This Terms of Service Agreement (the "Agreement") is made by and between Professional Photo Storefronts, Inc., a Delaware corporation ("PPSI"), and you ("You" or the "Photographer").
Engagement of Services.
Subject to the terms and conditions of this Agreement, PPSI agrees to publish the Photographer's images on a customizable storefront hosted by PPSI (the "Online Storefront") that enables Photographer to present and sell images to the end-users who visit the Online Storefront ("End-User(s)"). PPSI will offer Photographer online services such as reprint order processing and other services that may be amended from time to time. Photographer shall set the prices for these services. PPSI will set prices for shipping and handling. Photographer shall be responsible for timely upload of full-size images ("FSIs") within twenty-one (21) days of receipt of the order. PPSI shall be responsible for timely processing and shipping all orders directly to End-Users in accordance with the terms of the order once Photographer has uploaded the FSIs. PPSI shall notify the Photographer of an order at the time the order is placed and within twenty-four (24) hours of shipment. PPSI shall notify the Photographer of any returns, refunds, or fee disputes by any End-User.
Membership Structure and Fees.
PPSI offers three types of memberships with varying membership fees and features. A complete comparison of features can be found at www.printroom.com/photo_storefronts/membership_features.asp The basic terms of these memberships are as follows:
FREE! There is no membership fee associated with the Classic Membership. Classic Members can upgrade or terminate their membership at any time.
Classic Members are given 300MB of online storage. When using PPSI's Pro Studio Manager software, Photographer can opt to upload thumbnails first for preview purposes and then upload the FSIs after orders are placed. This process is called "Synchronization". When using Synchronization, only the thumbnail preview images (~50 kilobytes) count against this online storage. So 300MB will store approximately 6,000 preview images.
PPSI will provide Classic Memberships with an HTML-based storefront that can be customized with Photographer logo and personal information.
Training and Support.
Classic Members have access to PPSI's live web-based training classes and email support.
Pro Membership Fee.
The Pro membership costs $99 per year ("Pro Annual Membership") or $9.99 per month ("Pro Monthly Membership"). All membership fees are billed in advance (e.g. the Pro Annual Membership is paid upon initial sign-up for the coming year and the Pro Monthly Membership fee is paid upon the initial sign-up for the following month).
Pro Annual Membership.
Pro Annual Memberships are billed yearly on the anniversary date of the Photographer initial sign-up date (the "Sign-up Date"). Photographer may downgrade or cancel a Pro Annual Membership within 30 calendar days of the Sign-up Date for a full refund. The Pro Annual Membership will automatically renew and PPSI will bill Photographer for the subsequent year membership on the anniversary date of the Sign-up Date (the "Next Payment Date"). Photographer will be given 30 calendar days prior notice of this renewal charge and must notify PPSI in writing or by telephone that Photographer desires to downgrade to a Classic Membership or to terminate his or her membership entirely. If payment is not received within 30 days after the Next Payment Date, PPSI will downgrade the Pro Membership to a Classic Membership.
Pro Monthly Memberships
Pro Monthly Memberships are billed at the beginning of your membership (your initial Sign-up Date) and on each monthly renewal thereafter unless and until you cancel your membership. PPSI will automatically bill your Pro Monthly Membership fee each month on the calendar day corresponding to the commencement of your membership. In the event your membership began on the 29th, 30th or 31st day of a month, the Next Payment Date for billing purposes will be the 1st day of the following month. For example, if you became a paying member on January 31st, your Next Payment Date would be March 1st. Photographer must cancel the Pro Monthly Membership one business day prior to the Next Payment Date to avoid being charged for the following month. Photographer must notify PPSI in writing or by telephone that Photographer desires to downgrade to Classic Membership or to terminate his or her membership entirely. If payment is not received within 30 days after the anniversary date, PPSI will downgrade Photographer membership to a Classic Membership.
Pro Memberships are given 1 GB of online storage. When using PPSI's Pro Studio Manager software, Photographer can opt to upload thumbnails first for preview purposes and then upload the FSIs after orders are placed. This process is called "Synchronization". When using Synchronization, only the thumbnail preview images (~50 kilobytes) count against this online storage. So 1GB will store approximately 20,000 preview images.
PPSI will provide Pro Memberships with an option for a Flash-based storefront and an HTML-based storefront that can be customized with Photographer's logo and other personal information.
Training and Support.
Pro Members will have access to PPSI's Account Manager staff, live web-based training classes, email support and telephone support.
Premium Membership Fee.
The Premium membership costs $199 per year ("Premium Annual Membership") or $19.99 per month ("Premium Monthly Membership"). All membership fees are billed in advance (e.g. the Premium Annual Membership is paid upon initial sign-up for the coming year and the Premium Monthly Membership fee is paid upon the initial sign-up for the following month).
Premium Annual Membership.
Premium Annual Memberships are billed yearly on the anniversary date of the Photographer initial sign-up date (the "Sign-up Date"). Photographer may downgrade or cancel a Premium Annual Membership within 30 calendar days of the Sign-up Date for a full refund. The Premium Annual Membership will automatically renew and PPSI will bill Photographer for the subsequent year membership on the Next Payment Date. Photographer will be given 30 calendar days prior notice of this renewal charge and must notify PPSI in writing or by telephone that Photographer desires to downgrade to a Classic or Pro Membership or to terminate his or her membership entirely. If payment is not received within 30 days after the Next Payment Date, PPSI will downgrade the Premium Membership to a Classic Membership.
Premium Monthly Membership.
Premium Monthly Memberships are billed at the beginning of your membership (your initial Sign-up Date) and on each monthly renewal thereafter unless and until you cancel your membership. PPSI will automatically bill your Premium Monthly Membership fee each month on the calendar day corresponding to the commencement of your membership. In the event your membership began on the 29th, 30th or 31st day of a month, the Next Payment Date for billing purposes will be the 1st day of the following month. For example, if you became a paying member on January 31st, your Next Payment Date would be March 1st. Photographer must cancel the Premium Monthly Membership one business day prior to the Next Payment Date to avoid being charged for the following month. Photographer must notify PPSI in writing or by telephone that Photographer desires to downgrade to a Classic or Pro Membership or to terminate his or her membership entirely. If payment is not received within 30 days after the anniversary date, PPSI will downgrade Photographer membership to a Classic Membership.
Premium Memberships are given unlimited online storage, provided that the use of this online storage is commercially reasonable and necessary for the operation of the Online Storefront.
PPSI will provide Premium Memberships with an option for a flash-based storefront and an HTML-based storefront that can be customized with Photographer's logo and other personal information.
Training and Support.
Premium Members will have access to PPSI's Account Manager staff, live web-based training classes, email support and telephone support. In addition, Premium Members will be given priority access to our support staff.
Pricing and Payment Terms.
When ordering prints or other products from an Online Storefront, End-Users will pay PPSI in advance, by credit card or check, for the following:: (i) Prices of prints or other products (greeting cards and/or gift items) as set and offered by Photographer; (ii) Standard PPSI shipping and handling fees as set forth on PPSI site at http://www.Printroom.com/photo_storefronts/pricing_profits.asp.
There three main components to the costs for using a PPSI Online Storefront:
As outlined in Section 2;
Commission and Credit Card Processing Fees
When receiving orders from End-Users, PPSI will charge Photographer a commission fee of thirteen percent (13%) of the gross selling price of an item not including shipping and handling fees, and taxes (the "Gross Selling Price"), and a credit card processing fee of three percent (3%) of the Gross Selling Price;
Photographer's Fulfillment Costs.
When receiving orders from End-Users, PPSI will charge Photographer the standard prices for prints, greeting cards, gift items, and/or any other products offered by Photographers for sales and fulfilled by PPSI as set forth on the PPSI site at http://www.Printroom.com/photo_storefronts/pricing_profits.asp;
Additional Storage Space.
Photographer may purchase additional online storage for $20.00 per 100 MB.?This is a one-time fee and the additional storage space remains available to Photographer so long as the account is active.
Photographer can also purchase Sub-Accounts for $49 per Sub-Account. Sub-Account access is the responsibility of Photographer and this Agreement applies to all users of the Sub-Account. Sub-Accounts come with 200MB of storage and are subject to the same fees and costs as the primary account.
For every order by an End-User, PPSI will retain the fulfillment costs of prints and/or other products (greeting cards, gift items), shipping and handling fees, minimum charge fees if any, as well as the thirteen percent (13%) commission fee (charged on the gross order payment not including shipping and handling fees, and taxes), and the three percent (3%) credit card processing fee (charged on the gross order payment). The balance of each order, minus any chargebacks that may be due to PPSI for prior orders and/or other dues by photographer to PPSI, will be forwarded to the Photographer in a monthly check no later than forty-five (45) days after the order has been shipped to the customer. The amount due to Photographer must be $100 or more for Photographer to receive payment from PPSI. If the amount due is less than $100, the accumulated amount will be retained until additional orders cause the amount sue to exceed $100, after which time that accumulated amount will be paid to Photographer on the next regularly scheduled payment date. Photographer may request a check for the accumulated amount less a $15 processing fee. PPSI's current practice is to mail payment by check of amounts due to Photographer on or about 15th of the calendar month for all the transactions occurred on the previous calendar month.
All applicable sales taxes shall be collected and paid by PPSI based on PPSI being the party making sale and the sale occurring in one of the following states: Alaska, Alabama, Arkansas, Arizona, California, Colorado, Connecticut, District of Columbia, Delaware, Florida, Georgia, Iowa, Indiana, Kansas, Kentucky, Louisiana, Massachusetts, Maryland, Maine, Michigan, Missouri, Mississippi, North Carolina, North Dakota, Nebraska, New Hampshire, New Jersey, New Mexico, Nevada, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wisconsin, West Virginia.
License and Ownership of Work Product.
PPSI shall not gain any ownership interest in the Photographer's images except that the Photographer grants PPSI a non-exclusive, royalty-free, worldwide license, with the right to reproduce, distribute, transmit, publicly display any materials and other information you submit to the service (the "Submitted Materials") only for the purposes of (i) display in the Photographer's albums or galleries on the PPSI site and (ii) production of personalized photo finished products or reprints ordered by End-Users. PPSI disclaims ownership of "Submitted Materials" and will not resell or otherwise convey these rights to any third party and PPSI's license to such images will terminate when Photographer removes the images from Photographer's album or gallery.
License Grant for Purposes of Image Download.
With respect to PPSI's Image Download service, Photographer hereby grants PPSI a non-exclusive license to sub-license Photographer's images to Photographer's customers in accordance with the terms of the PPSI's Personal Use License Agreement and Editorial Use License Agreement, a copies of which Photographer acknowledges having reviewed and agreed to.
Representations and Warranties.
Photographer represents and warrants that: (a) Photographer has the right and unrestricted ability to grant the license to PPSI as set forth in Sections 4 and 5, and (b) the Work Product 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 that neither PPSI nor any of its directors, officers, employees, partners or agents shall be liable for any damages, whether direct, indirect, consequential or incidental, arising out of the use of, or the inability to use, the Submitted Materials. Photographer further acknowledges that he or she is legally responsible for any challenges made by a third party regarding copyright in the Submitted materials.
Photographer agrees to indemnify, defend and hold PPSI and its officers, directors, owners, agents, information providers and licensors (collectively, the "PPSI Parties") harmless from and against any and all claims, liability, losses, costs and expenses (including attorneys' fees) incurred by any PPSI Party in connection with: (i) any use or alleged use of the PPSI web site under Photographer's member name by any person, whether or not authorized by Photographer; (ii) any Submitted Materials uploaded under the Photographer's member name; or (iii) any breach of Photographer's representations and warranties contained in Section 6 above. PPSI reserves the right, at Photographer's expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Photographer, and in such case, Photographer agrees to cooperate with PPSI's defense of such claim.
Limitation of Liability.
EXCEPT FOR ANY OBLIGATIONS ARISING UNDER SECTION 6, 7, 9 OR 11 HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION TO ANY DAMAGE OR INJURY TO BUSINESS EARNINGS, PROFITS OR GOODWILL SUFFERED BY ANY PERSON ARISING FROM THIS AGREEMENT, OR THE TERMINATION OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS. EXCEPT FOR ANY OBLIGATIONS ARISING UNDER SECTION 6, 7, 9 OR 11 HEREIN, IN NO CASE SHALL EITHER PARTY BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE AMOUNTS PAID TO THE OTHER UNDER THIS AGREEMENT.
Independent Contractor Relationship
Photographer's relationship with PPSI 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 will not be entitled to any of the benefits which PPSI 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 PPSI unless specifically requested or authorized in writing to do so by an officer of PPSI. 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 shall be 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 PPSI for the payment of any social security, federal, state or any other employee payroll taxes. PPSI will regularly report amounts paid to Photographer by filing Form 1099-MISC with the Internal Revenue Service as required by law.
Term and Termination.
The term of this Agreement shall coincide with the term of the Photographer membership. Classic Memberships, Pro Monthly Memberships and Premium Monthly Memberships are monthly memberships with automatic renewal unless terminated as provided in this Agreement. Pro Annual Memberships and Premium Annual Memberships are annual memberships from the Sing-up Date, unless earlier terminated as provided in this Agreement. Thereafter, upon payment of the applicable membership fee (Section 2) this Agreement will renew as provided in Section 2, unless PPSI terminates this Agreement at its convenience with three days written notice.
Termination by PPSI.
PPSI RESERVES THE RIGHT TO TERMINATE PHOTOGRAPHER'S ACCOUNT AT ANY TIME FOR ANY REASON OR FOR NO REASON. PPSI may also terminate this Agreement with or without cause, at any time upon three (3) days prior notice to Photographer. PPSI also may terminate this Agreement immediately upon material breach of Section 8 ("Online Conduct").
Termination by Photographer.
Photographer may cancel its PPSI membership at anytime, and cancellation will be effective immediately. PPSI DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL-MONTH MEMBERSHIP PERIODS EXCEPT AS SPECIFIED IN SECTION 2 OF THIS AGREEMENT.
Photographer shall not use the service for any of the following activities: (i) displaying in public albums or galleries photos that contain nudity, obscene or pornographic material of any kind; (ii) posting, photos, captions, names, posts or descriptions that convey blatant expressions of bigotry, prejudice, racism, hatred or profanity; (iii) defaming any person or group; (iv) linking to any site that promotes any of the above; (v) uploading material containing any virus or other content that may damage the service, the network, or any other user's equipment or software; (vi) violating any laws, rules, or regulations of any governmental or other administrative organization having authority over the service, or users.?PPSI shall be the sole judge of online conduct and may refuse to publish any photograph at its sole discretion. Photographer agrees to indemnify PPSI from any and all damages, costs, claims, expenses or other liability (including reasonable attorneys' fees) arising from or relating to the breach or alleged breach by Photographer of the provisions of this Section 11. Photographer will also abide by the provisions posted on the PPSI website in the Terms of Service and Privacy Statement, as amended from time to time.
Successors and Assigns.
Photographer may not subcontract or otherwise delegate its obligations under this Agreement without PPSI's prior written consent. Subject to the foregoing, this Agreement will be for the benefit of PPSI's successors and assigns, may be assigned by PPSI without consent from or notice to Photographer, and will be binding on Photographer's assignees.
PPSI can amend the terms of this agreement with 15 calendar days notice.
Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth below or such other address as either party may specify in writing. PPSI can also give notice to Photographer by electronic mail.
This Agreement shall all be governed and construed in accordance with the laws of the State of California applicable to agreements made and to be performed in California, and that any legal action or proceeding between PPSI and you for any purpose concerning this Agreement or the parties' obligations hereunder shall be brought exclusively in a federal or state court of competent jurisdiction sitting in California. PPSI's failure to enforce any provision of this Agreement shall not constitute a waiver of any provision or right.
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 shall not be affected or impaired thereby. As used herein, MB means one million bytes, GB means one billion bytes.
The waiver by PPSI of a breach of any provision of this Agreement by Photographer shall not operate or be construed as a waiver of any other or subsequent breach by Photographer.
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.
IF YOU HAVE ANY QUESTIONS REGARDING THIS AGREEMENT PLEASE CONTACT pr_sales@Printroom.com OR CALL 1-888-868-4157
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