This Web to Print Fulfillment Services Agreement (the “Agreement”) is made by and between ZenPrint, LLC (“ZENPRINT”), a Utah limited liability company, and You, the “Company”.
Photographic Image Upload and Publishing
Company and Company’s clients (“Clients”) may upload photographic images to the ZenPrint website known as the ZenFront software. ZenPrint will publish the Company and Client’s images on the ZenFront software. In this context, “publish” means displaying these images on a web page accessible via the internet.
Online Ordering and Pricing
ZenPrint will provide Company and Clients internet-based, on-line ordering services via the ZenFront software for the purchase of:
- Hard good products (“Products”) displaying a photograph that may include one or more items such as keychains, mugs, shirts and similar other items.
- 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.
- Digital, electronic image files.
- Other goods and services that ZenPrint may elect to make available from time to time.
ZenPrint Fulfilled Orders
ZenPrint Fulfilled Orders are orders for Prints or Products for which ZenPrint has assumed primary responsibility for fulfilling the order and shipping the Prints or Products to the location designated by the Company or the Client. ZenPrint is responsible for timely manufacturing, processing and shipping of ZenPrint Fulfilled Orders. Fulfilled Orders will be processed to industry standards of quality. If as a result of any material defect or shortcoming of the Fulfilled Orders, ZenPrint will work to correct such defect at its own cost and expense, including postage. However, ZenPrint shall not be responsible for unreasonable, subjective determinations of picture or print quality made by Company or its customers. ZenPrint will complete such orders within 3 to 5 business days (7 to 9 business days during December) of ZenPrint initial receipt of the order. Orders which are delayed more than 10 business days due to no fault of the Company or Company’s clients will receive a 20% discount on the wholesale price. During the term of this agreement, company shall have access to the ZenPrint web-based fulfillment API for the purposes of managing user’s photos, submitting files or order data and performing additional functions as needed for the ordering, processing and fulfillment of orders. ZenPrint will make this API available on a 24x7 basis and will ensure that it meets industry standards for security.
Service and Support to Company
ZenPrint will provide service and support to Company and it’s clients related to the use of the ZenFront software including orders, refunds and customer issues. Service and support to Company and clients is available from 8:00 AM to 4:00 PM, Mountain Time, Monday thru Friday, excluding major holidays by calling 1-866-927-6444 or 24 hours a day by e-mailing firstname.lastname@example.org. ZenPrint will make best efforts to respond to all support questions in a timely fashion and will respond to all support questions and issues within 2 business days.
Refunds to Clients
Company is responsible for and may issue refunds to Clients by contacting ZenPrint support. Company is responsible to reimburse ZenPrint for all refunds either through deduction from amounts owed by ZenPrint to Company or by other payment methods. 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 ZenFront software after that 90 day period has expired. Refunds to Clients for transactions beyond that 90 day period are the Company’s responsibility to transact directly with Client. At the time of a refund, Company must have an account balance owed to them not yet paid by ZenPrint that is equal to or greater than the amount of the refund being issued to a Client. If such is not the case, Company must provide ZenPrint a credit card number that ZenPrint will charge in an amount necessary to create an account balance for Company with ZenPrint that is adequate to support completing a refund transaction.
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 ZenPrint, commonly referred to as a chargeback. When a chargeback occurs, ZenPrint will respond to the Credit Card Issuers with information reasonably available to ZenPrint in an effort to substantiate the disputed charge and to have the chargeback reversed. If ZenPrint requires additional information from Company to perform this work, Company will use their best efforts to provide ZenPrint that information in a timely manner upon ZenPrint’s request. If ZenPrint does not have adequate information to sustain a reversal of the chargeback, or if ZenPrint determines that Company did not properly fulfill their obligation to a Client that in turn caused the chargeback, Company will be liable to ZenPrint for the chargeback amount. ZenPrint may recover such amount from Company through reasonable means including, but not limited to, a reduction of amounts to be paid Company in the future or by charging a Company’s credit card number that Company has supplied to ZenPrint.
Software Usage Fee
In consideration for providing the ZenFront software for the Company’s use, Company will pay ZenPrint a monthly Software Usage Fee for web site hosting, licensing, photo storage and site maintenance. The Software Usage Fee will be calculated at the beginning of each month for the month prior, as part of the monthly commission payment to Company. Payment of the Software Usage Fee will be automatically deducted from funds collected through the ZenFront software. If the funds collected are not sufficient to cover the Software Usage Fee, ZenPrint will invoice the Company net 15 terms for the balance due. Company may elect to discontinue paying for and using the ZenFront software at any time by notifying ZenPrint in writing. Upon such notification, Company will have access to and the ability to use the ZenFront software until the end of the calendar month. At the expiration of such time, Company will have no access to the ZenFront software and specifically, will not be able to sell any Prints, Products, digital files or other products or services using the ZenFront software. The Software Usage Fee grants Company a license to access and use the ZenFront software for the period of time for which the Software Usage Fee has been paid. The Software Usage Fee does not grant Company ownership of the ZenFront software or any right to copy to Company’s computer or otherwise possess a copy of the ZenFront application software or underlying source code. Company has no right to resell access to the ZenFront software. Notwithstanding the foregoing, the Company may at its discretion download and backup a copy of all Company data including Client lists, sales data, and product data using the tools that are available in the ZenFront software. ZenPrint reserves the right to post copyright, proprietary notices, logos or information, including hypertext links, about ZenPrint, it’s parents, partners or affiliates within any customer accessible or customer facing work product, without the prior written approval from Company.
Enhanced Features Fees
ZenPrint may, from time-to-time, offer enhanced, optional features and functions in the ZenFront software that Company may elect to use. ZenPrint may charge Company 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.
Credit Card Processing Fee
In consideration for providing Company’s Clients the ability to pay by credit card, ZenPrint will earn and Company will pay a Credit Card Processing Fee on each order. This fee is computed based on the total amount charged by a Client to a credit card multiply by the agreed upon credit card processing fee percentage..
ZenPrint will collect sales tax on orders in accordance with applicable law. If Company is obligated under the law to remit sales tax collected to the taxing authorities, ZenPrint will pay the collected taxes to Company. If ZenPrint is obligated under the law to remit sales tax to the taxing authorities, ZenPrint will retain and remit the sales tax collected. In no event does ZenPrint assume an obligation or responsibility for remitting sales tax collected to taxing authorities in those situations where the primary such obligation resides with Company.
ZenPrint 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 Credit Card Processing Fees are refunded to Company.
Payment to Company
ZenPrint will pay Company for each order shipped to a Client. For shipped orders, ZenPrint will pay Company the amount of the order charged to the Client’s credit card less the Software Usage Fee, the Credit Card Processing Fee, the Fulfillment Fees (if applicable), the Enhanced Features Fee (if applicable) and the sales tax retained by ZenPrint for remittance to taxing authorities (if applicable.) ZenPrint will pay Company each calendar month for orders shipped to Clients in the previous calendar month. The amount due Company by ZenPrint must be $100 USD or more for Company to receive a payment from ZenPrint. 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 Company on the next regularly scheduled payment date. Company will be paid by paper check which will be mailed no later than the 15th of each month for amounts exceeding $100 USD.
License and Ownership
ZenPrint will not gain any ownership interest in the Company’s images (“Images”). Company grants a license to ZenPrint to process the sale and delivery of images on Company’s behalf. Company represents and warrants that (a) Company has the right and unrestricted ability to grant the license to the Images to ZenPrint, 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. Company agrees to indemnify ZenPrint 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 Company of these representations and warranties. Should ZenPrint believe, in its sole discretion, that any Image violates a copyright, right of publicity or privacy, or any other proprietary right of any person, ZenPrint may, without prior permission or consent from Company, remove such Image from ZenFront. Company has the primary business relationship with Clients for transactions conducted through the ZenFront software. Any sale or delivery of Images using ZenFront is done under business practices and policies established by the Company. ZenPrint does not establish business practices or policies for Company and does not monitor whether or not the Company’s business is conducted in accordance with Company’s business practices and policies.
Limitation of Liability
ZENPRINT WILL NOT BE LIABLE TO COMPANY FOR INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGE OR INJURY TO BUSINESS EARNINGS, PROFITS OR GOODWILL SUFFERED BY COMPANY 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 ZENPRINT BE LIABLE FOR ANY AMOUNT IN EXCESS OF THE AMOUNTS IT EARNS UNDER THIS AGREEMENT.
Independent Contractor Relationship
Company’s relationship with ZenPrint 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. Company is deemed the seller of all prints and any other products or services sold through the ZenPrint and/or ZenFront websites. Company will not be entitled to any of the benefits which ZenPrint may make available to its employees, including, but not limited to, group health or life insurance, profit-sharing or retirement benefits. Company is not authorized to make any representation, contract or commitment on behalf of ZenPrint unless specifically requested or authorized in writing to do so by an ZenPrint officer. Company 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. Company is solely liable for any failure to pay applicable taxes. Company is solely responsible for, and must maintain adequate records of, expenses incurred in the course of performing services under this Agreement. No part of Company’s compensation will be subject to withholding by ZenPrint for the payment of any social security, federal, state or any other employee payroll taxes.
ZenPrint and Company agree to hold all 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 either party that is not generally known and will include, without limitation:
- 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 ZenPrint or its subsidiaries or affiliates;
- 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 and customers;
- Content 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 ZenPrint or its subsidiaries or affiliates.
- Confidential Information also includes proprietary or confidential information of any third party who may disclose such information to ZenPrint or Company in the course of ZenPrint’s business The obligations set forth in this Section will not apply with respect to any portion of the Confidential Information that either party can document by competent proof that such portion:
- Was in the public domain at the time it was communicated;
- Entered the public domain through no fault of either party, subsequent to the time it was communicated;
- Was in either party’s possession free of any obligation of confidence at the time it was communicated;
- Was rightfully communicated to either party free of any obligation of confidence subsequent to the time it was communicated;
- Was developed by employees or agents of either party independently of and without reference to any information communicated; or
- Was communicated by either party to an unaffiliated third party free of any obligation of confidence.
Term and Termination
ZenPrint or Company may terminate this agreement, with or without cause, upon 60-day written notice. In addition, ZenPrint or Company may terminate this agreement immediately, by written notice to the other, in the event of a breach by the other of any material provision of this agreement.
Privacy and Decency
Company will not upload, post, or transmit to ZenPrint 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. ZenPrint is the sole judge of decency and may refuse to accept, display or publish any Image or photograph at its sole discretion. Company agrees to indemnify ZenPrint 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 Company of the provisions of this Section. Company will also abide by the provisions posted on the ZenPrint website in the User Agreement and Privacy Statement, as amended from time to time.
ZenPrint may suspend or discontinue a Company’s access to and/or use of ZenFront if ZenPrint suspects Company is conducting activity that appears fraudulent, unlawful, materially misleading to Clients or otherwise inconsistent with the purpose for which ZenFront exists. In such case, ZenPrint may, but is not obligated to, notify Company of such suspension or discontinued access. ZenPrint may reduce balances otherwise owed Company or charge a credit card provided by Company to ZenPrint for any amounts ZenPrint must return to a Client as a result of such suspicious activity.
Successors and Assigns
Company may not assign its rights, duties or obligations under this Agreement to any person or entity, in whole or in part, without the written agreement of ZenPrint, and any attempt to do so shall be deemed a material breach of this Agreement. ZenPrint is expressly permitted to delegate and subcontract a part or all of the Services hereunder in ZenPrint’s sole discretion.
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.
This Agreement is governed in all respects by the laws of the United States of America and by the laws of the State of Utah, 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 either party of a breach of any provision of this agreement by the other party will not operate or be construed as a waiver of any other or subsequent breach by such other party..