1. General Provisions
This is a legal agreement ("Contract”) between you ("you” or "Member”) and Say It In Toon ("Company”). This Contract governs your membership in the Say It In Toon community, your special access to the SayItInToon.com web site or any related web site ("Site”) and, subject to having the necessary credits or making the necessary payment, your right to upload and download photographs, illustrations, animations, clipart, footage clips, audio clips, fonts, and other material ("Data Files”) and purchase physical products incorporating the Data Files ("Products”) from the Site. "Products” refers to physical products incorporating the Data Files that are: (i) printed on paper and not affixed to any other substrate "Paper Prints”, and (ii) printed on substrates other than paper (e.g. acrylic, metal, ceramic, canvas, etc) or printed on paper and affixed to another substrate "Other Products”. For clarity, a frame is not a substrate.

2. Modification of Contract
Company reserves the right to change or modify all or any part of this Contract and any Schedules hereto at any time and shall advise Member of any such modifications in accordance with Section 17e. Member agrees to be bound by such modifications. If such modifications are not acceptable to you, you may terminate this Contract in accordance with Section 8.

3. Use of Content
The Site contains information, software, Data Files and other material (collectively the "Content”) which is protected by copyright, trademark or other proprietary rights of Company or other third parties (including other members).

4. Use of Data Files
You may only download Data Files in accordance with the terms of the End User License Agreement. You may not publish, display, distribute, transmit, transfer, sell, copy, modify, create derivative works from, or exploit any Content, except as expressly permitted in this Contract and the End User License Agreement. Content consisting of downloadable software may not be reverse engineered unless authorized by the owner of the software’s patent or copyright. You may post on the Site Data Files that you own, subject to the terms of the Upload Agreement, which is attached hereto as Schedule A and incorporated herein by reference.

5. Restrictions on Posting
You shall not post anything on the Site which is: (i) libelous, defamatory, abusive, threatening, incitement to racial hatred or rebellion, pornographic, or obscene; (ii) contains viruses, Trojan horses, time bombs, worms, malicious script or other contaminating or destructive features; (iii) violates third party rights, including any copyright, trademark, patent, trade secret or right of privacy or publicity; or (iv) violates any applicable law.

6. Management of Data Files
Company cannot review all Data Files uploaded by Members on the Site and is not responsible for the content of such Data Files. Company reserves the right to delete, move or edit any Data File that it thinks does or may violate this Contract or is otherwise unacceptable. You remain solely responsible for all Data Files uploaded under your member name. Company may, in its discretion, correct errors or omissions in any Data Files.

7. No Representation
Company does not represent the reliability of any Data File that you may download and any reliance by you upon such Data File is at your own risk.

8. Term and Termination
This Contract shall be effective until terminated in accordance with this Contract. Either party may terminate this Contract by providing the other with written notice of termination, and such termination shall be effective thirty (30) days after receipt of such notice. The rights and responsibilities of the parties under sections 9, 14, 16, 17, and, from Schedule A: Upload Agreement, sections 1b and 4, and all other provisions that may reasonably be construed as surviving the termination or expiration of this Agreement or which are necessary for the interpretation or enforcement of this Agreement, shall survive termination or expiration of the Agreement. The termination of this Contract will not affect existing rights or licenses granted by Company or sub-distributors to end users.

9. Indemnification
You agree to indemnify, defend and hold Company, any subsidiary and affiliate, and their respective officers, directors, owners, employees, agents, licensors, and successors (collectively, the "Company Parties”) harmless from and against any and all claims, demands, damage, liability, losses, costs and expenses (including legal fees) incurred by any Company Party resulting from: (i) any use or alleged use of the Site under your member name by any person, whether or not authorized by you; (ii) any Data File uploaded under your member name; (iii) any failure of Member to perform any obligation, covenant, or agreement hereunder; (iv) any inaccuracy or breach or alleged breach of your representations or warranties which are contained in this Contract, or (v) any claim by a third party which results in a bona fide settlement, claim, or adjustment which if proved true would constitute a breach of the representations and warranties set forth in this Contract. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case you agree to cooperate with Company’s defense of such claim.

10. Cancellation of Service
Company reserves the right to restrict, suspend or cancel your Membership at any time for any reason without prior notice or liability. Company may change or discontinue all or any aspect of the Site at any time, including the availability of any feature, database, or Content, without prior notice or liability. Cancelled accounts forfeit the rights to any accumulated earnings, credits, or subscriptions. No refunds will be made.

11. Expiry of Credits
Credits may expire after one year (365 continuous days) of account inactivity. Such inactivity is defined as not logging in to, or using, Member’s account on the Site. Company shall not be obligated to grant any refund or reimbursement for removed credits.

12. Access to Accumulated Account Balance
Account balances reaching at least $50.00 USD may be eligible for payment, as provided by Company. Company takes no responsibility for lost earnings as a result of banking fees, administrative fees, lost payments, or currency exchanges. Members are solely responsible for requesting payment, and are solely responsible for entering the correct payment instructions. Company is not obligated to pay accounts which may be closed or cancelled, no matter what the reason. Company reserves the right to withhold payment on any account, pending its own discretion.

13. DISCLAIMER OF WARRANTIES
a. THE COMPANY PARTIES, THE PROVIDERS OF DATA FILES, AND THEIR RESPECTIVE AGENTS:
i. DO NOT REPRESENT OR WARRANT THAT THE SITE WILL BE ERROR FREE OR THAT THE USE OF IT WILL BE UNINTERRUPTED;
ii. MAKE NO WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SITE OR THE DATA FILES OR PRODUCTS. THE SITE AND THE DATA FILES AND PRODUCTS ARE DISTRIBUTED ON AN "AS IS, WHERE IS, AS AVAILABLE” BASIS;
iii. MAKE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, REGARDING THE SITE OR ANY CONTENT THEREIN, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT WITH RESPECT TO THE SITE OR ANY DATA FILES DOWNLOADED THROUGH THE SITE OR ANY PRODUCTS PURCHASED; AND
iv. DO NOT REPRESENT OR WARRANT THAT ANY DATA FILES WILL BE AVAILABLE FOR LICENSE OR ANY PRODUCTS WILL BE AVAILABLE FOR PURCHASE, OR THAT THE SITE OR ANY CONTENT THEREIN, INCLUDING DATA FILES AVAILABLE FOR DOWNLOADING THROUGH THE SITE, WILL BE FREE OF VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SITE AND ANY DATA FILES DOWNLOADED BY YOU IS YOURS.

14. LIMITATION OF LIABILITY
a. MEMBER AGREES THAT THE COMPANY PARTIES SHALL NOT BE LIABLE (WHETHER IN TORT, NEGLIGENCE, CONTRACT, OR OTHERWISE) FOR ANY DAMAGES OF ANY KIND, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL; LOST PROFITS, LOSS OF PROSPECTIVE COMPENSATION, GOODWILL OR LOSS THEREOF, ARISING OUT OF THE USE OF, OR INABILITY TO USE, THE DATA FILE OR SITE, OR ARISING UNDER OR OUT OF THIS CONTRACT, INCLUDING WITHOUT LIMITATION THE RELIANCE UPON, THE USE OF, ACCESS TO, OR EXPLOITATION OF ANY PART OF THE SITE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR WHERE SUCH DAMAGES WERE FORESEEABLE. EXCEPT FOR INDEMNIFICATION CLAIMS ARISING UNDER SECTION 9 AND THE OBLIGATION TO PAY ANY AMOUNTS DUE AND OWING, THE SOLE AND TOTAL REMEDY OF EITHER PARTY TO THE OTHER IS LIMITED TO THE TERMINATION OF THIS CONTRACT. THE MEMBER FURTHER ACKNOWLEDGES THAT HE OR SHE IS LEGALLY RESPONSIBLE FOR ANY CHALLENGES MADE BY A THIRD PERSON REGARDING COPYRIGHT IN THE DATA FILE.

b. IF A JURISDICTION DOES NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF ANY PARTICULAR DAMAGES, THE LIABILITY OF THE COMPANY PARTIES SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

15. Assignment
Company may assign this Contract to a successor party or affiliate, which shall be bound by its terms and to the same extent as the original party.

16. Governing Law and Jurisdiction
This Contract will not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. This Contract shall be governed and construed according to the laws of the State of Maine and the federal laws of United States of America applicable therein, without reference to its laws relating to conflicts of law. Any dispute, controversy, or claim between the parties arising out of or related to this Agreement shall be settled before the Courts in the State of Maine, which shall be the only proper venue for any dispute, controversy, or claim arising hereunder, and each party hereby consents to the exclusive jurisdiction to such court to hear all disputes, controversies, and claims. The parties acknowledge that the choice of law and exclusive jurisdiction constitute part of the valuable consideration and inducement for Member entering into this Agreement. Any disputes by Member about commissions owed shall be brought within one (1) year from the date of customer order.

17. Miscellaneous
a. You specifically agree and acknowledge that you have, in addition to the terms of this Contract, reviewed the terms of the End User License Agreement, the Upload Agreement and any other contracts which may be incorporated by reference herein or posted on the Site. You further acknowledge that you agree to be bound by the terms of such agreements.

b. The parties confirm that it is their wish that this Contract as well as any other documents relating to this Contract, including notices, has been and shall be written in the English language.

c. If any provision of this Contract is or becomes illegal, invalid or unenforceable in any jurisdiction, the remainder shall continue in full force and effect.

d. The headings of this Contract and of individual paragraphs are for ease of reference only and shall not be taken into account for the purpose of its construction or interpretation.

e. All notices to Company under this Contract will be deemed given when delivered personally, sent by commercial overnight courier with proof of delivery, or sent by certified mail with return receipt requested, and shall be directed to the Legal Department. All notices to Member under this Contract will be deemed effective when delivered by mail or email delivered to the address or email address provided in Member’s account, when posted on the log-in page of Member’s account, or when posted on the Site. Member agrees to keep all contact information, including mailing address and email address, current in Member’s account. All notices shall be written in the English language.

f. This Contract shall be binding upon and inure to the benefit of Company and Member and their respective legal representatives, successors and permitted assigns.

g. No provision of this Contract may be waived on behalf of either party other than in writing under the authority or written delegated authority of either party and in no case shall such waiver be valid on a continuing basis.

h. Neither party shall be considered an agent or legal representative of the other party for any purpose, and both parties acknowledge that they have no authority whatsoever to bind the other party, except in execution of the rights granted in this Contract. No acts or assistance given by either party shall be construed to alter this relationship.

i. This Contract supersedes any previous Membership Contract (including any Schedules) entered into between the parties, including any termination and survival provisions therein. The representations and warranties in this Contract shall govern all Data Files provided by you, regardless of whether they were provided before or after the execution of this Contract.


Revision date: March 20, 2018



SCHEDULE A: Upload Agreement

This Upload Agreement pertains to any Member that uploads Data Files to the Site ("Supplier”). By uploading Data Files the Supplier understands that he or she agrees to be bound by the following terms.

1. Copyright
a. Company prohibits the upload to the Site of any Data File or any other material that infringes on any patent, trademark, copyright, trade secret, right of privacy, or any other applicable law or proprietary right.

b. By uploading his or her Data File, the Supplier warrants that he or she owns all proprietary rights, including copyright, in and to the Data File. To the extent that the Data File contains images of recognizable people or persons, the Supplier also represents and warrants that he or she has obtained a complete and accurate model release in substantially the same form as attached hereto as Schedule B. To the extent that the Data File contains images of identifiable property or property for which it is necessary for the owner to permit the uses allowed under the End User License Agreement, the Supplier also represents and warrants that he or she has obtained a complete and accurate property release in substantially the same form as attached hereto as Schedule C. Supplier is responsible for keeping all original releases and maintaining accurate release records, and shall submit such releases to Company upon request.

c. Supplier acknowledges that the intention of the End User License Agreement is that users are to comply with its terms and conditions; however, Company is not responsible for ensuring the compliance of the End User License Agreement by any user. The Supplier further acknowledges that the End User License Agreement may be updated or modified by Company from time to time in its discretion, and such updates are effective when posted on the Site.

d. Supplier further acknowledges that Company is not responsible for nor has any obligation to pursue legal action against any infringing or alleged infringing party of any of Supplier’s rights regarding the Data Files. Please visit http://www.copyright.gov for information regarding U.S. registration of your Data Files.

2. License
a. The Supplier hereby grants Company a worldwide, non-exclusive, royalty-free license to post the Data File on the Site, and further grants Company the right to license, grant sub-licenses, advertise, market, and distribute such Data Files and Products. The non-exclusive rights granted by Supplier include, but are not limited to, the right to reproduce and sell reproductions of (and modified versions thereof), publish, transmit, broadcast, publicly display, exhibit, perform, create derivative works, adapt, crop, recast or enhance, and modify any Data File or Products, alone or in combination with any other material, in any media or embodiment, now known or later developed, for any purpose. Company is specifically authorized to employ the services of sub-distributors throughout the world in its licensing and marketing efforts.

b. Company may use or grant the use of Supplier’s name, image, likeness, and Data Files for promotional materials, giveaways or internal purposes, including but not limited to print, digital, online materials, and products, without consent or payment to Supplier.

c. Company shall determine, in its sole discretion, the terms and conditions of the licensing, marketing, and distribution of the Data Files and Products, including, but not limited to, advertising, promotion, marketing expenditures, packaging, distribution channels, and the pricing of the Data Files and Products.

d. It is agreed that all rights, including title and copyright, in and to the uploaded Data Files is retained by the Supplier, and that no title or copyright transfers or is granted to Company or any third party. The Supplier acknowledges that no monetary or financial compensation is owed or required to be paid to the Supplier by the Company Parties for the rights granted herein by the Supplier. Notwithstanding the foregoing, Company currently acknowledges that its policy is to provide certain payments to the Supplier whenever a Data File uploaded by the Supplier is downloaded or any Products are purchased, as outlined in the Payout Schedule. Any payments to Supplier that result from the license or sublicense of a Data File or the purchase of a Product shall be calculated based on the net revenue actually received for such licenses, sublicenses, or purchases ("Net Receipts”). Net Receipts shall not include shipping and handling charges, promotions, taxes, interest, charges for other items or services sold with the Data Files or Products (e.g. frames, mats, editing, etc), and other fees or charges, or any returned or credited items, bad debts, chargebacks, or amounts returned for fraud. If a Product is produced using multiple Data Files, the commission earned for use of that Data File shall be calculated from the relative area of the image produced from that Data File to the total area of all images. The parties agree that Company may amend such payment policy as reasonable business objectives may from time to time require.

3. Removal of Data Files
Within thirty (30) business days after receiving written notice from Supplier to remove any Data Files, Company shall use reasonable efforts to remove such Data Files from the Site, and shall use reasonable efforts to cause such Data Files to be removed from the web sites of any sub-distributors. Any withdrawal or removal of Data Files will not affect existing rights or licenses granted by Company or sub-distributors to end users.

4. Warranties
a. The Supplier warrants that he or she is at least 18 (eighteen) years of age and has the right to grant the license contained in this Contract to Company and its members, and has obtained all rights to source materials which comprise the Data Files and has obtained all necessary permissions, consents, and releases (including, without limitation, property, material, and/or model releases) from all persons and entities in connection with the Data Files and that are necessary to permit Company to market and distribute the Data Files and Products under this Contract.

b. The Supplier further warrants that the copyright, title, caption, description, keyword, release, and all other information provided by Supplier to Company is complete and accurate, and that the use of the Data Files as authorized under this Agreement do not infringe upon or misappropriate on any copyright, trademark, property rights, personal rights, common law rights, rights of privacy or publicity or other rights of any third party; shall not defame or violate the rights of any third party; and are not libelous, obscene, pornographic, offensive, or otherwise unlawful.




SCHEDULE B

MODEL RELEASE

BETWEEN:

_______________________________(hereinafter called "the Photographer”)

AND:

________________________________(hereinafter called "the Model”)

CONSIDERATION
In consideration of something of sufficient value to the circumstances, e.g. money, prints etc., the receipt and sufficiency whereof is hereby acknowledged by the Model, both parties hereto agree as follows:

1. DESCRIPTION OF PHOTOGRAPHS
This Agreement applies to any and all photographs, footage, and recording of the Model and the Model’s property made by the Photographer, or in which the Model and the Model’s property have been included with others, intact or in part, modified, altered, or otherwise changed, on the session dates covered by this Agreement (noted below) and to all reproductions of such content (herein collectively called "the Content”).

2. USE OF THE CONTENT
The Model hereby grants to the Photographer and the Photographer’s agents and authorized representatives, licensees and sublicensees, successors and heirs, and assigns the perpetual and worldwide right to copy, copyright, reproduce, publish, license, sublicense, display, use, adapt, crop, modify, and recast the Content for any purpose whatsoever including without limitation: sale, reproduction in all media, publication, display, broadcast and exhibition for promotion, advertising, trade, art or illustration, alone or in combination with any other material. The Model agrees the Content may be used without further compensation or accounting for an unlimited time and that this Agreement is irrevocable.

3. OWNERSHIP AND RIGHTS IN THE CONTENT
The Model agrees that the Content, the copyright in the Content and all other rights in the Content or copies or reproductions thereof are the sole property of the Photographer and that the Photographer may protect the copyright or dispose of or authorize the use of any or all such rights in any manner whatsoever. Model hereby waives the right to inspect or approve the Content or the final product, and copy or material used in connection with the Photograph or the final product, and any use of the Photograph of the final product.

4. RELEASE OF PHOTOGRAPHER FROM LIABILITY
The Model will make no claim for any reason to the Photographer, and the Model releases the Photographer and all other persons entitled under this Agreement to use the Content from all liability for libel, invasion of privacy, claims, demands, and all causes of action whatsoever in relation to the Content, their making and use, the Model or the Model’s property, including without limitation any liability for alteration of the Content, whether intentional or otherwise, that may occur during the making or subsequent use of the Content. The Model further agrees to defend, indemnify, and hold harmless the Photographer from any claims, actions and demands resulting from or arising out of my authority to grant the rights under this release. The Model acknowledges and agrees that this release is binding upon the Model’s assigns and heirs. The Model acknowledges reading the entire Agreement prior to signing and the Model is familiar with the contents.

IN WITNESS WHEREOF, the Photographer and the Model or the Model’s parent or guardian have executed this Agreement, as dated below:


MODEL INFORMATION

Name (Print): ________________________________________________________________________

Address: _______________________________________________________________________________

City: ________________________________

State/Province: _________________________

Zip/Postal Code: _________________________

Country: _________________________________

Phone: _________________________________

Email: _________________________________

Date of Birth: __________________________

Signature (if over 18): _______________________

Date: __________________________________


PARENT/GUARDIAN INFORMATION *

Name (Print): ________________________________________________________________________

Address: _______________________________________________________________________________

City: ________________________________

State/Province: _________________________

Zip/Postal Code: _________________________

Country: _________________________________

Phone: _________________________________

Email: _________________________________

Relationship to Model: ___________________

Signature: ________________________________

Date: __________________________________

* A parent, guardian, or legal representative must complete this section if the model is a minor.


WITNESS INFORMATION **

Name (Print): _____________________________

Signature: ________________________________

Date: ____________________________________

** Witness must be over 18 years of age and of legal capacity; you may not be your own witness.


PHOTOGRAPHER INFORMATION

Name (Print): _____________________________

Signature: ________________________________

Date: ____________________________________

Session Dates: __________________________________________________________________________

Description of shoot: _____________________________________________________________________


SCHEDULE C

PROPERTY RELEASE

CONSIDERATION
For valuable consideration, receipt of which I acknowledge, I hereby grant to the undersigned Photographer my permission and the unrestricted and irrevocable right to enter onto the property listed below ("Property”) and to photograph, film, and/or record the Property.

1. GRANT OF RIGHTS
I hereby grant to the undersigned Photographer and to the Photographer’s assigns, agents and representatives, successors and heirs, and licensees and sublicensees ("Photographer”), the irrevocable, perpetual, and worldwide right to copy, copyright, reproduce, publish, license, sublicense, display, use, adapt, crop, modify, and recast images or footage of the Property or images or footage in which the Property may be included with others, intact or in part, modified, altered, or otherwise changed ("Content”), alone or in combination with any other material, in any media or form of distribution, now known or later developed, for any purpose.

2. OWNERSHIP AND RIGHTS IN THE CONTENT
I hereby waive the right to inspect or approve the Content or the final product, any copy or material used in connection with the Content or the final product, and any use of the Content or the final product. I acknowledge and agree that the Content, the copyright in the Content, and all other rights in the Content or copies or reproductions thereof are the sole property of the Photographer and that the Photographer may protect the copyright or dispose of or authorize the use of any or all such rights in any manner whatsoever. I further agree that I have no rights to the Content, nor do I have rights to any additional consideration or accounting.

3. RELEASE OF PHOTOGRAPHER FROM LIABILITY
I represent and warrant that I am the legal owner of the Property or that I have the full legal right and authority to grant the rights under this release. I acknowledge and agree that this release is binding upon my assigns and heirs. I will make no claim for any reason to the Photographer, and I agree to release and discharge Photographer and all other persons entitled under this Agreement to use the Content from all liability for libel, invasion of privacy, and all causes of action whatsoever in relation to the Content, its making and use, the Property, including without limitation any liability for alteration of the Content, whether intentional or otherwise, that may occur during the making or subsequent use of the Content. I further agree to defend, indemnify, and hold harmless Photographer from any claims, actions, and demands resulting from or arising out of my ownership of the Property or my authority to grant the rights under this release. I acknowledge reading the entire Agreement prior to signing and I am familiar with the contents.

By signing below, I hereby affirm that I am over the age of eighteen years and that I have read and understand the terms of this release.


PROPERTY OWNER / LEGAL REPRESENTATIVE INFORMATION

Name (Print): ________________________________________________________________________

Address: _______________________________________________________________________________

City: ________________________________

State/Province: _________________________

Zip/Postal Code: _________________________

Country: _________________________________

Phone: _________________________________

Email: _________________________________

Signature: ________________________________

Date: __________________________________


PROPERTY INFORMATION:

Property Name: ________________________________________________________________________

Property Address: _______________________________________________________________________

City: ________________________________

State/Province: _________________________

Zip/Postal Code: _________________________

Country: _________________________________


WITNESS INFORMATION *

Name (Print): _____________________________

Signature: ________________________________

Date: ____________________________________

* Witness must be over the age of 18 and of legal capacity.


PHOTOGRAPHER INFORMATION

Name (Print): _____________________________

Signature: ________________________________

Date: ____________________________________

Session Dates: __________________________________________________________________________

Description of shoot: _____________________________________________________________________