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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 writing.
    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.

 




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