Terms & Conditions

Commercial Photography Services Agreement

These are the terms and conditions we accept photography contracts under. We assume you have read through and agree to all terms below when you hire Commercial Photography UTAH for your photography needs. If there is anything you disagree with, or need modified, please let us know prior to us commencing work on your project.

 

Terms for Commercial Photography

Definitions

For the purpose of this agreement “the Agency” “the Broker” and/or “The Client” shall where the context so admits include their respective assignees, sub-licensees and successor in title. In cases where The Photographer’s Client is a direct Client (i.e. with no Agency or intermediary), all references in this agreement to both “The Agency” and “The Client” shall be interpreted as references to The Photographer’s Client. For the purpose of this agreement “The Photographer” will mean the Author of the Photograph, Commercial Photography UTAH and/or Dave Koch. And shall where the context so admits include their respective assignees, sub-licensees and successor in title. “The Photographs”, “The Images”, and “The Works” means all photographic material furnished by The Photographer, whether transparencies, negatives, prints, digital files or any other type of physical or electronic material in existence now or yet to be developed.

All contracts verbal or written are only accepted on the basis that the Terms and Conditions of The Photographer are the only ones applicable. Other Terms and Conditions proffered by The Client are specifically excluded unless agreed in writing beforehand by The Photographer. Where time is of the essence The Photographer entirely at its own discretion may accept an instruction given orally, in this event The Photographer shall accept no liability for any error in executing the order. Unless The Photographer is given prior written notice by the Client, the person placing or signing the order on behalf of The Client is deemed to be authorized to do so. When a Client’s policy is not to rely on email confirmations, hard-copy paperwork must be supplied, if none is provided, then the email traffic will constitute a contract in law.

Relationship of the Parties

The parties agree that Photographer is an independent contractor, and that neither The Photographer, nor The Photographer’s employees or contract personnel are, or shall be deemed to be, employees of The Client. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Photographer and the Photos or any other deliverables prepared by Photographer shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by this Agreement.

Scheduling and Contact Information

Requests for photography appointments should be submitted via email to [email protected] or via the Contact Form on the Commercial Photography UTAH website with as much detail as possible. We will reply back within 24 hours to verify the date, time and location of the shoot. Next day orders are difficult to schedule, cannot be guaranteed and are subject to an additional charge. Once both parties have acknowledged the date and time of the appointment, the appointment will be considered “booked”, and the terms of this document are considered agreed to and enforceable.

At the Shoot

The Client is responsible for the presence of an authorized representative at the shoot to approve and/or direct Commercial Photography UTAH’s interpretation of the project. The Photographer will work at all times within the brief and instructions of The Client, but may need to make his own interpretations as to how to accomplish those instructions. If a Client or Brokerage representative is not present and no or limited direction are given The Photographer, The Photographer’s interpretation shall be deemed acceptable and final.

The Photographer will make a reasonable effort to remove distractions, litter, stray objects, etc. from the rooms; however The Client and not The Photographer will be deemed ultimately responsible for dressing the sets. The Photographer assumes that the objects to be photographed are photo ready when he arrives, and cannot be held responsible for dressing or policing the set. (Some editing may be done after the fact via Photoshop, at additional charge and subject to The Client‘s direction and approval. Commercial Photography UTAH does not guarantee the acceptability or usability of such editing.)

The manner and method of creating any Photographs is solely at the discretion of Photographer and The Client has no right to control Photographer’s manner and method of performance under this Agreement. In the event of a lack of an on-site producer or representative of The Client directing the content of the photographs at creation, Photographer will use his/her best efforts to: (a) ensure that the Photos conform to Client’s specifications; and (b) submit all Photos to Client in publishable quality, on or before the applicable deadlines.

The Client is expected to have the subject or property prepared, staging, and cleaning completed prior to the photo shoot; if after the completed shoot The Client determines a reshoot is required because of the properties lack of subject or property’s readiness, that second shoot will be billed at our full rate. If The Photographer is kept waiting or asked to return to bring the property to a state of readiness, additional charges as outlined on our site will apply.

After the Shoot – Deliverables

Once the images have been made, The Photographer will perform digital retouching and deliver the still photos as follows, unless otherwise specified.

Day 1 – Shoot Day

Day 10 – Proofs of Photos delivered by 8pm, subject to client notes or changes

Day 14 – Photos delivered by 8pm

Day 14 – Proofs of Video or Tour, subject to client notes or changes by 8pm

Day 21 – Video or Tour by 8pm

Delivery is via a DropBox, Google download or similar image download service link sent to the email address(es) you supply. All images will be delivered in this format: JPG images sized 4000px on long side 72 dpi; additional sizes & crops available on request.

WE DO NOT DELIVER RAW OR UNEDITED FILES. If Proofs are sent, they are for Client approval process only, and may not be used on any live site or for any use other than for client to approve or make notes for final edits. Any other use of Proof Images will be considered a MATERIAL BREACH of this contract.

Delivery is via a DropBox or Google or similar download link sent to the email address(es) you supply. All images will be delivered in the format listed above in SESSION SPECIFICS section. This delivery and notice via e-mail shall be deemed completion of this contract in full by The Photographer and Commercial Photography UTAH. A USB thumb drive can be provided for an additional fee.

Images will be available for download for a maximum of 30 days from delivery; requests for downloads after 30 days may incur additional costs, or may no longer be available at all. PLEASE SAVE YOUR IMAGES AFTER DELIVERY. This delivery and notice via e-mail shall be deemed completion of this contract in full by The Photographer. A USB thumb drive can be provided for an additional fee.

Cancellation, No-Show and Inclement Weather Policy

If Client cancellation of this Agreement less than 24 hours prior to the Property shoot, Client will pay any expenses incurred (including cancelation of studios, rentals and model fees) plus a two hundred fifty dollar ($250.00) cancellation fee. For Client de facto cancellation at the agreed on time and place of the Property shoot- either by being unprepared, not preparing the property for a shoot or not being at the shoot at all, Client is responsible for 50% of the fee plus a seventy-five dollar ($75.00) cancellation fee and any expenses incurred.

We realize neither we nor The Client can control the weather. If the weather is inclement, we will continue with all indoor shooting, and reschedule exteriors for the next clear day. There is no penalty for weather delays.

Rejection

Unless a rejection fee has been agreed in advance, there is no right to reject on the basis of format, style, suitability for use or composition.

Copyright

All Photos and rights relating to them, including copyright and ownership rights in the media in which the Photos are stored, remain the sole and exclusive property of the Photographer. This license provides The Client with the limited right to reproduce, publicly display, and distribute the Photos only for purposes as specified in the terms of licensing. Photos used for any purpose not directly specified in the terms of licensing must be with the express permission of Photographer and the payment of additional fees, unless otherwise agreed to in writing.

Photos may be used solely in the terms of licensing during the pendency of this Agreement. Client may use Photos in print, web or any other advertising media as dictated in the terms. However, at no time does this Agreement provide Client with the right to transfer copyright, or any other exclusive rights they hold due to this agreement to any third party, as provided by the Copyright Act 17 U.S.C § 106.

Photos may contain copyright management information (CMI) at the discretion of The Photographer in the form of either 1) a copyright notice © and/or 2) other copyright and ownership information embedded in the metadata or elsewhere, unless otherwise agreed to by the Parties. Removing and/or altering such information is prohibited and constitutes violation of the Digital Millennium Copyright Act (DMCA) and Client will be responsible to The Photographer for any penalties and awards available under the statute.

Alteration of Images

Unless prior agreement is reached and an additional license paid for in advance, The Client will have no rights to alter images except in regard to size and crop of full size image as furnished by Commercial Photography UTAH. The Client has no right to alter, change, edit, add to (or subtract from) or create derivative works from the original (whether minor or transformative in nature).

Ownership of Materials

Title to all Photographs remains the property of Commercial Photography UTAH. When the Grant of License has expired (or has been revoked for cause) the Photographs must be returned to The Photographer in good condition within 30 days and any archived digital files destroyed. Title to any materials used in producing the Works is not transferred to The Client upon payment of the invoice.

Payment

Charges billed to The Client are for The Photographer’s time, expertise and work in preparing for, shooting and editing the assignment, and for licensing of those images; The Client is NOT purchasing the actual images, but paying for the licensing of those images and the work and costs to create them. Invoice is due and payable on receipt, and we invoice on delivery of images.

Unless other and prior arraignments are made, Commercial Photography UTAH considers invoices overdue at 30 days, and grossly overdue at 60. Invoices overdue after 60 days will be charged an additional 1 ½ percent interest per month from day 61, compounded monthly or part thereof for each 30 day period overdue, backdated to invoice date. Should an invoice be referred to collections, an additional 30% will be added to the total billing to cover collection costs. Additionally, reasonable collection costs, attorney fees and court costs incurred by Receivables Management Services (RMS) may be added to the final amount due. Licensing of images may be suspended or revoked if accounts are grossly overdue or in arrears at Commercial Photography UTAH‘s discretion. Client will be charged a minimum of 100 dollars per day per image if images are used out of the scope of licensing.

Failure to Comply

In the event of an emergency, equipment failure or other unforeseen circumstance which prevent us from taking the agreed pictures, we agree to reschedule at the first available opportunity available to both The Photographer and The Client. If The Client would elect to fully cancel, The Photographer will return any money given up to that point (less any actual expenses) but claims no further liability. This limitation on liability shall also apply in the event that photographic materials are damaged in processing, lost through camera malfunction, lost in the mail, or otherwise lost or damaged without fault on the part of The Photographer. In the event The Photographer fails to perform for any other reason, The Photographer shall not be liable for any amount in excess of the retail value of the Client’s order.

Substitution

The Photographer may substitute another photographer to take the photographs in the event of The Photographer’s illness or of scheduling conflicts. In the event of such substitution, The Photographer warrants that The Photographer taking the photographs shall be a competent professional and capable of performing all the tasks set out in this agreement.

Grant of License

The Photographer owns Photographs (the “Authored Work”). In accordance with this Agreement, The Photographer grants The Client a non-exclusive license as described below to use the photos for use for an initial (and extendable) term of three years. The Photographer retains title and ownership of the Authored Work and derivative works will be assigned to Licensor by Licensee.

Licensing of Rights

The Photographer licenses the images subject to this contract to The Client. The Client may assign usage rights to sub-agencies, clients, and media entities so long as the scope of usage remains within the original license. The usage licensed to The Client shall be:

1) For a term of three years (from delivery of final images and final payment);
2) For web and social media use only;
3) At medium resolution (2000 pixels on the long side);
4) NOT sub-licensable by The Client;
5) Non-exclusive use.

Additional license terms are available and negotiable per Client’s request and at additional license fee.

Rights and Usage

The Grant of License comes into effect from the date of full and/or final payment of the relevant invoice(s). No license is given and no use may be made of the Photographs before payment in full of the relevant invoice(s) without The Photographer‘s express permission in writing. Any permission that may be given for prior use will automatically be revoked if full payment is not made by the due date or if the Client/Agency is put into receivership or liquidation. Where restricted in the Agreement, permission to use the Photographs for other purposes will normally be granted upon payment of a further fee to be mutually agreed.

Note: A written agreement must be reached with The Photographer before the Photographs may be used for other purposes beyond the scope of the original license. Where uses of an image are made which breach the Grant of License, further charges will be made. Failure to pay additional license fees prior to The Clients use is a breach of contract and makes the Photographs subject to Revocation of License. Any reproduction rights granted are by way of license only and no partial or other assignment of copyright shall be implied. On the Client’s death or bankruptcy or (if The Client is a Company) in the event of a Resolution, Petition or Order for winding-up being made against it, or if a Receiver or an administration is appointed, any license granted shall immediately cease.

Revocation of License

The Photographer reserves the right to revoke Grant of License of Photographs for cause. Should The Client should break the terms of this contract, including (but not limited to) use of images prior to paying their invoice for the images in full, default on any payment, use of Proofs on a live site, or sub-licensing of images without license, The Photographer reserves the right to immediately and completely revoke any and all use license The Client may be operating under or presumed to be operating under. Should The Photographer be forced to revoke Grant of License of Photographs for cause or for breaching the terms of this contract, The Photographer will not be liable for any costs incurred by The Client for the removal and replacement of Photographs held or in use by The Client and subject to license revocation, for any loss of business as a result of the revocation, or any other direct or indirect costs resulting from the revocation of license.

Use of Images Outside of of License

Any use of images by The Client, their Agents or assignees outside of the scope of Grant of License or Licensing of Rights, or under no license at all, will be considered a copyright infringement and treated as such. All images created by The Photographer are immediately copyrighted by The Photographer. Actual awarded statutory damages for photography registered with the US Copyright Office can range from $750 to $30,000, with a maximum award up to $150,000 in especially egregious cases. If someone removes or falsifies copyright management information (CMI) embedded in the image, and additional statutory damages of $2,500 to $25,000 may be sought under the Digital Millennium Copyright Act (DMCA). These numbers are per image use.

Exclusivity

Licensing to The Client is non-exclusive to The Client, and is non-transferable unless specifically addressed in an additional Licensing of Rights document executed by The Photographer. Any usage of the images by a third party, including but not limited to, architects, builders, stagers, designers, sellers or buyers, with or without the permission of The Client is strictly prohibited.

Further, The Client is specifically mandated to forward any requests for the use of images by any third party covered by this agreement to The Photographer.
Unless agreed to in writing on the Grant of License and the Invoice no exclusivity is given or implied to The Agency and/or The Client. The Photographer retains the right in all cases to use or sell the Photographs for any purpose, to any party and at their digression. Exclusivity will not be unreasonably withheld but only on written agreement with The Photographer before work commences, and for appropriate additional fees.

Guest Photography

It is understood The Photographer will act as the sole and exclusive photographer for this shoot. The Photographer reserves the right to bring one or more assistants at their discretion. Since flashes or equipment from other cameras may disrupt or even ruin shots taken by The Photographer, The Client acknowledge(s) that they are responsible for notifying all of their guests that guest photography is not permitted at any time while the professional photographer is in session. The formal photography time is for the exclusive use of The Photographer to capture specific images. Due to time constraints and the need for subjects to pay full attention to the professional photographer, guest photography will be required to be done at a separate time.

Client Confidentiality

The Photographer will keep confidential and will not disclose to any third parties or make use of information communicated to him/her in confidence for the purposes of the photography, save as may be reasonably necessary to enable The Photographer to carry out his/her obligations in relation to the commission. If The Client desires, The Photographer will complete a Non Disclosure Agreement (NDA) with The Client for the purpose of protecting The Client and their property

Indemnity

It is The Client who must satisfy himself/herself/it’s self that all necessary rights, model releases, clearances or consents which may be required for reproduction of people, places or items depicted within any Works are obtained. It is acknowledged that The Photographer gives no warranty or undertaking that any such rights, releases or consents are or will be obtained whether in relation to the use of names, people, trademarks, registered or copyright designs or Works of art depicted in any picture. The Photographer shall only be responsible for obtaining such clearances if this has been expressly agreed in writing before the shoot. In all other cases The Client shall indemnify The Photographer against all expenses, damages, claims and legal costs arising out of any failure to obtain such clearances. The Photographer will not be liable for any loss or damage, for any consequential loss of profit or income however caused including negligence by The Photographer, R\E Photography UTAH, Dave Koch, their employees or agents or otherwise, and it is the Client’s responsibility to insure against such loss or damage.

Failure to Perform

If Commercial Photography UTAH cannot perform this agreement in whole or in part due to a cause beyond the control of the parties, changing of details that no longer fit with The Photographers’ originally agreed terms or due to The Photographer’s illness or injury, then Commercial Photography UTAH will return all fees to the The Client(s) but shall have no further liability with respect to this Agreement. This is the parties’ entire agreement on this matter, superseding all previous negotiations or agreements.

In case of failure to faithfully perform the terms and covenants herein set forth, The Client shall pay all costs, interest, expenses, and reasonable attorneys’ fees resulting from the enforcement of this agreement or any right arising out of such breach.

Refunds

If you are not satisfied with your photos, your first remedy is to let Commercial Photography UTAH know the specific reasons for your displeasure, and allow Commercial Photography UTAH to make the images conform to your wishes. This may include a re-edit or reshoot, at Commercial Photography UTAH‘s discretion. If the property is reshot, you agree to make the property available in a timely manner.

If Commercial Photography UTAH still cannot produce images to your satisfaction, your sole remedy is to be refunded up to half of the total price paid for the package. In the event of a refund, every, all and full rights (whether actual, implied, written or verbal) revert to Commercial Photography UTAH. On claiming this resolution, Client surrenders all rights or claims to all images, will immediately remove any and all image from use (at their expense) and may not use any images for any purpose going forward. Any deposit is non-refundable. In the event of an emergency, equipment failure or other unforeseen circumstance, Commercial Photography UTAH will return any money given up to that point but claims no further liability.

WAIVER AND INDEMNIFICATION

Client and it’s agent’s, family members and assignee’s, if any, shall indemnify, and hold harmless, The Photographer, Commercial Photography UTAH and DAVE KOCH from any and all claims for damages arising out of the performance of any of the services contemplated by this Agreement with the exception of intentional or illegal acts.

Upon engaging Commercial Photography UTAH, the parties agree that they fully understand and will be bound only by the terms above. Any other terms must be agreed to in writing. Otherwise, the above terms will be considered the consolidated, exclusive terms between the parties.