx. XxxxxXxxx.xxx shall defend,
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indemnify and hold Partner harmless from any and all damages, liabilities, costs
and expenses (including, but not limited to reasonable attorneys' fees) incurred
by Partner as a result of (i) any breach of this Agreement; (ii) any claim that
the Xxxxxxxxx.xxx trademarks or logos or any part thereof, infringes or
misappropriates any Intellectual Property Right of a third party; or (iii) any
claim arising out of Partner's display of the XxxxXxxx.xxx trademarks or logos.
Partner shall provide XxxxxXxxx.xxx with written notice of the claim and permit
XxxxxXxxx.xxx to control the defense, settlement, adjustment or compromise of
any such claim. Partner may employ counsel at its own expense to assist it with
respect to any such claim; provided, however, that if such counsel is necessary
because of a conflict of interest of either XxxxxXxxx.xxx or its counsel or
because XxxxxXxxx.xxx does not assume control, XxxxxXxxx.xxx will bear the
expense of such counsel.
10.3 Limitation of Liability. EXCEPT AS SET FORTH IN SECTION 9 AND 10,
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UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY
CONTRACT, STRICT LIABILITY, NEGLIGENCE OR OTHER LEGAL OR EQUITABLE THEORY, FOR
ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS IN CONNECTION WITH THE
SUBJECT MATTER OF THIS AGREEMENT.
11. TERM AND TERMINATION.
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11.1 Term of Agreement. This Agreement shall be effective upon the
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Effective Date and shall remain in force for a period of three (3) years, and
shall be automatically renewed for successive periods of one (1) year unless
otherwise terminated as provided herein.
11.3 Termination for Cause. This Agreement may be terminated by a
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party for cause immediately upon the occurrence of and in accordance with the
following:
(a) Insolvency Event. Either may terminate this Agreement by
delivering written notice to the other party upon the occurrence of any of the
following events: (i) a receiver is appointed for either party or its property;
(ii) either makes a general assignment for the benefit of its creditors; (iii)
either party commences, or has commenced against it, proceedings under any
bankruptcy, insolvency or debtor's relief law, which proceedings are not
dismissed within sixty (60) days; or (iv) either party is liquidated or
dissolved.
Initials of XxxxxXxxx.xxx _____ Initials of Partner _____ 4
(b) Default. Either party may terminate this Agreement effective upon
written notice to the other if the other party violates any covenant, agreement,
representation or warranty contained herein in any material respect or defaults
or fails to perform any of its obligations or agreements hereunder in any
material respect, which violation, default or failure is not cured within thirty
(30) days after notice thereof from the non-defaulting party stating its
intention to terminate this Agreement by reason thereof.
11.4 Survival of Rights and Obligations Upon Termination. Sections 6,
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7, 8, 9, 10 and 12 shall survive termination or expiration of this Agreement.
11.5 Return of Materials Upon Termination. On or before ten (10) days
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after the termination of this Agreement, each party shall deliver to the other
party all such other party's Confidential Information and trademarks and logos,
including but not limited to all work product, diagrams, designs and schematics
in Partner's possession.
12. MISCELLANEOUS.
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12.1 Force Majeure. Neither party shall be liable to the other for
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delays or failures in performance resulting from causes beyond the reasonable
control of that party, including, but not limited to, acts of God, labor
disputes or disturbances, material shortages or rationing, riots, acts of war,
governmental regulations, communication or utility failures, or casualties.
12.2 Relationship of Parties. The parties are independent contractors
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under this Agreement and no other relationship is intended, including a
partnership, franchise, joint venture, agency, employer/employee, fiduciary,
master/servant relationship, or other special relationship. Neither party shall
act in a manner which expresses or implies a relationship other than that of
independent contractor, nor bind the other party. The term Partner is
descriptive and does not imply a legal partnership, joint venture, or
co-ownership.
12.3 No Third Party Beneficiaries. Unless otherwise expressly
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provided, no provisions of this Agreement are intended or shall be construed to
confer upon or give to any person or entity other than XxxxXxxx.xxx and Partner
any rights, remedies or other benefits under or by reason of this Agreement.
12.4 Equitable Relief. Each party acknowledges that a breach by the
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other party of any confidentiality or proprietary rights provision of this
Agreement may cause the non-breaching party irreparable damage, for which the
award of damages would not be adequate compensation. Consequently, the
non-breaching party may institute an action to enjoin the breaching party from
any and all acts in violation of those provisions, which remedy shall be
cumulative and not exclusive, and a party may seek the entry of an injunction
enjoining any breach or threatened breach of those provisions, in addition to
any other relief to which the non-breaching party may be entitled at law or in
equity.
12.5 Attorneys' Fees. In addition to any other relief awarded, the
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prevailing party in any action arising out of this Agreement shall be entitled
to its reasonable attorneys' fees and costs.
12.6 Notices. Any notice required or permitted to be given by either
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party under this Agreement shall be in writing and shall be personally delivered
or sent by a reputable overnight mail service (e.g., Federal Express), or by
first class mail (certified or registered), or by facsimile confirmed by first
class mail (registered or certified), to the party at the address indicated
above. Notices will be deemed effective (i) three (3) working days after
deposit, postage prepaid, if mailed, (ii) the next day if sent by overnight
mail, or (iii) the same day if sent by facsimile and confirmed as set forth
above.
Initials of XxxxxXxxx.xxx _____ Initials of Partner _____ 5
12.7 Non Assignment. Neither this Agreement nor any rights under this
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Agreement may be transferred, assigned or delegated by either party without the
prior written consent of the other party, which consent shall not be withheld
unreasonably.
12.8 Governing Law. This Agreement shall be governed by California law.
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12.9 Entire Agreement. This Agreement contains the entire
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agreement between the parties and supercedes all previous understandings,
agreements, correspondence and memorandums between the parties hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in as of the
Effective Date:
XXXXXXXXX.XXX: PARTNER:
By:/S/ Xxxx Xxxxxxxx By:/S/ Xxxx Xxxxxx
-------------------- --------------------
Name: Xxxx Xxxxxxxx Name:
Title:_________________ Title:_________________
Date:__________________ Date:__________________
TABLE OF EXHIBITS
EXHIBIT A - BUSINESS TERMS
EXHIBIT B - MEMBER AGREEMENT
Initials of XxxxxXxxx.xxx _____ Initials of Partner _____ 6
EXHIBIT A
BUSINESS TERMS
1. ADVERTISING
a. XxxxxXxxx.xxx will be solely responsible for selling the ads shown on the
Co-Brand Pages. XxxxxXxxx.xxx will insure that no ads are shown on the
Co-Branded Pages for companies that are directly competitive with Partner.
Partner agrees to provide XxxxxXxxx.xxx a complete list of companies that it
considers to be its direct competitors and that Partner will be responsible for
updating such list on behalf of XxxxxXxxx.xxx.
b. XxxxxXxxx.xxx will pay to Partner fifteen percent (15%) of all
advertising revenues actually received by XxxxxXxxx.xxx. Partner understands
that XxxxxXxxx.xxx may use third party agencies to manage the sales of such
advertising, and that such agencies deduct their ad sales commissions prior to
making any payments to XxxxxXxxx.xxx. As a result Partner's revenue share is on
those amounts actually received by XxxxxXxxx.xxx.
2. REPORTING AND PAYMENT
a. XxxxxXxxx.xxx shall make all payments due to Partner within thirty (30)
days of the end of each calendar quarter for all amounts received under Exhibit
A, Section 1(b) and Exhibit A, Section 2(b) during such calendar quarter. Such
payments will be accompanied by a report which shall provide all reasonably
necessary information for computation of the amounts due Partner, if any, for
the applicable period. Such report shall also provide Partner with statistics
on the number of users that sign up to use the service on the Co-Branded Pages
and shall provide Partner with the last name and zip code of all such users.
c. XxxxxXxxx.xxx agrees to keep accurate books of account and records at its
principal place of business covering all amounts receives for advertising sales
and commissions on commerce related to the Co-Branded Pages. Upon reasonable
notice of not less than seven (7) business days, but in no event more than once
per year (unless the immediately preceding audit showed a material
underpayment), Partner shall have the right, subject to suitable confidentiality
measures, to cause a certified public accountant at Partner's sole expense to
inspect those portions of the books of account and records which relate to the
royalties owed Partner, to confirm that the correct amount owing Partner under
this Agreement has been paid. XxxxxXxxx.xxx shall maintain such books of account
and records which support each statement for at least two years after the
termination or expiration of this contract or for at least two years after the
final payment made by XxxxxXxxx.xxx to Partner, whichever is later.
d. Partner agrees to keep accurate books of account and records at its
principal place of business covering all sales resulting from the use of Partner
supplied banners on the Co-Branded Pages. Upon reasonable notice of not less
than seven (7) business days, but in no event more than once per year (unless
the immediately preceding audit showed a material underpayment), XxxxxXxxx.xxx
shall have the right, subject to suitable confidentiality measures, to cause a
certified public accountant at XxxxxXxxx.xxx's sole expense to inspect those
portions of the books of account and records which relate to the royalties owed
XxxxxXxxx.xxx, to confirm that the correct amount owing XxxxxXxxx.xxx under this
Agreement has been paid. Partner shall maintain such books of account and
records which support each statement for at least two years after the
termination or expiration of this contract or for at least two years after the
final payment made by Partner to XxxxxXxxx.xxx, whichever is later.
Initials of XxxxxXxxx.xxx _____ Initials of Partner _____ 7
EXHIBIT B
XXXXXXXXX.XXX AND PARTNER PRIVATE LABEL MEMBER AGREEMENT
XxxxxXxxx.xxx, Terms and Conditions
AGREEMENT FOR USE OF XXXXXXXXX.XXX WEB HOSTING AND E-COMMERCE SERVICES BEFORE
YOU USE OR ACCEPT THE WEB HOSTING OR E-COMMERCE SERVICES PROVIDED BY
XXXXXXXXX.XXX, AND IN ORDER TO CONTINUE THE USE OF THESE SERVICES, CAREFULLY
READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY INPUTTING SUBSCRIBER
INFORMATION, REGISTERING, OR ACTIVATING YOUR WEB HOSTING ACCOUNT or CLICKING ON
THE "I ACCEPT" BUTTON, YOU ARE AGREEING TO BE BOUND BY, AND ARE BECOMING A
PARTY TO, THIS AGREEMENT. IF YOU DO NOT ACCEPT AND AGREE TO ALL THE TERMS AND
CONDITIONS OF THIS AGREEMENT, DO NOT INPUT SUBSCRIBER INFORMATION, REGISTER, OR
ACTIVATE YOUR ACCOUNT.This agreement ("Agreement") becomes effective when you
complete all of the membership information required on the Member Registration
Form and indicate your agreement to this Member Agreement by "clicking" on the
"I ACCEPT" button when it is presented. This Agreement is between XXXXXXXXX.XXX
("PhotoLoft"), a Nevada corporation, and the Member ("Member," "you," or
"your"). This Agreement sets forth the
terms and conditions under which you agree to use PhotoLoft's Web Hosting and
eCommerce Services ("Service" or "Services").
1. Terms of Service
A. Commencing on the date on which you initiate the Services, you will have use
of the Services pursuant to the terms and conditions set forth herein and in the
accompanying Acceptable Use Policy. In exchange, you will pay the current
charges for such Services, if applicable. The Free Basic PhotoLoft Account,
providing simple photo uploading capability, shall be free of charge. The
Premium PhotoLoft Account, providing greater functionality, shall be available
at the price regularly posted on the PhotoLoft Web site (xxx.xxxxxxxxx.xxx). The
terms, conditions, and charges for the Services may be periodically modified.
Such modified terms, conditions, and charges can be found at the PhotoLoft Web
site (xxx.xxxxxxxxx.xxx). After notice of a modification, your continued use of
the Services constitutes an affirmative agreement to be bound by such new terms,
conditions, and charges.
B. The Services shall continue until such time as you provide PhotoLoft with
notice that you wish to discontinue the Services, or the Services are
terminated and/or canceled by PhotoLoft, as set forth herein. For termination of
the Premium PhotoLoft Account, notice must have been received by PhotoLoft at
least two billing days prior to the yearly billing date in order to avoid
charges for the subsequent year.
C. PHOTOLOFT reserves the right to modify or discontinue the Services, and any
rates, terms, or conditions, at any time.
2. Modifications.
PhotoLoft may modify this Agreement and its Acceptable Use Policy at any time in
its sole discretion. Any modification is effective immediately upon either a
posting on the PhotoLoft Home Page, or by a message from PhotoLoft sent by
electronic mail, or by conventional mail. If any modification to this Agreement
is unacceptable to you, you may immediately terminate the Services. However, if
you do not terminate the Services, or continue to use the Services following
modification to this Agreement, your continued use will mean that you have
accepted that modification.
Initials of XxxxxXxxx.xxx _____ Initials of Partner _____ 8
3. Fees.
For all Charges for the Services, PhotoLoft will xxxx your credit card.
Recurring charges are billed in advance of service. In the event legal action is
necessary to collect on balances due, you agree to reimburse PhotoLoft for all
expenses incurred to recover sums due, including attorneys fees and other legal
expenses. You are responsible for purchase of, and payment of charges for,
Internet Access Services and Telecommunications Services needed for use of the
Services.
4. Personal Information. You hereby certify that you are not a minor. A minor's
parent or legal guardian may authorize a minor to use his/her account(s) under
supervision by the parent or guardian. For purposes of identification, billing
and marketing, you must provide accurate, complete, and updated information to
register for use of the Services ("Member Registration Data"), including your
legal name, address, telephone number(s), and applicable payment data (for
example, a credit card number and expiration date). You must provide updated
information within 30 days of any changes in your Member Registration Data.
PhotoLoft may require a copy of a state-issued form of identification before
making changes to the billing information or registration data on a Customer's
account.
5. Provision of Services.
You understand and agree that temporary interruptions of the Services may occur
as normal events. You further understand and agree that PhotoLoft has no control
over third party networks you may access in the course of the use of the
Services, and therefore, delays and disruption of other network transmissions
are completely beyond the control of PhotoLoft.
6. Limitation of Liability
A. PhotoLoft will make reasonable efforts to provide continuous, uninterrupted,
expedient, and error-free Service to you. Under no circumstances shall PhotoLoft
be liable to you or any other person for any special, incidental, consequential,
or punitive damages of any kind, including without limitation, loss of profits,
loss of income or cost of replacement Services.
B. PhotoLoft's liability for damages in regards to extraordinary and
unreasonable interruptions of service, or for mistakes, omissions, delays,
errors and defects (including, but not limited to, interruption of service,
deletion of files, loss of or damage to data, and damages resulting from
computer viruses) in the provision of the Services, shall in no event exceed an
amount equal to the prorata charges to you for the period during which the
Services are affected. YOU HEREBY ACKNOWLEDGE THAT THIS PROVISION WILL APPLY
WHETHER OR NOT PHOTOLOFT IS GIVEN NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND
THAT THIS PROVISION WILL APPLY TO ALL CONTENT, MERCHANDISE OR SERVICES AVAILABLE
FROM PHOTOLOFT OR ITS AFFILIATES AND VENDORS.
C. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PHOTOLOFT HEREBY DISCLAIMS
ANY AND ALL WARRANTIES INCLUDING IMPLIED WARRANTIES OF FITNESS, MERCHANTABILITY,
AND PERFORMANCE. D. PHOTOLOFT MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR
REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR
ERROR FREE; NOR DOES PHOTOLOFT MAKE ANY WARRANTY AS TO THE ACCURACY OR
RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SERVICES. YOU UNDERSTAND AND
AGREE THAT ANY MATERIAL AND/OR DATA UPLOADED, DOWNLOADED, OR OTHERWISE OBTAINED,
THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN RISK, AND THAT YOU WILL BE
SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT
RESULTS FROM THE UPLOAD OR DOWNLOAD OF SUCH MATERIAL AND/OR DATA. NO ORAL ADVICE
OR WRITTEN INFORMATION GIVEN BY PHOTOLOFT, ITS EMPLOYEES, LICENSORS, AGENTS OR
THE LIKE, WILL CREATE A WARRANTY, AND YOU MAY NOT RELY ON SUCH ORAL ADVICE OR
WRITTEN INFORMATION.
Initials of XxxxxXxxx.xxx _____ Initials of Partner _____ 9
D. Through your use of the Services, you may have the opportunities to engage in
commercial transactions with other Internet users and vendors. You acknowledge
that all transactions relating to any merchandise or services offered by any
party, including, but not limited to the purchase terms, payment terms,
warranties, guarantees, maintenance and delivery terms relating to such
transactions, are agreed to solely between the seller or purchaser of such
merchandize and services and you. PHOTOLOFT MAKES NO WARRANTY REGARDING ANY
TRANSACTIONS EXECUTED THROUGH, OR IN CONNECTION WITH THE SERVICES, AND YOU
UNDERSTAND AND AGREE THAT SUCH TRANSACTIONS ARE CONDUCTED ENTIRELY AT YOUR OWN
RISK.
7. Indemnity
A. You agree to indemnify and hold PhotoLoft harmless from all claims, losses,
liens, expenses, suits and attorneys' fees ("Liabilities") for injuries to or
death of any person and for damages to or loss of any property which may in any
way arise out of or result from or in connection with your use of the Services,
except to the extent that such Liabilities arise from the willful misconduct of
PhotoLoft. B. You agree to indemnify PhotoLoft, its affiliates and subsidiaries,
in the event that your use of the Services (i) constitutes a violation of any
law, regulation or tariff (including, without limitation, copyright and
intellectual property laws); (ii) is defamatory, fraudulent or deceptive, (iii)
is intended to threaten, harass or intimidate, (iv) violates PhotoLoft's
Acceptable Use Policy as it is modified from time to time, or (v) interferes
with other customers' use or
enjoyment of the Services provided by PhotoLoft.
8. Compatibility
You are solely responsible for provisioning, configuration and maintenance of
all equipment and software on your premises, including, without limitation,
computer equipment, photography equipment and software, application software,
and modems. PhotoLoft shall not be responsible for delays in the provision of
Services resulting from incompatibility of such equipment and software, or
resulting from improper provisioning, configuration or maintenance of such
equipment and software
9. Advertising
You shall not use PhotoLoft's name or any language, pictures or symbols which
could, in PhotoLoft's judgment, imply PhotoLoft's endorsement in any (i) written
or oral advertising or presentation, or (ii) brochure, newsletter, book, or
other written material of whatever nature, without prior written consent.
10. Member Responsibilities and Use Limitations
A. You agree to comply with PhotoLoft's Acceptable Use Policy as it may be
modified from time to time, and to comply with the rules, regulations, and
policies applicable to any network you access. Any violation of such rules,
regulation and policies, or any network policy document issued by PhotoLoft,
shall be cause for PhotoLoft to suspend or terminate the Services.
B. You agree that you will not place or allow anyone using your account to place
any copyrighted material on the Service without the permission of the copyright
owner or persons authorized by the copyright owner to grant permission. You are
responsible for obtaining the necessary permission before permitting any
copyrighted material that belongs to others to be placed on the Service. You may
download the material available on the Service only for your personal,
non-commercial use. Except as authorized to use material without express
permission under the copyright laws, you are responsible for obtaining
permission before reusing any copyrighted material that is available on the
Service.
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C. Nothing contained in this Agreement may be construed to convey to you any
interest, title, or license in the user ID, URL, IP Address, or domain name used
by you in connection with the Services.
D. PhotoLoft reserves the right to suspend or terminate the Services to you, or
to suspend or terminate any user ID, URL, IP Address, or domain name used by
you, in the event it is used in a manner which (i) constitutes violation of any
law, regulation or tariff (including, without limitation, copyright and
intellectual property laws); (ii) is defamatory, fraudulent, obscene or
deceptive; (iii) is intended to threaten, harass or intimidate; (iv) tends to
damage the name or reputation of PhotoLoft, its parent, affiliates and
subsidiaries; (vi) violates PhotoLoft's Acceptable Use Policy or (vii)
interferes with other customers' use and enjoyment of the Services provided by
PhotoLoft.
E. You understand and agree that any attempt to break security, or to access an
account which does not belong to you, shall be considered a material breach of
this Agreement, and such breach may result in suspension or termination of the
Services. You further agree to immediately notify PhotoLoft of (i) any
unauthorized use of your account and/or (ii) any breach, or attempted breach, of
security known to you.
11. License Grant and Copyright Notice
A. You retain all rights in any material uploaded to the Service by you or
others you authorize to use your account. You grant PhotoLoft and its designated
licensees a non-exclusive, paid-up, perpetual, and worldwide right to copy,
distribute, display, perform, publish, translate, adapt, modify, and otherwise
use such material in connection with the PhotoLoft Service regardless of the
medium, technology, or form in which it is
used.
B. The entire content of the Service is copyrighted by PhotoLoft as a collective
work under the United States copyright laws. Portions of the Service are
provided to PhotoLoft under license. The copying, reproduction, or publication
of any part of the Service is prohibited, unless expressly authorized in writing
by PhotoLoft. 1. Force Majeure Neither PhotoLoft nor you shall be responsible
for damages or for delays or failures in performance resulting from acts or
occurrences beyond their reasonable control, including, without limitation:
fire, lightning, explosion, power surge or failure, water, acts of God, war,
revolution, civil commotion or acts of civil or military authorities or public
enemies: any law, order, regulation, ordinance, or requirement of any government
or legal body or any representative of any such government or legal body; or
labor unrest, including without limitation, strikes, slowdowns, picketing, or
boycotts; inability to secure raw materials, transportation facilities, fuel or
energy shortages, or acts or omissions of other common carriers.
12. Cancellation, Termination, and Assignment
A. In the event that a ruling, regulation, or order issued by a judicial,
legislative or regulatory body causes PhotoLoft to believe that this Agreement
and/or the Services provided hereunder, may be in conflict with such rules,
regulations, or orders, PhotoLoft may suspend or terminate the Services, or
terminate this Agreement, without liability.
B. Cancellation Charges: PhotoLoft does not refund charges for unused service.
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C. If you fail to pay any charge when due, including, but not limited to,
product charges, service charges, or taxes, or if you fail to perform or observe
any other material term or condition of this Agreement, or if you provide false
or inaccurate information which is required for the provision of the Services or
is necessary to allow PhotoLoft to xxxx you for the Services, and such condition
continues unremedied for thirty days, you shall be in default and PhotoLoft may
suspend or terminate the Services.
D. You may not assign your account for Services to anyone without the express
written consent of PhotoLoft. Upon reasonable notice, PhotoLoft may assign its
rights and obligations under this Agreement.
13. Notices.
Any notices in connection with this Agreement must be sent to each party as
follows: if
to PhotoLoft:
000 Xxxxxxx Xxxx Xxxxx Xxxxx 000
Xxxxxxxx, XX 00000
Email:xxxxxxx@xxxxxxxxx.xxx
if to you:
Either the e-mail address supplied for your account, or the address
supplied by you as part of the Member Registration Data.
Any notices or communication under this Agreement will be deemed delivered to
the party receiving such communication (1) on the delivery date if delivered
personally to the party; (2) two business days after deposit with a commercial
overnight carrier, with written verification of receipt; (3) five business days
after the mailing date, if sent by US mail, return receipt requested; (4) on the
delivery date if transmitted by confirmed facsimile; or (5) on the delivery date
if transmitted by confirmed e-mail.
14. General:
A. This Agreement, and the provision of the Services, may be terminated at any
time by either party upon written notice to the other.
B. This Agreement shall be construed in accordance with the Laws of the State of
California.
C. Some jurisdictions do not allow the exclusion of certain warranties, in which
case such warranty exclusions may not apply to you.
D. This Agreement and the accompanying Acceptable Use Policy constitute the
entire agreement between you and PhotoLoft with respect to the Service and
supersede all other communications.
E. The provisions of this Agreement are for the benefit of XxxxxXxxx.xxx and its
service providers, licensors, employees, and agents; and each may assert and
enforce those provisions directly on its own behalf.
15. XxxxxXxxx.xxx Acceptable Use Policy
Important Note: This document is updated often. Please make a habit of reviewing
it from time to time to stay abreast of acceptable as well as inappropriate uses
of your XxxxxXxxx.xxx ("PhotoLoft") account. Reports of activity in violation of
this policy may be sent via e-mail to xxxxxxx@xxxxxxxxx.xxx This document is
divided into the following sections:
Introduction
General Information
Web Sites
Security
Network Management
Network Performance
Illegal Activity
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Introduction
XxxxxXxxx.xxx has established an Acceptable Use Policy in order clarify the
duties and responsibilities of the Members. This document is intended to provide
a general understanding of PhotoLoft's Acceptable Use Policy. The following
factors guide the establishment and enforcement of PhotoLoft's usage policies:
Ensure reliable service to our customers
Ensure security and privacy of our systems and network, as well as the networks
and systems of others.
Comply with existing laws
Maintain our reputation as a responsible service provider
Encourage responsible use of the Internet and discourage activities which reduce
the usability and value of Internet services
Preserve the value of Internet resources as a conduit for free expression and
exchange of information
Preserve the privacy and security of individual users
We do not routinely monitor the activity of accounts except for measurements of
system utilization and the preparation of billing records. However, in our
efforts to promote good citizenship within the Internet community, we will
respond appropriately if we become aware of inappropriate use of our service.
If your account is used to violate the Acceptable Use Policy, we reserve the
right to terminate your service without notice. We may also suspend the
account, restrict access to it, or remove content from it if necessary or
appropriate. We prefer to advise customers of inappropriate behavior and any
necessary corrective action. However, flagrant violations of the Acceptable Use
Policy will result in immediate termination of service. Our failure to enforce
this policy, for whatever reason, shall not be construed as a waiver of our
right to do so at any time.
As a member of our photographic community, you must use your membership
responsibly. If you have any questions regarding this policy, please contact us
at xxxxxxx@xxxxxxxxx.xxx
General Information
Your PhotoLoft account provides you with the opportunity to upload, view,
organize, and print a variety of your photographs and images quickly and
conveniently. Your use of these services is subject to the following policy.
Violations of this policy may result in termination of your account with or
without notice in accordance with the Agreement for Use of XxxxxXxxx.xxx
Services that you accepted at the time you created your account.
In general, you may NOT use your PhotoLoft account:
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In a manner that violates any law, regulation, treaty or tariff or infringes on
the legal rights of any third party;
In a manner which is defamatory, fraudulent, indecent, offensive or deceptive;
To threaten, harass, abuse or intimidate others;
To damage the name or reputation of PhotoLoft, its affiliates, or subsidiaries;
To break security on any computer network access an account that does not belong
to you; or
In a manner that interferes with other customers' use and enjoyment of the
services provided by PhotoLoft.
PhotoLoft reserves sole discretion to determine whether any use of the service
is a violation of this policy. Guidelines for using your account follows. This
information is only a guideline, and is not intended to be all-inclusive.
Web Sites
PhotoLoft provides storage space and access for photographs and images through
its Web Hosting service. PhotoLoft will not routinely monitor the contents of
your photo albums.
You are solely responsible for any information contained in your photo albums.
However, if complaints are received regarding language, content, or graphics
contained on your web site, PhotoLoft may, at its sole discretion, remove the
photographs hosted on PhotoLoft servers and terminate your Web Hosting service.
We may also suspend the account, restrict access to it, or remove content from
it if necessary or appropriate.
You may not use your web site to publish material that PhotoLoft determines, at
its sole discretion, to be unlawful, indecent, or objectionable. For purposes of
this policy, "material" refers primarily to photographs, but also extends to
cover all forms of communication that the PhotoLoft site may allow, including
narrative descriptions, other graphics (including illustrations, images,
drawings, logos), executable programs, video recordings, and audio recordings.
Unlawful content is that which violates any law, statute, treaty, regulation, or
order. This includes, but is not limited to: obscene material; defamatory,
fraudulent, or deceptive statements; threatening, intimidating, or harassing
statements, or material that violates the privacy rights or property rights of
others (copyrights or trademarks, for example).
Indecent content is that which depicts sexual or excretory activities in a
patently offensive matter as measured by contemporary community standards.
Objectionable content is otherwise legal content with which PhotoLoft concludes,
in its sole discretion, it does not want to be associated in order to protect
its reputation and brand image, or to protect its employees, shareholders and
affiliates. This includes, but is not limited to, all content that, in the sole
discretion of PhotoLoft, is determined to be advertising or otherwise for
commercial purposes, unless expressly permitted in writing by PhotoLoft.
Examples of prohibited web site content:
Materials that depict or describe scantily-clad and lewdly depicted male and/or
female forms or body parts, and which lack serious literary, artistic, political
or scientific value.
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Materials that suggest or depict obscene, indecent, vulgar, lewd or erotic
behavior, and which lack serious literary, artistic, political or scientific
value.
Materials that hold PhotoLoft including its affiliates, employees or
shareholders up to public scorn or ridicule.
Materials that encourage the commission of a crime; or which tends to incite
violence; or which tends to degrade any person or group based on sex,
nationality, religion, color, age, marital status, sexual orientation,
disability or political affiliation. Materials including product
advertisements.
Security
You are responsible for any misuse of your account, even if the inappropriate
activity was committed by a friend, family member, guest, or employee.
Therefore, you must take steps to ensure that others do not gain access to your
account. In addition, you may not use your account to breach security of another
account or attempt to gain unauthorized access to another network or server.
You must adopt adequate security measures to prevent or minimize unauthorized
use of your account.
You may not attempt to circumvent user authentication or security of PhotoLoft.
This includes, but is not limited to, attempting to access data not intended for
you, logging into or making use of a server or account you are not expressly
authorized to access, or probing the security of other networks. Use or
distribution of tools designed for compromising security is prohibited. Examples
of these tools include, but are not limited to, password guessing programs,
cracking tools or network probing tools.
Users who violate systems or network security may incur criminal or civil
liability. PhotoLoft will cooperate fully with investigations of violations of
systems or network security at other sites, including cooperating with law
enforcement authorities in the investigation of suspected criminal violations.
Network Management
You are responsible for ensuring that the services obtained from PhotoLoft are
used in an appropriate manner by those who you encourage to view your photo
albums. Therefore, you must take steps to manage the use of the services
obtained from PhotoLoft in such a way that network abuse is minimized. You must
respond in a timely manner to complaints concerning misuse of the services
obtained from PhotoLoft. Failure to responsibly manage the use of the services
obtained from PhotoLoft may be cause for termination of services to you.
Network Performance
PhotoLoft accounts operate on shared resources. Excessive use or abuse of these
shared network resources by one customer may have a negative impact on all other
customers. Misuse of network resources in a manner which impairs network
performance is prohibited by this policy and may result in termination of your
account.
You are prohibited from excessive consumption of resources, including CPU time,
memory, disk space, and session time. You may not use resource-intensive
programs which negatively impact other customers or the performance of
PhotoLoft systems or networks. PhotoLoft reserves the right to terminate or
limit such activities.
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Illegal Activity
Any activity on our network that is a violation of any state or federal law is a
violation of this policy and will result in immediate termination of service.
Prohibited activities include, but are not limited to:
Transmitting obscene materials
Intentionally spreading or threatening to spread computer viruses
Gaining or attempting to gain unauthorized access to any network, including
PhotoLoft's private network infrastructure
Accessing or attempting to access information not intended for you
Transmitting pirated software
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