THIS PHOTOGRAPHY SERVICES AGREEMENT AND GRANT OF LIMITED IMAGE USE LICENSE (the “Agreement”) is entered into between Cory & Jackie, LLC d/b/a The Home Aesthetic (“Photographer”) and You (hereinafter “Client”).
WHEREAS, Photographer is an entity providing professional photography services;
WHEREAS, Client has ordered certain real estate photography services (the “Services”) through Photographer’s online ordering system and has certified that Client is eligible for such Services and the license(s) associated with such Services, subject to the terms and conditions described more fully herein.
NOW, THEREFORE, in consideration of the foregoing promises and mutual covenants hereinafter set forth and other valuable consideration, the receipt and sufficiency of which is acknowledged, the parties hereto agree as follows:
Scope of Photography Services. Client hereby engages Photographer to render the Services at such times and locations as the parties may agree for value paid by Client to Photographer at Photographer’s published rate for the Services (the “Rate”). Client represents and warrants that Client has read Photographer’s eligibility requirements for the Services that Client selected during the ordering process (and the associated license(s) hereunder) and that Client meets the eligibility requirements for such Services and the applicable Rate. If Photographer determines at any time that Client does not meet Photographer’s eligibility requirements for the Services or the Rate that Client selected during the online ordering process, Photographer may, in Photographer’s sole discretion, perform the Services for which Client is eligible and charge Client the published Rate for such Services, which Client hereby agrees to pay. The specific details related to the Services and the Rate may be agreed to either in writing or orally. However, in the event such details are agreed to orally, the parties expressly agree that any performance contemplated under this agreement (which is not committed to writing) shall (and can) be performed within one year and, therefore, shall not be invalid or unenforceable by reason of the Statute of Frauds.
Payment. Payment in full must be made within seven (7) calendar days of a photoshoot and is non-refundable. Any amounts not paid when due shall incur a late fee at an interest rate equal to the lesser of 18% per annum or the maximum rate permitted by applicable law, which shall accrue daily from the date such payment is due hereunder through and including the date of actual payment in full. Client acknowledges that (i) he or she is familiar with Photographer’s portfolio and is requesting services with knowledge of Photographer’s style and that Photographer’s work is constantly evolving; (ii) the Services are of unique and artistic nature; (iii) the photos may be different from photographs taken in the past; and (iv) in creating the photos, Photographer shall use its personal artistic judgment to create photos consistent with its personal vision of the event or subject, which vision may be different from Client’s. Accordingly, Client waives any right to refuse payment based on taste, aesthetic criteria, or dissatisfaction with the end result.
Permissions: Client represents and warrants that he or she has obtained all permissions necessary for Photographer to be on, and to photograph the real property. This includes permissions from home owners, business owners, tenants, or occupants of the real estate, and any intellectual property owners or other person who may have a claim on the property or any rights of publicity.
Grant of Limited License to Use Image. Photographer hereby grants to Client a revocable, non-exclusive, non-transferable, worldwide, limited license to use the photographs created as a result of the Services (the “Photographs”) as follows (the “Limited License”):
Each Photograph shall be used by Client only for (i) the marketing, selling and/or leasing of the real property actually reflected in the Photographs (the “Property”) or (ii) the marketing of the Client’s own services. If Client (a) is eligible for and (b) has ordered Services available to builders, real estate developers, or construction contractors, then Photographer hereby grants to Client one additional Limited License that may be transferred only to Client’s realtor for the Property (the “Transferee”) and such Transferee may use the licensed Photograph(s) only for (i) marketing, selling and/or leasing of the Property or (ii) the marketing of Transferee’s own services.
Except as otherwise provided herein, neither the Limited License nor any of the Photographs produced hereunder may be sold, exchanged or otherwise transferred to any third party without the written consent of Photographer. The parties hereto agree that any sale, exchange or other transfer in violation of this section shall be null and void and that such act shall be a material breach of this Agreement and the Limited License. Notwithstanding the foregoing, the parties acknowledge and agree that Client may be required to distribute the Photographs to certain third parties to facilitate Client’s marketing, sale and/or lease of the real property on behalf of third parties, and in such cases, while Client is under contract to sell, lease, or market the sale or lease of the Property, Client is hereby authorized under this Limited License to distribute the Photographs as necessary to facilitate marketing, sale and/or lease of the Property so long as Client provides written notification to any such third party(ies) that photo credit is required. Client’s compliance with this Section shall release Client of any and all liability hereunder for any third party’s(ies’) failure to properly provide photo credit/attribution to Photographer.
The Limited License shall be revocable only upon Client’s breach of the terms and provisions of this Agreement. The Limited License for any Photograph shall survive the termination of this Agreement, except for any termination that results from Client’s breach of this Agreement.
All copyrights and other intellectual property interests in the Photographs, as well as the original Images, whether negative or digital, remain the sole property of Photographer. In the event that an original digital image or negative is provided to Client, Photographer shall retain ownership of the copyright. Nothing within this Agreement shall be construed as a waiver of Photographer’s copyright interest in the Photographs. To the extent the Photographs contain any subject matter which is subject to the copyright interests of a third party, Client hereby assumes all liability for any form of copyright infringement which may stem from or be related to Client’s impermissible use of the Photographs.
Liability. The parties agree that neither Photographer nor any of Photographer’s agents or third party associates (each a “Photographer Releasee”) shall be liable in the unlikely event that an act of God, equipment failure or other unforeseen circumstance interferes with the Services set forth in this Agreement. Further, the parties agree that the Photographer Releasees shall not be liable for any damage to or on any real property whereupon the Services are provided. In the event any claims are asserted against a Photographer Releasee for any damage to personal or real property arising from or relating to a Photographer Releasee’s performance of the Services , Client hereby expressly agrees to defend, indemnify, and hold such Photographer Releasee harmless from any and all liability, claims, costs, and expenses, including reasonable attorneys fees. Further, Client expressly acknowledges and understands the artistic nature of the Services performed by Photographer and, therefore, waives any right to any civil action against Photographer based upon Photographer’s performance of those Services. In the event that Photographer fails to perform under this Agreement for any reason, the parties agree that Client’s damages would be difficult, if not impossible, to ascertain and thus Client hereby agrees that Photographer’s liability under this Agreement is limited solely to the refund of any payment advanced by Client to Photographer for which no Services were rendered.
Social Media. Under the Limited License, Client may post photos on social media. Photo credit is not required unless Client tags additional businesses or accounts in the social media post. In instances where additional accounts are tagged or referenced, photo credit must be supplied as follows: Photo by @thehomeaesthetic. The Home Aesthetic’s social media account must also be tagged in the post. If Client does not fulfill this requirement, Client is liable for any copyright violations that occur as a result of the post.
Cancelations, Reschedules. Client is responsible for ensuring the subject property is ready for the Services. Client may cancel the Services up to 24 hours before the Services are scheduled to start with no cancellation or rescheduling fee. In the event Photographer arrives on site and is unable to complete the Services due to a lack of preparation or reasonable access the property, Client will pay a fee equal to 30% of the Rate.
Term. The term of this Agreement shall remain in perpetuity as long as the client does not violate the use terms set forth in this Agreement.
Amendment. This Agreement may be modified or amended only if the amendment is made in writing and is signed by both parties.
Severability. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written and enforced as so limited.
Construction, Collection Costs, and Attorney’s Fees. This Agreement shall be construed under the laws of the state of Indiana. Any suit or action relating to or arising out of this Agreement, the Services, the Photographs, or the Property shall be exclusively brought in the state or federal courts venued in Hamilton County, Indiana. Client waives and covenants not to assert any objection to the jurisdiction of such courts over Client. The parties agree that each has had the opportunity to consult an attorney and that each party fully understands the terms and provisions contained herein. Further, the parties have had an opportunity to negotiate and prepare this Agreement together and, therefore, waive any legal argument or defense premised upon who the drafting party is or was. Photographer shall be entitled to recover all costs of collection, including its reasonable attorney fees, regardless of whether suit is filed.