IMAGEQUIX PHOTOGRAPHY INTERNET MARKETING & SALES AGREEMENT
Date Revised: April 6, 2013
This Photography Internet Marketing Agreement (“Agreement”) is made by and between ImageQuix, Inc. (“ImageQuix”), a South Carolina Corporation, and you (“Photographer” or “you”). BY REGISTERING FOR MEMBERSHIP ON, ACCESSING OR USING THE IMAGEQUIX WEBSITE OR SOFTWARE, OR ANY SERVICES PROVIDED BY IMAGEQUIX, YOU AGREE TO BE BOUND BY THIS AGREEMENT.
1. ENGAGEMENT OF SERVICES: Subject to the terms and conditions of this Agreement, ImageQuix agrees to publish those images submitted by Photographer to the ImageQuix website (“Work Product”) with the Photographer’s intention of generating online orders where payments are processed through the ImageQuix website. ImageQuix, along with its payment processing affiliate, Photo Checkout, Inc. (“Photo Checkout”), will offer Photographer’s customers certain online services, including, but not limited to, the ability to preview, compare, order, and customize print orders, at prices that are set by the Photographer using ImageQuix software. Photo Checkout shall receive all amounts due from the Photographer’s customers. Photographer acknowledges that online services may be amended by ImageQuix from time to time without notice.
Photographer shall have orders sent to the lab of their choice for print processing and fulfillment. Neither ImageQuix nor Photo Checkout shall, in any way, be liable for the quality and delivery of the ordered prints. Photographer agrees that in the event of any type of dispute with the chosen lab, it shall be Photographer’s sole responsibility to resolve said dispute and that ImageQuix shall not be responsible, in any way, for the lab’s actions or failure to properly fulfill any orders or otherwise provide satisfactory services or prints. Photographer will be responsible for all payments to any and all such labs and any claims by Photographer’s customers.
Photographer shall immediately notify ImageQuix of returns, refunds, or fee disputes. Photographer also agrees to promptly notify ImageQuix of shipments, price changes, and any other information relevant to any part of the Work Product. All notifications and submissions pertaining to this Agreement can be made by using the ImageQuix software or in accordance with the provisions of Paragraph 13 (Notices).
2. PHOTO POSTING COMPENSATION: ImageQuix offers several monthly payment plans for online photo posting (each, a “Membership Plan”). Your initial sign up with ImageQuix includes a 30 day free trial Membership Plan. After the initial 30 day free trial period, you may become a member by choosing to purchase an ImageQuix Membership Plan or your account will automatically be canceled. All Membership Plan purchases are final. No refunds, including full or partial refunds, will be made for any reason once a Membership Plan is purchased or auto-deducted from your ImageQuix order processing account. Pricing for discounted or special Membership Plan offerings may vary and are subject to change by ImageQuix without notice.
3. ORDER PROCESSING COMPENSATION: As compensation for the services offered hereunder, ImageQuix shall retain fees from the gross revenue collected per order. Certain of these fees shall be calculated on a gross revenue per order basis, including a merchant credit card processing rate of 3.0% and an order commission rate of 12%. Discounted commission rates are determined by annual online order volume and are documented as an addendum to this agreement on a per Photographer basis. A merchant transaction fee of $0.35 will also be applied to each online order. Account details may be viewed online through the Photographer’s account login or in the ImageQuix Publisher software preferences.
From the amount of such gross revenue, Photo Checkout, shall pay the Photographer the balance of each order (“Net Sales”), (i.e., gross revenue minus ImageQuix processing, merchant fees and transaction fees (“Service Fees”)), and such Service Fees will be transmitted to ImageQuix by Photo Checkout. Additional fees may apply, including without limitation, lab fees and download fees as explained below. When galleries are uploaded with the ImageQuix Full Service option, lab fees such as printing and shipping, may be deducted automatically from the order, based on the lab associated to that gallery. Orders with Digital Download items on them will incur a $1.00 per image service fee capped at a maximum fee of $10.00 per order.
The Net Sales shall be approved for payment when ImageQuix has been notified that the order has shipped, and will be paid to Photographer by weekly batch payment (either by direct deposit or check) made in accordance with the ImageQuix weekly batch payment schedule. A fee equal to $1.50 / deposit will be deducted by Photo Checkout for each weekly batch payment made by direct deposit, and a fee equal to $3.50 / check will be deducted by Photo Checkout for each weekly batch payment made by check. The minimum payout amount may be set by the Photographer inside their ImageQuix Publisher software and may be as low as $25.00 for direct deposit and as low as $100.00 for payment by check. Detail reporting of payment history may be viewed through the ImageQuix Publisher software.
Any merchant chargebacks requested by the Photographer or Photographer's customer are the sole responsibility of the Photographer and will be deducted from Photographer’s gross revenue. Upon chargeback request, Photo Checkout will automatically deduct the full chargeback amount plus a $25.00 chargeback fee from the Photographer's ImageQuix account. If these funds are not available, the Photographer will be invoiced for any balance due regarding the chargeback. Reimbursement for chargeback invoices is due to Photo Checkout within 15 days after the invoice date. A 5.0% late fee will be applied on a per month basis until payment is received by ImageQuix. ImageQuix does not process chargeback reversals.
Photographer shall be solely responsible for and shall timely pay all sales, use, excise, or similar taxes applicable to each order, and ImageQuix will not pay any such taxes on Photographer’s behalf. Photographer shall timely notify ImageQuix of each and every jurisdiction in which taxes are due. ImageQuix shall not, in any way, be liable for any discrepancies between taxes collected on orders and taxes owed by Photographer. Photographer shall indemnify and hold harmless ImageQuix and Photo Checkout from and against any and all such taxes, penalties, interest, surcharges, and related liabilities, judgments, costs and expenses, including reasonable attorneys’ fees, resulting from or in connection with Photographer’s failure to timely pay in full all such taxes as and when same become due. In the event that Photographer’s Customer requests a refund for any reason, the e-commerce transaction fee, and the payment processing fee will not be refunded to Photographer. For all refunds requested by the Photographer, ImageQuix will retain a $3.00 service charge plus the merchant fees associated with that order.
4. LICENSE AND OWNERSHIP OF WORK PRODUCT: Photographer is the sole and exclusive owner of all rights, title and interest, including copyrights, in each item of Work Product. Except as expressly provided in this Agreement, ImageQuix shall not gain any right to or ownership interest in Work Product. Photographer grants to ImageQuix a perpetual, non-exclusive, paid-up, royalty free license to reproduce, display, perform, distribute and prepare derivatives of each item of Work Product, including all copyrights, moral rights and other intellectual property rights associated with each such image.
5. REPRESENTATIONS AND WARRANTIES: Photographer represents and warrants to ImageQuix the following: a) That, as set forth in Paragraph 4, Photographer has the right and unrestricted ability to grant said license to ImageQuix; and b) That none of the Work Product will infringe upon any copyright, right of publicity or privacy, or any other proprietary right of any person, whether contractual or in accordance with statutory or common law. Photographer agrees to indemnify ImageQuix and Photo Checkout from any and all damages, costs, claims, expenses or other liabilities, including reasonable attorneys’ fees, arising from or relating to Photographer’s breach or alleged breach of the representations and warranties set forth herein.
6. LIMITATION OF LIABILITY: WITH THE EXCEPTION OF PHOTOGRAPHER’S LIABILITY PURSUANT TO SECTIONS 5, 8 AND 11 HEREOF, NEITHER IMAGEQUIX, PHOTO CHECKOUT, NOR PHOTOGRAPHER SHALL BE LIABLE TO EACH OTHER OR ANY THIRD PARTY FOR INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OF ANY KIND, ANY DAMAGE OR INJURY TO BUSINESS EARNINGS, SAVINGS OR GOODWILL SUFFERED BY ANY PERSON ARISING FROM THIS AGREEMENT, CLAIMS BY THIRD PARTIES, BUSINESS INTERRUPTION, OR OTHER PECUNIARY LOSS WHETHER ARISING FROM BREACH OF WARRANTY OR CONDITION, OR BASED ON CONTRACT, TORT, RELIANCE, FUNDAMENTAL BREACH, STATUTE, COMMON LAW OR OTHER THEORY, OR THE TERMINATION OF THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. WITH THE EXCEPTION OF PHOTOGRAPHER’S LIABILITY PURSUANT TO PARAGRAPHS 5, 8 AND 11 HEREOF, IN NO CASE SHALL ANY ENTITY BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE AMOUNTS PAID UNDER THIS AGREEMENT.
7. INDEPENDENT CONTRACTOR RELATIONSHIP: Photographer’s relationship with ImageQuix is that of an independent contractor, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Photographer shall be deemed the seller of any products or services available to Customer through the ImageQuix website as a result of Photographer’s submission of Work Product, including reprints. Photographer is not entitled to any benefits which ImageQuix 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 ImageQuix unless specifically requested or authorized in writing by an authorized ImageQuix officer. Photographer is solely responsible for timely filing all tax returns and making any required payments to any Federal, State or local tax authority for performance of services and receipt of fees under this Agreement. Photographer shall be solely liable for any failure to pay all applicable taxes. ImageQuix nor Photo Checkout shall not withhold any part of Photographer’s compensation for the payment of any Social Security, Federal, State or any other employee payroll taxes. Photographer is solely responsible for maintaining adequate records of expenses incurred while performing services under this Agreement.
8. CONFIDENTIAL INFORMATION: Photographer agrees to hold ImageQuix’s and Photo Checkout’s Confidential Information in strict confidence, and not to disclose such Confidential Information to any third parties. Confidential Information, as used in this Agreement, shall mean all information that ImageQuix or Photo Checkout may disclose to Photographer that derives economic value, actual or potential, from not being generally known in ImageQuix’s or Photo Checkout’s trade or industry, and is the subject of efforts that are reasonable under the circumstances to maintain their secrecy.
Confidential Information includes, but is not limited to, the following: a) Concepts and ideas relating to the development and distribution of content in any medium or to current, future and proposed products or services of ImageQuix, its subsidiaries or affiliates; b) Trade secrets, drawings, inventions, know-how, software programs, and software source documents; c) 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 and customers; d) Business discussions, negotiations or agreements between the parties; e) Any information regarding the skills and compensation of employees, contractors or other agents of ImageQuix, Photo Checkout, or their respective subsidiaries or affiliates. f) Proprietary or confidential information of any third party who may disclose such information to ImageQuix, Photo Checkout or Photographer in the course of ImageQuix’s or Photo Checkout’s business.
Photographer’s obligations, as set forth herein, shall not apply to any portion of the Confidential Information that Photographer can show, by competent proof, was: a) in the public domain at the time ImageQuix communicated it to Photographer; b) in the public domain, through no fault of Photographer, subsequent to the time the information is communicated to Photographer; c) in Photographer’s possession, free of any obligation of confidence at the time the information communicated to Photographer; d) rightfully communicated to Photographer, free of any obligation of confidence, subsequent to the time the information was communicated to Photographer; e) developed by Photographer’s employees or agents, independently of and without reference to, any information that ImageQuix communicated to Photographer; or if communicated by ImageQuix to an unaffiliated third party, free of any obligation of confidence. Photographer may disclose ImageQuix’s or Photo Checkout’s Confidential Information in response to a valid Court Order or as required by another governmental body or by law; provided Photographer shall provide prompt notice to ImageQuix of such Order to enable ImageQuix to seek a protective order or otherwise prevent or restrict such disclosure. All Confidential Information furnished to Photographer is the sole and exclusive property of ImageQuix or Photo Checkout, its suppliers or customers. Upon request by ImageQuix or Photo Checkout, Photographer shall promptly surrender originals and any copies of Confidential Information. Confidential Information shall survive for 3 years beyond the termination or expiration of this Agreement. In the event that any information described as Confidential Information is a Trade Secret as defined by the South Carolina Trade Secrets Act, such information shall be considered to be a Trade Secret and not Confidential Information hereunder, and Photographer shall be under the obligation to maintain confidentiality as described herein for so long as such information remains a trade secret.
Equitable Remedies; Photographer acknowledges that a breach or threatened breach by Photographer of any of its obligations under any part of this Paragraph 8 would give rise to irreparable harm to the other parties for which monetary damages would not be an adequate remedy and hereby agrees that in the event of a breach or a threatened breach by Photographer of any such obligations, each of the other parties hereto shall, in addition to any and all other rights and remedies that may be available to them in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond or other security).
Aggregated and Anonymous User Information Is Not Confidential Information. ImageQuix may obtain, store, manipulate, use and share aggregated information about our users and their transactions with third parties, and information that does not identify any individual, without restriction.
9. DATA STORAGE DURABILITY: ImageQuix makes a reasonable effort to provide a durable storage infrastructure so that objects are stored redundantly across multiple facilities within a region (objects are image files or any type of data). Although our storage is intended to be reliable, to ensure the safety and security of your images you should maintain the original (or a copy of similar quality and resolution) of each object you upload to ImageQuix on a separate system, network or on equipment you elect. You are responsible for maintaining each of your objects independently of ImageQuix. ImageQuix will not be responsible for the loss of any objects under any circumstances.
10. TERM AND TERMINATION: 1) Term: The initial term of this Agreement is for one (1) year from date of execution by ImageQuix and the Photographer unless terminated earlier as provided herein. Thereafter, this Agreement SHALL AUTOMATICALLY RENEW, ON ITS ANNIVERSARY DATE, FOR ADDITIONAL ONE (1) YEAR TERMS unless either ImageQuix or Photographer provide written notice to the other party, which notice is received by the other party at least fifteen (15) days prior to any such anniversary date, that the Agreement shall not renew. Said notice shall be made in accordance with the provisions of Paragraph 13. 2) Termination by ImageQuix: ImageQuix may terminate this Agreement, with or without cause, at any time upon fifteen (15) days’ written notice to Photographer. Said notice shall be made in accordance with the provisions of Paragraph 13 (Notices). Without limiting the first sentence of this clause 10.2, if termination is based upon an event of default or breach, the Agreement will terminate if such default or breach is not remedied within the 15 day notice period. ImageQuix may also terminate this Agreement immediately without providing prior notice and without providing any right to cure upon Photographer’s material breach of Paragraph 8 (Confidential Information) or Paragraph 11 (Privacy, Decency and DMCA).
11. PRIVACY, DECENCY AND DMCA: Photographer shall not upload, post, transmit, or submit to the ImageQuix web site any 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. ImageQuix shall have the right, but not the duty, to monitor and remove any Work Product or other content on the ImageQuix web site, and ImageQuix shall be the sole judge of decency and has the sole discretion to refuse to publish any Work Product. Photographer shall indemnify ImageQuix from any and all damages, costs, claims, expenses or other liability, including reasonable attorneys’ fees, arising from or relating to Photographer’s breach or alleged breach of this Paragraph. Photographer agrees to abide by the provisions of the User Agreement and Privacy Statement that is posted on the ImageQuix website. Photographer understands that said Statement may be amended from time to time without notice.
It is the policy of ImageQuix and Photo Checkout to promptly process and investigate notices of alleged copyright infringement, and take appropriate actions under the Digital Millennium Copyright Act, 17 USC § 512 ("DMCA"). The DMCA requires that all notices of alleged copyright infringement must be in writing. When informing the designated agent of an alleged copyright infringement, the complainant must:
(1) Identify the copyrighted work that allegedly has been infringed. If multiple copyrighted works at a single online site are involved, please provide a list of the works on that site. (2) Describe the material that is claimed to be infringing and provide sufficient information to permit ImageQuix to locate that material. (3) Provide your contact information, including an address, telephone number, and, if available, an e-mail address.(4) Certify or include a statement that the complainant has a good faith belief that the use of the copyright-protected material in the manner complained of is not authorized by the copyright owner, the owner's agent, or law. (5) Certify that the information that you have provided ImageQuix is accurate. The complainant should attest under penalty of perjury that s/he is authorized to enforce the copyrights that have allegedly have been infringed. (6) Include a physical or electronic signature of the copyright owner or person authorized to act on behalf of the owner.
Notice, Takedown, and Restore Procedure: ImageQuix expects all users of its system to comply with applicable copyright laws. However, if ImageQuix is notified of a claimed copyright infringement, or otherwise becomes aware of facts and circumstances from which infringement is apparent, it will respond appropriately, which may include removing or disabling access to the material that is claimed to be infringing. ImageQuix will follow the procedures outlined in the Digital Millennium Copyright Act with regard to appropriate notifications of the user and the complaining party, acceptance of counter notifications, and, where indicated, "putback" of the alleged infringing material. Refer to the United States Copyright Office for the provisions of the DMCA at http://www.loc.gov/copyright/legislation/dmca.pdf.
Repeat Infringers: Where it has been clearly established that a ImageQuix client is a repeat offender, ImageQuix may terminate that person’s account.
Notification Agent: Pursuant to the DMCA, ImageQuix has designated an agent to receive notification of alleged copyright infringement occurring on Web pages or computer servers. If you believe that your copyrighted work is being infringed on an ImageQuix site, please notify our designated agent, preferably by email, at:
ATTN: Website Notification Administrator, EMAIL: email@example.com, PHONE: 919-355-4001, FAX: 864-292-6998, MAIL: ImageQuix, Inc., 2123 Old Spartanburg Rd. #200, Greer, South Carolina 29650
12. RIGHTS OF SUCCESSORS AND ASSIGNS: Photographer may not subcontract or otherwise delegate its obligations under this Agreement without ImageQuix’s prior written consent. Subject to the foregoing, this Agreement will be for the benefit of ImageQuix’s successors and assigns, and will be binding on Photographer’s assignees.
13. NOTICES: Any notices or demands shall be in writing and shall be made by registered or certified mail, addressed to the respective parties, as follows:
If to ImageQuix: ImageQuix, Inc. 2123 Old Spartanburg Rd. #200 Greer, South Carolina 29650
If to Photographer: To the active address as stated on the Photographer's ImageQuix account.
Such notice or demand shall be deemed to have been made when deposited, postage prepaid, in the United States mail or by national or internationally recognized overnight delivery service. The above addresses may be changed at any time by giving thirty (30) days prior written notice as provided herein.
14. GOVERNING LAW: This Agreement shall be construed in accordance with the laws of the State of South Carolina without regard to the conflicts of law principles of any jurisdiction.
15. SUBMISSION TO JURISDICTION: Any legal suit, action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of State of South Carolina in each case located in the City of Greenville and County of Greenville, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by certified mail to such party's address as set forth in Paragraph 13 herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
16. SEVERABILITY: The provisions of this Agreement are intended to be severable, so that if any of them are held to be illegal or void by a Court of competent jurisdiction, the remainder of said provisions shall remain in full force and effect.
17. WAIVER: ImageQuix’s waiver of Photographer’s breach of any provision of this Agreement shall not operate or be construed as a waiver of any other or subsequent breach by Photographer.
18. REMEDIES CUMULATIVE: The rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
19. INTERPRETATION: For purposes of this Agreement, (a) the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to sections, schedules and exhibits mean the sections of, and schedules and exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated under that statute or successor legislation. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The schedules and exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
20. ENTIRE AGREEMENT: This Agreement and all exhibits referred to herein constitute the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings or agreements of the parties. This Agreement may not be contradicted by evidence of any prior or contemporaneous statements or agreements. No party has been induced to enter into this Agreement by, nor is any party relying on, any representation, understanding, agreement, or commitment outside those expressly set forth herein. Except as expressly provided in this Agreement, this Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto.
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