Digibug

Terms & Conditions

Digibug Terms of Service Agreement

This Terms of Service Agreement (the "Agreement") is made by and between Online Photo Products, Inc. ("Digibug"), and You, the "Photographer".

Engagement of Services. Subject to the terms and conditions of this Agreement, Digibug agrees to publish the Photographer's images on the Digibug website. Digibug will offer customers online services such as reprint order processing and other services that may be amended from time to time at prices that are set by the Photographer. Digibug will set prices for shipping and handling. Digibug shall be responsible for timely processing and shipping all orders directly to customers in accordance with the terms of the order. Digibug shall notify the Photographer of an order at the time the order is placed and within twenty-four (24) hours of shipment. Digibug shall notify the Photographer of any returns, refunds, or fee disputes by any customer.

Fees and Compensation. When ordering prints or other products from a professional studio, customers will pay Digibug in advance, by credit card or check, for the following:

1.		Prices of prints or other products (greeting cards and/or gift items) as set and offered by Photographers.
2.		Standard Digibug shipping and handling fees.

License and Ownership of Work Product. Digibug shall not gain any ownership interest in the Photographer's images except that the Photographer grants Digibug a non-exclusive, royalty-free, worldwide, perpetual license, with the right to reproduce, distribute, transmit, publicly display any materials and other information you submit to the service (the "Submitted Materials") only for the purposes of (i) display in the Photographer's albums or galleries on the Digibug site and (ii) production of personalized photo finished products or reprints ordered by members or their guests. Digibug disclaims ownership of "Submitted Materials" and will not resell or otherwise convey these rights to any third party and Digibug's license to such images will terminate when Photographer removes the images from Photographer's album or gallery

Representations and Warranties. Photographer represents and warrants that: (a) Photographer has the right and unrestricted ability to grant the license to Digibug as set forth in Sections 3 and 4, 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 that neither Digibug nor any of its directors, officers, employees, partners 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 a third party regarding copyright in the Submitted materials.

Indemnification. Photographer agrees to indemnify, defend and hold Digibug and its officers, directors, owners, agents, information providers and licensors (collectively, the "Digibug Parties") harmless from and against any and all claims, liability, losses, costs and expenses (including attorneys' fees) incurred by any Digibug Party in connection with:

1.		any use or alleged use of the Digibug web site under Photographer's member name by any person, whether or not authorized by Photographer;
2.		any Submitted Materials uploaded under the Photographer's member name; or
3.		any breach of Photographer's representations and warranties contained in Section 5 above.

Digibug 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 Digibug's defense of such claim.

Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR 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 EITHER PARTY BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE AMOUNTS PAID UNDER THIS AGREEMENT.

Independent Contractor Relationship. Photographer's relationship with Digibug 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 Digibug 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 Digibug unless specifically requested or authorized in writing to do so by a Digibug officers. 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 Digibug for the payment of any social security, federal, state or any other employee payroll taxes. Digibug will regularly report amounts paid to Photographer by filing Form 1099-MISC with the Internal Revenue Service as required by law.

Term and Termination

1.		Term. This agreement is an at will agreement that begins upon sign-up and continues indefinitely unless terminated herein.
2.		Termination by Photographer: Photographer may terminate this agreement at any time.
3.		Termination by Digibug. Digibug may terminate this Agreement with or without cause, at any time upon fifteen (15) days prior written notice to Photographer. Digibug also may terminate this Agreement immediately upon material breach of Section 9 ("Online Conduct").

Online Conduct. Photographer shall not use the service for any of the following activities: (i) displaying in public albums or galleries photos that contain nudity, obscene or pornographic material of any kind; (ii) posting, photos, captions, names, posts or descriptions that convey blatant 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) violates any laws, rules, or regulations of any governmental or other administrative organization having authority over the service, or users. Digibug shall be the sole judge of online conduct and may refuse to publish any photograph at its sole discretion. Photographer agrees to indemnify Digibug 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 8. Photographer will also abide by the provisions posted on the Digibug website in the Terms of Service and Privacy Statement, as amended from time to time.

10.

Copyrights. You are responsible for all of the images you upload, share or copy using the Digibug service. You must have the legal right to display each image that you upload or share, and to copy each image that you or your customers order prints of. If you believe that there is evidence of a copyright violation on the site or in a user's album(s) online, please send an email to customervice@digibug.com. In addition, the actions further described below, will constitute grounds for blocking your access to our service, removal of posted material and non-fulfillment of your order (or any part of your order). As condition of your use of this service, you shall not:

		Upload, post, order for print, email or otherwise transmit any content that is unlawful, harmful, threatening, harassing, defamatory, obscene, vulgar, invasive of another's privacy, hateful, or otherwise objectionable;
		Upload, post, order for print, email or otherwise transmit any content that you do not have a right to transmit under any law or under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements) or any content that infringes any trademark, trade secret, copyright or other proprietary rights of any party;
		Harm minors in any way, including, but not limited to, content that violates federal and state child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct;
		Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through this site;
		Upload, post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software;
		Interfere with or disrupt (or attempt to interfere with or disrupt) this site or servers or networks connected to this site, or disobey any requirements, procedures, policies or regulations of networks connected to this site;
		Use this service for the purpose of making pictures available for viewing to the general public;
		Provide any information to Picturebug that is false or misleading, that attempts to hide your identity or that you do not have the right to disclose.

Digibug reserves the right to refuse to fulfill any order, or any part of any order, if it believes that these Terms & Conditions have been violated. In addition, Digibug reserves the right to disclose any account or order information when it believes in good faith that the law or legal process requires it, or when it is necessary to do so to protect the rights or property of Digibug or others.

11.

Successors and Assigns. Photographer may not subcontract or otherwise delegate its obligations under this Agreement without Digibug's prior written consent. Subject to the foregoing, this Agreement will be for the benefit of Digibug's successors and assigns, and will be binding on Photographer's assignees.

12.

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.

13.

Governing Law. This Agreement shall all be governed and construed in accordance with the laws of the Commonwealth of Massachusetts applicable to agreements made and to be performed in Massachusetts, and that any legal action or proceeding between Digibug 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 Massachusetts. Digibug's failure to enforce any provision of this Agreement shall not constitute a waiver of any provision or right.

14.

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.

15.

Waiver. The waiver by Digibug 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.

16.

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 Digibug and may be change at any time without notice to Photographer.

IF YOU HAVE ANY QUESTIONS REGARDING THIS AGREEMENT PLEASE CONTACT sales@digibug.com OR CALL 631-873-2150.

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