Photography Internet Marketing Agreement
This Photography Internet Marketing Agreement (the "Agreement") is
made by and between Express Digital Graphics, Inc. ("Express Digital"), a Colorado corporation,
and You, the "Photographer".
1. Photographic Image Upload and Publishing
Photographer may upload photographic images to the Express Digital
website known as Photoreflect. Express Digital will publish the
Photographer's images in a low-resolution thumbnail format on
Photoreflect. In this context, "publish" means displaying these
images on a web page accessible via the internet.
2. Online Ordering and Pricing
Express Digital will provide Photographer's clients ("Clients")
internet-based, on-line ordering services via Photoreflect for the
Photographic prints ("Prints") that may include one or more items
such as traditional photographic prints, gallery wraps, stand-outs,
greeting/holiday/special event cards and similar other items.
Hard good products ("Products") displaying a photograph that may
include one or more items such as mugs, shirts, key chains and
similar other items.
Digital, electronic image files.
Other goods and services that Express Digital may elect to make
available from time to time. Express Digital may discontinue
offering any of the above items at any time.
The prices at which Photographer sells items to a Client are set by
the Photographer and communicated to Express Digital. The prices at
which Express Digital sells items to Photographer are at the
amounts displayed in the Photoreflect software.
Clients will pay Express Digital in advance, by credit card, for
all orders at the prices set by Photographer. Express Digital will
communicate the receipt of an order to Photographer and/or begin
the Express Digital Fulfilled Orders process only after receipt of
payment from the Client.
When Express Digital processes an order and receives payment from a
Client, Express Digital will notify
Photographer of that event within 24 hours of its occurrence. This
notification will be by email.
3. Self-Fulfilled Orders
Some older versions of Photoreflect support Self Fulfilled Orders.
Some newer versions of Photoreflect do not support Self Fulfilled
Orders in which case the provisions of this section do not apply.
Express Digital is not obligated to provide the Photographer a
version of Photoreflect that supports Self Fulfilled Orders.
Self Fulfilled Orders are orders for Prints or Products for which
the Photographer has assumed the primary responsibility for
fulfilling the order by producing the product themselves in-house
or by having the product produced under an arrangement between the
Photographer and a third-party (such as a photofinishing lab) to
which Express Digital is not a party.
Photographer (and not Express Digital) is responsible for timely
processing and shipping of Self-Fulfilled Orders to Clients. In any
case, Photographer will complete Self-Fulfilled Orders within
twenty-one (21) days of Express Digital's initial receipt of the
order. Using the Express Digital website, Photographer will notify
Express Digital of the shipment of an order to a Client within 24
hours of the shipment.
Photographer will notify Express Digital in a timely manner of any
returns, refunds or disputes by a Client. Express Digital will then
conduct the appropriate business transaction with Client based on
those facts and circumstances.
Photographer will notify Express Digital of order shipments,
changes in prices, and any other information using the Express
Digital software or using the other notification procedures in this
4. Express Digital Fulfilled Orders
Express Digital Fulfilled Orders are orders for Prints or Products
for which Express Digital has assumed primary responsibility for
fulfilling the order and shipping the Prints or Products to the
location designated by the Photographer or the Client. These orders
are generally fulfilled under an arrangement between Express
Digital and a third party (such as a product fulfillment center) to
which the Photographer is not a party.
Express Digital is responsible for timely processing and shipping
of Express Digital Fulfilled Orders. Express Digital will complete
such orders within twenty-one (21) days of Express Digital's
initial receipt of the order.
5. Service and Support to Photographer
Express Digital will provide service and support to Photographer
related to Photographer's use of the Photoreflect software. The
manner in which Photographer can contact Express Digital for
service and support will be as published and presented in the
Photoreflect software. Service and support to Photographer is
available from 8:30 AM to 5:30 PM, Central Time, Monday thru
Friday, excluding major holidays.
6. Service and Support to Photographer's Clients
Photographer has the primary business relationship with Clients for
transactions conducted through the Photoreflect software. If a
Client has a question, concern or needs information about a
transaction with Photographer conducted through the Photoreflect
software, Photographer has the primary responsibility for providing
customer service and support to that Client. Express Digital is not
responsible for and does not provide service and support directly
to Clients in the form of a call center, help desk, online chat or
similar type activities. If a Photographer's Client contacts
Express Digital directly, Express Digital's responsibility extends
only to referring Client to Photographer for assistance after which
time it becomes Client's responsibility to contact Photographer or
vice-versa. Express Digital is not obligated to notify Photographer
of communications Express Digital has with Clients.
7. Refunds to Clients
Photographer is responsible for and may issue refunds to Clients
using tools provided in the Photoreflect software or by other means
deemed appropriate by Photographer. Express Digital does not
provide refund services.
The operating policies and procedures of Visa, MasterCard, Discover
and American Express ("Credit Card Issuers") provide that refunds
can be issued using their services for at least 90 days after a
transaction originated through them occurred. As a result of those
policies, a refund to a Client's credit card
account cannot be transacted through the Photoreflect software
after that 90 day period has expired. Refunds to Clients for
transactions beyond that 90 day period are the Photographer's
responsibility to transact through other means outside the
Photoreflect will support refund transactions for an order as a
whole. It does not support refunds for individual components of an
order. If the Photographer wants to refund selected components of
an order but not the order as a whole, the Photographer must
conduct that transaction through other means outside the
At the time of a refund, Photographer must have an account balance
owed to them not yet paid by Express Digital that is equal to or
greater than the amount of the refund being issued to a Client. If
such is not the case, Photographer must provide Express Digital a
credit card number that Express
Digital will charge in an amount necessary to create an account
balance for Photographer with Express
Digital that is adequate to support completing a refund
8. Credit Card Disputes and Chargebacks
Visa, MasterCard, Discover and American Express provide Clients a
process for disputing charges to a Client's credit card. At the
time of such disputes, the Credit Card Issuers typically grant a
conditional credit to the Client's credit card account and withdraw
funds from Express Digital, commonly referred to as a chargeback.
When a chargeback occurs, Express Digital will respond to the
Credit Card Issuers with information reasonably available to
Express Digital in an effort to substantiate the disputed charge
and to have the chargeback reversed. If Express Digital requires
additional information from Photographer
to perform this work, Photographer will use their best efforts to
provide Express Digital that information in a timely manner upon
Express Digital's request.
If Express Digital does not have adequate information to sustain a
reversal of the chargeback, or if Express Digital determines that
Photographer did not properly fulfill their obligation to a Client
that in turn caused the chargeback, Photographer will be liable to
Express Digital for the chargeback amount. Express Digital may
recover such amount from Photographer through reasonable means
including, but not limited to, a reduction of amounts to be paid
Photographer in the future or by charging a Photographer's credit
card number that Photographer has supplied to Express Digital.
9. Software Usage Fee
In consideration for providing the Photoreflect software for the
Photographer's use, Photographer will pay Express Digital a monthly
Software Usage Fee of in an amount as presented in the Photoreflect
software or at Photoreflect.com. Express Digital will first collect
this fee on the 30th calendar day following the first day on which
Photographer has access to use the Photoreflect software and
thereafter on the same day of each following month ("Due Date").
Once the fee is paid, it is non-refundable to Photographer.
This Software Usage Fee can be paid only by using a Visa,
MasterCard, Discover or American Express credit card. Express
Digital does not accept debit cards, checks or cash. Photographer
is solely responsible for maintaining a valid credit card on file
with Express Digital with which to pay this fee.
Payment of the Software Usage Fee entitles Photographer to use the
Photoreflect software until the next Due Date. Photographer may
elect to discontinue paying for and using the Photoreflect software
at any time by notifying Express Digital of such in the manner
provided by Express Digital in the Photoreflect software. Upon such
notification, or upon Photographer not having a valid credit card
on file with Express Digital with which to pay the Software Usage
Fee, Photographer will have access to and the ability to use the
Photoreflect software until the later of (1) the end of 14
additional calendar days or (2) the next Due Date. At the
expiration of such time, Photographer will have no access to the
Photoreflect software and specifically, will not be able to sell
any Prints, Products, digital files or other products or services
using the Photoreflect software.
The Software Usage Fee grants Photographer a license to access and
use the Photoreflect software for the period of time for which the
Software Usage Fee has been paid. The Software Usage Fee does not
grant Photographer ownership of the Photoreflect software or any
right to copy to Photographer's computer or otherwise possess a
copy of the Photoreflect application software or underlying source
code. Photographer has no right to resell access to the
10. Enhanced Features Fees
Express Digital may, from time-to-time, offer enhanced, optional
features and functions in the Photoreflect software that
Photographer may elect to use. Express Digital may charge
Photographer an Enhanced Features Fee to use those optional
features and function. An Enhanced Features Fee is subject to the
same payment terms and conditions as the Software Usage Fee.
11. E-Commerce Fee
In consideration for facilitating Photographer's sales using the
internet, Express Digital will earn and
Photographer will pay an E-Commerce Fee on each order. This fee is
computed based upon the
aggregate selling price of the Prints and Products. Taxes and
shipping and handling are not subject to the E-Commerce Fee. The
E-Commerce Fee rates are as follows:
||Rolling Twelve Months Aggregate Selling Price for All Orders (K = Thousands)
||Up to $20K USD / $20K CDN / €12.5K EUR / £10K GBP
||Over Level 1 and up to $60K USD / $60K CDN / €37.5K EUR / £30K GBP
||Over Level 2 and Up to $100K USD / $100K CDN / €62.5K EUR / £50K GBP
||Over $100K USD / $ 100K CDN / €62.5K EUR / £50K GBP
If aggregate orders over a rolling twelve month period move from
one level to the next, subsequent orders are subject to the lower
e-commerce fee of the next level. If aggregate orders over a
rolling twelve month period drop to a lower level, subsequent
orders are subject to the higher E-Commerce fee of that lower
level. There is no retroactive adjustment of past orders to a
subsequent fee level.
12. Credit Card Fee
In consideration for providing Photographer's Clients the ability
to pay by credit card, Express Digital will earn and Photographer
will pay a Credit Card Processing Fee of 3% on each order. This fee
is computed based on the total amount charged by a Client to a
13. Fulfillment Cost
Fulfillment cost is the amount Express Digital must pay to third
parties for Prints and Products necessary to fulfill a Client's
order to the extent such cost is not otherwise paid Photographer.
Express Digital will retain this amount and forward it to the third
14. Sales Tax
Express Digital will collect sales tax on orders in accordance with
applicable law. If Photographer is obligated under the law to remit
sales tax collected to the taxing authorities, Express Digital will
pay the collected taxes to Photographer. If Express Digital is
obligated under the law to remit sales tax to the taxing
authorities, Express Digital will retain and remit the sales tax
collected. In no event does Express Digital assume an obligation or
responsibility for remitting sales tax collected to taxing
authorities in those situations where the primary such obligation
resides with Photographer.
15. Fee Refunds
Express Digital earns all fees on the original order transaction as
compensation for its time and expense in processing that
transaction. If an order is refunded to a Client, no fees are
refunded to Photographer.
16. Payment to Photographer
Express Digital will pay Photographer for each order shipped to a
Client. For Self-Fulfilled Orders, Photographer must use the
Express Digital website to designate an order as shipped.
For shipped orders, Express Digital will pay Photographer the
amount of the order charged to the Client's credit card less the
E-Commerce Fee, the Credit Card Fee, the Convenience Fee, the
Fulfillment Cost (if applicable), the Paper Check Fee (if
applicable) and the sales tax retained by Express Digital for
remittance to taxing authorities (if applicable.)
Express Digital will pay Photographer every two weeks for orders
shipped to Clients.
The amount due Photographer by Express Digital must be $25 USD/$25
CDN/€25 EUR/£25 GBP or more for Photographer to receive a payment
from Express Digital. If the amount due is less than these amounts,
the accumulated amount will be retained until additional orders
cause the amount due to exceed these amounts, after which time that
accumulated amount will be paid to Photographer on the next
regularly scheduled payment date.
Photographer may elect to be paid by electronic funds transfer or
paper check. There is no charge for payment by electronic funds
transfer. For payments made by paper check on January 1, 2010, or
later, Express Digital charges a Paper Check Fee of $5 USD/$5
CDN/€5 EUR/£5 GBP for each paper check issued to offset the
additional expense of processing and mailing a paper check. Express
Digital will collect this fee by reduction of the amount paid
17. License and Ownership of Images
Express Digital will not gain any ownership interest in the
Photographer's images ("Images"). Photographer grants a license to
Express Digital to process the sale and delivery of images on
Photographer's behalf. Photographer represents and warrants that
(a) Photographer has the right and unrestricted ability to grant
the license to the Images to Express Digital, and (b) the Images
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 to
indemnify Express Digital from any and all damages, costs, claims,
expenses or other liability (including attorneys' fees) arising
from or relating to the breach or alleged breach by Photographer of
these representations and warranties. Should Express Digital
believe, in its sole discretion, that any Image violates a
copyright, right of publicity or privacy, or any other proprietary
right of any person, Express Digital may, without prior permission
or consent from Photographer, remove such Image from
Photographer has the primary business relationship with Clients for
transactions conducted through the Photoreflect software. Any sale
or delivery of Images using Photoreflect is done under business
practices and policies established by the Photographer. Express
Digital does not establish business
practices or policies for Photographers and does not monitor
whether or not the Photographer's business is conducted in
accordance with Photographer's business practices and policies.
18. Limitation of Liability
EXPRESS DIGITALWILLNOT BE LIABLE TO PHOTOGRAPHER FOR INDIRECT OR
CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGE OR
INJURY TO BUSINESS EARNINGS, PROFITS OR GOODWILL SUFFERED BY
PHOTOGRAPHER OR ANY PERSON ARISING FROM THIS AGREEMENT, OR THE
TERMINATION OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY
OF SUCH LOSS. IN NO CASE WILL EXPRESS DIGITAL BE LIABLE FOR ANY
AMOUNT IN EXCESS OF THE AMOUNTS IT EARNS UNDER THIS AGREEMENT.
19. Independent Contractor Relationship
Photographer's relationship with Express Digital is that of an
independent contractor. Nothing in this Agreement is intended to,
or should be construed to, create a partnership, agency, joint
venture or employment relationship. Photographer is deemed the
seller of all prints and any other products or services sold
through the Express Digital and/or Photoreflect websites.
Photographer will not be entitled to any of the benefits which
Express Digital 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 Express Digital
unless specifically requested or authorized in writing to do so by
an Express Digital officer. 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 is 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 Express Digital for
the payment of any social security, federal, state or any other
employee payroll taxes.
20. Confidential Information
Photographer agrees to hold Express Digital's Confidential
Information in strict confidence and not to disclose such
Confidential Information to any third parties. Confidential
Information as used in this Agreement will mean all information
disclosed by Express Digital to Photographer that is not generally
known in Express Digital's trade or industry and will include,
Concepts and ideas relating to the development and distribution of
content in any medium or to the current, future and proposed
products or services of Express Digital or its subsidiaries or
Trade secrets, drawings, inventions, know-how, software programs,
and software source documents;
Information regarding plans for research, development, new service
offerings or products, marketing and selling, business plans,
business forecasts, budgets and unpublished financial statements,
licenses and distribution arrangements, prices and costs, suppliers
Existence of any business discussions, negotiations or agreements
between the parties; and
Any information regarding the skills and compensation of employees,
contractors or other agents of Express Digital or its subsidiaries
Confidential Information also includes proprietary or confidential
information of any third party who may disclose such information to
Express Digital or Photographer in the course of Express Digital's
Photographer's obligations set forth in this Section will not apply
with respect to any portion of the
Confidential Information that Photographer can document by
competent proof that such portion:
Was in the public domain at the time it was communicated to
Photographer by Express
Entered the public domain through no fault of Photographer,
subsequent to the time it was communicated to Photographer by
Was in Photographer's possession free of any obligation of
confidence at the time it was communicated to Photographer by
Was rightfully communicated to Photographer free of any obligation
of confidence subsequent to the time it was communicated to
Photographer by the Express Digital;
Was developed by employees or agents of Photographer independently
of and without reference to any information communicated to
Photographer by Express Digital; or
Was communicated by Express Digital to an unaffiliated third party
free of any obligation of confidence.
Photographer may disclose Express Digital's Confidential
Information in response to a valid order by a court or other
governmental body, as otherwise required by law.
All Confidential Information furnished to Photographer by Express
Digital is the sole and exclusive property of Express Digital, its
suppliers or affiliates. Upon request by Express Digital,
Photographer agrees to promptly deliver to Express Digital the
original and any copies of such Confidential Information. This
Section will survive for 3 years beyond any termination or
expiration of this Agreement.
21. Term and Termination
Express Digital or Photographer may terminate this agreement, with
or without cause, at any time without prior notice.
22. Privacy and Decency
Photographer will not upload, post, or transmit to the Express
Digital or its website Images or other material that is unlawful,
harmful, threatening, abusive, harassing, tortuous, defamatory,
vulgar, obscene, libelous, invasive of another's privacy, hateful,
racially or ethnically offensive, or sexually explicit. Express
Digital is the sole judge of decency and may refuse to accept,
display or publish any Image or photograph at its sole discretion.
Photographer agrees to indemnify Express Digital from any and all
damages, costs, claims, expenses or other liability (including
attorneys' fees) arising from or relating to the breach or alleged
breach by Photographer of the provisions of this Section.
Photographer will also abide by the provisions posted on the
Express Digital website in the User Agreement and Privacy
Statement, as amended from time to time.
23. Suspicious Activity
Express Digital may suspend or discontinue a Photographer's access
to and/or use of PhotoReflect if
Express Digital suspects Photographer is conducting activity that
appears fraudulent, unlawful,
materially misleading to Clients or otherwise inconsistent with the
purpose for which PhotoReflect exists. In such case, Express
Digital may, but is not obligated to, notify Photographer of such
discontinued access. Express Digital may reduce balances otherwise
owed Photographer or charge a credit card provided by Photographer
to Express Digital for any amounts Express Digital must return to a
Client as a result of such suspicious activity.
24. Photographer Information
To effectively process transactions for and conduct business with
Photographer, Express Digital will obtain and use various
information pertaining to Photographer, including, but not limited
to, Photographer's name, e-mail address, mailing address and
banking information. Express Digital will store this information on
Express Digital will communicate with Photographer using email and
other electronic means. Such communications may include information
about Photographer including, but not limited to, the information
of the type described in the preceding paragraph.
The Photoreflect software uses "cookies" to operate efficiently and
effectively. "Cookies" are small pieces of information stored on a
computer's hard drive by a web browser. To facilitate its effective
Photographer's computer that may contain information about
Photographer or Clients that is communicated back to Express
Digital. Photographer grants Express Digital permission to store
and use such cookies on Photographer's computer. If Photographer
elects to configure their web browser to block the storing of
cookies, the functionality of the Photoreflect software may be
reduced or otherwise compromised.
25. Successors and Assigns
Photographer may not subcontract or otherwise delegate its
obligations under this Agreement without Express Digital's prior
written consent. Subject to the foregoing, this Agreement will be
for the benefit of Express Digital's successors and assigns and
will be binding on Photographer's assignees.
Any notice required or permitted by this Agreement must be in
writing and delivered either(i) in person; (ii) by overnight
courier upon written verification of receipt; (iii) by telecopy or
facsimile transmission upon acknowledgment of receipt of electronic
transmission; (iv) by certified or registered mail, return receipt
requested, upon verification of receipt; or (v) by email.
27. Governing Law
This Agreement is governed in all respects by the laws of the
United States of America and by the laws of the State of Colorado,
without regard to its conflict of laws rules.
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 will
not be affected or impaired thereby.
The waiver by Express Digital of a breach of any provision of this
Agreement by Photographer will not operate or be construed as a
waiver of any other or subsequent breach by Photographer.
30. 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.