The Photographer will perform the Services and deliver the final images (the "Deliverables") in such format as agreed upon with Client, within total 4 business weeks after the Appointment, If the Photographer chooses to use proofs, the Photographer shall coordinate the review of the proofs with Client in such a manner so as to make sure that the Deliverables are delivered within the time frames provided above.
1.2 POST-PRODUCTION EDITING
The Photographer shall not be required to provide a full resolution of every Proof and shall have the sole discretion to determine which Proofs will be Photographs. All post-production and editing styles, effects, and overall look of the Photographs shall be left to the discretion of the Photographer.
2. Service Fees
In consideration of the Services to be performed, the Deliverables to be delivered and the license rights granted by Photographer under this Agreement, Client will pay fees (the "Fees") at the rates specified on the Site at the time when Client schedules the Appointment. Client will be charged the full amount of the Fees prior to, and as a condition of, the confirmation of the Appointment. The Fees paid for the Appointment will not change in the event of the Photographer's rate change during the time period between the scheduling date and the Appointment date, except as described in Section 3 below.
3. Changes to Service
Client may request additional or different services directly from the Photographer (e.g., certain editing, color correction, etc.) at or before the time of the Appointment. The Photographers compensation for such additional services must be handled directly with the Photographer.
4. Appointment; Session Time
Client and the Photographer agree that cooperation and punctuality are essential to accomplish the goals and wishes of all parties. The Appointment will commence at the scheduled start time and will end at the scheduled end time even if Client does not arrive at the appointed time, a rebooking admin fee of $40 will be requested.
The Photographer will specify the radius within which the Photographer will deliver the Services without charging Client for any travel expenses. In the event Client books the Photographer for the Services outside of the specified radius, or if the Photographer incurs location expenses or other extraordinary expenses as a result of special accommodations to Client, reimbursement of such expenses shall be made, and the Photographer shall look solely to Client for reimbursement, if any, of such expenses.
6. Intellectual Property Rights
The Photographer will own all copyrights in the Deliverables. Subject to Client's compliance with the terms of this Agreement, Client will have a perpetual, worldwide right to copy, distribute and publicly display the Photographs in any medium, subject to additional rights and restrictions as provided in the Copyright License (general use or commercial, as applicable) displayed on the Site for each type of service of the Photographer.
Client will not use or post any of the Deliverables in any way that exceeds the scope of Section 6 above.
8. Cancellation; Rescheduling
Client may request that the Appointment be rescheduled, and the Photographer may agree in his or her sole discretion. Client will not be charged any extra fees if the rescheduled appointment does not require additional or different services, otherwise, additional fees may apply in accordance with Section 2 above. Notwithstanding the foregoing, no cancellation fee will apply in the event that the cancellation is due to the Photographer not being able to keep the originally scheduled date and time and Client not wishing to reschedule. If Client does not appear for the Appointment or chooses to cancel the booking, the Photographer will be paid the full Fee amount, and Client will not receive any refunds.
9. Photographer’s Obligations
9.1 PROFESSIONAL SERVICES
The Photographer shall be responsible for delivering the Services in a timely and professional manner in a harassment-free and sanitary environment.
9.2 INABILITY TO KEEP THE APPOINTMENT
If the Photographer becomes ill or otherwise unable to keep the Appointment, the Photographer may:
(a) contact Client via the Site to reschedule the Appointment; (b) use commercially reasonable efforts to engage the services of a replacement photographer who will appear at the Appointment. In the event of a no-show by the Photographer, Client will receive the full refund of the Fees within 7 days after submitting a dispute in accordance with Section 12.
In addition, if the Photographer has requested to reschedule but Client does not wish to reschedule the Appointment, the Appointment will be cancelled and Client will receive a full refund of the Fees.
9.3 INABILITY TO FINALIZE SERVICES
If, after the Appointment, the Photographer becomes ill or otherwise unable to finalize the Services deliver the Deliverables, the Photographer may (a) use commercially reasonable efforts to engage the services of a replacement professional who will finalize the Services and deliver the Deliverables described in this Agreement; or (b) refund the client in full.
9.4 COMPROMISED COVERAGE; CAPTURE
The Photographer shall not be responsible for compromised coverage due to causes beyond the Photographer's control, including but not limited to disruptive behavior of any attendee, tardiness of Client or guests, schedule complications, incorrect addresses provided to the Photographer, obstructive or reflective decorations, backgrounds or lighting conditions, restrictions of the locations or any of the force majeure events described in Section 15 below. In addition, the Photographer shall not be responsible for failure to capture any part of an event, any individuals or any objects, unless Client specifically requests to capture certain portion of the event, certain individuals or objects and the Photographer is provided an adequate opportunity to comply with such request.
10. Client’s Obligations
10.1 COMMUNICATIONS WITH PHOTOGRAPHER
Client agrees to communicate promptly with the Photographer, confirming and notifying of any changes in location or other issues in a timely manner.
10.2 LOCATION PERMITS AND RESTRICTIONS
If the Appointment is at a location that is not controlled by the Photographer, Client shall secure all permits, entry credentials or passes, and take all actions necessary to ensure the Photographer's access and ability to conduct a photoshoot. Negotiation with the officials for the location shall be Client’s responsibility; the Photographer will offer technical recommendations only. Client agrees to accept the technical results of any location's restrictions on the Photographer.
10.3 WORK ENVIRONMENT Photographer.
The Photographer reserves to right to terminate Services and leave the location of the Appointment if the Photographer experiences inappropriate, threatening, hostile or offensive behavior from person(s) at the Appointment or in the event that the Photographer in good faith feels unsafe. If the Photographer is unable to perform the Services due to Client's behavior and, therefore, cannot deliver the Deliverables, the Client will not be entitled to a refund. If, on the other hand, the Photographer is able to perform the Services in whole or in part in spite of Client's behavior, the Photographer must prepare and deliver the Deliverables to Client and has the right to give an unfavorable review to Client in connection with this Appointment.
11. Model Release
Client hereby assigns to the Photographer the irrevocable and unrestricted right to use and publish photographs of depicting Client or Client's event, property and facilities for editorial, trade, advertising, educational and any other purpose and in any manner and medium, to alter the same without restriction, and to copyright the same without restriction. Client releases all claims to profits that may arise from the use of Client's images. Client, on behalf of him/herself and, if acting as a parent/legal guardian, on behalf of his/her minor children, hereby assigns to the Photographer the irrevocable and unrestricted right to use and publish photographs depicting Client or Client's event, Client's minor children, pets, property and facilities for editorial, trade, advertising, educational and any other purpose and in any manner and medium, to alter the same without restriction, and to copyright the same without restriction. Client releases all claims that may arise from the use of Client's images. Without limiting the generality of the foregoing, the Client specifically releases and discharges the Photographer from any and all claims to profits, as well as any and all claims and demands for violation of any right of publicity or privacy. Client hereby warrants that Client is a legally competent adult and, if any minor(s) are depicted in the photographs, a parent or a legally appointed guardian of the minor(s), and that Client has every right to contract for the minor in the above regard.
Client may submit a dispute regarding the Services by contacting the photographer within 7 days after the project is complete (and Client has received an email notice of the complete project) or the Photographer’s no-show.
13.1 INDEMNITY BY CLIENT
Client will indemnify, defend and hold Photographer harmless from and against all losses, arising from or related to any of the following: (a) Client's failure to comply with Section 6 (Intellectual Property Rights); and (b) any property or equipment damage, except to the extent caused by Photographer's recklessness.
13.2 INDEMNITY BY THE PHOTOGRAPHER
Photographer will indemnify, defend and hold Client harmless from and against any claim that the Deliverables infringe any other person's intellectual property rights unless the infringement relates to Client's breach of Section 7 (Restrictions) above.
13.3 PROCEDURE; WAIVER
The obligation of each party (the "Indemnitor") to indemnify the other party is conditioned upon that other party (a) giving the Indemnitor prompt written notice of the claim (except that any delay in giving notice will not limit the Indemnitor's obligations unless it has been prejudiced by the delay and then only to the extent of the prejudice); (b) tendering the defense and settlement of the Claim to the Indemnitor (and the Indemnitor will not settle any such Claim without the indemnified party's consent unless the settlement includes a full and complete release of all liability and does not include an admission of wrongdoing and does not impose any obligations on the indemnified party); and (c) cooperating with the Indemnitor in the defense of that Claim.
IF A CLIENT IS AN ENTITY, TO THE EXTENT NECESSARY TO INDEMNIFY AND HOLD PHOTOGRAPHER HARMLESS FROM ANY CLAIMS BY ANY OF CLIENT'S EMPLOYEES, CLIENT EXPRESSLY WAIVES ANY IMMUNITY OR EXEMPTION FROM LIABILITY FOR THE PERSONAL INJURY OR DEATH OF CLIENT'S EMPLOYEES THAT MAY EXIST UNDER, OR ANY RIGHT TO RECEIVE CONTRIBUTION FROM PHOTOGRAPHER, CREATED BY, THE WORKERS' COMPENSATION LAWS OF THE STATE WHERE THE INJURY OCCURS OR THE EMPLOYEE IS LOCATED. IF APPLICABLE LAW DOES NOT PERMIT CLIENT TO COMPLY WITH THIS PARAGRAPH, CLIENT WILL ADD PHOTOGRAPHER AS AN ADDITIONAL NAMED INSURED UNDER CLIENT'S GENERAL COMMERCIAL LIABILITY POLICY.
14. Limitation of Liability
IN NO EVENT WILL PHOTOGRAPHER BE LIABLE FOR ANY LOST PROFITS, LOSS OF USE, OR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES. In the unlikely event that digital files have been lost, stolen, or destroyed for any reason, including but not limited to a force majeure event or equipment malfunction, the Photographer’s liability shall be limited to the return of the Fee for the lost digital files, prorated to total number of originals paid for by Client. Notwithstanding any provision in this Agreement to the contrary, in no event shall the Photographer be liable for the loss of images beyond the cost of the final delivery of all products included in the package.
15. Force Majeure
Neither party will be liable for the delay or failure of performance of its obligations under this Agreement to the extent that delay or failure is caused by insurrection, war, terrorist attack, riot, explosion, nuclear incident, fire, flood, earthquake, severe weather or other catastrophic event beyond the reasonable control of the affected party, provided the affected party promptly notifies the other party and takes reasonable and expedient action to resume operations.
Except as expressly provided otherwise in this Agreement, neither party may sell, transfer or assign this Agreement, or any of its rights or obligations under this Agreement, to any other person.
17. Governing Law; Jurisdiction
The internal law of the state where the Photographer resides (the "Photographer's State"), regardless of where the Services are delivered and without regard to the Photographer's State’s conflicts of law provisions. The prevailing party in any suit, action or other proceeding will be entitled to recover its attorney fees and costs, including without limitation those incurred prior and at the proceeding and in any post judgment proceeding.
18. Entire Agreement
This Agreement and any addenda hereto contain the entire understanding between the Photographer and Client; provided, however, that this Agreement shall govern and supersede any provisions in the addenda inconsistent with the provisions in this Agreement. In addition, this Agreement supersedes all prior and simultaneous agreements between the parties. In the event that any part of this Agreement is found to be invalid or unenforceable, the remainder of this Agreement shall remain valid and enforceable. Any agreement to waive one or more provisions of this Agreement or any failure by one or both parties to enforce a provision of this Agreement shall not constitute a waiver of any other portion or provision of this Agreement.
BY BOOKING THE SERVICES AND ACCEPTING THE BOOKING, THE PARTIES HERETO EXPRESSLY ACKNOWLEDGE AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT, AND FURTHER ACKNOWLEDGE THAT THEY ARE LEGALLY COMPETENT TO ENTER INTO THIS AGREEMENT.