Developer Agreement

FUJIFILM SMART PUBLISHING SERVICES
DEVELOPER AGREEMENT

IMPORTANT: READ THIS DEVELOPER AGREEMENT (THIS "AGREEMENT") CAREFULLY BEFORE ACCEPTANCE OF THIS AGREEMENT OR USING THE SMART PUBLISHING APPLICATION PROGRAMMING INTERFACE ("API").

BY ACCEPTING THIS AGREEMENT OR BY USING THE API, YOU, ON BEHALF OF ANY BUSINESS ENTITY FOR WHOM YOU ARE ACTING (COLLECTIVELY, "YOU"), ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, YOU UNDERSTAND IT, AND YOU EXPRESSLY CONSENT AND AGREE TO BE LEGALLY BOUND BY ALL OF ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE THE FUJIFILM SMART PUBLISHING SERVICES OR API CONTEMPLATED BY THIS AGREEMENT.

1. Services. You hereby appoint or engage FUJIFILM North America Corporation ("Fujifilm") to provide fulfillment services directly or to utilize its contracts with retailers to provide fulfillments services ("Services") to Your customers ("Customers") for custom photo and gift products ("Products") available in the applicable Catalog ("Catalog") pages of the Fujifilm Developer Network Portal ("Fujifilm Developer Network Portal"). The Catalog(s) may be amended by Fujifilm from time to time by posting an amended Catalog on the Fujifilm Developer Network Portal. Amendments to the Catalog(s) will be effective at the time of posting such amended Catalog on the Fujifilm Developer Network Portal.

2. Orders. Customers may request Products by placing orders ("Orders") through the use of the application developed, reproduced and distributed by You ("Developer Application"). The Developer Application may interface with and send Orders to (a) one of Fujifilm's designated direct or third party fulfillment facilities; and/or if applicable (b) to a specific retail business that is under contract with Fujifilm to provide such Print at Retail fulfillment Services (“Retailer”). Customers must complete all required fields before an Order will be accepted. It is Your responsibility to clearly and actively inform and obtain meaningful consent from Customers that in order for an Order to be valid, the Order must not include:

· any copyrighted material or other intellectual property for which the Customer has not obtained usage rights;

· any content that does not adhere to the Content Standards or is otherwise deemed inappropriate by Fujifilm and/or a Retailer in its sole discretion;

· any illegal content;

· any corrupt or malformed images or files, as determined by Fujifilm and/or a Retailer in its sole discretion; or

· an incomplete address or other incomplete Customer information required for the fulfillment of the Order.

Fujifilm reserves the right but does not have the obligation to reject any Orders that include any of the items listed above and they will be deemed to be "Invalid Orders." Developer is solely responsible for following all copyright, trademark and intellectual property laws with regard to both Customer content and its own content.

3. Grant of License for the API and Related Restrictions

Grant of License. Fujifilm hereby grants to You, a limited, non-exclusive, revocable, non-transferable and non-sublicensable license to use, during the Term (as defined below under "Term and Termination"), the Smart Publishing Application Programming Interface and all versions thereof furnished to You by Fujifilm pursuant to this Agreement (collectively, the "API") solely to develop, reproduce and distribute the Developer Application (the "Purpose"). In addition, Fujifilm hereby grants to You, a limited, non-exclusive, non-transferable and non-sublicensable license to use, during the Term, any computer code, technical reference manuals and instructional documentation related to the API or the Fujifilm Developer Network Portal, and all drafts and versions of such code, manuals and documentation, furnished to You by Fujifilm (collectively, the "Manuals") solely for the Purpose. The licenses granted by this Agreement do not permit You to use the API or Manuals for any other purpose. Any use of the API or Manuals by You not expressly permitted by this Agreement is prohibited. You must have a valid license to the API in order to receive the Services.

Restrictions on Grant. You agree that You will make no use of the API or the Manuals other than the Purpose. You shall not, and shall not permit any third party to, directly or indirectly modify or make derivative works of or enhancements to the API or the Manuals. You shall not, and shall not permit any third party to, reverse engineer, reproduce, sublicense, distribute, decrypt, disassemble, decompile, modify, copy or encrypt the API or the Manuals, in whole or in part, or otherwise attempt to reconstruct underlying scripts that support the API or Manuals or reconstruct or derive any source code (or underlying ideas, algorithms, structure or organization) from the API or Manuals. You have no claim of title to the API or the Manuals, or any copies, portions, enhancements or modifications thereof, and You have no right to transfer title in the API or Manuals, or any copies, portions, enhancements or modifications thereof. You shall not permit any third party to use the API or the Manuals in whole or in part without obtaining Fujifilm's prior written consent. You agree to provide Fujifilm with access to the Developer Application and/or other materials related to Your use of the API or the Manuals as reasonably requested by Fujifilm to monitor and audit the Developer Application and verify Your compliance with the terms of this Agreement.

Prohibited Uses. You shall not use the API or the Manuals to develop any application that offers or promotes services that may be damaging to, disparaging of or otherwise detrimental to Fujifilm or its affiliates or Retailers. You shall not use the API or the Manuals in connection with or to promote any products, services or materials that contain any content that does not adhere to Content Standards. You shall be fully responsible for the Developer Application, including, without limitation, its development, operation and maintenance, and for Your conduct while using the API and for any consequences of such use. You agree to use the API only for purposes that are legal, proper and in accordance with this Agreement and any applicable policies or guidelines provided by Fujifilm from time to time and all state and federal laws. You shall not imply creation, affiliation, sponsorship or endorsement of You or the Developer Application by Fujifilm or any Retailer.

Usage Limitations. Fujifilm may limit the number of network calls that the Developer Application may be permitted to make via the API, the maximum file size or any other threshold regarding the API, as Fujifilm may deem appropriate or necessary in its sole discretion. Fujifilm may use technical measures to prevent over-usage and/or stop usage of the API by the Developer Application after any usage limitation is exceeded. You shall not use the API in any manner that exceeds reasonable volume or constitutes excessive or abusive usage.

Proprietary Rights. Fujifilm and/or its affiliates retain exclusive worldwide ownership of all right, title and interest in and to the API and the Manuals and Catalogs and all copies, portions, improvements, enhancements, modifications and derivative works (by whomever made) to the API and the Manuals, including, without limitation, all patents, copyrights and other intellectual property rights. No such ownership rights are conveyed to You or any third party by virtue of this Agreement. You acknowledge that any enhancements or improvements pertaining to the API and the Manuals and/or Catalogs which may be created by You or Fujifilm as a result of or in furtherance of this Agreement shall be owned by Fujifilm. You agree to confirm Fujifilm's ownership in any such improvements or enhancements and the intellectual property rights therein, by executing and delivering to Fujifilm assignments or other written instruments as Fujifilm may reasonably require from time to time.

Modifications, Additions, and Deletions; Support. Fujifilm retains the right, in its sole discretion, to determine whether or not to update, revise or otherwise maintain the API or the Manuals, and whether or not to make version releases, bug fixes, interim releases, modifications, and enhancements to the API or the Manuals available to You, except that Fujifilm shall furnish You bug fixes that Fujifilm determines should be made. You may be required to obtain and use the most recent version of the API. Updates, revisions or modifications to the API may affect the Developer Application and may require You to make modifications to such application at Your expense in order for such application to continue to be compatible or interface with the API. The API is currently provided for free, but Fujifilm reserves the right to charge for the API (or additional features or functionality) in the future. Fujifilm shall have no obligation to provide any development or other support in connection with the API or the Manuals. You shall be solely responsible for providing Your users with support and other technical assistance for the Developer Application. You and Your Agents are responsible for all connectivity to Your respective websites, applications and hosted online stores and all related security procedures.

Access Keys. Fujifilm may issue You one or more unique security keys, passwords and/or other credentials (collectively, "Access Keys") for accessing and using the Fujifilm Developer Network Portal or the API, and managing Your account. You shall not sell, transfer, sublicense, or otherwise disclose such Access Keys to any third party. You shall be fully responsible for maintaining the secrecy and security the Access Keys issued to You and for all activities that occur using such Access Keys, regardless of whether such activities are undertaken by You or any third party. Access Keys are the property of Fujifilm and may be revoked if You share them with any third party or if You otherwise violate any term of this Agreement. You will contact Fujifilm immediately if You know or believe that someone other than You may be using the Access Keys issued to You or if any of such Access Keys are otherwise disclosed, lost or stolen.

Fujifilm and Other Applications. This Agreement is a non-exclusive agreement. Fujifilm and third parties may develop, acquire or license applications and other products and services that may be similar to or competitive with the Developer Application. Nothing in this Agreement shall be construed as restricting or preventing Fujifilm from creating and fully exploiting such applications and other products and services. Nothing contained in this Agreement shall prohibit Fujifilm from licensing or distributing the API or the Manuals or from appointing any third parties to do the same, throughout the world.

4. Agents. If You wish to use a third party provider or agent ("Agent") to host an online store or application through which Customers may enter Orders, the Agent must first register with Fujifilm and have a valid license to the API. Fujifilm may terminate this Agreement immediately if Fujifilm believes that the Agent is in breach of its agreement with Fujifilm or if Fujifilm believes that the agency relationship may create liability to Fujifilm or the Retailers. You are fully responsible for the performance of all of Your obligations in this Agreement, including, without limitation, those performed by Agents, and for any failure by any of Your Agents to perform Your obligations.

5. Fulfillment. Fujifilm and/or Retailers when and if applicable, will fulfill valid Orders placed by Customers in accordance with the policies and procedures of Fujifilm and/or Retailer. All images included in any Order must be pre-rendered and ready for printing. The designated party to provide Services will not, under any circumstances whatsoever, be responsible for the inaccuracy of any Order unless the inaccuracy results from that party’s failure to fulfill the Services using commercially reasonable practices. Once the production of an Order commences, the Order is irrevocable and not subject to cancellation or any change made by You or the Customer.

6. Packaging.

For Ship to Home Services (both payment options): Fujifilm will ship completed Orders within the United States in accordance with the instructions in the Orders. Fujifilm has the right to adjust shipments to make partial shipments of an Order and to deliver a single Order in more than one shipment to the same Customer address if the Order contains multiple print sizes or product types.

For Print at Retail Orders: The Print at Retail orders will be packaged in the individual Retailer’s envelopes and labeling.

Internal Packaging. The internal packaging for Orders shipped by Fujifilm will not be customized. If practical, and in Fujifilm’s sole discretion, Fujifilm provides plain white envelopes for shipping that may or may not bear the Fujifilm logo. For breakable items, Fujifilm provides appropriate boxes and other packaging materials for shipping as Fujifilm determines is necessary in its sole discretion. Internal packaging is provided by Fujifilm's vendor and the cost of such packaging will be included in the pricing set forth in the Catalog or the Shipping and Handling Costs.

External Packaging. To the extent possible, Fujifilm uses external packaging for Orders shipped by Fujifilm provided at no charge by the carrier. If it is not possible for Fujifilm to use such external packaging, Fujifilm uses plain white mailers for shipping that may or may not bear a Fujifilm logo.

Labeling. Fujifilm provides labels necessary to fulfill the requirements of the specified carrier for delivery of Orders to Customers.

7. Shipping - for Ship to Home Orders only – two (2) payment options offered (PCBF or PCBD).

a. Payment Online Collected by Fujifilm (“PCBF”): Fujifilm selects the carriers and shipping methods that will be made available to Customers for their selection when placing an Order. In accordance with each Order, Fujifilm ships each Order directly to Customer's requested "ship to" address in the United States using the shipping method selected by Fujifilm. Fujifilm makes no guarantees whatsoever regarding the timeliness or any other capabilities of any carrier. Rates and other terms and conditions related to shipping and handling ("Shipping Charges") are as set forth in the Shipping and Handling Costs. In this option Fujifilm collects payment for Shipping Charges directly from the Customer.

b. Payment Online Collected by Developer (“PCBD”): Fujifilm selects the carriers and shipping methods that will be made available to Customers for their selection when placing an Order. In accordance with each Order, Fujifilm ships each Order directly to Customer's requested "ship to" address in the United States using the shipping method selected by Fujifilm. Fujifilm makes no guarantees whatsoever regarding the timeliness or any other capabilities of any carrier. Rates and other terms and conditions related to shipping and handling ("Shipping Charges") are as set forth in the Shipping and Handling Costs. In this option You collect payments (if any) for shipping charges directly from the Customer (and You shall pay Fujifilm directly the designated Shipping Charges.)

8. Customer Support.

For Ship to Home Orders only (both payment options): Fujifilm provides Level 2 support services to You as described at Customer Support. Except as specifically included in such Level 2 support services, You are responsible for all Level 1 support services as described at Customer Support and all other Customer issues regarding Orders, and for making sure that all Orders to be fulfilled are properly completed.

For Print at Retail Orders only: The Retailer’s associate(s) will help the Print at Retail Customer, providing Level 1 support, to find and pay for their Photo Products in the store, as well as handling all remake, reprint, or refund issues where payment was taken in-store. If further help is required, the Retail Associate shall call Fulfillment Services Support for assistance in finding the order in the system, or other assistance as requested.

9. Rights and Obligations.

Your Terms and Conditions. You and Your Agents must require Your Customers to agree to terms and conditions, located at all times on the Developer Application, Your respective websites and any related online stores and in Your respective related applications ("Terms and Conditions"), which must contain limitation of liability provisions in a manner at least as protective of Fujifilm and the Retailers as those set forth at Developer Terms and Conditions. Prior to the consummation of the Order, You must obtain meaningful consent from each Customer to such limitation of liability provisions. In addition, You and Your Agents must maintain at all times a returns policy ("Returns Policy") for Customers that complies with the requirements set forth at Developer Terms and Conditions. You understand and agree that Retailers may have different returns policies and You will disclose to Your users the possibility of such.

Content Standards. You and Your Agents must fully comply with Fujifilm in preventing Orders from including any content that does not adhere to Content Standards. Neither Fujifilm nor any Retailer or agents are not required to fulfill any Order that do not adhere to Content Standards. If Fujifilm its agents and/or Retailers discover that any Order violates the Content Standards, or if Fujifilm its agents and/or Retailers reasonably suspects or determines that any Order violates Content Standards, Fujifilm its agents and/or Retailers may but are not obligated to notify the appropriate government or legal authorities about such Invalid Order(s). Fujifilm will endeavor to notify You of pertinent Order information, but Fujifilm has no obligation to notify Customer that an Invalid Order will not be fulfilled. Prior to fulfilling an Order, Fujifilm its agents and/or Retailers may but is not required to require You to obtain an appropriate release to allow Fujifilm its agents and/or Retailers to fulfill such Order. To the extent that You provide Fujifilm its agents and/or Retailers with such release, You will indemnify Fujifilm and its affiliates from any and all liabilities, losses and damages and all related costs and expenses, including, without limitation, reasonable attorneys' fees and expenses (collectively, "Losses"), arising out of the fulfillment of such Order by Fujifilm.

Privacy Policy. You shall comply with all applicable laws, regulations and best practices concerning privacy and data protection. You shall, at all times, maintain the highest standard privacy policy for all information that You obtain from Customers, consistent with applicable laws, regulations and best practices. You shall comply with Your privacy policy at all times in the collection, use and storage of such information. If the Developer Application shares any personal or sensitive information provided by Customers, the Developer Application must securely store such information and may only use such information for the limited purposes authorized by the Customer.

10. Prices; Returns; Taxes.

a. SHIP TO HOME PCBF (Payment Online Collected by Fujifilm)

Fujifilm Product Prices. The price to You for each Ship to Home Product ("Product Price") is set forth in the applicable Catalog. Fujifilm is entitled to payment in accordance with the Product Price for the Services requested in each Order fulfilled by Fujifilm. Product Prices do not include applicable Shipping Charges which are set forth in Shipping and Handling Costs.

Your Prices. For Ship to Home: You are solely responsible for determining the retail price Customers pay for Products. If You choose to set retail prices less than the Product Price, You must separately agree with Fujifilm in writing upon an alternative payment arrangement (so that Fujifilm is paid by Developer the full Product Price). Through the use of the Fujifilm Developer Network Portal, You will determine the applicable retail prices that will be charged to Customers. Such retail prices may be changed by You from time to time using the Fujifilm Developer Network Portal during the Term. In the event that Fujifilm increases any Product Price pursuant to the terms of this Agreement to an amount in excess of Your retail price charged to Customers for the applicable Product, such retail price will automatically increase to an amount equal to the increased Product Price for such Product. At checkout, Fujifilm will authorize the Customer's credit card or other payment method for each Product purchased and all related Sales Tax (as defined below under "Taxes"), and Shipping Charges. Fujifilm will not charge a Customer's credit card until such Customer's Order is shipped. Customer credit or debit card, PayPal credit and other payment information will be shared by Fujifilm with its processing agency or agencies for payment purposes.

Payments to You. Fujifilm will pay You on a monthly basis the difference between (a) the total amounts collected from Customers by Fujifilm during the prior month, and (b) the applicable Product Prices and applicable Sales Taxes, and Shipping Charges. Such payments shall be made by Fujifilm to You within sixty (60) days of shipment of the Product via check/ACH/wire, depending on how You are set up to receive payments from Fujifilm. This transaction will be handled through the Fujifilm A/P department. Fujifilm reserves the right to set off any amount owing to Fujifilm from You.

Returns. You must handle any and all Product returned from a Customer (a "Return") in accordance with Your Returns Policy. If a defective Product is returned to You from a Customer, You have the right to request that Fujifilm reproduce all or any portion of the related Order and re-ship the Order to the Customer. Fujifilm will not charge You for any reproduced complete or partial Order, or related Shipping Charges, if the reason for the return was due to Fujifilm's failure to fulfill the Services using commercially reasonable - practices.

Taxes. All Product Prices are exclusive of any federal, state, local, excise, use, value added, and similar taxes imposed on the retail sale of the Products and Services ("Sales Tax"). Fujifilm will calculate the appropriate Sales Tax and reflect it in the final price displayed to Customers. Fujifilm will collect and remit to the appropriate authorities all Sales Tax for Orders.

Changes to Product Prices and Shipping Charges. Fujifilm may change Product Prices and/or Shipping Charges from time to time by posting the new Product Prices and/or Shipping Charges in the Catalog .Any such changes to Product Prices or Shipping Charges will be effective at the time Fujifilm posts such changes on the Fujifilm Developer Network Portal. Fujifilm will provide You with email notification of any change to Product Prices or Shipping Charges for new Product Prices or Shipping Charges.

b. SHIP TO HOME PCBD (Payment Online Collected by You (Developer))

Fujifilm Product Prices. The price to You pay for each Ship to Home Product ("Product Price") is set forth in the applicable Catalog. Fujifilm is entitled to payment in accordance with the Product Price for the Services requested in each Order fulfilled by Fujifilm. Product Prices do not include applicable Shipping Charges which are set forth in Shipping and Handling Costs.

Your Prices. For Ship to Home: You are solely responsible for determining the retail price and the shipping charges Customers pay for Products. You will be invoiced the Product Price and Shipping Charges regardless of the amount paid/charged to or by Customers. You will be invoiced monthly the Product Price and Shipping Charges for each Product Ordered. You will determine the applicable retail prices that will be charged to Customers. Such retail prices may be changed by You from time to time using the Fujifilm Developer Network Portal during the Term. In the event that Fujifilm increases any Product Price pursuant to the terms of this Agreement to an amount in excess of Your retail price charged to Customers for the applicable Product, such retail price will automatically increase to an amount equal to the increased Product Price for such Product.

Payments to You and by You. Your Customer shall pay you as you determine in your sole discretion. You are responsible for collection and payments of any and all applicable Sales Taxes, and Shipping Charges. Fujifilm will not pay you.

Payments from You to Fujifilm. Fujifilm will invoice You on a monthly basis the applicable Product Prices and Shipping Charges. You must pay such invoices within thirty (30) day of the date on such invoices.

Taxes. All Product Prices are exclusive of any federal, state, local, excise, use, value added, and similar taxes imposed on the retail sale of the Products and Services ("Sales Tax"). You shall calculate the appropriate Sales Tax and reflect it in the final price displayed to Customers. You shall collect and remit to the appropriate authorities all Sales Tax for Orders.

Changes to Product Prices and Shipping Charges. Fujifilm may change Product Prices and/or Shipping Charges from time to time by posting the new Product Prices and/or Shipping Charges in the Catalog PCBD. Any such changes to Product Prices or Shipping Charges will be effective at the time Fujifilm posts such changes on the Fujifilm Developer Network Portal. Fujifilm will provide You with email notification of any change to Product Prices or Shipping Charges for new Product Prices or Shipping Charges.

PRINT AT RETAIL

Retail Pricing, updates and Customer Payment. Retail pricing for the Photo Products that offered for “Print at Retail” will be determined solely by Retailer. It will be the Retailer’s responsibility to provide pricing to the Fujifilm Print at Retail systems team and update said pricing when appropriate. Retailer is responsible for the collection of and tax payment on all revenues resulting from sales of Photo Products to customers that purchase from Retailer’s locations. All Photo Product sales will be registered through cash registers provided and maintained by Retailer, and Retailer will record payment for Photo Products in accordance with its standard business practices.

Fujifilm/Developers Compensation/Revenue Share. Fujifilm will invoice and collect from Retailer a portion of the net amount of revenue due from Print at Retail customers for Photo Products. Fujifilm will share a portion of such collected revenue with Developer as agreed upon in writing by Developer and Fujifilm. If Developer selects the Print at Retail option for its Customers a custom Developer Revenue Share Agreement must be executed in advance. Contact Fujifilm via Fujifilm Developer Portal for a custom Developer Revenue Share Agreement.

Taxes. At checkout, the Retailer will collect the appropriate Sales Tax per order when Customer payment is taken. The Retailer will remit to the appropriate authorities all Sales Tax for Orders.

Retailer and or its guest service department agree to work with Customers to ensure satisfaction with its Services and its own policies shall be applicable. The Retailer shall offer Customers a quality commitment of at least the same level as the Fujifilm Quality Commitment.

11. Licenses.

Your Marks. If Fujifilm its agents and/or Retailers are required to use Your name or any variation thereof or any trademarks, service marks, trade names, website addresses, and logos containing Your name or variation ("Developer Marks") in order to provide the Services, including, without limitation, for packaging, labeling and shipping Product, You hereby grant to Fujifilm a royalty free, non-transferable, world-wide license to use the Developer Marks solely for such use.

Third Party Marks. If Fujifilm is required to use, in order to provide the Services, a third party name or any variation thereof, or any trademarks, service marks, trade names, website addresses, and logos containing such name or variation ("Third Party Marks") that is licensed to You by third parties, You are solely responsible for taking all action necessary to permit Fujifilm its agents and/or Retailers to use such Third Party Marks. You will indemnify Fujifilm its agents and/or Retailers and its affiliates from any Losses arising out of the use by Fujifilm its agents and/or Retailers of such Third Party Marks in the provision of the Services.

Fujifilm Content and Marks. Fujifilm may provide images, data, designs or copy ("Fujifilm Content") to You to support the marketing and sale of Products. Fujifilm grants to You a limited, non-exclusive, revocable, non-transferable and non-sublicensable license to publish, use, reproduce, distribute, transmit, and display the Fujifilm Content during the Term solely in connection with the marketing and promotion of Products in the United States. You must not edit, modify or revise the Fujifilm Content without the prior written consent of Fujifilm. You shall not use any trade name, trademark, service mark, logo, domain name or brand of Fujifilm (collectively, "Fujifilm Marks") without the prior written consent of Fujifilm. Any such permitted use must be in strict accordance with Fujifilm's policies and guidelines, as amended from time to time by Fujifilm. You shall not use any Fujifilm Mark in any manner that implies a relationship or affiliation with, sponsorship or endorsement by Fujifilm.

Disclaimer of Rights. Except as otherwise expressly contemplated by this Agreement, You hereby acknowledge that You will acquire no right, title or interest (including, without limitation, any license rights or rights of use) in any firmware or software (or any licenses therefor), know-how, trade secrets or any other intellectual property of Fujifilm by reason of the Services provided by Fujifilm or Retailers under this Agreement.

12. Fujifilm's Limited Warranty to You. Fujifilm warrants to You that: (a) the Products will conform to each of their general descriptions in the Catalog and will be free for 30 days from any defects in design, material or workmanship, except for any defect caused by a third party or by a Customer's corrupt or malformed images or files; and (b) the Services will be provided in a good and workmanlike manner. Neither Fujifilm nor its agents and/or Retailers will bear any responsibility for any statement or description made on the Developer Application, website or any hosted online store in respect of any of the Services or the Products. Fujifilm is responsible for costs of reproduction and shipping for any complete or partial Order returned to You by a Customer only to the extent that such Order, or portion thereof, was not produced to Fujifilm's commercially reasonable practices, as determined by Fujifilm.

USE OF THE API AND THE MANUALS IS AT YOUR OWN RISK. THE API AND THE MANUALS ARE PROVIDED "AS IS", WITH ANY AND ALL FAULTS, DEFECTS AND ERRORS, AND WITHOUT ANY WARRANTY OF ANY KIND. FUJIFILM DOES NOT WARRANT THAT THE API OR THE MANUALS WILL WORK ON ANY HARDWARE, OPERATING SYSTEM OR WITH ANY SOFTWARE, OR THAT THE OPERATION OF THE API OR THE MANUALS WILL BE SECURE AND FREE OF HARMFUL COMPONENTS. FUJIFILM SHALL NOT BE LIABLE FOR ANY EXPENSES OR DAMAGES INCURRED BY YOU WHICH MAY ARISE OUT OF ANY FAILURE THE API OR THE MANUALS TO FUNCTION PROPERLY.

FUJIFILM DOES NOT WARRANT THAT THE FUJIFILM DEVELOPER NETWORK PORTAL, THE SERVICES, THE PRODUCTS, THE API OR THE MANUALS WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS OR BE UNINTERRUPTED OR ERROR FREE OR THAT ANY KNOWN OR DISCOVERED ERRORS WILL BE CORRECTED. FUJIFILM MAKES NO OTHER WARRANTY TO YOU, ANY AGENT OR ANY CUSTOMER, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE FUJIFILM DEVELOPER NETWORK PORTAL, THE SERVICES, THE PRODUCTS, THE API OR THE MANUALS. FUJIFILM DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WITH RESPECT TO THE FUJIFILM DEVELOPER NETWORK PORTAL, THE SERVICES, THE PRODUCTS, THE API OR THE MANUALS, OR DEFECTS IN THE OPERATION OR ANY PARTICULAR APPLICATION OR USE OF THE API OR THE MANUALS. EXCEPT AS SPECIFICALLY AND UNAMBIGUOUSLY PROVIDED IN THIS AGREEMENT, FUJIFILM DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES TO YOU WITH RESPECT TO THE FUJIFILM DEVELOPER NETWORK PORTAL, THE SERVICES, THE PRODUCTS, THE API OR THE MANUALS. THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF FUJIFILM.

13. Term and Termination. The term of this Agreement ("Term") is non-expiring and will continue until terminated by Fujifilm or You. Either of Fujifilm or You may terminate this Agreement with or without cause upon thirty (30) days' electronic or written notice to the other party. Either party has the right to terminate this Agreement immediately for (a) nonpayment by the other party of any amounts due, (b) the other party's breach of a material term of this Agreement, or (c) notification from PayPal that it will no longer service the account of the other party (d) if the other party (i) ceases to actively conduct its business, (ii) files a voluntary petition for bankruptcy or has filed against it an involuntary petition for bankruptcy, (iii) makes a general assignment for the benefit of its creditors, or (iv) applies for the appointment of a receiver or trustee for substantially all of its property or assets or permits the appointment of any such receiver or trustee. The termination of this Agreement, for whatever reason, will not discharge or relieve You from any obligation which accrued during the Term, will not relieve You from liability for damages resulting from any breach of this Agreement, and will not destroy or diminish the binding force and effect of any of the provisions of this Agreement that expressly or by reasonable implication, come into or continue effect on or after termination of this Agreement. Upon termination of this Agreement, You shall immediately cease any and all use of the API, the Manuals and any other Confidential Information of Fujifilm.

14. Confidentiality. Each party (the "Receiving Party") will hold, and will cause the Receiving Party's affiliates and the Receiving Party's and such affiliates' respective officers, directors, employees and agents to hold, confidential all information and documents relating to the businesses of the other party (the "Disclosing Party') directly or indirectly disclosed to the Receiving Party by the Disclosing Party by reason of the transactions contemplated by this Agreement ("Confidential Information") and will not use such Confidential Information for any purpose other than as set forth herein or as necessary to carry out its obligations under this Agreement or disclose any of such Confidential Information to any person or entity without the written consent of the Disclosing Party, unless required or legally compelled to disclose such Confidential Information by applicable law, rule or regulation or compulsory legal process. To the extent that the Receiving Party may become so required or legally compelled, the Receiving Party may only disclose such Confidential Information if the Receiving Party first affords the Disclosing Party a reasonable opportunity to obtain an appropriate protective order or other satisfactory assurance of confidential treatment for the Confidential Information required to be so disclosed. You agree that Fujifilm's Confidential Information shall be used by You only for the purpose of exercising Your rights and performing Your obligations under this Agreement and will not be used by You for any purpose competitive with, or in any manner detrimental to, Fujifilm or its affiliates. You shall limit access to Fujifilm's Confidential Information to those of Your employees who are required to have such information in order to carry out the purposes of this Agreement and who have entered into appropriate confidentiality agreements with You, and You shall ensure compliance of Your employees with the terms of such agreements.

For purposes of this Agreement, the API and the Manuals and any information about Retailers including the existence of contracts with such Retailers, any Revenue Share Agreement terms or conditions and any pricing information shall be included within Fujifilm's Confidential Information. Fujifilm acknowledges that all information relating to Customers, unless such information has been obtained, received or otherwise held by Fujifilm independently or not as a result of the Services provided under this Agreement, are Your Confidential Information, provided, however, that Fujifilm may use Confidential Information relating to Customers for purposes of providing the Services and providing You or Retailers with information regarding turnaround times on Orders and performance and quality standards.

The obligation of confidentiality does not apply to information that is now in or in the future enters the public domain through no fault of the Receiving Party, is obtained by the Receiving Party from a third party having the legal right to use and disclose the same, or is independently developed by the Receiving Party after the effective date of this Agreement as evidenced by a written record proving the independent development. In the event of a breach or threatened breach of the confidentiality obligations set forth in this Agreement, the non-breaching party may seek to enjoin such breach or threatened breach without the need to post a bond or seek specific performance of an obligation under this Agreement in addition to any other remedy available at law or in equity. Notwithstanding the foregoing, nothing in this Agreement shall be construed as prohibiting a party from pursing any other remedies that may be available to it, at law or in equity.

15. Limitation of Liabilities. NEITHER PARTY IS LIABLE TO THE OTHER PARTY OR ANY AGENT, WHETHER IN CONTRACT, IN TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST OR ANTICIPATED REVENUES OR PROFITS, BUSINESS INTERRUPTION COSTS, LOSS OR CORRUPTION OF DATA, OR CLAIMS OF CUSTOMERS RELATING TO THE SAME), THAT IN ANY WAY ARISE OUT OF, RELATE TO, OR ARE A CONSEQUENCE OF, SUCH PARTY'S PERFORMANCE OR NONPERFORMANCE HEREUNDER, ANY BREACH OF WARRANTY, OR THE PROVISION OF OR FAILURE TO PROVIDE ANY OF THE PRODUCTS OR SERVICES UNDER THIS AGREEMENT, EVEN IF AN AUTHORIZED REPRESENTATIVE OF SUCH PARTY OR AGENT IS ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF THE SAME. FUJIFILM'S MAXIMUM LIABILITY FOR ANY CLAIM ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID FOR THE PRODUCT SUBJECT TO THE CLAIM.

FUJIFILM NOR ITS AGENTS OR RETAILERS ARE NOT LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST OR ANTICIPATED REVENUES OR PROFITS, BUSINESS INTERRUPTION COSTS, COMPUTER FAILURE OR MALFUNCTION, LOSS OR CORRUPTION OF DATA, OR OTHER DAMAGE, THAT IN ANY WAY ARISE OUT OF, RELATE TO, OR ARE A CONSEQUENCE OF, THE API OR THE MANUALS, INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, STATUTORY, INCIDENTAL, CONSEQUENTIAL, TORT OR COVER DAMAGES, WHETHER IN CONTRACT, TORT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM THE USE OR INABILITY TO USE THE API OR THE MANUALS, YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY ACCESS KEYS, PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT INFORMATION, EVEN IF FUJIFILM HAS BEEN ADVISED OR AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

Except as set forth in this Agreement, Fujifilm has no liability with respect to Returns. The liability of either party with respect to this Agreement or anything done in connection herewith, including, without limitation, the performance or breach hereof, any breach of warranty, or from the sale, delivery, provision or use of any of the Fujifilm Developer Network Portal, the API, the Products or Services provided under or covered by this Agreement, whether in contract, tort or otherwise, shall not exceed the invoiced amount in respect of the applicable Order from which such liability resulted. EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY SHALL HAVE ANY LIABILITY FOR MONETARY DAMAGES UNDER THIS AGREEMENT TO THE OTHER PARTY OR ANY OF ITS AGENTS OR AFFILIATES OR, IN THE CASE OF FUJIFILM, TO ANY CUSTOMERS.

The limitations of liability set forth in this Agreement do not apply to the respective indemnification obligations of the parties, except as otherwise set forth under those obligations, or for breach of the confidentiality obligations of the parties set forth in this Agreement.

16. Indemnification. You will fully defend, indemnify and hold harmless Fujifilm and its affiliates and its and their respective officers, directors, employees, agents, customers, successors and assigns (collectively, "Fujifilm Indemnified Parties") from any and all Losses incurred by Fujifilm Indemnified Parties as a result of any of the following: (a) any breach of any representation, warranty or agreement made by You or on Your behalf under this Agreement, or (b) Your negligence or intentional misconduct, or the negligence or intentional misconduct of Your employees or Agents, including, without limitation: (i) any failure of a Customer to receive accurate fulfillment of an Order where such failure is not due to Fujifilm's failure to fulfill the Services using commercially reasonable practices; (ii) any claim arising out of Fujifilm's display or use of the Developer Marks or Third Party Marks in accordance with this Agreement; (iii) any claim arising out of Fujifilm's fulfillment of any Order where You have provided Fujifilm with a release to allow Fujifilm to use material; (iv) any claim that any content or material provided by You, any Agent or a Customer does not adhere to Content Standards; (v) any claim that the Developer Application invades, infringes, violates or otherwise misappropriates the copyrights, patent rights, trade secrets, trademark or service mark rights, or any other intellectual property right, privacy, or publicity of any person; and (vi) any claim arising out the failure of any Product to comply with non-United States legal requirements and (vii) any failure to pay Taxes or other charges due.

The right of indemnification set forth above only applies if: (A) Fujifilm provides You electronic or written notice of such claim or cause of action upon which Fujifilm intends to base a claim of indemnification under this Agreement; (B) You, at Your election, have the right to assume sole control of the defense and all related settlement negotiations relating to such claim or cause of action; provided, however, that You shall not settle any claim admitting liability of Fujifilm without the written consent of Fujifilm; and provided further that in any action or proceeding the defense of which You assume, the Fujifilm Indemnified Parties will have the right to participate in (but not control) such litigation and to retain their own counsel at the Fujifilm Indemnified Parties' own expense, so long as such participation does not interfere with Your control of such litigation; (C) Fujifilm provides reasonable assistance and cooperation to enable You to defend the action or claim hereunder; and (D) Fujifilm refrains from making prejudicial statements associated with such action or claim without Your prior written consent.

17. Compliance with Laws. Each of Fujifilm and Retailers and You must comply with all applicable local, state and federal laws of the United States in connection with the transactions contemplated by this Agreement. In connection with such compliance, Fujifilm and/or its agents or Retailers reserves the right to recall, change, modify, alter or discontinue any Product to the extent that it is required to do so under such laws, including, without limitation, the inclusion on any Product of any required tracking labels. In connection with such compliance, You will have the right to change, modify and alter Your marketing and advertising literature and web-based products with respect to any descriptions of the Products in order to include any required safety warnings.

18. Force Majeure. Neither Fujifilm nor You will be liable to the other in any way for failure or delay in carrying out our respective obligations under this Agreement resulting from any cause or circumstance beyond the reasonable control of the non-performing party, including, without limitation, any act of God, fire, flood, war, explosion, civil commotion and acts of any governmental authority and any failure of the API.

19. Subcontracting. Fujifilm has the right to outsource or subcontract to third party manufacturers and vendors the production or provision of some or all of the Products and Services required by this Agreement.

20. Amendment. The terms of this Agreement may be amended by Fujifilm from time to time effective thirty (30) days after Fujifilm posts such new terms on the Fujifilm Developer Network Portal. Your continued use of the Services constitutes Your consent to the amended terms. Additionally, the Catalog and the Shipping and Handling Costs may also be amended by Fujifilm from time to time by posting an amended Catalog or Shipping and Handling Costs on the Fujifilm Developer Network Portal. Amendments to the Catalog and the Shipping and Handling Costs will be effective at the time of posting on the Fujifilm Developer Network Portal.

21. General. In performing the Services, Fujifilm and its agents and/or Retailers are independent contractors to You and are not Your agents. This Agreement is binding on Fujifilm's and Your successors and permitted assigns. You may not assign (by merger, operation of law or otherwise) this Agreement or any rights or obligations under it except with respect to obligations assignable to Agents as specified in this Agreement unless You receive prior written or electronic consent (any click through is not consent) from Fujifilm. This Agreement is governed by and interpreted in accordance with the internal laws of the State of New York, without giving effect to its conflicts of law provisions. Any legal action relating to this Agreement must be commenced and maintained exclusively in a federal or state court having jurisdiction in Westchester County, New York. There are no third party beneficiaries to this Agreement, and except for the indemnification rights in this Agreement, nothing in this Agreement confers any rights upon any person or entity other than Fujifilm and You. This Agreement, including, without limitation, the linked documents listed below, and a Revenue Share Agreement if applicable constitutes the complete and entire agreement between You and Fujifilm and supersedes any prior or contemporaneous agreements or understandings between You and Fujifilm, whether oral, written or electronic, regarding the subject matter of this Agreement. No waiver of any provision of this Agreement, or any rights or obligations of either party under this Agreement, will be effective, except pursuant to a written or electronic record authenticated by the party or parties waiving compliance, and any such waiver will be effective only in the specific instance and for the specific purpose stated in such record. If any term or provision of this Agreement is held to be invalid, void or unenforceable, then the remainder of this Agreement will not be affected, impaired or invalidated, and each such term and provision of this Agreement will be valid and enforceable to the fullest extent permitted by law. Except as otherwise set forth in this Agreement, all notices must be in writing or in an electronic record and will be deemed duly given when sent by registered or certified mail (return receipt requested) or when sent by electronic mail. Notices to Fujifilm may be sent to: FUJIFILM North America Corporation, 200 Summit Lake Drive, Valhalla, New York 10595, spasales@fujifilm.com Attn: RYAN MOORE with a copy to FUJIFILM Holdings America Corporation, 200 Summit Lake Drive, Valhalla, New York 10595, legaldepartment@fujifilm.com Attn: Legal Department. All notices to You will be addressed to Your last known post office, facsimile or electronic mail address. All notices will be directed to Fujifilm at the address given above and to You at the post office, or electronic mail address You have electronically registered with Fujifilm or to such other address as either party may, from time to time, provide to the other party in accordance with this notice provision. The provisions under the headings "Proprietary Rights", "Rights and Obligations," "Prices; Returns; Taxes," "Licenses," "Fujifilm's Limited Warranty to You," "Confidentiality," "Liabilities," "Indemnification," "Force Majeure," and "General" survive the termination of this Agreement.

22. Links. The following linked items are incorporated by reference into this Agreement:

· Catalog

· Content Standards

· Customer Support

· Developer Terms and Conditions

· Shipping and Handling Costs

YOU HAVE READ, UNDERSTAND AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

Content Standards

Fujifilm Smart Publishing Services
Developer Agreement

· Content, in any format, that violates any applicable local, state, federal, or international law is prohibited.

· Content, in any format, that is related to any of the following categories is prohibited:

o Illegal drugs;

o Sexually explicit images, pornographic content, or child pornography;

o Comments, communications and/or content that facilitate or promote illegal activity; or

o Prejudice-related comments, communications and/or content that facilitates or promotes unlawful violence, and/or discrimination based upon gender, ancestry, race, sexual orientation, religion, marital status, age, disability, national origin, veteran status or creed;

including, without limitation, content or materials that:

o violate any law, statute, ordinance or regulation (including, without limitation, the laws and regulations governing export control, unfair competition, antidiscrimination and false advertising), or promote illegal activity;

o invade, infringe, violate, or otherwise misappropriate the copyrights, patent rights, trade secrets, trademark or service mark rights, or any other intellectual property right, privacy, or publicity of any person;

o are defamatory, trade libelous, threatening, harassing or illegal;

o are obscene, child pornographic, indecent, racially or ethnically offensive, harassing or that are discriminatory based upon race, gender, color, creed, age, sexual orientation or disability; or

o contain any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

Customer Support

Fujifilm Smart Publishing Services
Developer Agreement

Customer Support for Ship to Home Orders

Fujifilm will provide Level 2 Customer support via e-mail and telephone for all Customer inquiries relating to Orders in accordance with the following terms:

· All initial inquiries will be sent to fulfillmentsupport@fujifilm.com Expected email response times:

o Monday through Friday – within 4 hours during regular operational business hours.

· Level 2 escalation support telephone number: 833-816-1700

Assumptions:

· The Level 1 support provided by You will have access to tools in the Fujifilm Network Developer Portal that will allow You to see the customer’s Order shipping status

· Inquiries to Level 2 support will come from Your Level 1 support team only. (Fujifilm will not provide any direct Customer support.)

· Level 2 support will primarily consist of the following:

o Problem Orders (production related)

o Potential systemic related issues

· Level 2 support will not directly handle end user questions or Order related "single order" affecting issues (i.e., cropping, color, etc.)

Operational Hours. Fujifilm shall provide telephone support, as follows: Monday through Sunday, 8:00AM-12:00PM EST, except for holidays.

Holidays. The following days shall be deemed a “Holiday”: Good Friday, Easter Sunday, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day and New Year’s Day.

Customer Support for Print at Retail Orders

Fujifilm will provide Level 2 Customer support for in-store Customer inquiries relating to Orders in accordance with the following terms:

Fujifilm shall provide real-time support by telephone, within the United States, with a phone number specific to the Print at Retail program. Fujifilm shall provide such telephone number to each Retailer.

Assumptions:

· Level 1 support shall be provided to the Customer by the Retailer Sales Associate for all issues related to Print at Retail Orders.

· Phone inquiries to Level 2 support will come from the Retailer Sales Associate to Fujifilm support.

· Level 2 support will primarily consist of the following:

Potential systemic related issues

Operational Hours. Fujifilm shall provide telephone support as follows: Monday through Sunday, 8:00AM-12:00PM EST, except for holidays.

Holidays. The following days shall be deemed a “Holiday”: Good Friday, Easter Sunday, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day and New Year’s Day.

Developer Terms and Conditions

Fujifilm Smart Publishing Services
Developer Agreement

Limitation of Liability Your Terms and Conditions must specify that:

· Customer agrees that the submission of any work through the Services constitutes an agreement by the Customer that any damage or loss, even if due to Your or Your third party service provider's fault, will only entitle the Customer to replacement with a like Product or a refund of the purchase price.

· Customer agrees that any work does not invade, infringe, violate, or otherwise misappropriate the copyrights, patent rights, trade secrets, trademark or service mark rights, or any other intellectual property right, privacy, or publicity of any person.

· You make no warranty, express or implied.

· Recovery for any incidental or consequential damages, including, without limitation, lost or deleted digital images, is also excluded.

Returns Policy (for Ship-to-Home Products), Your Returns Policy must provide that:

· All Product must be returned within 30 days of shipment;

· Returned Product must be unused, with original box and packing materials;

· Customer will have the option to elect a refund of the purchase price paid for the Order or a reprocessing of an Order or any portion of it for defective Product; and

· Credit card sales will be credited back to the original card.

Sample
The following sample provision fulfills the requirements on this page and may be posted by You on a Customer-facing page of the Developer Application. In this example, "you" is the Customer.

"You agree that the submission of any work through the [name of Developer Application] constitutes an agreement by you that any damage or loss, even if due to [the Developer's] or its third party service provider's fault, will only entitle you to replacement with a like product or a refund of the purchase price. You further agree that such work does not invade, infringe, violate, or otherwise misappropriate the copyrights, patent rights, trade secrets, trademark or service mark rights, or any other intellectual property right, privacy, or publicity of any person. [DEVELOPER] MAKES NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. RECOVERY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST OR DELETED DIGITAL IMAGES, IS ALSO EXCLUDED. Returns Policy: All product(s) must be returned within 30 days of shipment to be eligible under this returns policy. Returned product must be unused, with original box and packing materials. You have the option to elect a refund of the purchase price paid for the product or a reprocessing of your order of any portion of it for defective product. Credit card sales will be credited back to the original card."

Returns Policy (for Print at Retail):

Each individual Retailer brand return policy shall apply for all Print at Retail locations.