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PHOTOSHELTER LIBRIS ACCOUNT SERVICE AGREEMENT

PLEASE READ THIS LIBRIS ACCOUNT SERVICE AGREEMENT (THE “AGREEMENT”) CAREFULLY BEFORE USING THE PHOTOSHELTER LIBRIS DIGITAL ASSET MANAGEMENT SERVICES, WHICH ARE OWNED AND OPERATED BY PHOTOSHELTER, INC. (“PHOTOSHELTER”). BY CLICKING THE “SUBMIT” BUTTON ON AN ONLINE ORDER FORM OR SIGNING AN ORDER FORM WHICH REFERENCES THIS AGREEMENT (EACH, AN “ORDER FORM”), OR BY USING THE SERVICES DESCRIBED HEREIN IN ANY MANNER, YOU AND THE ENTITY YOU REPRESENT (“CLIENT”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY AND A PARTY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS, AND YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND CLIENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. CAPITALIZED TERMS NOT DEFINED HEREIN SHALL HAVE THE MEANING SET FORTH ON THE ORDER FORM WHICH REFERENCES THIS AGREEMENT.

1. DEFINITIONS.

“Libris” means the Libris multi-user digital asset management software and tools provided by PhotoShelter for purposes such as posting, archiving, editing, managing, organizing, distributing, accessing and/or selling digital copies of Posted Content, and all software, interfaces, tools, utilities, templates, forms, and other technologies (and any related intellectual property) relating thereto, excluding Posted Content.

“Posted Content” means photographs or other content provided by Client through the Services.

“Site” means PhotoShelter.com.

“Services” means the Libris service and any other services provided by PhotoShelter on the Site or pursuant to any Order Form.

2. PHOTOSHELTER SERVICES; SITE OPERATION.

2.1. Services. PhotoShelter shall use commercially reasonable efforts to operate the Services for Client in accordance with the applicable Order Form. Subject to the terms and conditions of this Agreement, PhotoShelter grants Client a non-exclusive, non-transferable license to use and access the Services solely for (a) Client’s internal business purposes and (b) to display, sell and deliver Client’s images on the Services to Client’s Registered Users (defined below) in accordance with this Agreement.

2.2. Access and Account Setup. Initial registration will be performed manually by a designated PhotoShelter Client Services representative. As part of the implementation process, Client will identify an administrative user name and password that will be used to set up Client’s account for the Services, and Client will need to register one or more individuals as an Account Administrator. Accounts and passwords may be used only in accordance with the terms and conditions of this Agreement. To the extent legally permitted, (a) Client shall be responsible for the acts or omissions of any person who accesses the Services using passwords or access procedures provided to or created by Client and (b) Client hereby releases PhotoShelter from any and all liability concerning such transactions or activity. Client agrees to notify PhotoShelter immediately of any actual or suspected loss, theft or unauthorized use of its or its Registered Users’ (defined below) account or password.

2.3. Availability. PhotoShelter will use reasonable efforts to ensure that Libris is available 24 hours a day, 7 days a week. PhotoShelter reserves planned outages of the Services, especially those requiring downtime, for purposes such as large scale system upgrades and maintenance. PhotoShelter will notify Client as soon as reasonably practicable of any unplanned outages, and with a minimum of 72 hours before planned outages.

2.4. Site Service and Technical Support. Where needed, PhotoShelter will provide routine phone support to Account Administrators and Editors, but not to Registered Users, in respect of use of the Services during PhotoShelter’s business hours of Monday through Friday 9:00AM ET to 6:00PM ET, excluding public holidays in the United States. Client is solely responsible for providing support to its Registered Users.

2.5. Limitations. PhotoShelter will not be responsible or liable for any failure in the Services resulting from or attributable to (a) Client Posted Content; (b) failures in telecommunications, network or other service or equipment outside of the facilities used to host the Services; (c) Client's or any third party’s products, services, negligence, acts or omissions; (d) any cause beyond PhotoShelter’s reasonable control; or (e) scheduled maintenance in accordance with the terms herein (collectively, “Downtime Exclusions”).

2.6. Modifications. PhotoShelter reserves the right to modify or discontinue any Services (in whole or in part) at any time, provided that PhotoShelter will use commercially reasonable efforts to give thirty (30) days’ prior notice to Client (via email or through the Service) of material changes to the core Services, and further provided that in the event such modification or discontinuance materially reduces the functionality of the Services used by Client in accordance with this Agreement, Client may terminate this Agreement upon at least fifteen (15) days’ prior written notice to PhotoShelter.

2.7. Backups. Although PhotoShelter uses industry standard methods to store and preserve Posted Content, including performing backups of data in near real-time and by providing geographic server redundancy in multiple locations, including without limitation Client Posted Content, it is always a best practice to backup all important data. Therefore, PhotoShelter strongly encourages Client to perform regular backups of Client’s Posted Content, and Client acknowledges and agrees that PhotoShelter is not responsible or liable in any way for the failure to store, preserve or access Posted Content or other materials that Client transmits, stores, archives or otherwise makes available on or through the Services.

2.8. Content Removal. PhotoShelter has no obligation to screen or monitor any images, information or data for any purpose, including without limitation any Posted Content or any other content provided by users or third parties. However, if PhotoShelter becomes aware of or has reason to believe that Client or any of Client’s Posted Content is violating the terms and conditions contained herein or elsewhere on the Services, PhotoShelter, in its sole discretion, may remove and/or delete the applicable Posted Content, suspend and/or terminate Client’s and/or Client’s Registered Users’ access to the Services, and/or pursue any other remedy or relief available to PhotoShelter under equity or law.

2.9. Copyright. PhotoShelter handles copyright infringement claims in accordance with its Copyright Policy available at http://www.photoshelter.com/support/copyright.

2.10. International Access. PhotoShelter makes no claim that the Site, Services or any content thereon may be lawfully viewed or downloaded outside of the United States. If Client or Registered Users access the Site or the Services from outside the United States, they are responsible for compliance with the laws of the applicable jurisdiction. To the extent the Site, Services and content can be legally accessed, PhotoShelter uses a global Content Delivery Network (CDN) to ensure they can be accessed and viewed anywhere around the world in accordance with local expectations for internet speed. Furthermore, the Site and the Services are hosted on computer servers in the United States, and therefore, Client’s information may be processed and stored in the United States. Client’s use of the Sites or the Services or Client’s submission of any information, including without limitation any personally identifiable information, to PhotoShelter will constitute Client’s consent to the transfer of Client’s information to PhotoShelter’s servers and the use and disclosure of such information in compliance with United States laws, rules and regulations.

3. LICENSEES AND USER OBLIGATIONS.

3.1. License to Posted Content. Client owns, and as between Client and PhotoShelter, will continue to own, all Posted Content. Client hereby grants and agrees to grant PhotoShelter a non-exclusive, royalty-free, fully paid up, sublicensable, worldwide right and license to use, reproduce, modify, display, perform, distribute, and create derivative works of the Posted Content solely in connection with PhotoShelter's operation of the Services and according to the Client’s specified visibility and access permission controls, as indicated using the features and functionality made available on the Services. This license allows PhotoShelter to take actions such as creating thumbnails and other various sizes of the images that Client posts and lists on the Site or through the Services, presenting images in search results on the Services, allowing Registered Users to browse image collections, or modifying Posted Content so that PhotoShelter’s system can fulfill image download requests in multiple desired sizes to Client’s approved Registered Users. PhotoShelter claims no right to use Posted Content in any manner that goes beyond providing the Services, and PhotoShelter claims no commercial rights to Posted Content.

3.2. Registered Users. Client will use the Services to distribute Posted Content to only parties which Client approves (“Registered Users”). Client can choose to grant Registered Users access to Posted Content by: (1) providing each Registered User with a username and password to access the Posted Content; (2) password-protecting Client’s gallery on the Services that contains the Posted Content and sharing the password with Registered Users to whom Client wishes to grant access or (3) designating the Posted Content as publicly viewable or downloadable by anyone, using the applicable feature on the Services (in both cases any end user who downloads or accesses such Posted Content shall constitute a Registered User). Only Client-appointed Account Administrators and Editors may set up new Registered Users via the Services for access to Client Posted Content. Client will check and update the Registered User access permissions regularly to ensure such permissions remain accurate and complete. PhotoShelter shall have no responsibility or liability for (a) Client’s failure to maintain or update Registered User authorization or (b) any unauthorized use, sharing, or disclosure of any passwords provided to Registered Users.

4. Provisions for Selling Content via the PhotoShelter Multi-User Account

4.1. Selling Content. Client may elect to offer a portion or all of its Posted Content for licensing or sale as prints and products (Client’s "Offered Content"). In order to post Offered Content, Client will need to obtain a merchant account from one of the billing services supported by the Services (each a "Billing Service"). Current PhotoShelter-supported Billing Services include PayPal, Stripe, and Authorize.net, but the Billing Services supported by the Services may be changed from time to time at the sole discretion of PhotoShelter, upon prior notice to Client. With respect to each image contained in Client’ Offered Content, Client will need to select from a list provided by the Services (a) the category of rights being offered for sale, and (b) the price for each such category of rights.

4.2. Fees. In the event this sales capability is activated, Client agrees to pay PhotoShelter a fee of 8% of all completed purchasing transactions that are initiated through the Services (“Transaction Fee”), which is applied to Client’s monthly invoice. In the event that Client chooses to use one of PhotoShelter’s third party fulfillment partners, Client will also be charged for the wholesale cost of printing and shipping, according to the fee schedule available inside the Client account for the chosen third party fulfillment partner. PhotoShelter reserves the right to change the Transaction Fee at any time, upon prior notice to Client. Wholesale costs for printing and shipping may vary over time, and PhotoShelter will provide the Client with at least 30 days notice when third party prices change.

5. REPRESENTATIONS AND WARRANTIES.

5.1. General. Each party represents and warrants that (a) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (b) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (c) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.

5.2. By Client. Client represents and warrants that (a) Client owns all rights, title and interest in and to the Posted Content, or has otherwise secured all necessary rights in the Posted Content as may be necessary to permit the access, use and distribution thereof as contemplated by this Agreement or as otherwise authorized by Client through the Services, including without limitation to Registered Users and (b) the Posted Content does not (i) include any virus, worm, Trojan horse or other harmful, malicious or disabling code or device or that is designed to damage or allow unauthorized access to the Site or Services (“Malware”); (ii) violate, infringe, misappropriate or otherwise interfere with any patent, copyright, trademark, trade secret, right of privacy or publicity, or any other intellectual property, proprietary or any other right of any person or entity; (iii) contain any material which is unlawful, harmful, abusive, hateful, obscene, threatening, libelous or defamatory, false or inaccurate or otherwise objectionable; (iv) harm minors in any way, including, but not limited to, by violating child pornography laws, child sexual exploitation laws or any laws prohibiting the depiction of minors engaged in sexual conduct; or (v) violate any applicable federal, state, local or international law.

6. PROPRIETARY RIGHTS.

6.1. Client. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted, and Client (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to Posted Content.

6.2. PhotoShelter. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted, and PhotoShelter (and its licensors) shall retain all rights, title and interest (including all intellectual property and proprietary rights) in and to the Services, the Site and all information, data, materials and content related thereto (excluding Posted Content), and all modifications and derivative works thereof (again, excluding modifications and derivative works of Posted Content), as well as all PhotoShelter trademarks, names, and logos, and all rights to patent, copyright, trade secret and other proprietary or intellectual property rights.

6.3. Restrictions. Except as expressly permitted in this Agreement, Client shall not directly or indirectly (a) use any of PhotoShelter’s Confidential Information (defined below) or proprietary information to create any service, software, documentation or data that is similar to any aspect of the Services; (b) disassemble, decompile, reverse engineer or use any other means to attempt to discover any source code of the Services, or the underlying ideas, algorithms or trade secrets therein; (c) encumber, sublicense, transfer, rent, lease, time-share or use any portion of the Services in any service bureau arrangement or otherwise for the benefit of any third party; (d) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services; (e) use or allow the transmission, transfer, export, re-export or other transfer of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; or (f) permit any third party to engage in any of the foregoing proscribed acts.

6.4. Feedback. PhotoShelter appreciates all of our users’ interest in improving and expanding the Services. If Client chooses to send to PhotoShelter (through any channel) any content, information, ideas, suggestions or other materials relating to the Site, Services or PhotoShelter’s business (“Feedback”), Client hereby assigns such Feedback to PhotoShelter, and Client agrees that PhotoShelter is free to use any Feedback, for any purposes whatsoever, including, without limitation, developing and marketing products and services, without any liability or payment of any kind to Client.

7. PAYMENT; FEES. Unless otherwise specified in an Order Form, Client shall pay to PhotoShelter the fees as set forth on an Order Form upon its receipt of an invoice from PhotoShelter. PhotoShelter reserves the right to immediately suspend and/or terminate access to Client’s account for late payment or nonpayment beyond thirty (30) days of receipt of invoice. Upon PhotoShelter’s receipt of verified payment from Client, Client access to the account will be promptly restored. PhotoShelter reserves the right to change the fees charged for the Services at any time; provided that if such change applies to the services Client receives from PhotoShelter, PhotoShelter shall provide Client with reasonable prior notice of the change, and Client may terminate any outstanding Order Form applicable to the affected service within fifteen (15) days of receiving such notice from PhotoShelter. Such termination shall be effective upon the earlier of (a) thirty (30) days from the date Client provides notice of termination or (b) the first day upon which the new fee becomes effective.

8. TERM; TERMINATION.

8.1. Term. This Agreement shall commence on the effective date set forth on an applicable Order Form and, unless otherwise indicated on an applicable Order Form, shall continue until terminated by either party in accordance with the provisions set forth herein.

8.2. Termination. Either party may terminate this Agreement (a) for the other party’s material breach of this Agreement if such breach is not cured within fifteen (15) days of the non-breaching party providing notice to the breaching party or (b) upon thirty (30) days’ written notice to the other party.

8.3. Effect of Termination. Client will remain obligated to pay any fees for any Services or additional resources incurred prior to termination, and in the event of any outstanding unpaid balance, Client shall promptly remit such outstanding amounts to PhotoShelter upon termination. Upon termination, Client may request a copy of all Client Posted Content via CD-ROM or other storage media which is at such time supported by the Services for a fee of $250 per hour it takes to perform the download and migration of data, for a minimum of 2 hours, and PhotoShelter shall provide such copy if Client (a) has satisfied the entire outstanding balance relating to Client’s account; (b) paid the fees related to creating and distributing such copy of Client’ Posted Content; and (c) is not in violation of any of the terms and conditions contained herein. Upon any expiration or termination of this Agreement, all corresponding rights, obligations and licenses of the parties shall cease, except that (i) all obligations that accrued prior to the effective date of termination (including without limitation, all payment obligations) shall survive and (ii) the provisions of Sections 1 (Definitions), 5 (Proprietary Rights), 6 (Confidentiality), 10 (Indemnification), 11 (Disclaimer of Warranties and Limitation on Liability), 12 (Miscellaneous) and this Section 8.3 (Effects of Termination) shall survive.

9. THIRD PARTY SERVICES. The purchase of any services provided by third parties through the Services (“Third Party Services”), including without limitation any fulfillment services for orders of Posted Content, image tracking services, website templates, analytics packages, or ancillary photo editing or processing services, is at Client’s own risk. Client acknowledges and agrees that (a) any transaction with a Third Party Service provider (“Third Party Service Provider”) is solely between Client and the applicable Third Party Service Provider; (b) any content transmitted by Client to any Third Party Service Provider is at Client’s own risk; (c) PhotoShelter does not make any representation or warranty about any Third Party Services or Third Party Service Providers; and (d) PhotoShelter will not be responsible or liable for any aspect of any transaction between Client and any Third Party Service Provider. PhotoShelter will endeavor to provide notification when a service is a Third Party Service.

10. INDEMNIFICATION. To the extent permissible by law, Client agrees to indemnify and hold harmless PhotoShelter and each of PhotoShelter’s directors, officers, shareholders, employees or members from and against any and all allegations, third party claims, demands, suits, actions or other proceedings and any corresponding liabilities, costs, settlement amounts, expenses (including reasonable attorney’s fees) or other losses paid to third parties arising from or relating to (i) such party’s material breach of any of its representations or warranties set forth herein or (ii) Client’s or its Registered Users’ use of the Services and/or any material or content, including without limitation Posted Content or content provided by other users or third parties, it or they submit, download, post or transmit through the Services.

11. DISCLAIMER OF WARRANTIES AND LIMITATION ON LIABILITY.

11.1. WARRANTY DISCLAIMER. USE OF THE SERVICES IS AT CLIENT’S OWN RISK. THE SITE, THE SERVICES AND ALL PHOTOSHELTER CONTENT ARE PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY LAW, PHOTOSHELTER HEREBY DISCLAIMS ALL WARRANTIES, ORAL OR WRITTEN, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, RELATING TO THE SITE AND THE SERVICES (INCLUDING ALL CONTENT THEREON) AND CLIENT’S USE THEREOF, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, (A) PHOTOSHELTER DOES NOT REPRESENT OR WARRANT THAT THE SITE OR THE SERVICES WILL MEET CLIENT’S REQUIREMENTS, BE FREE OF MALWARE, BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY ERRORS CAN OR WILL BE FIXED; AND (B) PHOTOSHELTER IS NOT RESPONSIBLE FOR, AND MAKES NO WARRANTIES WITH RESPECT TO, ANY THIRD PARTY CONTENT (INCLUDING, WITHOUT LIMITATION, THAT OF ANY CONTENT PROVIDER) CONTAINED ON THE SITE OR THE SERVICES OR THAT MAY BE LINKED TO THE SITE OR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES. IN SUCH JURISDICTIONS, THE AFOREMENTIONED DISCLAIMERS MAY NOT APPLY TO CLIENT.

11.2. LIMITATION ON LIABILITY. EXCEPT FOR BREACHES OF CONFIDENTIALITY AND INDEMNIFICATION OBLIGATIONS HEREUNDER, TO THE FULLEST EXTENT ALLOWED BY LAW, NEITHER PARTY SHALL BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR: (A) ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES; (B) DAMAGES FOR LOSS OF USE, PROFITS, DATA, IMAGES, POSTED CONTENT OR OTHER INTANGIBLES; (C) DAMAGES FOR UNAUTHORIZED USE, NON-PERFORMANCE OF SITE, ERRORS OR OMISSIONS; (D) DAMAGES RELATED TO DOWNLOADING INFORMATION OR POSTING INFORMATION OR CONTENT; (E) COST OF PROCURING SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY; OR (F) DAMAGES THAT IN THE AGGREGATE EXCEED THE FEES PAID OVER THE IMMEDIATELY PREVIOUS SIX MONTH PERIOD. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING LIMITATIONS OF LIABILITY, SO THE FOREGOING MAY NOT APPLY.

12. MISCELLANEOUS.

12.1. Governing Law. Any disputes arising out of or relating to this Agreement or use of the Services shall be resolved in accordance with the laws of the State of New York, without regard to its conflict of law rules. PhotoShelter and the Client hereby consent to the state and federal courts of New York, New York for all disputes arising from or relating to this Agreement or access to or use of the Site and/or Services.

12.2. Entire Agreement. This Agreement constitutes the entire agreement between Client and PhotoShelter with respect to the subject matter hereof. This Agreement replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the subject matter hereof.

12.3. Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other party's written consent, not to be unreasonably withheld. However, without consent, either party may assign this Agreement to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.

12.4. Notice. Any notice that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when sent by confirmed e-mail to support@photoshelter.com or when delivered in person by nationally recognized overnight courier or mailed by first class, registered or certified mail, postage prepaid, to, 33 Union Square West; 2nd Floor; New York, NY 10003 (in the case of PhotoShelter) or to the email address or physical address, as applicable, set forth on an applicable Order Form (for Client).

12.5. Modification and Waiver. No change, consent or waiver under this Agreement will be binding on either party unless made in writing and physically signed by an authorized representative of such party. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy.

12.6. Interpretation. Headings used in this Agreement are for convenience only and have no legal or contractual significance.

12.7. Severability. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

12.8. Remedies. Except as specifically provided otherwise herein, each right and remedy in this Agreement is in addition to any other right or remedy, at law or in equity. Each party agrees that, in the event of any breach or threatened breach of Section 5 (Proprietary Rights) or 6 (Confidentiality), the non-breaching party will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, the non-breaching party shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of posting any bond.