Terms and Conditions
This Agreement is made effective for all purposes in all respects as of 04/01/2017 by and between Dominick Lewis (Photodom), herinafter referred to as “the PHOTOGRAPHER” and _______, hereinafter referred to as “The CLIENT”.
- Invoices. Client shall pay full invoice upon receipt.. On all amounts thereafter due and unpaid there will be a 1.5% per month interest charge, accruing daily, until the amount due is paid in full, not to exceed the maximum amount permissible by law. Client shall be solely responsible for the payment of applicable services and expenses, and shall hold the PHOTOGRAPHER harmless for and from any liability assessed therefore. All fees shall be paid in U.S. Funds without deduction for any applicable foreign taxes.
- Services & Costs. Estimated amounts are only for the services and costs described in the estimate. There will be additional charges for any additional services and costs rendered or incurred for performance. Additional charges will be invoiced to Client.
- Cancellation, Postponement, Delay, and Additional Time. If the CLIENT postpones or cancels services or expenditures once this agreement has been confirmed, and time committed, the full amount of the PHOTOGRAPHER’S fees and any expenses incurred that are associated with this assignment shall be due and payable to the PHOTOGRAPHER as a cancellation or postponement charge. The CLIENT will be charged the full amount of the estimate, in addition to the cancellation or postponement charge, where the estimated services or expenditures are performed or incurred after a cancellation or postponement. The CLIENT will be charged for any delays in performance which are not the fault of the PHOTOGRAPHER. And as set forth in the estimate. In the event that the CLIENT services which are estimated for any day extend beyond eight (8) consecutive hours in such day, there shall be additional charges to the CLIENT for assistants and crew members, which shall be one and half times their hourly rate for more than eight and up to 12 hours, and which shall be doubled their hourly rate for more than 12 hours in such day.
- Approval. The CLIENT’S authorized representative shall be present during photography to approve the PHOTOGRAPHERS photographic services and changes thereto. The CLIENT shall not participate in or interfere with the PHOTOGRAPHER’S performance or photographic services, and the PHOTOGRAPHER shall be solely responsible for and shall exercise its sole discretion, for determining the artistic content, composition, audience appeal, and outcome of the work performed. Work which the CLIENT does not reject, or which the CLIENT does not request the PHOTOGRAPHER to correct during the performance of photography, at the time the services are being performed, shall be deemed accepted.
- Photographic Material. The photographic materials referenced in the estimate are deliverable only in the format therein specified. The photography services performed by the PHOTOGRAPHER will be those of the PHOTOGRAPHER or its employees or contractors. The PHOTOGRAPHER shall make a good faith effort in the performance of all services. NO release exists and none shall be provided by the PHOTOGRAPHER for any other component of the photographic material including without limitation those for model, minors, rights of publicity, privacy, property, trademarks, copyrights, patents, misaffiliation, defamation or for any other cause for liability or otherwise, unless expressly listed in the estimate and provided by the CLIENT. the PHOTOGRAPHER may but shall not be required to keep archives or copies of the photographic writing by the PHOTOGRAPHER at the time of the PHOTOGRAPHER’S delivery of the photographic material. Except for those expressly, identified as being for permanent transfer to the CLIENT, and unless otherwise specified by the express terms of the estimate, all photographic material remain the property of the PHOTOGRAPHER and shall be redelivered to the PHOTOGRAPHER within thirty (30) days of first publication, or within sixty (60) days of delivery, whichever occurs first. The CLIENT shall destroy all digital files within one week of first publication, or at the conclusion of the term that the rights have been licensed for. As reasonable liquidated damages, the CLIENT agrees to pay the PHOTOGRAPHER $2,500.00 for any original image which is lost by the CLIENT, its carriers, consigns, and bailees, unless the PHOTOGRAPHER has a high quality reproducible duplicate of such original image.
- Limitations of Liability. The photographic material is deliverable in the specific format, AS IS, where is, at the place designated in the estimate, or if none, at the PHOTOGRAPHER’S principal place of business. Except as provided for in the estimate, the photographic materials will not be insured. The PHOTOGRAPHER shall not be responsible for the risk of loss for the photographic materials while the same are in the CLIENT’S possession or in the hands of any carrier, beyond the amount of any insurance, if any, procured by the PHOTOGRAPHER for the CLIENT at the CLIENT’S written request and expense as shown in the estimate. Except as expressly provided for in the estimate, the CLIENT shall obtain no independent insurance for the photographic materials. The PHOTOGRAPHER makes no warrantied, express or implied, with regard to the deliverable photographic materials. ALL WARRANTIES OR MERCHANTABILITY AND OR WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL OTHER WARRANTIED EXPRESS OR IMPLIED, ARE EXPRESSLY DISCLAIMED to the fullest extent permitted by law. In the event that the PHOTOGRAPHER’S work becomes lost, unusable, or damaged due to equipment malfunction, processing, or technical error prior to delivery, the PHOTOGRAPHER shall at the CLIENT’S sole election be provided by the CLIENT with a reasonable opportunity to perform the photographic services to replace the lost, unusable or damaged work; and the PHOTOGRAPHER may require that the PHOTOGRAPHER first be paid in full for such work. The PHOTOGRAPHER’S liability to the CLIENT for any acts or omission arising out of or in connection with this agreement shall not, in any event, exceed the amount paid by the CLIENT to the PHOTOGRAPHER under this agreement. In no event shall the CLIENT be responsible for incidental, or consequential damages. The PHOTOGRAPHER shall indemnify, protect, hold harmless, and defend through Counsel of the PHOTOGRAPHER’S choosing, the PHOTOGRAPHER from and for any and all claims, demands, actions, proceedings, and costs (including without limitation reasonable attorneys fees, court costs, and litigation related expenses) which arise out of or in connection with the PHOTOGRAPHER’S performance of services for the CLIENT, or the CLIENT’S use of the PHOTOGRAPHER’S work, except where the same arises solely from the PHOTOGRAPHER’S own negligence.
- Rights. Except as expressly licensed in the estimate, all right, title, and interest, in and to the photographic materials, including without limitation the copyrights, designs patents, publicity, attribution (and other rights in the photographic materials), including without limitation any renewals or extensions thereof, now or hereafter arising, shall be and shall remain except as may be subsequently licensed by the PHOTOGRAPHER the sole property of the PHOTOGRAPHER in perpetuity, throughout the world. All permissions must be signed by the PHOTOGRAPHER in writing and payment in full; absent full payment such permissions shall be deemed void ab initio. Except as expressly licensed in the estimate, permission to include the PHOTOGRAPHER’S work in a collective work includes the work only in the stated media and excludes permission to include the work in other media, or any revision of the collective work or later series. The CLIENT is not authorized to remove copyright management information from the PHOTOGRAPHER’S work, and any authorization granted to the CLIENT to use the PHOTOGRAPHER’S work is conditioned on the Client’s inclusion of the copyright management information which is designated in the estimate, which in no event shall include less than the PHOTOGRAPHER’S authorship designation and copyright notice, and such other information as would permit through a reasonably diligent search the identification of the PHOTOGRAPHER as copyright owner. Permissions granted may not be assigned or sub-licensed.
- Disputes. In the event of a dispute arising under this agreement such dispute shall at the PHOTOGRAPHER’S election be resolved exclusively by binding arbitration in accordance with the rules of the American Arbitration Association. The arbitrator shall determine the prevailing party and shall order that they be reimbursed their arbitration fees, arbitration costs, and legal fees and cost incurred for in connection with the arbitration. The arbitration shall be conducted in___West Palm Beach, FL___ and the decision of the arbitrator shall be final, binding, and enforceable in any court having jurisdiction. The parties consent to the personal jurisdiction and exclusive venue of the courts of __West Palm Beach, FL___for any litigation commenced under or in connection with this agreement. The laws of ___West Palm Beach, FL___, without regard to its rules for conflicts of law resolution, shall apply in the construction of this agreement. Actual attorney’s fees and all actual costs shall be awarded to the prevailing party against the losing party in any such litigation.