|Digital Print Production
Labtricity Open Network Use Agreement
This Labtricity Open Network Use Agreement (the "Agreement")
is made by and between Express Digital Graphics, Inc. ("Express
Digital"), a Colorado corporation, and You, the "Photographer".
1. Engagement of Services. Subject
to the terms and conditions of this Agreement, Express Digital
agrees to transmit electronically or copy onto a CD, digital
image files (photos) and order information necessary to complete
a fulfillment request at a compatible member photo Lab.
2. Compensation. Users will pay
Express Digital in advance, by credit card, for all transmitted
orders. Express Digital will calculate the order price based
on the wholesale pricing provided by the member Lab plus thirteen
percent (13%) convenience fee (not including shipping fees
and applicable taxes). The balance of each order, minus any
charge backs that may be due to Express Digital for prior
orders, will be forwarded to the Lab upon the Lab's notification
to Express Digital that the order has been shipped to photographer
or directly to the consumer. All applicable sales taxes on
each order shall be paid by the Photographer, and Express
Digital will not pay any sales taxes on any order on the Photographer's
behalf. The Photographer shall timely notify Express Digital
of each and every jurisdiction in which taxes are due. Express
Digital shall not be liable for any shortfall between taxes
collected on an order and taxes due by the Photographer. In
the event that a photographer's customer requests a refund
for any reason, the convenience fee originally collected by
Express Digital will not be refunded to the Photographer.
3. License and Ownership of Work Product.
Express Digital shall not gain any ownership interest in the
Photographer's images or order data.
4. Representations and Warranties.
Photographer represents and warrants that: (a) Photographer
has the right and unrestricted ability to grant the license
to Express Digital as set forth in Section 3, and (b) the
Work Product will not infringe upon any copyright, right of
publicity or privacy, or any other proprietary right of any
person, whether contractual, statutory or common law. Photographer
agrees to indemnify Express Digital 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 representations and
warranties set forth in this Section 4.
5. Limitation of Liability. NEITHER
PARTY SHALL BE LIABLE TO THE OTHER FOR INDIRECT OR CONSEQUENTIAL
DAMAGES, INCLUDING WITHOUT LIMITATION 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 EITHER PARTY BE LIABLE FOR ANY AMOUNT
IN EXCESS OF THE AMOUNTS PAID UNDER THIS AGREEMENT.
6. Independent Contractor Relationship.
Photographer's relationship with Express Digital 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
shall be deemed the seller of all prints and any other products
or services contained in the transmitted orders. Photographer
will not be entitled to any of the benefits, which Express
Digital 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 Express Digital unless specifically requested or authorized
in writing to do so by an Express Digital officer. 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 Express Digital for the payment of any social
security, federal, state or any other employee payroll taxes.
Express Digital will regularly report amounts paid to Photographer
by filing Form 1099-MISC with the Internal Revenue Service
as required by law.
7. Confidential Information. Photographer
agrees to hold Express Digital's Confidential Information
in strict confidence and not to disclose such Confidential
Information to any third parties. Confidential Information
as used in this Agreement shall mean all information disclosed
by Express Digital to Photographer that is not generally known
in the Express Digital's trade or industry and shall include,
without limitation, (a) concepts and ideas relating to the
development and distribution of content in any medium or to
the current, future and proposed products or services of Express
Digital or its subsidiaries or affiliates; (b) trade secrets,
drawings, inventions, know-how, software programs, and software
source documents; (c) information regarding plans for research,
development, new service offerings or products, marketing
and selling, business plans, business forecasts, budgets and
unpublished financial statements, licenses and distribution
arrangements, prices and costs, suppliers and customers; (d)
existence of any business discussions, negotiations or agreements
between the parties; and (e) any information regarding the
skills and compensation of employees, contractors or other
agents of the Express Digital or its subsidiaries or affiliates.
Confidential Information also includes proprietary or confidential
information of any third party who may disclose such information
to Express Digital or Photographer in the course of Express
Digital's business. Photographer's obligations set forth in
this Section shall not apply with respect to any portion of
the Confidential Information that Photographer can document
by competent proof that such portion: (a) was in the public
domain at the time it was communicated to Photographer by
Express Digital; (b) entered the public domain through no
fault of Photographer, subsequent to the time it was communicated
to Photographer by Express Digital; (c) was in Photographer's
possession free of any obligation of confidence at the time
it was communicated to Photographer by Express Digital; (d)
was rightfully communicated to Photographer free of any obligation
of confidence subsequent to the time it was communicated to
Photographer by the Express Digital; (e) was developed by
employees or agents of Photographer independently of and without
reference to any information communicated to Photographer
by Express Digital; or (f) was communicated by Express Digital
to an unaffiliated third party free of any obligation of confidence.
In addition, Photographer may disclose Express Digital's Confidential
Information in response to a valid order by a court or other
governmental body, as otherwise required by law. All Confidential
Information furnished to Photographer by Express Digital is
the sole and exclusive property of Express Digital or its
suppliers or customers. Upon request by Express Digital, Photographer
agrees to promptly deliver to Express Digital the original
and any copies of the Confidential Information. This Section
shall survive for 3 years beyond any termination or expiration
of this Agreement.
8. Term and Termination.
8.1 Term. The
initial term of this Agreement is for one (1) year from the
Effective Date set forth above, unless earlier terminated
as provided in this Agreement. Thereafter, this Agreement
will automatically renew on its anniversary date, for one
(1) year terms, unless Express Digital provides fifteen (15)
days written notice prior to any such anniversary date that
the Agreement shall not renew.
8.2 Termination by
Express Digital. Except during the term of a Project Assignment,
Express Digital may terminate this Agreement with or without
cause, at any time upon fifteen (15) days prior written notice
to Photographer. Express Digital also may terminate this Agreement
immediately upon material breach of Section 7 (Confidential
Information) or Section 9 (Privacy and Decency).
9. Privacy and Decency. Photographer
shall not transmit through the Labtricity Network material
that is unlawful, harmful, threatening, abusive, harassing,
tortious, defamatory, vulgar, obscene, libelous, invasive
of another's privacy, hateful, racially or ethnically offensive,
or sexually explicit. Express Digital shall be the sole judge
of decency and may refuse to publish any photograph at its
sole discretion. Photographer agrees to indemnify Express
Digital 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 this Section. Photographer
will also abide by the provisions posted on the Express Digital
website in the User Agreement and Privacy Statement, as amended
from time to time.
10. Successors and Assigns. Photographer
may not subcontract or otherwise delegate its obligations
under this Agreement without Express Digital's prior written
consent. Subject to the foregoing, this Agreement will be
for the benefit of Express Digital's successors and assigns,
and will be binding on Photographer's assignees.
11. Notices. Any notice required
or permitted by this Agreement shall be in writing and shall
be delivered as follows with notice deemed given as indicated:
(i) by personal delivery when delivered personally; (ii) by
overnight courier upon written verification of receipt; (iii)
by telecopy or facsimile transmission upon acknowledgment
of receipt of electronic transmission; or (iv) by certified
or registered mail, return receipt requested, upon verification
of receipt. Notice shall be sent to the addresses set forth
below or such other address as either party may specify in
12. Governing Law. This Agreement
shall be governed in all respects by the laws of the United
States of America and by the laws of the State of Colorado,
without regard to its conflict of laws rules.
13. 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.
14. Waiver. The waiver by Express
Digital 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.
15. 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.