Terms
of Service Agreement for Purchaser's of Photographs
This
Terms of Service Agreement for customers of the photographer’s (the
"Agreement") is applicable to purchasers of content from our sites,
and is by and among you ("Customer"),
1. Ownership of Site.
The Site is owned and operated by Miller’s. All images, audio, video and
related informational materials in any medium made available by Miller’s
hereunder, including related text, captions, or information (collectively referred
to as “Content”), is owned by Miller’s or our Photographers or licensors and is
protected by US and international copyright laws, trade dress, moral rights,
and other intellectual property rights. Except as explicitly permitted under
this Agreement, no portion or element of this Site or its Content may be copied
or retransmitted via any means and all related rights shall remain the
exclusive property of Miller’s and its Photographers and licensors.
2. Purpose of Site. Miller’s offers digital photography services
that provide professional photographers with the ability to allow their
customers to view, share, store and order prints of digital images.
3. Availability of Site. The Site is generally available 24 hours a
day, 7 days a week. However, Miller’s retains the right to make the Site
unavailable from time to time for any reason, including scheduled and
unscheduled maintenance, as well as equipment or software failures. You agree
that Miller’s shall not be liable to you for any modification, suspension or
discontinuance of the Site or services. You
are responsible for providing all equipment necessary to access the internet
and the Site. Access to the Site requires a Web browser that meets the
operational needs of the Site. Miller’s
does not guarantee that the Site will be compatible with Your equipment or
software, and You are responsible for assuring such compatibility.
4. Passwords.
Access to and use of the Site is generally through a combination of a User Name
and Password. No other person is permitted
to access the Site using the User Names and Passwords of any other Customer. You are responsible for all activity on the Site
that occurs under your User Name and Password, regardless of whether you have
authorized the same.
5. Rights Management. FOR THE PROTECTION OF MILLER’S AND ITS PHOTOGRAPHER’S
AND OTHER LICENSORS, CONTENT MAY BE VISIBLY, INVISIBLY, OR ELECTRONICALLY
WATERMARKED AND MAY INCLUDE THE USE OF DIGITAL RIGHTS MANAGEMENT SYSTEM
TECHNOLOGY WITHIN CONTENT. SUCH TECHNOLOGY MAY PERMIT ONLINE CRAWLING OR
TRACKING OF CONTENT OBTAINED FROM THE SITE AND/OR OTHER METHODS OF PROTECTING,
MONITORING, OR TRACKING THE UNAUTHORIZED USE OF THE CONTENT (“RIGHTS MANAGEMENT
SYSTEMS (RMS))”. If you do not consent to the use of RMS, do not use the Site
or any Content found therein. You shall not knowingly disable any such
technology or tool. You may not remove any copyright or other proprietary
notices contained in the Content, caption information, or any other material on
this Site.
6. Pricing and Provision of Services. Subject to the
terms and conditions of this Agreement, Miller's agrees to fulfill your online orders
such as print and reprint order processing and other services that may be
amended by Miller's in accordance with its practices and procedures from time
to time, at prices and subject to the other terms and conditions that are set forth
on the Site. All prices are stated in
U.S. dollars and are valid until altered by us. Prices do not include delivery
charges or any import duties that may be added by the order destination
country. Postage will be added to your order during the checkout process. Miller’s
makes every effort to provide current and accurate information about products,
services and prices but we do not guarantee the accuracy of such information,
and we specifically disclaim responsibility for product information provided to
you by the Photographers. Information about products is subject to change
without notice. Prices are subject to change prior to our acceptance of Your
order. In the event that you order products and the price published on the
Service was incorrect, Miller’s will contact you to let you know the correct
price and ask you whether you still wish Miller’s to fulfill your order at the
correct price. Any dates specified for delivery of any products are intended to
be an estimate only
7. Use of Content on Site.
You may have access to Content comprised of low-resolution digital images. Photographer grants to you a non-exclusive,
non-sublicensable right to download one copy of these images on your personal
computer for purposes of determining which images to order from the Site. You may not utilize the images in any manner
that is not expressly permitted in this agreement. Except as specifically
provided in this agreement, you may not share, copy, print, modify, alter,
remove any watermarks or copyright notices, or otherwise make derivative works
from all or any portion of the Content.
8. No Releases. Neither Photographer nor Miller’s grants You
any rights, and makes no warranties with regard to the use of names,
trademarks, logos, registered, unregistered or copyrighted designs or works of
art depicted in any Content. Unless otherwise agreed in writing, no model,
property, team logo, trademark or other releases are granted by Licensor in
connection with the delivery of Content hereunder
9. Cancellation of
Accounts. Miller's reserves the
right to cancel or discontinue accounts which have been inactive for more than
60 days at our discretion.
10. Forums. From time to
time the Site may include bulletin boards, chat rooms, or other forums
("Forums") and the information and opinions expressed in the Forums
are not those of Miller's or the Photographers. You are solely responsible for
all content you post on or submit to the Forums. You are aware and acknowledge
that Miller's.com. has no obligation to monitor the Forums and you are not
relying upon Miller's.com. to monitor the Forums. Furthermore, neither
Miller's.com, nor the Photographers, are responsible or liable to any person or
entity whatsoever (including, without limitation, persons who may use or rely
on such data or materials or to whom such data or materials may be furnished)
for any loss, damage (whether actual, consequential, punitive or otherwise),
injury, claim, liability or other cause of any kind or character whatsoever
based upon or resulting from any information or opinions provided in or through
the Site. The Forums shall be used only in a noncommercial manner. You shall
not, without our express approval, distribute or otherwise publish any material
containing any solicitation of funds, promotion, advertising, or solicitation
for goods or services. You specifically acknowledge that soliciting other
Miller's.com users to join or become
members of any commercial online service or other organization is expressly
prohibited. By posting content to any Forum or submitting any content to the Site,
you grant (or warrant that the owner of such rights has expressly granted) to
Miller's a perpetual, royalty-free, irrevocable, nonexclusive right and license
to use, reproduce, modify, adapt, publish, translate, create derivative works
from, and distribute such content or incorporate such content into any form,
medium, or technology now known or later developed throughout the universe.
11. Disclaimer of Warranty and Limitation of Liability. THE SITE AND SERVICES ARE PROVIDED "AS IS" WITH
NO WARRANTIES WHATSOEVER. ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES,
INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, ARE EXPRESSLY DISCLAIMED. TO
THE FULLEST EXTENT PERMITTED BY LAW, MILLER’S DISCLAIMS ANY WARRANTIES FOR THE
SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THIS SERVICE. WE DO NOT
WARRANT THAT THE FUNCTIONS PERFORMED BY THE SERVICE WILL BE UNINTERRUPTED OR
ERROR-FREE, OR THAT THE SITE OR THE SERVERS THAT SUPPORT IT WILL BE FREE FROM
VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT WARRANT THE ACCURACY OR
COMPLETENESS OF ANY CONTENT RELATED OR PRODUCTS ON THE SITE.
MILLER'S
AND THE PHOTOGRAPHER GRANT NO RIGHTS AND MAKE NO REPRESENTATIONS OR WARRANTIES
WITH RESPECT TO THE USE OF ANY NAMES, INDIVIDUALS, LIKENESSES, TRADEMARKS,
LOGOTYPES, COPYRIGHTED DESIGNS OR WORKS OF ART OR ARCHITECTURE DEPICTED IN ANY
IMAGE. IT IS YOUR RESPONSIBILITY TO ASSURE THAT ALL NECESSARY RIGHTS, CONSENTS,
OR PERMISSIONS AS MAY BE REQUIRED FOR YOUR USE OF ANY IMAGES ARE OBTAINED.
YOU UNDERSTAND AND AGREE THAT THE SUBMISSION OF ANY CONTENT
OR IMAGE TO SITE, AND THE DOWNLOAD OR UPLOAD OF ANY CONTENT OR MATERIAL THROUGH
THE SITE OR SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL
BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR CONTENT OR IMAGE OR ANY
DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT MAY RESULT IN THE DOWNLOAD
OR UPLOAD OF ANY SUCH MATERIAL. YOU ARE SOLELY RESPONSIBLE FOR CREATING
BACK-UPS OF YOUR DIGITAL CONTENT. IN THE EVENT OF ANY LOSS
EXCEPT AS EXPRESSLY PROVIDED IN THE PRECEDING PARAGRAPH, TO
THE FULLEST EXTENT ALLOWED BY LAW, WE SHALL NOT BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT
OF (I) THE USE OF OR INABILITY TO USE THE SITE OR THE SERVICE, (II) ANY
TRANSACTION CONDUCTED THROUGH OR FACILITATED BY THE SITE; (III) ANY CLAIM
ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN THE SITE OR THE
SERVICE, (IV) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR
DATA, OR (V) ANY OTHER MATTER RELATING TO THE SITE OR THE SERVICE OR PRODUCTS
OFFERED ON THE SITE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. THE FOREGOING DISCLAIMERS, WAIVERS AND LIMITATIONS SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES, SOME OF THE ABOVE LIMITATIONS MAY NOT
APPLY TO YOU. IN SUCH STATES, MILLER’S LIABILITY IS LIMITED AND WARRANTIES ARE
EXCLUDED TO THE GREATEST EXTENT PERMITTED BY LAW, BUT SHALL IN NO EVENT, EXCEED
THE GREATER OF THE VALUE OF THE ORDER OR $100.00.
12. Code of Acceptable Conduct.
You agree not to use the Site or
service:
a.
for any
unlawful purposes;
b.
to upload,
post, order for print, email or otherwise transmit or communicate any material
that is obscene, offensive, blasphemous, pornographic, unlawful, threatening,
menacing, abusive, harmful, an invasion of privacy or publicity rights,
defamatory, libelous, vulgar, illegal or otherwise objectionable;
c.
to upload,
post, order for print, email or otherwise transmit or communicate any material
that you do not have a right to transmit or communicate under any contractual
or fiduciary relationship or which infringes any copyright, trade mark, patent
or other intellectual property right or any moral right of any party;
d.
to harm minors
in any way, including, but not limited to, content that violates child
pornography laws, child sexual exploitation laws and laws prohibiting the
depiction of minors engaged in sexual conduct;
e.
to forge
headers or otherwise manipulate identifiers in order to disguise the origin of
any content transmitted through the Service;
f.
to attempt to
upload images by any method to another user’s account without permission
g.
to upload,
post, email or otherwise transmit any material which is likely to cause harm to
Miller’s or anyone else's computer systems, including but not limited to that
which contains any virus, code, worm, data or other files or programs designed
to damage or allow unauthorized access to the Service which may cause any
defect, error, malfunction or corruption to the Service;
h.
to make images
hosted by Miller’s available for viewing by the general public through a
publicly posted link to the image or otherwise;
i.
to transmit
any unsolicited or unauthorized advertising, promotional materials, junk mail,
spam, chain letters, pyramid schemes, or any other form of solicitation;
j.
to impersonate
any person or entity, or otherwise to misrepresent your affiliation with a
person or entity; or
k.
to collect,
intercept or harvest screen names, to collect, intercept or store personal data
about other users of the Service or to solicit or attempt to discover a user's
password, screen name or other registration information without the user's
express knowledge and consent.
13. Indemnification. You understand and agree that you are
personally responsible for your behavior in connection with the use of the Site
and our service. You agree to indemnify, defend and hold harmless Miller’s, the
Photographers, and our subsidiaries, affiliated companies, joint venturers,
business partners, licensors, employees, agents, and any third-party service
providers from and against all claims, losses, expenses, damages and costs
(including, but not limited to, direct, incidental, consequential, exemplary
and indirect damages), and reasonable attorneys' fees, resulting from or
arising out of (a) images or other content you post to or download or order
from the Site or submit through the Service, (b) use or misuse of the Service
by you or any other person who accesses the Service using your account, (c) any
violation of this Agreement, or (d) any violation of any rights of a third
party.
14. General Terms.
You will also abide by the provisions
posted on the Miller's website in the Terms of
Service and Privacy
Statement, as amended from time to time.
15. Successors and Assigns.
Photographer may not subcontract or
otherwise delegate its obligations under this Agreement without Miller's prior
written consent. Subject to the foregoing, this Agreement will be for the
benefit of Miller's successors and assigns, and will be binding on Photographer's
permitted assignees.
16. Governing Law. This Agreement shall all be governed and
construed in accordance with the laws of the State of Kansas applicable to
agreements made and to be performed in Kansas, and that any legal action or
proceeding between Miller's and you for any purpose concerning this Agreement
or the parties' obligations hereunder shall be brought exclusively in a federal
or state court of competent jurisdiction sitting in Kansas. Miller's failure to
enforce any provision of this Agreement shall not constitute a waiver of any
provision or right.
17. 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.
18. Waiver. The waiver by Miller's 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.
19. 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.