PhotoChannel Networks
Limited Partnership
#000 - 000 Xxxxxxx Xxxxxx
Xxxxxxxxx XX
Xxxxxx X0X 0X0
Tel: 000-000-0000
Fax: 000-000-0000
[PHOTOCHANNEL LOGO]
BY E-MAIL: xxxxxxxx@xxxx.xxx
February 6, 2003
Xx. Xxxxxx XxXxxxxx Xxxxxxxx.xx 0 Xxxxxxxx Xxxxx Xxxxxx, XX X0X 0X0
Dear Xx. XxXxxxxx:
RE: PHOTOCHANNEL NETWORKS LIMITED PARTNERSHIP ("PHOTOCHANNEL") AND LOBLAWS INC.
("XXXXXXXX.XX")
PhotoChannel and Xxxxxxxx.xx agree to enter into a temporary six month
agreement, to be reviewed after an initial 90 day period with the view to
possibly entering into a two year agreement at that time (which shall be at the
sole discretion of each of PhotoChannel and Xxxxxxxx.xx), enabling Xxxxxxxx.xx
to offer online, digital photofinishing services utilizing PhotoChannel's
proprietary software and service.
As part of this Agreement PhotoChannel agrees to:
1. Develop a customized photo printing web-site for Xxxxxxxx.xx ("Xxxxxxxx.xx
Site"), enabling Xxxxxxxx.xx to offer on-line digital photofinishing
services in the manner described in "Description of Service" outlined in
Schedule B of this document;
2. Enable the Xxxxxxxx.xx site to allow consumers to print consumer digital
images via a central fulfillment centre (of Xxxxxxxx.xx's choice) for
delivery back to the consumer (the "Service");
3. Maintain, update and host the Xxxxxxxx.xx Site on an ongoing basis;
4. Place in escrow the PhotoChannel source code as used by Xxxxxxxx.xx with a
recognized escrow agent in accordance with the Escrow Agreement attached
as Schedule "C".
5. Designate Xxxxxxxx.xx as a Secondary Customer of its hosting contract with
TELUS Communications in accordance with the - Secondary Customer Agreement
attached as Schedule "D".
6. Enable the third party of Xxxxxxxx.xx's choice with all the tools,
training, support and service it will need to perform the processing and
delivery of images on behalf of the Xxxxxxxx.xx site including automation
as listed in Schedule "B";
7. Provide, via remotely managed conference calls, training sessions to
Xxxxxxxx.xx and/or Xxxxxxxx.xx wholesale lab personnel on the use of the
system;
8. Provide Xxxxxxxx.xx employees with direct access to PhotoChannel support
personnel via e-mail and toll-free telephone service;
9. Provide Xxxxxxxx.xx with a monthly statement of all transactions
processed, along with a complete breakdown by order and other detail as
reasonably requested by Xxxxxxxx.xx;
10. Return all customer information, if any, in its possession to Xxxxxxxx.xx,
upon termination of this agreement, unless a subsequent agreement has been
entered into.
Page 1 of 3
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xxx.xxxxxxxxxxxx.xxx
As part of this Agreement Xxxxxxxx.xx agrees to:
1. Market the Service;
2. Pay PhotoChannel as per the pricing in Schedule A; and
3. Provide 60 days notice to PhotoChannel, if they wish to terminate this
Agreement without extending under a separate agreement.
The parties also agree as follows:
1. This letter agreement shall expire six (6) months from the date hereof.
2. PhotoChannel agrees to indemnify and save Xxxxxxxx.xx from and against any
and all claims, demands, actions, causes of action, damage, loss, deficiency,
cost, liability and expense suffered, incurred or paid, directly or indirectly
as a result of, in respect of or arising out of:
(a) the negligence or intentional wrongdoing of PhotoChannel, its
employees or its agents in connection with the services provided
hereunder;
(b) the non-fulfillment by PhotoChannel of any covenant or agreement
under this Agreement or any agreement, document or certificate
delivered pursuant to this Agreement;
(c) any breach of any covenant or incorrectness of any representation or
warranty made by PhotoChannel in this Agreement or in any agreement
or document delivered to Xxxxxxxx.xx pursuant to this Agreement; and
(d) all costs and expenses including, without limitation, reasonable
legal fees incidental to or in respect of the foregoing.
3. Xxxxxxxx.xx agrees to indemnify and save PhotoChannel from and against any
and all claims, demands, actions, causes of action, damage, loss, deficiency,
cost, liability and expense suffered, incurred or paid, directly or indirectly
as a result of, in respect of or arising out of any negligence or intentional
wrongdoing of Xxxxxxxx.xx in connection with Xxxxxxxx.xx's obligations
hereunder.
4. It is specifically understood and agreed that PhotoChannel shall not have the
right to use any Xxxxxxxx.xx trademark in any manner or for any purpose
whatsoever, without the prior written consent of Xxxxxxxx.xx.
5. PhotoChannel agrees that no information regarding this Agreement or its
execution shall be released to the public or to the media without the prior
written consent of Xxxxxxxx.xx.
6. Any notice, request, demand or other communication by the terms hereof
required or permitted to be given by one party to another shall be given in
writing and given by facsimile, with the original personally delivered or
mailed, by prepaid registered mail, addressed to such party as follows:
To Xxxxxxxx.xx at: 0 Xxxxxxxx Xxxxx
Xxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxxx XxXxxxxx
Fax: (000) 000-0000
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xxx.xxxxxxxxxxxx.xxx
To PhotoChannel at: 000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Xxxxxx Xxxxxxxx
Fax: (000) 000-0000
7. This Agreement shall be governed by and construed in accordance with the laws
of Ontario and the laws of Canada applicable therein.
8. This Agreement shall not be assigned by either party without the prior
written consent of the other, provided that Xxxxxxxx.xx may assign this
Agreement to an affiliate without the consent of PhotoChannel and PhotoChannel
may assign this Agreement to an affiliate without the consent of Xxxxxxxx.xx.
9. This Agreement constitutes the entire agreement between the parties
concerning the subject matter hereof and supersedes all prior and
contemporaneous agreements and communications, whether oral or written, between
the parties relating to the subject matter hereof. If any provision in this
Agreement should be held illegal or unenforceable by a court having
jurisdiction, such provision shall be modified to the extent necessary to render
it enforceable without losing its intent, or severed from this Agreement if no
such modification is possible, and other provisions of this Agreement shall
remain in full force and effect.
10. If applicable, this Agreement may be executed in counterparts or by
facsimile, each of which shall be deemed an original, and all of which together
shall constitute one and the same agreement.
11. Neither party shall be in default or be liable for any delay, failure in
performance (excepting the obligation to pay) or interruption of service
resulting directly or indirectly from any cause beyond its reasonable control.
12. The relationship between Xxxxxxxx.xx and PhotoChannel is that of independent
contractors and neither Xxxxxxxx.xx nor its agents shall have any authority to
bind PhotoChannel in any way and shall not do so or attempt to do so.
Agreement of the foregoing is given by the signatures below.
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LOBLAWS INC. PHOTOCHANNEL NETWORKS LIMITED PARTNERSHIP
BY ITS GENERAL PARTNER 620077 B.C. LTD.
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By: "Xxxxxxx Xxxxxx" By: "Xxxx XxXxxx"
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Name: Xxxxxxx Xxxxxx Name: Xxxx XxXxxx
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Title: Vice President & Legal Title: President
Counsel
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PHOTOCHANNEL NETWORKS INC.
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By: "Xxxxxx XxxXxxxxx" By: "Xxxxxx Xxxxxxxx"
--------------------------------------------------------------------------------
Name: Xxxxxx XxxXxxxxx Name: Xxxxxx Xxxxxxxx
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Title: Senior Director Title: CFO
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