General Agreement between Photographer and Consumer, and N-Vu, LLC
- N-Vu, LLC operates (www.N-Vu.com), (the Site), to provide online access to information about N-Vu and the products, services, and opportunities it provides (the Service). By accessing and using the Site, you (the N-Vu Member) agree to each of the terms and conditions set forth herein, together with applicable additional terms and conditions, referred to as this Agreement. Additional terms and conditions applicable to specific areas of the Site or to particular content or transactions are also posted in particular areas of the Site and, together with this Agreement, govern your use of those areas, the Content, or transactions. These terms are prominently displayed when purchasing photographs from a N-Vu Consumer Site and all N-Vu Products.
- The Consumer Sites are operated separately and independently from the Site. They are part of the N-Vu Service, and are generated by you for the purpose of displaying and selling your professional photographs to consumers who attended or are notified about an event or sitting that you photographed. You retain all copyrights to images you post on Consumer Sites.
- You must be at least 18 years of age to use the Site. By using the Site, you certify that you are at least 18 years of age and you agree to be bound by this Agreement.
- If you do not agree to be bound by this Agreement, or if you are not at least 18 years of age, please immediately exit the site.
- N-Vu reserves the right to modify this Agreement at any time without giving you prior notice. Your use of the Site following any such modification constitutes your agreement to follow and be bound by this Agreement as modified. The most recent date this Agreement was revised is set forth below.
Copyright & Trademarks
- You may use the Service, the Site, and the information, writings, images, and/or other works that you see, hear, or otherwise experience on the Site (singly or collectively, the Content) solely for your non-commercial, personal purposes and/or to learn about N-Vu products and services. No right, title, or interest in any of the Content is transferred to you, whether as a result of downloading the Content or otherwise. N-Vu reserves complete title and full intellectual property rights in all of the Content. Except as expressly authorized by this Agreement, you may not use, alter, copy, distribute, transmit, or derive another work from any of the Content obtained from the Site or the Service, except as expressly permitted by this Agreement.
- The Site and the Content are protected by U.S. and/or foreign copyright laws, and belong to N-Vu or its partners, affiliates, contributors, or third parties. The copyrights in the Content are owned by N-Vu or other copyright owners who have authorized their use on the Site. You may download and reprint Content for non-commercial, non-public, personal use only. You may not manipulate or alter in any way images or the Content on the Site without specific permission from N-Vu or the copyright owner.
- You are prohibited from using any of the marks or logos appearing throughout the Site without permission from the trademark owner, except as permitted by applicable law.
- Any software available for download via the Site is the copyrighted work of N-Vu and/or its licensors. Use of such software is governed by the terms of the end user license agreement that accompanies or is included with the software. Downloading, installing, and/or using any such software indicates your acceptance of the terms of the end user license agreement.
- All Images featured on the Consumer Sites were created by N-Vu Members and were provided to N-Vu for sale and distribution. The copyrights on the Images are owned by the N-Vu Members thereof who have licensed to N-Vu the right to post them on the Consumer Sites and provide the services offered.
- N-Vu uses reasonable endeavors to ensure that the Service is available 24 hours a day, seven days a week. However, there will be occasions when the Service will be interrupted for maintenance, upgrades, and emergency repairs or due to failure of telecommunications links and equipment that are beyond the control of N-Vu. Every reasonable step will be taken by N-Vu to minimize such disruption where it is within the reasonable control of N-Vu. You agree that N-Vu shall not be liable to you for any modification, suspension, or discontinuance of the Service.
- N-Vu will provide an integrated e-commerce platform for N-Vu Members. N-Vu’s e-commerce platform will process all credit card transactions from Product orders that take place on the Consumer Sites. N-Vu will collect a service fee of between 0%-12% (depending on Member’s subscription plan) plus a 3% credit card processing fee to the entire order total. N-Vu is responsible for all credit card fees resulting from transactions via the Consumer Sites. After collecting this service fee, the balance of the transaction will be forwarded to the N-Vu Members via direct deposit or N-Vu Account Credit. Members may set the Retail price in the Pricelist Manager, or the Offer Manager.
- In the case where the N-Vu Member has selected to use the Auto-Fulfillment option, N-Vu will retain the entire shipping fee collected on the Consumer Site as N-Vu will be shipping the order directly to the consumer.
- N-Vu will host and maintain personal, password-protected websites (Consumer Sites) containing images (Images) for the duration of time purchased. The company will use its best efforts to provide a secure viewing experience to its customers, but photographers and their clients must be aware that all guests visiting sites receive multiple emails which provide username and password information for purposes of soliciting print sales and reminding customers that the images are available for viewing. These emails inherently create a non-secure environment, which is not appropriate for specific types of Images. For this reason, N-Vu has created a category specifically for Boudoir sites, and has disallowed the sending of automated emails for those sites. Under no circumstances will N-Vu be liable for damages associated with the unintended viewing of images or distribution of images by a third party from the N-Vu website, regardless of how they we obtained, including but not limited to email passwords, illegal hacking, or any other means of gaining access to the Images. If a N-Vu website is illegally breached, the company will use any and all available resources to cure the breach as quickly as possible, including its own internal IT resources, legal authorities, and whatever other means it deems necessary. Photographer agrees to cooperate with any investigation to solve issues relating to site security.
- N-Vu will host and maintain personal, password-protected websites (Consumer Sites) containing images (Images) for the duration Images are available online.
- N-Vu will make e-mails of Consumer Site guests available to N-Vu Members for purposes of marketing. These email addresses are the property of N-Vu and cannot be sold or distributed to any third parties, as clearly stated by terms presented on the Consumer Site login page to which all authenticated guests agree. Failure to comply with this policy will result in immediate termination of N-Vu membership and could potentially lead to legal action as required by current anti-spam regulations.
- Images will be reasonably maintained on N-Vu servers for a period of thirteen months from the last active day of the Consumer Site. N-Vu also provides an Event Backup and Recovery Plan. To support this feature N-Vu will retain a copy of the originally uploaded Images, either low resolution or high resolution depending on the resolution uploaded, on hard drives. This service is included in the cost of the Consumer Site, and N-Vu takes reasonable measures to secure these images for the long-term. However, these physical hard drives can fail, and could result in images being unavailable.
- N-Vu agrees to prepare images for display on the Internet by reducing the resolution of images, generally 1000 to 2000 pixels on the long side, and providing an optional proof mark on the images indicating to the viewer that the Images are copyrighted material.
- N-Vu will prominently display the N-Vu Member’s contact information (and logo, if provided) on each Consumer Site for the purpose of allowing those who visit each site to contact the N-Vu Member. The Member is responsible, through the Administration Area, for keeping the contact information up to date and displaying it in a way that is satisfactory to the Member.
- N-Vu has developed automated systems to facilitate payment or credit on account for Products purchased on the Consumer Sites. N-Vu holds all reprint monies in escrow until the N-Vu Member indicates that the obligation to fulfill the Product order for the consumer has been satisfied. Should the N-Vu Member fail to select a payment preference through the admin area (account credit or direct deposit), or should the N-Vu Member fail to change the order status of the reprint orders to processed, shipped, downloaded, or completed after twelve months, any accrued reprint monies will convert to “credit on account” and will no longer be available as cash. After twelve months from this conversion date, unused credits on the account will expire.
N-Vu Member Responsibilities
- If you register to become a N-Vu Member, you are responsible for maintaining the confidentiality of your member identification and password information, and for restricting access to your computer. You agree to accept responsibility for all activities that occur under your member identification and password and to hold N-Vu harmless for any unauthorized use.
- The N-Vu Member is responsible for all Images uploaded, shared, or copied when using N-Vu and therefore must have the legal right to copy and display each Image that is uploaded. N-Vu does not allow N-Vu Members to upload and/or post any material that is obscene, offensive, blasphemous, pornographic, threatening, menacing, abusive, harmful, an invasion of privacy or publicity rights, defamatory, libelous, vulgar, illegal, or otherwise objectionable. Any image that violates child pornography laws, child sexual exploitation laws, and laws prohibiting the depiction of minors engaged in sexual conduct will be removed and the proper authorities will be contacted. N-Vu does not actively monitor the content of members’ accounts. However, should they post images that are unsatisfactory to the N-Vu culture, we retain the right and authority to take such images off of the Consumer Site.
- N-Vu offers its Members Pay As You Go and a variety of subscription plans to host images online. The cost and particular offers associated with these plans will change from time to time. There are absolutely no refunds for unused months or partial months of use in the case of Monthly Unlimited Upload Plans prior to cancellation, or for a partial year of non-use in the case of Yearly Unlimited Upload Plans. Members are obligated to give 30 days notice by emailing email@example.com stating the desire to cancel a Monthly Unlimited Upload Plan subscription. Monthly Unlimited Plans will continue to be billed without interruption until cancelled via email. Yearly Unlimited renew automatically.
- N-Vu Members who subscribe to the Monthly Unlimited Upload Plan agree to have a current credit card on file that will be billed the first monthly fee when the N-Vu Member signs up. N-Vu will then begin billing the credit card monthly, beginning 30 days after the start date (the date the N-Vu Member signs up) specified by the N-Vu Member during the signup process. If they decide to begin uploading jobs before the contracted start date, a new start date and monthly billing date will be automatically re-established. In the event N-Vu discovers any credit card information provided is invalid, N-Vu reserves the right to suspend access to admin area and remove any Consumer Sites or images connected with the invalid credit card.
- N-Vu Members are responsible for ensuring that N-Vu has their current fee schedule for reprints and enlargements on the Consumer Sites. N-Vu Members are responsible for maintaining these price lists through the Pricelist Manager, or Offer Manager.
- N-Vu Members are responsible for ensuring that their bank account information is submitted N-Vu to be enrolled in N-Vu’s convenient direct deposit program and to confirm that N-Vu has successfully received their bank information.
- N-Vu Members are responsible for verifying that monies wired by N-Vu are being successfully received into their bank account before N-Vu will establish automatic weekly deposits to the N-Vu Members financial institution.
- N-Vu Members agree to obtain and retain the necessary permissions from any and all individuals appearing in studios sample Consumer Sites and Products and from all posted Consumer Sites, unless said studios sample Consumer Sites and Products contains only images owned by N-Vu.
- N-Vu Members are responsible for fulfilling all reprint and product orders in a professional and timely manner. In no event will N-Vu be liable for any damages whatsoever, including, but not limited to any direct, incidental, consequential, special, exemplary, or other indirect damages arising out of (i) the use of or inability to use the site, the service, or the content, (ii) any transaction conducted through or facilitated by the site; (iii) any claim attributable to errors, omissions, or other inaccuracies in the site, the service and/or the content, (iv) unauthorized access to or alteration of your transmissions or data, or (v) any other matter relating to the site, the service, or the content, even if N-Vu has been advised of the possibility of such damages. If you are dissatisfied with the Site, the Service, the Content, or with the Agreement, your sole and exclusive remedy is to discontinue using the site.
- Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, some of the above limitations may not apply. In such states, N-Vu’s liability is limited, expressed, and implied warranties including merchantability and fitness are excluded to the greatest extent permitted by law, but shall, in no event, exceed $100.00.
- N-Vu Members agree that any N-Vu product or service ordered must be paid for at the time of order. They also agree that in the event an account becomes past due, N-Vu reserves the right to convert any Product orders to “credit on account” and subsequently use those credits to satisfy any outstanding balances. N-Vu does not offer credit terms.
- N-Vu Members agree to acknowledge that all products sold to their customers on the Consumer Site are custom made and have no market value beyond the purchase thereof. As such, all products are non-returnable and payment for all products is required to be made in full in advance.
- N-Vu Members understand and agree that they are personally responsible for their behavior on the Site. They agree to indemnify, defend, and hold harmless N-Vu, its parent companies, subsidiaries, affiliated companies, joint ventures, business partners, licensors, employees, agents, and any third-party information providers to the Service from and against all claims, losses, expenses, damages, and costs (including, but not limited to, direct, incidental, consequential, exemplary, and indirect damages), and reasonable attorneys fees, resulting from or arising out of your use, misuse, or inability to use the Site, the Service, or the Content, or any violation by you of this Agreement.
- N-Vu Members acknowledge that N-Vu does not print images containing full frontal nudity or suggestive subject matter containing more than one person. Though N-Vu respects the artistic nature of its Members’ images, any subject that depicts these matters will result in order cancellation and refund.
- N-Vu Members understand and agree that there is a 90-day refund policy for their customers’ Product orders. They also agree that after 90 days from the time the Product order is placed, N-Vu is no longer able to issue a refund for the Product order.
- N-Vu Members and N-Vu acknowledge and agree that they are dealing with each other as independent contractors. This Agreement shall not constitute a partnership, joint venture, or agency between the N-Vu Member and N-Vu, nor shall either of the parties hold itself out as such contrary to the terms hereof, nor shall either of the parties be bound or become liable because of any representation, action, or omission of the other.
- N-Vu Members and N-Vu further agree that, after a customer places an order via the Consumer Site, N-Vu will purchase the Product from the N-Vu Members and direct the N-Vu Member to ship the product, via common carrier, to the customer. It is intended and agreed that title to the product sold by the N-Vu Member to N-Vu transfers to N-Vu after the product is given to the common carrier and placed in intrastate or interstate commerce.
- N-Vu will collect sales tax on all Consumer Site Product orders for those states where N-Vu has nexus, based on the shipping address of the consumer who is purchasing Product. N-Vu will not collect sales tax on orders from states where it does not have nexus. (Nexus States as of January 1, 2017: PA, WA, CA, and MO)
- N-Vu will collect sales tax from N-Vu Members for all Albums, Prints, Press Printed Materials, and other items (Products) sold by N-Vu to its Members through its Internet ordering system in states where N-Vu has nexus. State is based on the shipping address of the N-Vu Member. However, if the Member supplies N-Vu with a blanket Sale for Resale Exemption Certificate, N-Vu will not charge the N-Vu Member sales tax.
- N-Vu Members give permission to N-Vu to create personal, password-protected Consumer Sites for the clients and customers of the N-Vu Members for the purpose of viewing, e-mailing, and purchasing posted Images.
- N-Vu Members give N-Vu the right to extend the duration of viewing the Consumer Sites.
- N-Vu has a no refund policy for orders placed on the Consumer Site because the nature of the Product being ordered is custom; the Product has no value except to the person ordering it. Once an order is placed on the Consumer Site or through N-Vu the purchaser is agreeing that all sales are final, and the purchaser is warned that such is the case before placing the order.
- N-Vu Members have the flexibility to charge whatever amount they deem necessary on their Consumer Sites to cover their product and shipping expenses.
- In the event of an error that delays fulfillment of an order, N-Vu’s liability is limited to the fees that have been collected for that order less any costs incurred by N-Vu in the processing of that order.
- A chargeback is a situation where a consumer who purchased photographs through an N-Vu Consumer Site notifies their credit card company that they would like the charge reversed. As the merchant of record, N-Vu receives formal written notice of all chargebacks and is given a period of time (typically ten days), to respond in writing. Chargebacks are rare and are usually the result of delayed product fulfillment or delivery time. In the event of any chargeback, N-Vu will notify the N-Vu Member via a phone call and/or e-mail that a chargeback has occurred. N-Vu will work diligently with the N-Vu Member and consumer to resolve the chargeback. Almost every chargeback can be resolved through cooperation on the part of the N-Vu Member and consumer. However, in the event that the chargeback is not resolved, the N-Vu Member is responsible for reimbursing N-Vu for any monies paid to them or credits used pertaining to the order subject to the chargeback. N-Vu will be responsible for any Chargeback fees imposed by credit card companies. N-Vu also assumes the risk of increased merchant processing rates resulting from chargebacks. If the N-Vu Member does not respond to N-Vu within 72 hours after receiving notice of the chargeback, N-Vu reserves the right to charge the N-Vu Member’s credit card on file for the full amount of the chargeback.
- Completing the sign-up process obligates the N-Vu Member to the terms and conditions of this Agreement. Access to the Services with N-Vu assumes continued compliance with this agreement.
- Entire Agreement/No Waiver. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof. No waiver by N-Vu of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default.
- Correction of Errors and Inaccuracies. The Content may contain typographical errors or other errors or inaccuracies and may not be complete or current. N-Vu therefore reserves the right to correct any errors, inaccuracies, or omissions and to change or update the Content at any time without prior notice. N-Vu does not, however, guarantee that any errors, inaccuracies, or omissions will be corrected.
- Enforcement/ Choice of Law/ Choice of Forum. If any part of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, it will not impact any other provision of this Agreement, all of which will remain in full force and effect. Any and all disputes relating to this Agreement, your use of the Site, any other N-Vu website, the Service, or the Content are governed by, and will be interpreted in accordance with, the laws of the State of Missouri, without regard to any conflict of laws provisions.
Date of Last Modification: January 7, 2017