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This Agreement, made this _____ day of __________(month), _________(year), by and between, (your Company name) ____________________________________________ , a Company with offices located at _________________________________________________ (the Company) , and Painet Inc., a Delaware based corporation, with offices located at 29 Skating Pond Road; Montezuma, NM 87731 (the Dealer).
The Company is engaged in the business of distributing digitally formatted and copyrighted material (photography and other images), including digitally formatted image compact disks (CDs) containing copyrighted material, herein referred to as Products, to end users (the End Users). The Dealer is engaged in the business of providing End Users with the opportunity to purchase various products, including digitally formatted images and image compact disks (CDs). The Company desires to engage the services of the Dealer by sublicensing its copyrighted material (photography and other images) to facilitate the distribution of digitally formatted images and image CDs that is available for purchase and for shipment from the Dealer's location, and the Dealer is willing to allow this use. In consideration of the Premises, the mutual promises of the parties, and the mutual benefits to be gained by performance, it is agreed as follows:
1. Language - Both parties agree that the written and spoken language used for all agreements between both parties to include this agreement is English.
2. Products - The Company distributes the digitally formatted and copyrighted material (photography and other images) on a non-exclusive basis. The digitally formatted and copyrighted material (photography and other images), shall be collectively referred to as "the Products." The Company may from time to time, in its sole discretion, delete Products from this Agreement. In addition, the Company may from time to time, in its sole discretion, add Products to this Agreement, and any such added products shall be considered to be part of the Products for the purposes of this Agreement. Dealer has the right to refuse the addition of products to the agreement.
3. Appointment of Dealer - The Company hereby appoints the Dealer to solicit orders for the sale of the Products, pursuant to paragraph 9, below. The Dealer shall prominently feature information about the Products, as currently displayed on the Painet website (www.painetworks.com). The Dealer shall in each and every instance use its best efforts to reasonably promote the sale of the Products and shall refrain from taking any actions that could impede the sale of the Products or injure the reputation and integrity of the Company. A reasonable promotion of the products would be the ability to search for them, by keywords, on a search engine on the Painet website.
4. Order and Delivery Process - The Company shall continuously maintain a sustainable inventory of the Products at the Dealer's place of business. The Dealer shall be responsible for accepting orders and the processing of payments made by End Users, payment of all applicable credit card transaction fees, payment and filing of all applicable taxes, and for the delivery of the Products to the End Users. The Company shall not be liable for any action arising from the aforementioned responsibilities.
5. 1 Commission Payments - The Dealer shall retain a commission based on a percentage of net sales of the Products. Within fifteen (15) days after the end of each 3 months (quarter) the Dealer will remit to the Company all net sales amounts actually received by the Dealer during the immediately preceding quarter less the Dealer's commission. As used in this Agreement, the term "net sales" shall mean the actual amount paid by an End User for the Products, reduced by sales and use taxes, delivery charges, bad debt, fraud and credit card chargebacks. The Company may from time to time adjust the amount of commissions payable to the Dealer based on returns, refunds, exchanges, subsequently discovered fraud, and subsequently discovered criminal activity. Under no circumstances shall the Company owe commissions to the Dealer as a result of any transactions that are unpaid as a result of credit card fraud, any other form of fraudulent activity, or criminal activity. It is the Dealer's explicit responsibility to aggressively screen for fraud, and to take any actions it deems necessary to terminate any fraudulent activity. The existence of fraud, or the possibility of the existence of a fraud, shall be determined in the sole discretion of the Dealer; and the Dealer may, in its sole discretion, make such inquiries and investigations as it deems appropriate under the circumstances. During the period such inquiries and investigations are being made, the Company shall have no obligation to make any commission payments associated with the subject transaction.
5.2 Commission Rates - The commission rate (compensation) for Dealer's service shall be Forty Per Cent (40%) of the total sum billed and collected by Dealer, for any images Company delivers as HIGH resolution digital scans (those equal to or larger than 24 MB, when opened in Photoshop, with a compression ratio of 12:1 or less). Company will receive Sixty Per Cent (60%) of the total sum billed and collected by Dealer for any images Company delivers as high resolution digital scans (those equal to or larger than 24 MB, when opened in Photoshop, with a compression ratio of 12:1 or less).
6. Term - Subject to the provisions of Section 13, the initial term of this Agreement shall commence on the date of its execution and continue for a period of one (1) year thereafter. Unless Dealer provides written notice of termination to the Company sixty (60) days prior to the expiration of the initial term or any renewal term, this Agreement shall automatically be renewed for successive one (1) year terms.
7. End User Information - Within thirty (30) days after the end of each quarter the Dealer shall provide the Company with the Dealer's list (invoices) of customers and End Users that purchased the Products from the Dealer during the immediately preceding quarter (the Customer List). The Company shall have the right to copy, distribute, use, and/or commercially exploit the Customer List for any purpose without receiving the consent or approval of the Dealer.
8. Confidential Information - Trade Secrets and Confidential Information - All of the trade secrets and other confidential information relating to the Company and the Products, including without limitation, this Agreement, methods, processes, configurations, intended uses, marketing plans, financial information, business plans, the Customer List, and inventory information shall be maintained in confidence by the Dealer, and the Dealer shall not, during the term of this Agreement or subsequent to the termination of this Agreement, divulge to any other person or organization, or use in any manner whatsoever, directly or indirectly, for any reason whatsoever, any of the trade secrets or confidential information relating to the Company and the Products without receiving the prior written consent of the Company. The Dealer shall take such actions as may be necessary to ensure that its employees and agents are bound by the provisions of this Section.
9. Grant of Authority
9.1 Company hereby appoints Painet Inc., and Painet Inc. hereby accepts appointment as Company's agent in respect of the license of Company's Products and to solicit orders for the sale of the Products. Painet Inc.. agrees to prominently feature advertising and promotional information about the Products, together with instructions about the means by which Products can be purchased.
9.2 Painet Inc.. is granted limited sublicense authority of Company's copyrighted material and Products hereunder as follows:
(i) International distribution.
(ii) May distribute using the Internet.
(iii) May not manipulate, modify, change or alter Products without written permission from Company, except that Dealer may watermark Company's digital images with the Painet logo.
(iv) May not employ sub-agents.
(v) May organize, compile, and arrange Products for distribution as deemed necessary.
9.3 The obligation set forth in subparagraph (9.2) shall consist solely as non-exclusive. Company's reserves the right to place the Products with any other stock picture agency, picture library, or similar selling medium of the Products, doing business as an organization, Company, agency, or any other form of business, as Company deems necessary.
9.4 Except as may otherwise be provided herein, Painet Inc.. shall have discretion regarding the terms and conditions of any license of the Products, delivered to it by Company. Notwithstanding the foregoing, Painet Inc.. shall have discretion regarding the terms and conditions of any license of usage rights in and to the Products, on a "Royalty-Free" or "All Rights Agreement" (i.e. permission to a Client to use Company's Products as desired, while the copyright remains with Company and its contributing photographers and artists). This Agreement in no way authorizes release of copyright of any Product, Image, idea or concept nor the use of any Product pursuant to paragraph (9.2), above.
10. Nature of Relationship - The Dealer shall be an independent contractor and not an employee of the Company. The Dealer shall not represent or imply to any person or organization that this Agreement authorizes it to act as an agent or on behalf of the Company, other than as provided for in this Agreement. The Company shall not be obligated by any agreement, representation, or warranty made by the Dealer, except for provisions of this agreement, nor shall the Company be obligated for damages to any person or organization for personal injuries or property damage directly or indirectly arising out of the conduct of the Dealer.
11. Liability - The Company and the Dealer agree as follows:
(i) The Company and the Dealer shall not be liable, and shall hold each other harmless, for any defects in a vendor's product.
(ii) The Company shall not be liable for any actions arising from the general business conduct of the Dealer.
(iii) In the event of a breach, the breaching party shall indemnify the other party for any and all manner of actions, suits, claims, damages, judgments, levies, and executions, including reasonable attorneys fees, whether known or unknown, liquidated or unliquidated, fixed, contingent that arise against the non-breaching party as a direct result of the breach. The non-breaching party must give prompt written notice of any claim or suit which might attract this indemnity provision.
(iv) Force Majeure - If either the Company or the Dealer is prevented from fulfilling its obligations under this Agreement by reason of any supervening event beyond its control, including, but not limited to, war, national emergency, flood, fire, or earthquake the party unable to fulfill its obligations shall immediately give notice of this to the other party and shall do everything in its power to resume full performance. On such notice being given the party shall not be doomed to be in breach of its obligations under this Agreement. However, if and when the period of incapacity exceeds ninety (90) days then this Agreement shall automatically terminate unless the Company and the Dealer first agree otherwise in writing.
12. Termination - The Company shall have the right to immediately terminate this Agreement in the event the Dealer: fails to substantially perform any of its material obligations under this Agreement; suspends or terminates the conduct of its business; or initiates or has initiated against it, any act, process, or proceeding under any insolvency law, the Federal Bankruptcy Act, or any other statute or law providing for the modification or adjustment of the rights of creditors. Except for cause, the Dealer shall have no right to terminate this Agreement prior to the expiration of its initial term or any renewal term. For the purposes of this Section, the term "cause" shall mean the Company's failure perform any of its material obligations under this Agreement, or the bankruptcy of the Company.
13. Miscellaneous - Injunctive or other equitable relief shall be a remedy available to the Company in the event of a breach of any provision of this Agreement by the Dealer. In no event shall the Company's liability to the Dealer exceed the aggregate amount of commissions paid to the Dealer by the Company during the one (1) year period immediately preceding the date of termination of this Agreement. Any notices required or permitted to be given under this Agreement shall be sufficient if in writing and personally delivered or sent by certified mail to the address of the other party at the address set forth herein. The Dealer may not assign its rights or delegate its duties hereunder without receiving the prior written consent of the Company. The waiver of any provision or the breach of any provision of this Agreement shall not be effective unless expressly made in writing. Any claim or action arising out of or in connection with this agreement brought by Painet Inc.. must be brought in the state of California, and both sides hereby submit to the jurisdiction of those Courts and consent to venue in those courts for any such claims or actions. Any such claim or action arising out of or in connection with this agreement brought by Company must be brought in an appropriate court in the jurisdiction of the state of North Dakota, United States of America, and both sides submit to the jurisdiction of those courts and consent to venue in those courts for any such claims or actions. In the event any portion of this Agreement shall be held to be invalid, the same shall not affect in any respect whatsoever, the validity of the remainder of this Agreement. This Agreement sets forth the entire understanding between the parties relating to the subject matter of this Agreement, there being no terms, conditions warranties, or representations other than those contained in this Agreement, and no amendments shall be valid unless made in writing and signed by the parties to this Agreement.