Abby is a professional photographer who witnessed and took photos of the bombing of a local chemical plant. Francis, an employee of the Charlotte Observer, called Abby and told her the Observer wanted to use her photos. Abby told Francis that she had 50 photos available. Francis wanted to inspect the photos and offered Abby $200 for each photo that was published. Abby sent Francis via email low resolution copies of the photographs with a digital watermark on each photo bearing Abby's logo. Along with the photo files, Abby sent a memo including a clause that if any of her photos were copied or distributed in any way other than being published in the newspaper, the Observer was required to pay $2000 per photo. After Francis received the email, the newspaper decided not to run the story. The next week, one of the photos appeared on the internet. Assuming that both Abby and the Observer are merchants, are the clauses in the memo part of the sales contract?
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