Terms of Service Agreement for Photographers
This Terms of Service Agreement (the "Agreement") is made by and between Miller's, Inc. and You, the Photographer relating to the services available at the Site (defined below). You are referred to herein as "You" or the "Photographer."
millersalbums.com, millersevents.com, and mpix.com ("Miller's, Inc.") are
websites owned, hosted and/or operated by
1. Provision of Services. Subject to the terms and conditions of this Agreement, Miller's agrees to publish the Photographer's images on the Site. Miller's will offer customers of Photographer online services such as print and reprint order processing and other services that may be offered by Miller's from time to time. Miller's shall be responsible for processing and shipping all orders directly to customers in accordance with the terms of the order and Miller's guidelines. Miller's shall notify the Photographer of any returns, refunds, or fee disputes by any customer.
2. Fees and Compensation. When ordering prints or other products, Miller's will require customers of Photographer to pay, in advance, by credit card or check, the applicable prices for the products shipping and handling as set forth on the applicable Site.
3. License and Ownership of Work Product. Miller's shall not gain any ownership interest in the Photographer's images, except that the Photographer grants Miller's a non-exclusive, royalty-free, worldwide, perpetual license, with the right to reproduce, distribute, transmit, and publicly display any materials and other information that Photographer submits to the Site (the "Submitted Materials") for the purposes of (i) display in the Photographer's albums or galleries on the Site and (ii) production of personalized photo finished products or reprints ordered by Photographer and Photographer's customers, members, or their guests. Miller's disclaims ownership of Submitted Materials. Millers' license to such images will terminate when Photographer removes the images from Photographer's album or gallery.
4. License Grant for Purposes of Image Download. Photographer hereby grants Miller's a non-exclusive license to sub-license Photographer's images to Photographer's customers in accordance with the terms of the Terms of Service for Purchaser's of Photographs, a copy of which Photographer acknowledges having reviewed and agreed to.
5. Access to and Use of the Site
a. Equipment and Connections. 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.
b. Availability of the 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 for any damages arising from any interruption, suspension or termination of the Site.
c. Use of Passwords. Access to and use of the Site is through a combination of a User Name and Password. No Photographer or other person is permitted to access the Site using the User Names and Passwords of any other Photographer, provided that Photographer may permit use of its User name and Password by its employees for purposes of using the Site on Photographer's behalf. 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.
d. Information Posted on the Site. Photographer is solely responsible for information which it uploads to or posts on the Site, including the Submitted Materials. Miller's does not regularly review any material uploaded to or posted on the Site by Photographers or third parties. Photographer agrees that Miller's has no obligation to monitor content on the Site, or links to other web sites contained on the Site, and expressly disclaims any responsibility to filter any such content. However, Miller's may take any action with respect to such content or information as it deems necessary or appropriate in its sole discretion if Miller's believes such information may give rise to liability to Miller's or other parties or interfere with or impair Miller's relationship with any customer or photographer.
e. Backup of Submitted Materials. Photographer is responsible for maintaining adequate back-up copies of the Submitted Materials at a location other than the Site to limit the potential impact to Photographer of damage to or failure of the Site or any part thereof.
6. Representations and Warranties. Photographer represents and warrants that: (a) Photographer has the right and unrestricted ability to grant the licenses to Miller's as set forth in Sections 3 and 4, and (b) the Submitted Materials will not infringe upon any copyright, right of publicity or privacy, or any other proprietary rights of any person, whether contractual, statutory or common law. Photographer agrees that neither Miller's nor any of its directors, officers, employees, partners, contractors, service provider, or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use, the Submitted Materials. Photographer further acknowledges that he or she is legally responsible for any challenges made by any third party regarding copyright, right of publicity or privacy, or any other proprietary right in the Submitted Materials.
7. Indemnification. Photographer agrees to indemnify, defend and hold Miller's and its officers, directors, owners, agents, information providers, contractors, service provider, and licensors (collectively, the "Miller's Parties") harmless from and against any and all claims, liability, losses, costs and expenses (including attorneys' fees) incurred by any Miller's Party in connection with: (i) any use or alleged use of the Site under Photographer's User Name and Password by any person, whether or not authorized by Photographer; (ii) any Submitted Materials uploaded under the Photographer's User Name and Password; (iii) any breach by Photographer of its obligations, representations and warranties contained herein; or (iv) any claim that the Submitted Materials violate the intellectual property rights of any third party. Miller's reserves the right, at Photographer's expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Photographer, and in such case, Photographer agrees to cooperate with Miller's defense of such claim.
8. Disclaimer of Warranties. THIS SITE AND ITS CONTENT ARE PROVIDED BY MILLER'S "AS IS" AND MILLER'S MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, ABOUT THE CONTENT OR SITE INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW. MILLER'S DOES NOT WARRANT THAT ACCESS TO THE SITE OR ITS CONTENTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THIS SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MILLER'S DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SITE OR ANY CONTENT ON THE SITE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. ACCORDINGLY, YOU ACKNOWLEDGE THAT YOUR USE OF THIS WEB SITE IS AT YOUR OWN RISK. YOU (AND NOT MILLER'S) ASSUME THE OBLIGATION TO BACK UP YOUR IMAGES AND DATA, AND THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION RESULTING FROM DATA LOSS, DATA CORRUPTION, COMPUTER MALFUNCTION, VIRUSES OR THE LIKE. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
9. Limitation of Liability. MILLER'S SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION TO 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 MILLER'S BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE AMOUNTS PAID TO PHOTOGRAPHER UNDER THIS AGREEMENT IN THE SIX MONTH PERIOD PRECEDING ANY CLAIM.
10. Independent Contractor Relationship. Photographer's relationship with Miller's 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 will not be entitled to any of the benefits, which Miller's 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 Miller's unless specifically requested or authorized in writing to do so by Miller's. 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 Miller's for the payment of any social security, federal, state or any other employee payroll taxes. To the extent required or permitted und applicable law, Miller's will regularly report amounts paid to Photographer by filing the Appropriate Form 1099 with the Internal Revenue Service.
11. Termination by Miller's. Miller's may terminate this Agreement with or without cause, at any time as it deems appropriate in its sole discretion. Without limiting the foregoing, Miller's reserves the right to discontinue any accounts that have been inactive for more than sixty (60) days. Miller's also may terminate this Agreement immediately upon material breach of Miller's Code of Acceptable Conduct.
12. Code of Acceptable Conduct. Photographer shall not use the service for any of the following activities: (i) displaying photos that contain nudity, obscene or pornographic material of any kind; (ii) posting, photos, captions, names, posts or descriptions that convey expressions of bigotry, prejudice, racism, hatred or profanity; (iii) defaming any person or group; (iv) linking to any site that promotes any of the above; (v) uploading material containing any virus or other content that may damage the service, the network, or any other user's equipment or software; (vi) violating any laws, rules, or regulations of any governmental or other administrative organization having authority over the service, or users. Miller's shall be the sole judge of online conduct and may refuse to publish any photograph at its sole discretion. Photographer agrees to indemnify Miller's 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 the Code of Acceptable Conduct. Photographer 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.
13. 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. You are solely responsible for all content you post on or submit to the Forums. You are aware and acknowledge that Miller's has no obligation to monitor the Forums and you are not relying upon Miller's.com. to monitor the Forums. Furthermore, Miller's.com. is not 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 for addition to the photographs or any other content exhibited on 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
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.