This Master Commercial Photography Agreement (the “Agreement”) is made between Lizzyography, LLC (“Photographer”) and the client who has entered into an Order with Photographer (“Client”) (each a “Party” and collectively the “Parties”) and is effective as of the date of the earliest Order (the “Effective Date”).
RECITALS
A. Photographer provides certain photography services.
B. Client desires to engage Photographer for the purpose of taking original, full-resolution, digital photographs for Client (the “Images”).
C. Photographer desires to provide certain Images to Client in accordance with the terms and conditions set forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing and of the promises and covenants contained herein, the Parties agree as follows:
AGREEMENT
1. Certain Definitions.
a. “Client Product” means an item required by Client to be included in an Image.
b. “Delivery” means Client’s receipt of a web link via email or text message to a webpage that hosts the downloadable Images.
c. “Fees” means the agreed-upon consideration paid by Client as set forth in an Order.
d. “Order” means a written ordering document whereby Client orders Images from Photographer and which references this Agreement and which specifies the following details to the extent applicable: Client Products, Delivery deadlines, Fees, Photo Shoot details, number of Images, general descriptions of the Images, and any other special terms to which the Parties mutually agree. An Order is valid only if accepted by both Parties in writing (email is sufficient). Orders will typically be made by email exchange.
e. “Photo Shoot” means the time and location in which Photographer takes the Images.
2. Photographer’s Responsibilities.
a. Photographer shall take and Deliver the Images as set forth in an Order.
b. Unless another deadline is specified in an Order, Photographer shall Deliver the Images within fifteen (15) calendar days following the later of (i) the Photo Shoot or (ii) receipt of the applicable Fees.
c. Photographer will ensure that Delivered Images remain available to Client for download for no less than thirty (30) days.
d. Photographer shall perform any other Photographer obligations set forth in an Order.
3. Client’s responsibilities.
a. Client shall pay the Fees specified in an Order.
b. Client shall ensure that any Client Products are delivered to Photographer no less than three (3) business days prior to the applicable Photo Shoot.
c. Client shall submit Orders no less than four (4) weeks prior to the Photo Shoot listed thereon (or the first Photo Shoot listed thereon if multiple Photo Shoots are listed).
d. Client shall perform any other Client obligations set forth in an Order.
4. Copyright Ownership and Licenses.
a. Copyright Ownership. Provided that Client has paid all applicable Fees and expenses, the Images Delivered to Client shall be deemed works made for hire as defined in 17 U.S.C. § 101. If and to the extent that the Delivered Images are not deemed works made for hire by a court of competent jurisdiction, Photographer hereby assigns, transfers, and conveys to Client all rights, title, and interest in and to the Images, including all rights under copyright law, all moral rights, and all other intellectual property rights, provided that Client has paid all applicable fees and expenses therefor. For purposes of clarity, to the extent that Photographer provides Client with access to Images on a trial or sample basis, Photographer shall retain full ownership of such Images unless and until Client elects to purchase such Images.
b. Retained License. Client hereby grants a limited, irrevocable, nonexclusive license to Photographer to use, reproduce, and publish the Delivered Images for the limited purposes of advertising, showcasing, and marketing Photographer’s services online, including through Photographer’s own website and social media accounts, or off-line, including through printed copies displayed in Photographer’s office(s) and portfolios (collectively, the “Licensed Purposes”). Additionally, Client hereby grants Photographer with the limited right to identify Client as one of Photographer’s clients generally and to identify Client as the specific client associated with Images which Photographer uses, reproduces, or publishes in connection with the Licensed Purposes, which rights include, but are not limited to, naming Client in online social media posts and tags. Photographer shall not use Client’s name or trademarks in any manner not expressly permitted under this Section without the prior written permission of Client.
5. Payment of Fees.
a. Fees. Unless otherwise specified in an Order, Client shall pay all Fees prior to the applicable Photo Shoot. Fees paid are non-refundable except to the extent that Photographer fails to Deliver the Images specified in the applicable Order.
b. Scheduling Fees. If a separate scheduling Fee is required under any Order, Client’s payment of such scheduling Fee shall be nonrefundable except in the event that Photographer cancels the Photo Shoot, in which case, Photographer shall, at Client’s election, either (i) reschedule the Photo Shoot for no additional scheduling Fee or (ii) refund one hundred percent (100%) of the scheduling Fee to Client within five (5) business days of such cancellation.
c. Expenses. Client shall reimburse Photographer for any expenses included on an Order or which are otherwise pre-approved in writing by Client. Each Party shall otherwise be responsible for its own expenses.
d. Invoices. Photographer shall submit invoices electronically to the invoicing contact indicated on the Order. Invoices shall be deemed to be received upon electronic submission.
e. Overdue Charges. If any properly invoiced amount hereunder is not received by Photographer by the applicable due date, then without limiting Photographer’s rights or remedies, such amounts may accrue late interest at the rate of one and one-half percent (1.5%) of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
f. Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client is responsible for paying all Taxes associated with its purchases hereunder. If Photographer has, or is later determined to have, the legal obligation to pay or collect Taxes for which Client is responsible under this Section, Photographer shall invoice Client and Client shall pay that amount unless Client provides Photographer with a valid tax exemption certificate which is authorized by the appropriate taxing authority.
6. Warranties and Disclaimers.
a. Warranties. Each Party warrants that it has the authority to enter into and be bound by this Agreement. Photographer warrants that the Images do not infringe any third party’s intellectual property or privacy rights.
b. DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.a, PHOTOGRAPHER DOES NOT REPRESENT OR WARRANT THAT THE IMAGES WILL MEET THE REQUIREMENTS OF CLIENT OR OF ANY PERSON, AND PHOTOGRAPHER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OR REPRESENTATIONS CONCERNING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ADDITIONALLY, CLIENT ACKNOWLEDGES THAT CLIENT HAS ENGAGED PHOTOGRAPHER BECAUASE OF PHOTOGRAPHER’S ARTISTIC PHOTOGRAPHY EXPERTISE. CLIENT WILL, THEREFORE, ACCEPT THE IMAGES UPON DELIVERY SO LONG AS THE IMAGES CONFORM TO THE GENERAL, OBJECTIVE DESCRIPTIONS ON THE ORDER FORM (E.G., QUANTITY, CLIENT PRODUCTS FEATURED, NUMBER OF MODELS, ETC.). NO IMAGES WILL BE RETAKEN OR RE-EDITED, AND NO FEES WILL BE REFUNDED OR DISCOUNTED FOR AESTHETIC, CREATIVE, OR ANY OTHER SUBJECTIVE REASONS.
7. Confidentiality.
a. Definition. For purposes of this Agreement, “Confidential Information” means any non-public information of either Party relating to its business activities, financial affairs, pricing, marketing, or sales plans that is disclosed to, and received by, whether orally or in writing, the other Party pursuant to this Agreement, including any information that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, and the terms and conditions of this Agreement.
b. Protection. Each Party agrees (a) to exercise the same degree of care and protection with respect to the other Party’s Confidential Information as each Party exercises with respect to its own similar information, but in no event less than a reasonable degree of care and protection; and (b) not to disclose such Confidential Information to any third party or use it for any purposes other than in connection with fulfilling its obligations under, or enjoying the rights granted to it, under this Agreement; provided, however, that each Party may disclose Confidential Information to its employees and third parties performing services for such Party related to the purposes of this Agreement who have a need to know such Confidential Information and who have agreed to comply with the restrictions set forth herein with respect to such Confidential Information.
c. Exceptions. These obligations shall not apply to Confidential Information which (a) is known by the receiving Party prior to its receipt, as evidenced by written documentation, (b) is now or hereafter becomes publicly known by acts not attributable to the receiving Party, (c) is disclosed to a Party by a third party who has the legal right to make such disclosure, (d) is disclosed by a Party with the other Party’s separate written consent, or (e) is required to be disclosed pursuant to governmental regulation or court order.
8. Limitations on Liability. Neither Party shall be liable to the other Party or to any third party for any incidental, consequential, or punitive damages arising out of or related to this Agreement, even if such Party has been advised of the possibility of such damages. Each Party’s aggregate liability to the other Party for all damages, losses, and causes of action, whether in contract, tort, or otherwise shall not exceed the fees paid or payable by Client to Photographer during the six (6) month period immediately preceding event giving rise to such damages, losses or cause of action.
9. Term and Termination.
a. Term. The term of this Agreement shall commence on the Effective Date and shall continue until terminated as set forth below.
b. Termination for Convenience. Either Party may terminate this Agreement or an Order at any time without cause by giving not less than fifteen (15) calendar days written notice of such termination to the other Party.
c. Termination for Cause. Either Party may terminate this Agreement or an Order immediately upon notice to the other Party in the event that the other Party has breached this Agreement or is in material violation of applicable laws.
d. Effect of Termination on Fees and Delivery. Unless otherwise agreed in writing, the termination of this Agreement or of any Order shall not affect Client’s obligations to pay any Fees owing prior to the date of such termination or Photographer’s obligations to Deliver Images to Client to the extent that such obligation arose prior to termination and Client has paid all applicable Fees therefor.
e. Survival. The following Sections of this Agreement shall survive termination of the Agreement for any reason: 1, 4, 6, 7, 8, 9.d, 9.e, and 10.
10. Miscellaneous.
a. Applicable Law. This Agreement shall be interpreted consistently with the laws of the State of Utah, without regard to choice-of-law principles.
b. Dispute Resolution. In the event of any dispute between the Parties arising from or pertaining to this Agreement, the Parties shall use their best efforts to resolve the dispute through face-to-face, good-faith negotiations. Disputes not resolved within sixty (60) days following notice of the dispute shall be submitted to binding arbitration in Salt Lake City, Utah by a single arbitrator, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction over the Parties. The arbitrator may award the prevailing Party the reasonable costs and attorneys’ fees expended in such arbitration.
c. Severability. If any portion of this Agreement is declared void or ineffective by a court of competent jurisdiction, such portions shall be ineffective only to the extent of such invalidity or unenforceability, and the remaining portions shall remain valid and enforceable and in full force and effect.
d. No Waiver. No failure or delay on the part of either Party in exercising any right, power, or remedy under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any such right, power, or remedy preclude any other or further exercise thereof or the exercise of any other right, power, or remedy hereunder. The rights and remedies provided in this Agreement are cumulative, and are not exclusive of any other rights, powers, or remedies, now or hereafter existing, at law or in equity or otherwise.
e. Third Party Beneficiaries. This Agreement is not intended for the benefit of any third party, and no third party shall have any cause of action arising from or pertaining to it.
f. Force Majeure. No Party will be liable for any failure to perform its obligations hereunder where such failure results from force majeure, meaning any cause beyond the reasonable control of the Party and which could not have been prevented through the exercise of reasonable care and precautions, including acts of God, fire, strike, accidents, war, civil insurrection, riots, embargoes, or the demands, restrictions, or delays of any government.
g. Counterparts; Facsimiles. This Agreement may be executed in counterparts, each of which will constitute an original and all of which will be one and the same document. Electronic and facsimile copies shall be deemed to be originals.
h. Notices. The Parties hereby consent to the giving and receipt of notices electronically, including notices of amendment. Notices shall be deemed to be effectively given upon receipt if (a) hand delivered, (b) sent postage prepaid via certified mail, return receipt requested, (c) mailed for overnight delivery, or (d) delivered via email to the other Party at the mailing address or email address, as the case may be, indicated on the Order; provided that, in the case of notice via email, the sender shall ensure that the transmission of such notice is time-stamped and that the original notice document is reasonably protected against alteration. Each Party may change its addresses and email addresses for notices by the providing notice thereof to the other Party in accordance with this Section.
i. Amendment. Any modifications to the terms of this Agreement shall require the written consent of both Parties.
j. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, that either Party may assign this Agreement in its entirety without the other Party’s consent to its legal successor in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.
k. Integration. This Agreement supersedes all prior agreements and understandings, whether written or oral, between the parties with respect to its subject matter and constitutes, a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter.