PhotoShow Widgets License Agreement

READ THIS AGREEMENT CAREFULLY.

THIS AGREEMENT SUPPLEMENTS THE SIMPLE STAR TERMS OF SERVICE LOCATED AT HTTP://WWW.PHOTOSHOW.COM/LEGAL/TERMSOFSERVICE. BY CLICKING ON THE “I AGREE” BUTTON OR USING ANY WIDGET (AS DEFINED BELOW), YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS WELL AS THE SIMPLE STAR TERMS OF SERVICE. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IN THE EVENT OF ANY INCONSISTENCY BETWEEN THIS AGREEMENT AND THE SIMPLE STAR TERMS OF SERVICE, THIS AGREEMENT SHALL CONTROL.

IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND THE SIMPLE STAR TERMS OF SERVICE, CLICK “I DON’T AGREE”. YOU WILL NOT BE GIVEN ACCESS TO THE WIDGET UNLESS YOU ACCEPT THE TERMS OF THIS AGREEMENT AND THE SIMPLE STAR TERMS OF SERVICE.

SIMPLE STAR RESERVES THE RIGHT TO UPDATE AND CHANGE, FROM TIME TO TIME, THIS AGREEMENT. YOU CAN ALWAYS FIND THE MOST RECENT VERSION OF THIS AGREEMENT ON THE WIDGET DEVELOPER WEBSITE. SIMPLE STAR MAY CHANGE THIS AGREEMENT BY POSTING A NEW VERSION WITHOUT NOTICE TO YOU. USE OF THE WIDGETS AFTER SUCH CHANGE CONSTITUTES ACCEPTANCE OF SUCH CHANGES.

IF YOU WISH TO USE THE WIDGETS AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT. THE LICENSES GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

IF YOU HAVE ENTERED INTO A SEPARATE WRITTEN LICENSE AGREEMENT WITH SIMPLE STAR FOR USE OF THE WIDGETS, THE TERMS AND CONDITIONS OF SUCH OTHER AGREEMENT SHALL PREVAIL OVER ANY CONFLICTING TERMS OR CONDITIONS IN THIS AGREEMENT.

This Widget License Agreement (“Agreement”) is between Simple Star, Inc., located at 651 Brannan Street, Suite 300, San Francisco, CA 94107 (“Simple Star”) and the licensee (individual or entity) that has procured the Widgets (as defined below) for use on licensee’s website (“you”). This Agreement covers the Widgets and any supporting technical documentation provided with the Widgets (“Documentation”).

Overview

Simple Star owns and operates a family of websites through which it provides a photo storytelling platform.

Simple Star desires to make certain features and functionality of the Simple Star photo storytelling platform available to end users of your website by allowing you to incorporate widgets into your website that enable such features and functionality to appear on your website.

This Agreement sets forth the terms and conditions under which Simple Star will make such widgets available to you.

  1. Definitions

    “Brand Names or Logos” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.

    “Developer Key” means a unique key issued by Simple Star to you for use with a Widget.

    “Effective Date” means the earlier of the date you registered as a developer on the Widget Developer Website and clicked “I Agree” or the date on which the Widget is first made available to you.

    “PhotoShow Feature Set” means the particular features and functionality of the PhotoShow Service that Simple Star elects (in its sole discretion) to make available to Users via the Widget.

    “PhotoShow Service” means the various photo and creativity related applications, sharing features, forums, shopping services, search services, personalized content and other features and services provided by Simple Star through the Simple Star Websites.

    “PhotoShow Service Terms” means the Simple Star Terms and Conditions currently viewable at http://www.photoshow.com/legal/termsofservice.

    “Simple Star Websites” means the family of websites owned or operated by Simple Star, including simplestar.com, photoshow.com, photoshow.net, photoshow.snapfish.com, photoshow.comcast.net and related sub-domains.

    “Term” means the term of the Agreement as set forth in Section 13 (Term and Termination) below.

    “User” means an end user of Your Site.

    “Widgets” means the Simple Star software programs, including the PhotoShow Authoring Widget and PhotoShow Viewing Widget, that Simple Star makes available to you for the purpose of making the PhotoShow Feature Set available through Your Site.

    “Widget Developer Website” means the website with the URL http://developer.photoshow.com.

    “Your Site” means a website owned or operated by you.

  2. Widget License Grant. Subject to the terms and conditions of this Agreement, Simple Star grants to you during the Term a non-exclusive, non-transferable, non-sublicensable, worldwide, royalty-free right and license to use the Widgets solely for the purpose of making the PhotoShow Feature Set available to Users through Your Site.

  3. Developer Key. A Developer Key may be required when a Widget calls the PhotoShow Service in order for the PhotoShow Feature Set to appear on Your Site. Simple Star will provide the Developer Key (if applicable) to you promptly after the Effective Date. You shall not use the Developer Key except in connection with the Widgets to make calls to the PhotoShow Service from Your Site in accordance with the terms and conditions of this Agreement. If you become aware of any misuse of the Developer Key, you will notify Simple Star immediately.

  4. Restrictions. You may not decompile, reverse engineer, disassemble, or otherwise reduce the PhotoShow Service to a human-perceivable form, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. You may not modify, sell, rent, lend, lease, transfer, resell for profit, distribute or create derivative works based upon the PhotoShow Service.

  5. Ownership and Control of the PhotoShow Service. Simple Star and its suppliers retain all right, title and interest (including all copyright, trade secret, patent and other rights) in and to the PhotoShow Service. Simple Star reserves all rights in and to the PhotoShow Service that are not expressly granted in this Agreement. Simple Star shall have sole control over, and the right, at any time and at Simple Star’s sole discretion, to redesign, modify, or implement a substitute for any portion or component of the PhotoShow Service, including, without limitation, the appearance, size, design, layout, features, look-and-feel, content and other elements of the PhotoShow Service.

  6. Responsibility for Your Site. You shall be solely responsible for the development, operation, and maintenance of Your Site and for all materials that appear on Your Site.

  7. PhotoShow Service Terms and Conditions.

    (a) You understand and acknowledge that all Users accessing the PhotoShow Service from Your Site shall be subject to the PhotoShow Service Terms. Accordingly, you shall include a statement substantially similar to the following on Your Site in your own terms of service or in such other similar location where third-party notices normally appear:

    “Parties other than [your name] provide services or sell products through this site. For example, the PhotoShow service made available on this site is provided by Simple Star. By using or accessing the PhotoShow service you are agreeing to be bound to the PhotoShow terms of service which can be viewed here: http://www.photoshow.com/legal/termsofservice. Please review carefully the PhotoShow terms of service and use the PhotoShow service only if you agree to these terms.”

    (b) You also understand that a link to the PhotoShow Service Terms may appear on each frame displayed by the PhotoShow Service on Your Site.

    (c) You agree to assist Simple Star in the enforcement of the PhotoShow Service Terms and shall immediately notifying Simple Star of any known breach of the PhotoShow Service Terms.

  8. Non-Exclusive. The rights granted to you hereunder are non-exclusive, and nothing under this Agreement shall prohibit Simple Star from entering into any partner, end-user or other agreement with any other party in any territory or region of the world.

  9. Simple Star Brand Names and Logos. All brand, product and service names used in the PhotoShow Service which identify Simple Star or its suppliers and their proprietary products and services are the trademarks or service marks of Simple Star and/or its suppliers. Simple Star hereby grants to you a non-transferable, non-sublicenseable, non-exclusive license during the Term to display Simple Star's Brand Names or Logos for the purpose of promoting or advertising the availability of the PhotoShow Service on Your Site. All use of Simple Star’s Brand Names or Logos shall be subject to approval by Simple Star and to Simple Star’s then-current trademark usage policies. You hereby agree not to remove any Simple Star branding from the PhotoShow Service. Apart from this requirement, you are not required to credit Simple Star within Your Site. However, if you do make reference on Your Site to Simple Star or to any Simple Star brand, product or service names (including but not limited to “Simple Star”, “PhotoShow”, and “PhotoShowTV”), you must use the exact spelling and capitalization for these terms as specified by Simple Star. For example, you should refer to PhotoShow as “PhotoShow”, not “Photoshow” or “Photo Show”. All use by you of Simple Star's Brand Names or Logos (including any goodwill associated therewith) will inure to the benefit of Simple Star. At no time during or after the Term shall you challenge or assist others to challenge the Brand Names or Logos of Simple Star (except to the extent such restriction is prohibited by law) or the registration thereof by Simple Star, nor will you attempt to register any Brand Names or Logos (including domain names) that are confusingly similar in any way (including but not limited to, sound, appearance and spelling) to those of Simple Star.

  10. Your Brand Names and Logos. You hereby grant to Simple Star a non-transferable, non-exclusive license during the Term to use your Brand Names or Logos to advertise that you are making the PhotoShow Service available on Your Site.

  11. Communication. If you have any feedback, comments or technical support inquiries about the PhotoShow Service, you should visit the Widget Developer Website. For inquiries regarding this Agreement or your relationship with Simple Star, you should use the contact information for Simple Star on the Widget Developer Website. You submitted your contact information to Simple Star when you registered on the Widget Developer Website. If your contact information changes, you must update this information through the Widget Developer Website.

  12. Term and Termination. The term of this Agreement will commence on the Effective Date and will continue in force thereafter, unless terminated as provided in this Agreement. Either party may terminate this Agreement at any time upon 5 days written notice to the other party. Upon any expiration or termination of this Agreement, you shall immediately cease any and all use of the Widgets and shall cease providing access to the PhotoShow Service from Your Site. You shall also delete (or, at Simple Star’s request, return) any and all copies of any Developer Keys or other Simple Star passwords or access codes. Termination of this Agreement is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Expiration or termination of this Agreement shall not relieve either party of any obligation accruing prior to such expiration or termination. Simple Star shall have no liability arising from any expiration or termination of this Agreement in accordance with the terms of this Agreement. The follow Sections of this Agreement shall survive any expiration or termination of this Agreement: Sections 1 (Definitions), 4 (Restrictions), 5 (Ownership and Control of the PhotoShow Service), 6 (Responsibility for Your Site), 7 (PhotoShow Service Terms and Conditions), 8 (Non-Exclusive), 13 (Term and Termination), 13 (Indemnity), 15 (Independent Contractors), 16 (Warranty Disclaimer), 17 (Limitation of Liability), 18 (Notices), and 19 (General Terms).

  13. Indemnity. You shall defend, indemnify and hold harmless Simple Star and its affiliates, suppliers, partners, officers, agents, and employees from and against any claim, demand, losses, damages or expenses (including reasonable attorney's fees) arising from: (a) any breach of the terms of this Agreement, (b) your use of the Widgets and (c) any third party lawsuit or proceeding brought against Simple Star based upon a claim that Your Site, the content on Your Site or your Brand Names or Logos infringe any patent, copyright, trade secret or trademark of any third party. You shall not enter into any settlement or compromise of any such claim without Simple Star’s prior consent. Simple Star reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by you.

  14. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Simple Star may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of Simple Star’s assets or voting securities. You may not assign or transfer this Agreement, in whole or in part, without Simple Star’s prior written consent. Any attempt by you to transfer or assign this Agreement without such written consent will be null and void.

  15. Independent Contractors. The parties are independent contractors. Neither party will be deemed to be an employee, agent, partner or legal representative of the other for any purpose and neither will have any right, power or authority to create any obligation or responsibility on behalf of the other.

  16. Warranty Disclaimer.

    USE OF THE WIDGETS, THE PHOTOSHOW SERVICE, AND ANY OTHER MATERIALS OR SERVICES PROVIDED BY SIMPLE STAR IS AT YOUR OWN RISK. THE WIDGETS AND ALL SIMPLE STAR PRODUCTS AND SERVICES ARE PROVIDED ON A "AS IS" AND "AS AVAILABLE" BASIS. SIMPLE STAR AND ITS AFFILIATES, SUPPLIERS AND PARTNERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

    SIMPLE STAR AND ITS AFFILIATES, SUPPLIERS AND PARTNERS MAKE NO WARRANTY THAT (I) THE WIDGETS OR ANY SIMPLE STAR PRODUCT OR SERVICE WILL MEET YOUR REQUIREMENTS; (II) THE PHOTOSHOW SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (III) THAT THERE WILL BE NO ERRORS IN THE PHOTOSHOW SERVICE OR THAT SIMPLE STAR WILL FIX ANY ERRORS. ANY APPLICATIONS OR MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE PHOTOSHOW SERVICE ARE PROVIDED AT YOUR OWN DISCRETION AND RISK AND SIMPLE STAR SHALL NOT BE RESPONSIBLE FOR ANY DAMAGE CAUSED TO YOUR SITE, SYSTEMS, COMPUTERS OR DATA OR FOR ANY BUGS, VIRUSES, TROJAN HORSES OR OTHER DESTRUCTIVE CODE RESULTING FROM USE OF THE WIDGETS, PHOTOSHOW SERVICE OR ANY APPLICATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SIMPLE STAR MAKES NO WARRANTIES, EXPRESS OR IMPLIED, TO ANY USERS OTHER THAN AS SET FORTH IN THE PHOTOSHOW SERVICE TERMS.

  17. Limitation of Liability.

    TO THE FULLEST EXTENT PERMITTED UNDER LAW, SIMPLE STAR AND ITS AFFILIATES, SUPPLIERS AND PARTNERS HAVE NO OBLIGATION OR LIABILITY (WHETHER ARISING IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE) FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OR LIABILITIES (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF DATA, REVENUE OR PROFIT) ARISING FROM OR RELATED TO YOUR USE OF THE WIDGETS, THE PHOTOSHOW SERVICE, OR ANY SERVICE, APPLICATION OR CONTENT ACCESSED THEREBY, EVEN IF SIMPLE STAR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. THIS FOREGOING LIMITATION APPLIES TO DAMAGES ARISING FROM (I) YOUR USE OR INABILITY TO USE THE WIDGETS OR ACCESS THE PHOTOSHOW SERVICE; (II) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR SITE; (III) THIRD PARTY CONTENT MADE AVAILABLE TO USERS THROUGH THE PHOTOSHOW SERVICE OR (IV) ANY OTHER MATTER RELATING TO THE WIDGETS OR THE PHOTOSHOW SERVICE.

  18. Notices. Any notice or report hereunder shall be in writing to the notice address set forth above and shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered U.S. mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service.

  19. General Terms. This Agreement is governed by laws of the state of California, without respect to its conflict of laws principles. The sole jurisdiction and venue for any claim arising from the Widgets, the PhotoShow Service or this Agreement shall be the state and federal courts located in San Francisco, California and each party hereby consents to the exclusive jurisdiction and venue of such courts. This Agreement constitutes the entire agreement between you and Simple Star with respect to the subject matter hereof. If a court having proper authority decides that any portion of this Agreement is invalid, only the part that is invalid will not apply. The rest of this Agreement will still be in effect. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. YOU AGREE TO FILE ANY LAWSUIT AGAINST SIMPLE STAR WITHIN 1 YEAR AFTER THE EVENT THAT GAVE RISE TO SUCH LAWSUIT. OTHERWISE, YOUR LAWSUIT WILL BE PERMANENTLY BARRED.