Terms and Conditions
Effective Jan 1, 2021
Photographer provides his services to you subject to the following terms of use. If you you contract for the services of Photographer you accept these Terms. Please read them carefully. All references to the Client in this Agreement shall include Client’s parent companies, affiliates, and subsidiaries.
Scope of this Agreement. This Agreement applies to any photograph, video, graphics, digital assets, or digital images created or taken by Photographer and delivered to the Client. This Agreement governs the relationship between the parties and in no event shall any e-mail communication or other exchange, amend or otherwise modify the terms of this Agreement unless agreed to in writing.
Rights: 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 advertising purposes directly related to the sale or lease of the Property or spaces within the Property. Photos used for any purpose not directly related to the Client’s promotion, sale or lease of the Property must be with the express permission of Photographer and the payment of additional fees, unless otherwise agreed to in writing.
Photos may be uploaded to any listing service or the Client’s websites solely for the promotion for sale of the Property or sale or lease of spaces within the Property during the pendency of this Agreement. However, regardless of any terms and conditions of the listing service, at no time does this Agreement provide Client with the right to transfer copyright, or any other exclusive rights 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 shall be responsible to the Photographer for the maximum contemplated statutory penalty of $150,000 per image per occurrence. Client is responsible for ensuring that the Photos are removed from listing service databases and/or their websites at the expiration of this Agreement or the expiration of their limited usage license or upon sale of the Property. Client herein agrees that the penalty for violations of these terms shall be no less than the contemplated maximum allowable under federal copyright guidelines of $150,000 per image or video per occurrence regardless of duration which Client displayed such altered images after the expiration of this Agreement and/or whether said altered images have been removed from display after more than one (1) day after the expiration of this Agreement.
Unless otherwise specifically provided elsewhere in this document or other signed agreement between the parties, any grant of rights is limited to a term of either one (1) year from the date of this Agreement, or (2) at the termination of Client’s ownership or representation of the Property, whichever occurs first. Further use of images beyond one (1) year requires Photographer’s permission and shall incur additional fees. Rights are assigned to the Client immediately upon delivery of the Photos.
Relationship of the Parties: The parties agree that Photographer is an independent contractor, and that neither Photographer, nor Photographer’s employees or contract personnel are, or shall be deemed to be, employees of Client. Nothing in this Agreement shall be construed as a Work for Hire arrangements. 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 Photographs or any other deliverables prepared by Photographer shall not be deemed a work for hire as defined under employment law or Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by this Agreement.
Creation: 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. Photographer will use his/her best efforts to: (a) ensure that the Photos conform to Client’s specifications; and (b) submit all Photographs to Client in publishable quality, or to agreed upon format or specifications, on or before applicable deadlines.
Representations and Warranties:
The Photographer does not guarantee the accuracy of Licensed Content categories, descriptions, keywords, captions or titles. The Client agrees that all Licensed Content is provided “as is” without representation, warranty or condition of any kind.
Delivery: Photographer may select delivery of photographs in JPEG, TIFF, PNG, or other standard format, at a resolution that Photographer determines will be suitable for the Photograph or other deliverables as licensed. It is the Client's responsibility to verify that the Photograph s are suitable for reproduction and that if the Photos are not deemed suitable, to notify the Photographer within five (5)business days. Photographer’s sole obligation will be to replace the Photographs at a suitable resolution, but in no event will Photographer be liable to reshoot the Photographs or video or for poor reproduction quality, delays, or consequential damages.
Unless otherwise specifically provided, Photographer is not responsible to provide images 1) larger than 6000x4000px or 2) in a format higher than 8-bit, RGB or in RAW format. Photographer has no obligation to retain or archive any Photographs or video delivered to Client. Photographer is not responsible for delivering photographs depicting the subjects in anything other than “as-is” condition. Manipulation and/or retouching of images is the sole purview of the Photographer. Under no circumstances whatsoever shall the Client modify, alter, retouch, create or produce derivative works based upon Photographers Final delivered images. The Photographer may, at his sole discretion, allow Client to crop and/or resize Final delivered images in order to efficaciously accommodate the Client’s chosen mediums of display. Any other manipulation, alteration, or retouching of images by the Client constitutes a violation of the Photographer’s copyright and Client herein agrees that the penalty for such infringement shall be no less than the contemplated maximum allowable under federal copyright guidelines of $150,000 per image or video per occurrence regardless of duration which Client displayed such altered images and/or whether said altered images have been removed from display.
Fees: All fees and expenses payable under this agreement are required no later than thirty (30) days from the delivery of the Photos and payable irrespective of whether Client makes actual use of the Photos. A late free of one percent (1%) per day will be assessed for any payment not received within thirty (30) days. If full payment has not been received within thirty (30) days all rights are revoked at Photographer’s discretion. In the event rights are revoked, all images in the possession of Client shall be removed from all forms of media and permanently destroyed within ten (10) days. Client shall provide Photographer with written statement that all images have been removed and destroyed.
Cancellation: If Client cancellation of this Agreement prior to 1) the Property shoot or 2) within one (1) month of this agreement, Client will pay any expenses incurred and a ten percent (10%) cancellation fee. All depose are non-refundable. For Client cancellation within two (2) days of the Property shoot, Client is responsible for 100% of the fee and any expenses incurred.
No Exclusivity: This Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Photographer, and Photographer shall be entitled to offer and provide photography and design services to others, solicit other clients and otherwise advertise the services offered by Photographer.
Transfer and Assignment: Client may not assign or transfer this agreement or any rights granted under it. No amendment or waiver of any terms is binding unless in writing and signed by the parties. However, the invoice may reflect, and Client is bound, by authorizations that could not be confirmed in writing because of insufficient time or other practical considerations.
Indemnification: Client will indemnify and defend Photographer against all claims, liability, damages, costs, and expenses, including reasonable legal fees and expenses, arising out of the creation or any use of the Photos or materials furnished to Client. It is the Client's responsibility to obtain the necessary model or property releases and to ensure they are in full effect and in force.
Force Majeure:
Neither party shall be liable for any unforeseeable event beyond its reasonable control not caused by the fault or negligence of such party, which causes such party to be unable to perform its obligations under this Agreement and which it has been unable to overcome by the exercise of due diligence. In the event of the occurrence of such Force Majeure event, the party unable to perform shall promptly notify the other party and shall use its best efforts to resume performance as quickly as possible.
Liquidated Damages:
Except as stated in the Cancellation policy, the Photographer and Client agree that in the occurrence of a Force Majeure event and the Work is not completed, the amount by which Photographer will have been damaged will be difficult to fix. The parties therefore agree that liquidated damages in the amount of the $10,000 or the full agreed upon price, whichever is lower, is appropriate.
General Law/Arbitration: This Agreement sets forth the entire understanding and agreement of the parties, and supersedes any and all prior agreements between the parties and shall be incorporated in fact, or by reference to, in any other writings concerning this Agreement. This Agreement shall be governed and interpreted and enforced in accordance with the laws of the State of Michigan or Federal law in cases of copyright infringement. Any claim or litigation arising out of this Agreement or its performance may be maintained only in courts physically located in Oakland County, Michigan, or the nearest court with subject matter and personal jurisdiction if no such court is housed in Oakland County, Michigan. The parties hereby consent to the personal jurisdiction of such courts. In the event of any litigation arising out of or relating to this Agreement, Client agrees to pay all costs, attorney fees, court costs and related expenses of both parties, regardless of the outcome of the dispute.
The prevailing party shall not be entitled to recover its attorneys’ fees incurred in the litigation. If parties are unable to resolve the dispute by negotiation, either party may start mediation or arbitration in a forum mutually agreed to by the parties. Notwithstanding any competing provisions in the Agreement, the Photographer shall never be precluded from seeking legal resource in a court of competent jurisdiction.
Severability: If one or more of the provisions contained in the Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. Such provisions shall be revised only to the extent necessary to make them enforceable.
Waiver: No action of either party, other than express written waiver, may be construed to waive any provision of this Agreement and a single or partial exercise by either party of any such rights or remedies will not preclude further exercise of other rights or remedy.
Questions about this licensing agreement may be emailed to towoc@optimumphoto.com
Effective Jan 1, 2021
Photographer provides his services to you subject to the following terms of use. If you you contract for the services of Photographer you accept these Terms. Please read them carefully. All references to the Client in this Agreement shall include Client’s parent companies, affiliates, and subsidiaries.
Scope of this Agreement. This Agreement applies to any photograph, video, graphics, digital assets, or digital images created or taken by Photographer and delivered to the Client. This Agreement governs the relationship between the parties and in no event shall any e-mail communication or other exchange, amend or otherwise modify the terms of this Agreement unless agreed to in writing.
Rights: 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 advertising purposes directly related to the sale or lease of the Property or spaces within the Property. Photos used for any purpose not directly related to the Client’s promotion, sale or lease of the Property must be with the express permission of Photographer and the payment of additional fees, unless otherwise agreed to in writing.
Photos may be uploaded to any listing service or the Client’s websites solely for the promotion for sale of the Property or sale or lease of spaces within the Property during the pendency of this Agreement. However, regardless of any terms and conditions of the listing service, at no time does this Agreement provide Client with the right to transfer copyright, or any other exclusive rights 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 shall be responsible to the Photographer for the maximum contemplated statutory penalty of $150,000 per image per occurrence. Client is responsible for ensuring that the Photos are removed from listing service databases and/or their websites at the expiration of this Agreement or the expiration of their limited usage license or upon sale of the Property. Client herein agrees that the penalty for violations of these terms shall be no less than the contemplated maximum allowable under federal copyright guidelines of $150,000 per image or video per occurrence regardless of duration which Client displayed such altered images after the expiration of this Agreement and/or whether said altered images have been removed from display after more than one (1) day after the expiration of this Agreement.
Unless otherwise specifically provided elsewhere in this document or other signed agreement between the parties, any grant of rights is limited to a term of either one (1) year from the date of this Agreement, or (2) at the termination of Client’s ownership or representation of the Property, whichever occurs first. Further use of images beyond one (1) year requires Photographer’s permission and shall incur additional fees. Rights are assigned to the Client immediately upon delivery of the Photos.
Relationship of the Parties: The parties agree that Photographer is an independent contractor, and that neither Photographer, nor Photographer’s employees or contract personnel are, or shall be deemed to be, employees of Client. Nothing in this Agreement shall be construed as a Work for Hire arrangements. 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 Photographs or any other deliverables prepared by Photographer shall not be deemed a work for hire as defined under employment law or Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by this Agreement.
Creation: 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. Photographer will use his/her best efforts to: (a) ensure that the Photos conform to Client’s specifications; and (b) submit all Photographs to Client in publishable quality, or to agreed upon format or specifications, on or before applicable deadlines.
Representations and Warranties:
The Photographer does not guarantee the accuracy of Licensed Content categories, descriptions, keywords, captions or titles. The Client agrees that all Licensed Content is provided “as is” without representation, warranty or condition of any kind.
Delivery: Photographer may select delivery of photographs in JPEG, TIFF, PNG, or other standard format, at a resolution that Photographer determines will be suitable for the Photograph or other deliverables as licensed. It is the Client's responsibility to verify that the Photograph s are suitable for reproduction and that if the Photos are not deemed suitable, to notify the Photographer within five (5)business days. Photographer’s sole obligation will be to replace the Photographs at a suitable resolution, but in no event will Photographer be liable to reshoot the Photographs or video or for poor reproduction quality, delays, or consequential damages.
Unless otherwise specifically provided, Photographer is not responsible to provide images 1) larger than 6000x4000px or 2) in a format higher than 8-bit, RGB or in RAW format. Photographer has no obligation to retain or archive any Photographs or video delivered to Client. Photographer is not responsible for delivering photographs depicting the subjects in anything other than “as-is” condition. Manipulation and/or retouching of images is the sole purview of the Photographer. Under no circumstances whatsoever shall the Client modify, alter, retouch, create or produce derivative works based upon Photographers Final delivered images. The Photographer may, at his sole discretion, allow Client to crop and/or resize Final delivered images in order to efficaciously accommodate the Client’s chosen mediums of display. Any other manipulation, alteration, or retouching of images by the Client constitutes a violation of the Photographer’s copyright and Client herein agrees that the penalty for such infringement shall be no less than the contemplated maximum allowable under federal copyright guidelines of $150,000 per image or video per occurrence regardless of duration which Client displayed such altered images and/or whether said altered images have been removed from display.
Fees: All fees and expenses payable under this agreement are required no later than thirty (30) days from the delivery of the Photos and payable irrespective of whether Client makes actual use of the Photos. A late free of one percent (1%) per day will be assessed for any payment not received within thirty (30) days. If full payment has not been received within thirty (30) days all rights are revoked at Photographer’s discretion. In the event rights are revoked, all images in the possession of Client shall be removed from all forms of media and permanently destroyed within ten (10) days. Client shall provide Photographer with written statement that all images have been removed and destroyed.
Cancellation: If Client cancellation of this Agreement prior to 1) the Property shoot or 2) within one (1) month of this agreement, Client will pay any expenses incurred and a ten percent (10%) cancellation fee. All depose are non-refundable. For Client cancellation within two (2) days of the Property shoot, Client is responsible for 100% of the fee and any expenses incurred.
No Exclusivity: This Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Photographer, and Photographer shall be entitled to offer and provide photography and design services to others, solicit other clients and otherwise advertise the services offered by Photographer.
Transfer and Assignment: Client may not assign or transfer this agreement or any rights granted under it. No amendment or waiver of any terms is binding unless in writing and signed by the parties. However, the invoice may reflect, and Client is bound, by authorizations that could not be confirmed in writing because of insufficient time or other practical considerations.
Indemnification: Client will indemnify and defend Photographer against all claims, liability, damages, costs, and expenses, including reasonable legal fees and expenses, arising out of the creation or any use of the Photos or materials furnished to Client. It is the Client's responsibility to obtain the necessary model or property releases and to ensure they are in full effect and in force.
Force Majeure:
Neither party shall be liable for any unforeseeable event beyond its reasonable control not caused by the fault or negligence of such party, which causes such party to be unable to perform its obligations under this Agreement and which it has been unable to overcome by the exercise of due diligence. In the event of the occurrence of such Force Majeure event, the party unable to perform shall promptly notify the other party and shall use its best efforts to resume performance as quickly as possible.
Liquidated Damages:
Except as stated in the Cancellation policy, the Photographer and Client agree that in the occurrence of a Force Majeure event and the Work is not completed, the amount by which Photographer will have been damaged will be difficult to fix. The parties therefore agree that liquidated damages in the amount of the $10,000 or the full agreed upon price, whichever is lower, is appropriate.
General Law/Arbitration: This Agreement sets forth the entire understanding and agreement of the parties, and supersedes any and all prior agreements between the parties and shall be incorporated in fact, or by reference to, in any other writings concerning this Agreement. This Agreement shall be governed and interpreted and enforced in accordance with the laws of the State of Michigan or Federal law in cases of copyright infringement. Any claim or litigation arising out of this Agreement or its performance may be maintained only in courts physically located in Oakland County, Michigan, or the nearest court with subject matter and personal jurisdiction if no such court is housed in Oakland County, Michigan. The parties hereby consent to the personal jurisdiction of such courts. In the event of any litigation arising out of or relating to this Agreement, Client agrees to pay all costs, attorney fees, court costs and related expenses of both parties, regardless of the outcome of the dispute.
The prevailing party shall not be entitled to recover its attorneys’ fees incurred in the litigation. If parties are unable to resolve the dispute by negotiation, either party may start mediation or arbitration in a forum mutually agreed to by the parties. Notwithstanding any competing provisions in the Agreement, the Photographer shall never be precluded from seeking legal resource in a court of competent jurisdiction.
Severability: If one or more of the provisions contained in the Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. Such provisions shall be revised only to the extent necessary to make them enforceable.
Waiver: No action of either party, other than express written waiver, may be construed to waive any provision of this Agreement and a single or partial exercise by either party of any such rights or remedies will not preclude further exercise of other rights or remedy.
Questions about this licensing agreement may be emailed to towoc@optimumphoto.com