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MYCAPTURE.COM
TERMS OF USE: BY USING THE
MYCAPTURE SYSTEM, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE
"AGREEMENT") GOVERNING YOUR USE OF MYCAPTURE.COM'S ONLINE SERVICE
(THE "SERVICE"). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF
A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO
BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS
"YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT
HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS,
YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICE. Welcome As part of the Service, myCapture.com will
provide you with use of the Service, including a browser interface and data
encryption, transmission, access and storage. Your use of the Service shall be
deemed to be your agreement to abide by this Agreement and any instructions or directions available on the myCapture.com website
incorporated by reference herein, including but not limited to myCapture.com's
privacy and security policies. Certain capitalized terms shall have the meaning
ascribed to such terms in Section 24 of this Agreement. 1. Privacy and Security MyCapture.com's privacy and security policies
may be viewed at http://www.myCapture.com.
MyCapture.com reserves the right to modify its privacy and security
policies in its sole discretion from time to time. 2. License Grant and Restrictions myCapture
hereby grants to you (with the right to sublicense to any third party that
provides photographs or other content expressly permitted by myCapture
(collectively, “Content”) to you) a non-exclusive, non-transferable,
worldwide license to: (i) access and use the Service for the purpose of (A)
displaying and hosting the Content on your primary website and the website of
your affiliates (each, a “Primary Site”), (B) uploading and transferring
Content for display on websites hosted for you in accordance with this Section
1 (each, a “Hosted Site” and collectively with the Primary Sites, the “Sites”),
and (C) if requested by you, permitting visitors and customers to Sites (each a
“Customer”) to upload Content directly to the Sites and (ii) allow
Customers to access and use the Service for the purpose of viewing, ordering
and purchasing Content. All rights not expressly granted in this Agreement are
reserved by myCapture. myCapture will
provide you with all necessary passwords to enable you and your affiliates to
access to the administrative tools and features of the Service. You will promptly notify myCapture if you becomes aware that any such password has been obtained by
any third party without your authorization.
You may elect to use for any your
affiliates the Service through a website hosted and maintained by myCapture for
such affiliate (each a “Hosted Site”), located at a mutually agree-upon
URL. Through the use of the
administrative tools and feature, you and such affiliates shall be solely
responsible for the look and feel of their Hosted Site. You
will not and shall cause your affiliates not to: (i) license, sublicense,
sell, resell, transfer, assign, distribute or otherwise commercially exploit or
make available to any third party the Service in any way except as expressly
permitted by this Agreement; (ii) modify or make derivative works based
upon the Service; or (iii) reverse engineer or access the Service in order to
(A) build a competitive product or service or (B) build a product using ideas,
features, functions or graphics similar to the Service. 3. Your Responsibilities For Affiliates and Sublicensees Notwithstanding
anything to the contrary in this Agreement, (i) each of your affiliates using
the Service and any sublicensee hereunder shall be subject to all of your
representations, warranties, covenants and agreements (each a “Licensee
Obligation”), (ii) a breach by your affiliates using the Service or any
sublicensee hereunder of a Licensee Obligation shall be deemed a breach by you
and (iii) you shall be responsible and liable for every breach by your
affiliates using the Service and any sublicensee hereunder of a Licensee
Obligation and otherwise for every action and inaction taken by your affiliates
using the Service and any sublicensee hereunder with regard to the Service. 4. Your
Responsibilities with Regard to Content Neither you
nor your affiliates may upload or display any Content using the Service or
otherwise use the Service with respect to Content that (i) is threatening,
obscene, pornographic or profane material or (ii) violates any term of this
Agreement or any applicable civil or criminal law or regulation (such as
copyrighted material). myCapture does not and cannot review all Content provided to it, and is not responsible for any Content. myCapture reserves the right to delete, edit or rearrange Content that it, in its sole discretion, deems abusive, defamatory, obscene or in violation of copyright or trademark laws or otherwise unacceptable; provided that myCapture shall immediately provide notice of such action to you. You acknowledges that any Content may be removed, published, copied, modified, transmitted and displayed by myCapture for the purposes of delivering the Selected Products (as such term is defined below) or providing the Service. All Content provided by you, your affiliates or sublicensees hereunder is the sole responsibility of you, not myCapture. In addition, you shall defend,
indemnify and hold myCapture and its Related Parties (as such term is defined
below) harmless from any and all damages, liabilities, costs and expenses
(including, but not limited to reasonable attorneys’ fees) incurred by
myCapture arising out of any Content or any use of the Service. 5. Orders; Refunds;
Customer Information myCapture will
cause the production, packaging and shipment of each order for Content placed
through the Service (each an “Order”). myCapture will use
commercially reasonable efforts to ensure that each Order is shipped the next
business day for Orders received before myCapture will be
responsible for arranging and accepting payments from Customers, fulfilling
Orders and providing customer service to Customers, which such customer service
shall be provided in a reasonably prompt, courteous and professional manner. myCapture will post a link to its refund and return policy
(the “Refund Policy”) in a prominent manner on the Sites. myCapture will pay refunds in response to
requests that comply with the Refund Policy within thirty (30) days after the
date that myCapture processes the request for the refund and you shall
reimburse myCapture for such amount; provided, however, you shall not reimburse
myCapture if the refund is due to a defect in quality of the Selected Product
caused by myCapture or its fulfillment process. myCapture will store all personal
information collected from Customers, including, but not limited to, names and
addresses (collectively, “Customer Information”) in a password-protected
database and shall, in accordance with customary standards in the photo
processing field, use security measures, including, but not limited to,
encryption and firewalls, to protect such Customer Information from unauthorized
disclosure or use. 6. myCapture Commitment myCapture will use commercially reasonable
efforts to maintain overall availability of the Hosted Sites and the
Service. For purposes of this Agreement,
a Hosted Site and the Service will not be considered to be available if the
Hosted Site or Service, or any material portion thereof, is not delivered or
any material functionality of the Hosted Site or Service (whichever is
applicable) is not available. myCapture will ensure that the response times for the Hosted
Sites’ pages are at least as fast as the response times for the pages of
similar websites hosted by myCapture. 7. Selection
and Pricing of Products The types of products that you may
elect to offer to Customers through the Service, are
set forth on myCapture’s then current products listing, which may be
supplemented and revised in myCapture’s sole discretion from time to time. The myCapture products you elect to offer
through the Service are “Selected Products.” The prices to be charged by myCapture to you
for such products shall be the prices set forth on myCapture’s then most recent
pricing sheet as may be revised by myCapture from time to time (the “List
Prices”). You will determine the
prices to be charged to Customers for the Selected Products (the “Customer
Price”). 8. Selected
Product Payment Calculation and Schedule Within fifteen (15) days after the
end of each calendar month, myCapture will send to you a payment equal to the
Monthly Net Profits (as such term is defined below) generated by Orders
completed during such month. “Monthly
Net Profits” is calculated each calendar month and is equal to the
aggregate Customer Price received by myCapture in such month for Selected
Products, minus the sum of (i) actual shipping and handling costs associated
with the delivery of such Selected Products; (ii) the aggregate List Price for
such Selected Products; and (iii) the aggregate of all transaction fees, which
is equal to three percent (3%) of the greater of the aggregate Customer Price
and the List Price, plus in each case actual shipping and handling costs
associated with the delivery of such Selected Products. 9. License Fees You will pay a set-up fee upon
commencing the use of the Service. You
will also pay a license fee based on the functionality you use for each
calendar quarter or portion thereof during the term of this Agreement for each
Site utilizing the Service. At your
discretion, you may request myCapture to create multiple accounts corresponding
to the various Sites and/or your affiliates for which you are responsible. For each additional account, you will pay a
set-up fee upon request for the additional account and a license fee for each
calendar quarter or portion thereof during the term of this Agreement. Unless otherwise set forth in a written
document provided to you by myCapture with regard to your use of the Service,
the amounts of the fees described in this Section 9 will be the amounts set
forth on myCapture’s then most recent pricing sheet as may be revised by myCapture
from time to time. Notwithstanding your ability to request multiple accounts
and without limiting the scope of Section 3 of this Agreement, You hereby acknowledges that you shall be responsible and liable for
any non-payment by any of your affiliates. 10. Storage Space
Fee myCapture will
provide up to five gigabytes of storage space at no charge to every Site
utilizing the Service in accordance with this Agreement. If the amount of disk storage required to
provide the Service to a Site exceeds this limit, myCapture will charge its
then-current storage fees for such excess. 11. Payment
Policy With regard to any fees or other
charges payable by you or your affiliate, including, without limitation, the
amount by which the Monthly Net Profit is a negative number, you will pay such
amounts in accordance with myCapture’s billing terms in effect at the time the
amount is due and payable. Delinquent invoices are subject to interest of 1.5%
per month on any outstanding balance, or the maximum permitted by law,
whichever is less, plus all costs and expenses of collection. 12. Ownership You will own all
rights (including, but not limited to, all copyright rights) in the Content
uploaded to the Service by you, your affiliates, Customers or other third
parties who submit Content to the Sites and the Customer Information. The parties agree that the Customer
Information is Confidential Information (as defined below). myCapture owns all
rights (including, but not limited to, all copyright rights) in the Service. 13. Trademark Licenses You hereby grants to myCapture a
nonexclusive, worldwide license to use your trademarks, trade names and logos
(“your Marks”), solely in connection
with the performance of myCapture’s obligations under this Agreement. Should you find objectionable any use of your
Marks by myCapture, then you will have the right to revoke or suspend, with
respect to the objectionable use, the rights granted to myCapture under this
Agreement to use your Marks, and myCapture will promptly cease using your Marks
in the manner found objectionable by you.
The use of your Marks by myCapture will inure to your benefit. You hereby grant myCapture a license to
reproduce and distribute the Content in connection with the fulfillment of
Orders under this Agreement. myCapture hereby
grants to you a nonexclusive, worldwide license to use myCapture’s trademarks, trade names and logos (collectively, the “myCapture
Marks”), solely in connection with the performance of your obligations
under this Agreement and the promotion of the myCapture Service and the
Service. Should myCapture find
objectionable any use of the myCapture Marks by you, then myCapture will have
the right to revoke or suspend, with respect to the objectionable use, the
rights granted to you under this Agreement to use the myCapture Marks, and you
will promptly cease using such myCapture Marks in the manner found
objectionable by myCapture. The use of
the myCapture Marks by you will inure to the benefit of myCapture. 14. Representations and Warranties myCapture
represents and warrants that it has the full right and power to enter into this
Agreement and to grant to you the rights herein granted by myCapture, and that
the Service operate in accordance with myCapture’s written specifications. myCapture also
represents and warrants that the myCapture Marks, when used as permitted under
this Agreement, do not violate or infringe any common law or statutory right of
any third party including, without limitation, any contractual right,
proprietary right, trademark, copyright or patent right. You represent and warrant that you
has the full right and power to enter into this Agreement and to grant to
myCapture the rights herein granted by myCapture. You also represent and warrant that (a) your
Marks, when used as permitted under this Agreement, do not violate or infringe
any common law or statutory right of any third party including, without
limitation, any contractual right, proprietary right, trademark, copyright or
patent right, and (b) the Content and any other materials that appear on the
Sites do not violate or infringe any law or regulation, including, without
limitation, any right of privacy or publicity. EXCEPT AS EXPRESSLY SET FORTH IN
THIS SECTION 14, ALL PRODUCTS AND SERVICE PROVIDED UNDER THIS AGREEMENT ARE
PROVIDED ON AN “AS IS” BASIS AND NEITHER MYCAPTURE NOR YOU MAKES ANY EXPRESS OR
IMPLIED WARRANTIES, CONDITIONS OR REPRESENTATIONS HEREUNDER OR OTHERWISE
REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR
STATUTORY, INCLUDING, WITHOUT LIMITATION ANY IMPLIED WARRANTY OR CONDITION OF
MERCHANTABILITY, ACCURACY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY
THAT THE PRODUCTS AND SERVICE (OR YOUR USE THEREOF) WILL BE ERROR FREE OR
UNINTERRUPTED. ANY REPRESENTATION OR
OTHER AFFIRMATION OF FACTS, INCLUDING BUT NOT LIMITED TO STATEMENTS REGARDING
PERFORMANCE OF PRODUCTS AND SERVICE, WHICH IS NOT CONTAINED IN THIS AGREEMENT,
SHALL NOT BE BINDING ON MYCAPTURE. 15. Internet Delays MYCAPTURE.COM'S SERVICE MAY BE SUBJECT TO LIMITATIONS,
DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC
COMMUNICATIONS. MYCAPTURE.COM IS NOT
RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM
SUCH PROBLEMS. 16. Indemnification Each party shall defend, indemnify
and hold the other party and such party’s owners, directors, officers,
employees, agents and other affiliates (each a “Related Party”) harmless
from any and all damages, liabilities, costs and expenses (including, but not
limited to reasonable attorneys’ fees) incurred by the indemnified party as a
result of the indemnifying party’s breach or alleged breach of any of its
representations, warranties, covenants or obligations under this Agreement. 17 Disclaimer
and Limitation of Liability EXCEPT WITH RESPECT TO A BREACH OF
THE LAST PARAGRAPH IN SECTION 1 OR A BREACH OF SECTION 4, NEITHER PARTY
HEREUNDER, NOR THEIR RELATED PARTIES SHALL BE LIABLE FOR ANY INCIDENTAL,
INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGE OR OTHER SIMILAR
TYPE OF DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES OR COSTS INCURRED AS A
RESULT OF LOSS OF TIME, LOSS OF SAVINGS, LOSS OF DATA, LOSS OF PROFITS, OR LOSS
OF GOODWILL, WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN
CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR COSTS
RESULTING FROM THE USE OF OR INABILITY TO USE THE PRODUCTS AND SERVICE OR
PRODUCTS EVEN IF MYCAPTURE HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD
OF SUCH DAMAGES OR COSTS OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON
CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR
OTHERWISE. EXCEPT WITH RESPECT TO A BREACH OF THE LAST PARAGRAPH IN SECTION 1 OR A BREACH
OF SECTION 4, IN NO EVENT WILL EITHER PARTY HEREUNDER BE LIABLE TO THE
OTHER PARTY OR ANY OTHER PERSON FOR DAMAGES OF ANY KIND ARISING OUT OF OR IN
ANY WAY RELATED TO THIS AGREEMENT, THE PERFORMANCE THEREOF, THE PRODUCTS AND
SERVICE DELIVERED PURSUANT TO THIS AGREEMENT IN ANY AMOUNT IN EXCESS OF THE FEES
AND CHARGES ACTUALLY PAID OR COLLECTED, AS THE CASE MAY BE, BY MYCAPTURE DURING
THE SIX (6) MONTH PERIOD PRIOR TO THE CLAIM UNDER THIS AGREEMENT REGARDLESS OF
THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, WARRANTY, NEGLIGENCE,
STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. THE DISCLAIMERS AND LIMITATIONS ON
LIABILITY SET FORTH IN THIS SECTION REPRESENT A FUNDAMENTAL TERM OF THIS
AGREEMENT AND NEITHER PARTY WOULD HAVE ENTERED INTO THIS AGREEMENT WITHOUT
THEIR INCLUSION. 18. Term and Termination The term of this Agreement will begin on the date you first decide to use the Service and, unless terminated earlier hereunder, will continue for one (1) year. Either party may terminate this Agreement if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after the date that the breaching party receives written notice of such breach. 19. Assignment Neither party may assign its rights,
duties or obligations under this Agreement to any person or entity, in whole or
in part, without the other party’s prior written consent. This
Agreement shall bind and inure to the benefit of the successors and permitted
assigns of the parties hereto. 20. Relationship of the Parties This Agreement shall not be deemed
or construed to create any partnership, employer/employee, joint venture or
agency relationship between the parties.
Neither party is, nor shall either party hold itself out to be, vested
with any power or right to bind the other party contractually or act on behalf
of the other party as a broker, agent or otherwise. 21. Notice MyCapture.com may give notice by means of a
general notice on the Service, electronic mail to your
e-mail address on record in myCapture.com's account information, or by written
communication sent by first class mail or pre-paid post to your address on
record in myCapture.com's account information. Such notice shall be deemed to
have been given upon the expiration of 48 hours after mailing or posting (if
sent by first class mail or pre-paid post) or 12 hours after sending (if sent
by email). You may give notice to myCapture.com (such notice shall be deemed
given when received by myCapture.com) at any time by any of the following:
letter sent by confirmed facsimile to myCapture.com at 314-721-0604; letter
delivered by nationally recognized overnight delivery service or first class
postage prepaid mail to myCapture.com at the following addresses (whichever is
appropriate): myCapture.com, Inc., P.O. Box 11872, St. Louis, MO 63105.
22. General With respect to U.S.
Customers, this Agreement shall be governed by Missouri law and controlling
United States federal law, without regard to the choice or conflicts of law
provisions of any jurisdiction, and any disputes, actions, claims or causes of
action arising out of or in connection with this Agreement or the Service shall
be subject to the exclusive jurisdiction of the state and federal courts
located in St. Louis, MO. No text or information set forth on any other
purchase order, preprinted form or document, other than an order form or other
written document supplied by myCapture, including pricing sheets (“myCapture
Forms”), shall add to or vary the terms and conditions of this Agreement.
If any provision of this Agreement is held by a court of competent jurisdiction
to be invalid or unenforceable, then such provision(s) shall be construed, as
nearly as possible, to reflect the intentions of the invalid or unenforceable
provision(s), with all other provisions remaining in full force and effect. The
failure of myCapture to enforce any right or provision in this Agreement shall
not constitute a waiver of such right or provision unless acknowledged and
agreed to by myCapture in writing. This Agreement, together with any myCapture
Forms, comprises the entire agreement between you and myCapture and supersedes
all prior or contemporaneous negotiations, discussions or agreements, whether
written or oral, between the parties regarding the subject matter contained
herein. Neither
party shall be liable for delay in any of its performance hereunder due to
causes beyond its reasonable control, including but not limited to, an act of
God, war or natural disaster. No
provisions of this Agreement are intended or shall be construed to confer upon
or give to any person or entity other than myCapture and Licensee any rights,
including without limitation Customers, remedies or other benefits under or by
reason of this Agreement. It may be changed only by a writing signed by
both parties. No term or condition of this Agreement will be
deemed waived, and no breach will be deemed excused, unless such waiver or
excuse is in writing and is executed by the party against whom such waiver or
excuse is claimed. Section headings are for convenience only, and
will not be used to interpret this Agreement.
Sections 2 (last paragraph only), 3, 4, 11, 12, 14, 15, 16, 17, 18, 21
and 22 will survive the expiration or termination of this Agreement. Questions
or Additional Information: If you have questions regarding this Agreement
or wish to obtain additional information, please send an e-mail to
info@myCapture.com. Copyright 2010 myCapture, Inc.
All rights reserved.
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