TERMS AND CONDITIONS

THESE TERMS AND CONDITIONS ARE TO BE READ TOGETHER WITH THE APPLICABLE QUOTE OR INVOICE (THE “INVOICE). THE FOLLOWING TERMS AND CONDITIONS GOVERN THE SALE BY CIRCLE GRAPHICS, INC., A DELAWARE CORPORATION (“CIRCLE GRAPHICS”) TO CUSTOMER OF THE PRODUCTS AND SERVICES (THE “PRODUCTS”). BY ACCEPTING DELIVERY OF THE PRODUCTS DESCRIBED ON THE INVOICE, CUSTOMER AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS AND CONDITIONS.

1. RESTRICTION OF SALE

CGPROPRINTS.COM PROVIDES PRODUCTION SERVICES EXCLUSIVELY TO PROFESSIONAL PHOTOGRAPHERS TO PRINT AND RESELL THEIR OWN ORIGINAL PHOTOGRAPHS. THE CUSTOMER CERTIFIES THAT ALL IMAGES UPLOADED FOR PRODUCTION OF ANY PURCHASED PRODUCTS ARE THEIR OWN ORIGINAL WORKS AND FOR USE IN CONNECTION WITH THE RESALE OF THESE PRODUCTS AND ARE NOT FOR PERSONAL USE. IF FOR ANY REASON, CIRCLE GRAPHICS SHOULD DISCOVER THAT A PRODUCT PURCHASED FROM US AT WHOLESALE PRICING IS FOR A USE OTHER THAN AS SPECIFIED HERE, WE RESERVE THE RIGHT TO CANCEL CUSTOMER’S ACCOUNT WITHOUT PRIOR NOTICE.

2. COPYRIGHT NOTICE

IT IS GENERALLY ILLEGAL TO COPY, REPRODUCE OR DISTRIBUTE COPYRIGHTED INFORMATION OR MATERIALS (INCLUDING PHOTOGRAPHS) WITHOUT THE CONSENT OF THE OWNER OF SUCH COPYRIGHT. GENERALLY, THE PHOTOGRAPHER IS THE OWNER OF THE COPYRIGHT OF A PHOTOGRAPH OR IMAGE. YOU ALSO REPRESENT THAT YOU ARE THE OWNER OR ARE AUTHORIZED BY THE COPYRIGHT OWNER TO USE ANY COPYRIGHTED MATERIALS SUBMITTED OR PROVIDED BY YOU. UNAUTHORIZED USE MAY BE IN VIOLATION OF THE LAW AND COULD RESULT IN LIABILITY BY YOU.

3. PORNOGRAPHIC AND OBSCENE MATERIALS

YOU ARE HEREBY ADVISED THAT ANY IMAGES SUBMITTED BY YOU ARE SUBJECT TO REVIEW AND EXAMINATION BY CIRCLE GRAPHICS. ANY AND ALL IMAGES ARE, OF COURSE SUBJECT TO ALL APPLICABLE LAWS REGARDING CHILD PORNOGRAPHY, CHILD ABUSE, OR OBSCENE OR PORNOGRAPHIC MATERIAL. ANY PERCEIVED VIOLATIONS OF LAW WILL BE REPORTED BY CIRCLE GRAPHICS TO APPLICABLE LAW ENFORCEMENT AUTHORITIES. CIRCLE GRAPHICS RESERVES THE RIGHT IN ITS SOLE AND ABSOLUTE DISCRETION TO REFUSE TO PROCESS OR POST ANY MATERIALS DEEMED OBJECTIONABLE BY CIRCLE GRAPHICS.

4. PAYMENT TERMS

PAYMENT MUST BE RECEIVED BY CIRCLE GRAPHICS PRIOR TO CIRCLE GRAPHICS’S ACCEPTANCE OF AN ORDER. PAYMENT FOR THE PRODUCTS WILL BE MADE BY CREDIT CARD. IF CREDIT TERMS HAVE BEEN AGREED TO BY CIRCLE GRAPHICS, INVOICES ARE DUE AND PAYABLE WITHIN 30 DAYS AFTER THE DATE OF THE INVOICE. CIRCLE GRAPHICS MAY INVOICE PARTS OF AN ORDER SEPARATELY.

5. SHIPPING CHARGES AND TAXES

SEPARATE CHARGES FOR SHIPPING AND HANDLING WILL BE SHOWN ON CIRCLE GRAPHICS’S INVOICE(S). UNLESS CUSTOMER PROVIDES CIRCLE GRAPHICS WITH A VALID AND CORRECT TAX EXEMPTION CERTIFICATE APPLICABLE TO THE PRODUCTS SHIPPED TO CUSTOMER’S LOCATION PRIOR TO CIRCLE GRAPHICS’S ACCEPTANCE OF THE ORDER, THE CUSTOMER IS RESPONSIBLE FOR GOODS AND SERVICES TAX, SALES AND ALL OTHER TAXES ASSOCIATED WITH THE ORDER, HOWEVER DESIGNATED, EXCEPT TAXES ON CIRCLE GRAPHICS’S NET INCOME. IF APPLICABLE, A SEPARATE CHARGE FOR TAXES WILL BE SHOWN ON CIRCLE GRAPHICS’S INVOICE.

6. TITLE AND RISK OF LOSS

TITLE TO THE PRODUCTS SHALL PASS ON DELIVERY TO THE CARRIER AT THE POINT OF SHIPMENT. CUSTOMER SHALL BEAR THE RISK OF LOSS FROM AND AFTER THE PASSAGE OF TITLE, PROVIDED THAT IF ANY SHIPMENT IS LOST OR DAMAGED BY THE CARRIER IN TRANSIT, THEN (I) IF THE CUSTOMER DOES NOT ELECT TO HAVE THE PRODUCTS REPLACED, THE PURCHASE PRICE DUE FROM CUSTOMER TO CIRCLE GRAPHICS SHALL BE ONE-HALF OF THE AMOUNT OTHERWISE DUE, AND (II) IF THE CUSTOMER DOES ELECT TO HAVE THE PRODUCTS REPLACED, CIRCLE GRAPHICS WILL PRINT THE REPLACEMENT PRODUCTS WITHOUT COST TO CUSTOMER.

7. WARRANTIES, REMEDIES AND LIMITATIONS OF LIABILITY

(A) CIRCLE GRAPHICS WARRANTS THAT PRODUCTS WILL CONFORM TO THE SPECIFICATIONS SET FORTH IN THE ORDER. EXCEPT AS EXPRESSLY PROVIDED IN THE PRECEDING SENTENCE, NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, IS MADE WITH RESPECT TO PRODUCTS, AND CIRCLE GRAPHICS HEREBY EXPRESSLY DISCLAIMS ANY AND ALL SUCH OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY REPRESENTATION OR WARRANTY AS TO MARKETABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

(B) IN THE EVENT ANY PRODUCTS FAIL TO CONFORM TO THE WARRANTY SET FORTH IN SECTION 7(A), OR CIRCLE GRAPHICS OTHERWISE FAILS TO PRODUCE AND SHIP PRODUCTS IN ACCORDANCE WITH THE TERMS OF ANY ORDER, OR BREACHES ANY PROVISION OF AN ORDER, THE CUSTOMER MAY RETURN THE NON-CONFORMING PRODUCTS TO CIRCLE GRAPHICS AND CIRCLE GRAPHICS SHALL, AT THE ELECTION OF CUSTOMER, EITHER SHIP A REPLACEMENT FOR ANY PRODUCTS THAT DO NOT CONFORM TO THE ORDER WITHIN 7 BUSINESS DAYS AFTER RECEIVING THE RETURNED PRODUCTS, OR CREDIT CUSTOMER WITH THE PURCHASE PRICE OF THE NON-CONFORMING PRODUCTS (IF PAYMENT HAS ALREADY BEEN MADE). IN NO EVENT SHALL CIRCLE GRAPHICS HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER THE CLAIM IS BASED ON THE ORDER, THIS AGREEMENT, TORT, WARRANTY, STRICT OR PRODUCT LIABILITY, OR OTHERWISE. CUSTOMER EXPRESSLY AGREES THAT ITS REMEDIES SET FORTH IN THIS SECTION 7(B) ARE THE SOLE AND EXCLUSIVE REMEDIES FOR ANY CLAIM THAT CUSTOMER MAY HAVE ARISING UNDER THE ORDER OR THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE, AND THAT CIRCLE GRAPHICS SHALL NOT HAVE ANY LIABILITY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER. CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD CIRCLE GRAPHICS HARMLESS FROM AND AGAINST ANY LIABILITY, DAMAGE, LOSS, COST OR EXPENSE (INCLUDING REASONABLE ATTORNEYS’ FEES INCURRED) ARISING OUT OF ANY CLAIM BY ANY THIRD PARTY, FOR DAMAGES OR REMEDIES BEYOND WHAT IS EXPRESSLY PROVIDED IN THIS SECTION 7(B) (INCLUDING WITHOUT LIMITATION ANY CLAIM ARISING OUT OF ANY REJECTION OF AN ORDER BY CIRCLE GRAPHICS).

8. PRODUCTS

CIRCLE GRAPHICS’S POLICY IS ONE OF ONGOING PRODUCT UPDATE AND REVISION. CIRCLE GRAPHICS MAY REVISE AND DISCONTINUE PRODUCTS AT ANY TIME WITHOUT PRIOR NOTICE. CIRCLE GRAPHICS SHALL USE ITS REASONABLE EFFORTS TO ENSURE THAT THE CATALOG OF PRODUCTS ON ITS WEBSITE IS UP-TO-DATE, BUT CIRCLE GRAPHICS MAKES NO GUARANTEE THAT ALL PRODUCTS LISTED IN CIRCLE GRAPHICS’S ONLINE CATALOG WILL BE AVAILABLE AT ALL TIMES OR AT ANY TIME.

9. CUSTOMER RELATIONSHIP

ALL ASPECTS OF THE RELATIONSHIP BETWEEN ANY THIRD PARTY SHALL BE SOLELY BETWEEN CUSTOMER AND THE THIRD PARTY. CIRCLE GRAPHICS WILL HAVE NO DEALINGS DIRECTLY, OR CONTRACTUAL RELATIONSHIP, WITH ANY THIRD PARTY.

10. INTELLECTUAL PROPERTY AND PRIVACY RIGHTS

CUSTOMER REPRESENTS AND WARRANTS TO CIRCLE GRAPHICS THAT THE SUBMISSION TO CIRCLE GRAPHICS OF ANY CONTENT IN ANY ORDER, AND THE PRINTING AND SHIPPING OF THE PRINTS BY CIRCLE GRAPHICS PURSUANT TO THE ORDER, WILL NOT VIOLATE OR INFRINGE ANY INTELLECTUAL PROPERTY, PRIVACY OR OTHER RIGHTS OF ANY INDIVIDUAL OR ENTITY. CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD CIRCLE GRAPHICS HARMLESS FROM AND AGAINST ANY LIABILITY, DAMAGE, LOSS, COST OR EXPENSE (INCLUDING REASONABLE ATTORNEYS’ FEES INCURRED) ARISING OUT OF ANY BREACH OF THE FOREGOING REPRESENTATION AND WARRANTY. SUCH INDEMNITY OBLIGATIONS SHALL APPLY REGARDLESS OF WHETHER CIRCLE GRAPHICS MAY HAVE KNOWLEDGE THAT ANY CONTENT VIOLATES OR INFRINGES ANY INTELLECTUAL PROPERTY, PRIVACY OR OTHER RIGHTS OF ANY INDIVIDUAL OR ENTITY.

11. SHIPMENTS TO CANADA

BY ORDERING GOODS FROM CIRCLE GRAPHICS, I HEREBY AUTHORIZE UPS CANADA CHOSEN BY CIRCLE GRAPHICS TO ACT AS MY AGENT, AND TO TRANSACT BUSINESS WITH THE CBSA (CANADA BORDER SERVICES AGENCY) TO CLEAR MY MERCHANDISE, ACCOUNT FOR DUTIES AND TAXES, TO RETURN MERCHANDISE TO (COMPANY), AND PREPARE AND SUBMIT REFUND CLAIMS ON MY BEHALF FOR ANY MERCHANDISE THAT I RETURN. I UNDERSTAND THAT THE CBSA WILL SEND ANY REFUND OF DUTIES AND TAXES THAT WEREPAID ON THE RETURNED MERCHANDISE TO THE BROKER, AND THAT I WILL OBTAIN THE REFUND DIRECTLY FROM CIRCLE GRAPHICS. IN THIS CONNECTION, I ALSO AUTHORIZE THE CUSTOMS BROKER TO ENDORSE ANY REFUND CHEQUE ISSUED BY THE CBSA IN MY NAME, SO THAT CIRCLE GRAPHICS CAN BE REIMBURSED.

11. EXPORT CONTROL

ANY AND ALL PRODUCTS AVAILABLE FOR PURCHASE OR LICENCE ON THIS WEB SITE ARE SUBJECT TO THE EXPORT CONTROL LAWS AND REGULATIONS OF THE UNITED STATES IN EFFECT FROM TIME TO TIME. IN PURCHASING ANY OF THE PRODUCTS, CUSTOMER AGREES NOT TO DISPOSE THROUGH EXPORT, RE EXPORT, TRANS SHIPMENT OR OTHERWISE, OF ANY PRODUCT PURCHASED OR LICENSED FROM OR THROUGH CIRCLE GRAPHICS, EXCEPT IN ACCORDANCE WITH SUCH EXPORT CONTROL LAWS AND REGULATIONS.

12. MISCELLANEOUS

(A) ENTIRE AGREEMENT
THIS AGREEMENT CONSTITUTES THE ENTIRE AND EXCLUSIVE STATEMENT OF THE UNDERSTANDING AND AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND SUPERSEDES ALL PRIOR ORAL OR WRITTEN COMMUNICATIONS BETWEEN THE PARTIES CONCERNING SUCH SUBJECT MATTER.

(B) SEVERABILITY
IF ANY PROVISION OF THIS AGREEMENT SHALL BE DEEMED TO BE ILLEGAL OR UNENFORCEABLE, THE REMAINING PROVISIONS OF THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT TO THE EXTENT THAT THE EXCLUSION OF SUCH ILLEGAL OR UNENFORCEABLE PROVISION DOES NOT MATERIALLY ALTER THE ESSENTIAL RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO.

(C) CAPTIONS AND HEADINGS
THE CAPTIONS AND HEADINGS USED IN THIS AGREEMENT ARE FOR CONVENIENCE OF REFERENCE ONLY AND SHALL NOT BE TAKEN INTO ACCOUNT IN CONSTRUING THE MEANING OR INTENT OF THIS AGREEMENT.

(D) WAIVERS, MODIFICATIONS, AND AMENDMENTS
NO WAIVER, MODIFICATION, OR AMENDMENT OF THIS AGREEMENT SHALL BE EFFECTIVE UNLESS MADE IN A SEPARATE WRITING AND SIGNED BY BOTH PARTIES.

(E) GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO APPLICABLE TO AGREEMENTS ENTERED INTO AND TO BE WHOLLY PERFORMED WITHIN SUCH STATE.

(F) ARBITRATION
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, ALL CLAIMS, DISPUTES AND OTHER MATTERS IN QUESTION BETWEEN THE PARTIES TO THIS AGREEMENT ARISING OUT OF OR IN ANY WAY RELATING TO THIS AGREEMENT OR ANY ORDER, OR THE BREACH HEREOF OR THEREOF, SHALL BE DETERMINED BY ARBITRATION IN DENVER, COLORADO IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION THEN IN EFFECT, AS MODIFIED OR SUPPLEMENTED BY THE PROVISIONS HEREOF. NOTICE OF DEMAND FOR ARBITRATION SHALL BE FILED IN WRITING WITH THE OTHER PARTY TO THIS AGREEMENT AND WITH THE AMERICAN ARBITRATION ASSOCIATION IN DENVER, COLORADO. IN NO EVENT SHALL THE DEMAND FOR ARBITRATION BE MADE AFTER THE DATE WHEN THE INSTITUTION OF LEGAL OR EQUITABLE PROCEEDINGS BASED UPON SUCH CLAIM, DISPUTE OR OTHER MATTER IN QUESTION WOULD BE BARRED BY THIS AGREEMENT OR BY THE APPLICABLE STATUTE OF LIMITATIONS. THE ARBITRATION SHALL BE BEFORE A SINGLE ARBITRATOR MUTUALLY AGREED UPON BY THE PARTIES. IN THE EVENT THAT THE ARBITRATOR CANNOT BE MUTUALLY AGREED UPON, SUCH ARBITRATOR SHALL BE SELECTED IN ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION. ANY SUCH DISPUTE SHALL, TO THE EXTENT PRACTICABLE, BE HEARD WITHIN 60 DAYS AFTER THE FINAL RESPONSIVE PLEADING IS DUE. NO DISCOVERY DEPOSITION SHALL BE UNDERTAKEN IN ANY SUCH PROCEEDING, BUT WRITTEN INFORMATION REQUESTS AND DOCUMENT DISCOVERY, USING 20 DAY REQUEST PERIODS, SHALL BE UNDERTAKEN AS NEEDED BY THE PARTIES. THE ARBITRATOR’S AWARD AND ORDER (WHICH MAY INCLUDE AN ORDER OF SPECIFIC PERFORMANCE) SHALL BE ENFORCEABLE IN ANY COURT OF COMPETENT JURISDICTION. THE DETERMINATION OF THE ARBITRATOR SHALL BE FINAL AND BINDING ON ALL PARTIES. ALL OF THE COSTS AND EXPENSES OF THE ARBITRATION SHALL BE BORNE EQUALLY BY THE PARTIES TO THE DISPUTE OR IN SUCH OTHER MANNER AS THE ARBITRATOR MAY DETERMINE TO BE APPROPRIATE.