PHOTOGRAPHY SERVICES STANDARD TERMS AND CONDITIONS
Scope/Services. DB Photography LLC, dba DB Studio, provides the services of David Beyda (“Photographer”) subject to the terms of the Photography Services Agreement (“Agreement”) and these Standard Terms and Conditions (“Terms”) which apply to any image, graphics, digital assets, or digital images created or taken by Photographer and delivered to the Client (collectively known as “Images”).
Creation. The manner and method of creating any Image 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.
Resolution/Delivery. Photographer will use his/her commercially reasonable best efforts to ensure that the Final Images conform to Client’s specifications if there are any set forth on the Agreement. If no specifications are agreed to in writing by the parties Photographer may select delivery of the Images in JPEG, TIFF, PNG, or other standard formats at a resolution that Photographer determines will be suitable for the Images as licensed. It is the Client’s responsibility to verify that the Final Images are suitable for reproduction and that if the Final Images are not deemed suitable, to notify the Photographer within 5 business days. Photographer’s sole obligation will be to replace the Final Images at a suitable resolution but in no event will Photographer be liable for poor reproduction quality, delays, or consequential damages. Images are otherwise provided “as is” with no warranty regarding the suitability of the Image for any purpose. Unless otherwise specifically provided, Photographer is not responsible for providing images (1) larger than 8”x10” at 300 dpi or (2) in a format higher than 8-bit or in RAW format. Photographer has no obligation to retain or archive any Images. The schedule of the delivery of the digital proofs and Final Images will be as set forth in the Agreement or as otherwise agreed to by the parties in writing.
Fees. All fees and expenses payable to DB Photography Studios, LLC, under this Agreement are set forth in the Agreement and are due and payable irrespective of whether Client makes actual use of the Final Images. If fees are not received within 30 days of delivery of Final Images all rights provided herein to the Images are revoked. In the event rights are revoked, all Images in the possession of Client must be removed from all forms of media and permanently destroyed within 10 days. Client shall provide Photographer with written statement that all Images have been removed and destroyed. All fees paid are non-refundable.
Cancellation. Unless otherwise set forth in an Agreement, Client has the right to cancel this Agreement subject to the following payments:
- Any deposit is non-refundable.
- If Client cancels this Agreement within 24 hours of the date of the Photo Shoot, Client will pay Photographer any out of pocket expenses incurred by Photographer and a cancellation fee of $100.
- Client’s responsibility for out of pocket expenses will also include any non-cancelable obligations made by Photographer that were previously approved by Client (but which might have not yet been paid by Photographer) (e.g., location fee).
Ownership and Warranty.
- All Images and rights relating to them, including copyright and ownership rights in the media in which the Images are stored, remain the sole and exclusive property of the Licensor. The Licensor represents and warrants that the Images were taken by Photographer alone and Licensor is the copyright owner of the Images and aside from that warranty the Licensor and Photographer are not liable to the Client or any other person or entity for damages, costs or losses stemming from any use of the Images. LICENSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES OTHER THAN SET FORTH HEREIN INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Images which are published in any media may contain copyright management information (CMI) at the discretion of the Licensor/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 a violation of the Digital Millennium Copyright Act (DMCA) and Client will be responsible to the Licensor/Photographer for any penalties and awards available under that statute.
License.
- Subject to payment of the Fees and the terms of this Agreement, Licensor grants Client the non-exclusive, transferable right to use the Final Images, including the right to reproduce, publicly display, and distribute the Final Images solely for the Permitted Use and under the terms of the Limited License provided in the Agreement.
- [LD1]
Credit. If Licensor agrees to any commercial or editorial use of the Images, credit will be provided immediately adjacent to the Images in the form of “Photo by David Beyda.
Relationship of the Parties. The parties are independent contractors and 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. Licensor/Photographer and the Images 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.
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.
Indemnification. If applicable, it is the Client’s responsibility to obtain the necessary model, or property releases (if the Images are shot outside of Photographer’s studio) and to ensure they are full force and effect and if Licensor agrees to the commercial use of the Images, to obtain any publicity releases necessary for the commercial use of any individuals depicted in the Images (subject to the rights granted herein under the terms of the Limited License and Permitted Use). Client will indemnify and defend Licensor and Photographer against all claims, liability, damages, costs, and expenses, including reasonable legal fees and expenses, arising out of the use of the Images outside of the warranty set forth herein or the scope of the Limited License or any materials furnished by Client.
General Law/Arbitration. This Agreement sets forth the entire understanding of the parties and supersedes all prior agreements between the parties. This Agreement shall be governed, interpreted and enforced in accordance with the laws of the State of New York. Any claim or litigation arising out of this Agreement or its performance may be commenced only in courts physically located in New York County, New York, and 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, the prevailing party shall be entitled to recover its attorneys’ fees incurred in the litigation. If parties are unable to resolve the dispute, either party may request mediation and/or binding arbitration in a forum mutually agreed to by the parties.
Miscellaneous. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. The failure of either party to partially or fully exercise any rights or the waiver of either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement. The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless expressly provided otherwise in this Agreement. This Agreement embodies the entire understanding among the Parties with respect to its subject matter and supersedes all previous communications, representations or understandings, either oral or written. No amendment or modification of this Agreement shall be valid or binding unless signed by both parties hereto. This Agreement may be executed on facsimile copies and in counterparts, each of which shall, when executed, be deemed to be one and the same instrument.
[LD1]So keep in mind that if a corporate client, the entity cannot provide this permission for its employees. You need to get from the individual depicted. Low risk but true from a legal perspective. Happy to explain if you don’t know this nuance.
PHOTOGRAPHY SERVICES STANDARD TERMS AND CONDITIONS
Scope/Services. DB Photography LLC, dba DB Studio, provides the services of David Beyda (“Photographer”) subject to the terms of the Photography Services Agreement (“Agreement”) and these Standard Terms and Conditions (“Terms”) which apply to any image, graphics, digital assets, or digital images created or taken by Photographer and delivered to the Client (collectively known as “Images”).
Creation. The manner and method of creating any Image 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.
Resolution/Delivery. Photographer will use his/her commercially reasonable best efforts to ensure that the Final Images conform to Client’s specifications if there are any set forth on the Agreement. If no specifications are agreed to in writing by the parties Photographer may select delivery of the Images in JPEG, TIFF, PNG, or other standard formats at a resolution that Photographer determines will be suitable for the Images as licensed. It is the Client’s responsibility to verify that the Final Images are suitable for reproduction and that if the Final Images are not deemed suitable, to notify the Photographer within 5 business days. Photographer’s sole obligation will be to replace the Final Images at a suitable resolution but in no event will Photographer be liable for poor reproduction quality, delays, or consequential damages. Images are otherwise provided “as is” with no warranty regarding the suitability of the Image for any purpose. Unless otherwise specifically provided, Photographer is not responsible for providing images (1) larger than 8”x10” at 300 dpi or (2) in a format higher than 8-bit or in RAW format. Photographer has no obligation to retain or archive any Images. The schedule of the delivery of the digital proofs and Final Images will be as set forth in the Agreement or as otherwise agreed to by the parties in writing.
Fees. All fees and expenses payable to DB Photography Studios, LLC, under this Agreement are set forth in the Agreement and are due and payable irrespective of whether Client makes actual use of the Final Images. If fees are not received within 30 days of delivery of Final Images all rights provided herein to the Images are revoked. In the event rights are revoked, all Images in the possession of Client must be removed from all forms of media and permanently destroyed within 10 days. Client shall provide Photographer with written statement that all Images have been removed and destroyed. All fees paid are non-refundable.
Cancellation. Unless otherwise set forth in an Agreement, Client has the right to cancel this Agreement subject to the following payments:
- Any deposit is non-refundable.
- If Client cancels this Agreement within 24 hours of the date of the Photo Shoot, Client will pay Photographer any out of pocket expenses incurred by Photographer and a cancellation fee of $100.
- Client’s responsibility for out of pocket expenses will also include any non-cancelable obligations made by Photographer that were previously approved by Client (but which might have not yet been paid by Photographer) (e.g., location fee).
Ownership and Warranty.
- All Images and rights relating to them, including copyright and ownership rights in the media in which the Images are stored, remain the sole and exclusive property of the Licensor. The Licensor represents and warrants that the Images were taken by Photographer alone and Licensor is the copyright owner of the Images and aside from that warranty the Licensor and Photographer are not liable to the Client or any other person or entity for damages, costs or losses stemming from any use of the Images. LICENSOR MAKES NO EXPRESS OR IMPLIED WARRANTIES OTHER THAN SET FORTH HEREIN INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- Images which are published in any media may contain copyright management information (CMI) at the discretion of the Licensor/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 a violation of the Digital Millennium Copyright Act (DMCA) and Client will be responsible to the Licensor/Photographer for any penalties and awards available under that statute.
License.
- Subject to payment of the Fees and the terms of this Agreement, Licensor grants Client the non-exclusive, transferable right to use the Final Images, including the right to reproduce, publicly display, and distribute the Final Images solely for the Permitted Use and under the terms of the Limited License provided in the Agreement.
- [LD1]
Credit. If Licensor agrees to any commercial or editorial use of the Images, credit will be provided immediately adjacent to the Images in the form of “Photo by David Beyda.
Relationship of the Parties. The parties are independent contractors and 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. Licensor/Photographer and the Images 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.
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.
Indemnification. If applicable, it is the Client’s responsibility to obtain the necessary model, or property releases (if the Images are shot outside of Photographer’s studio) and to ensure they are full force and effect and if Licensor agrees to the commercial use of the Images, to obtain any publicity releases necessary for the commercial use of any individuals depicted in the Images (subject to the rights granted herein under the terms of the Limited License and Permitted Use). Client will indemnify and defend Licensor and Photographer against all claims, liability, damages, costs, and expenses, including reasonable legal fees and expenses, arising out of the use of the Images outside of the warranty set forth herein or the scope of the Limited License or any materials furnished by Client.
General Law/Arbitration. This Agreement sets forth the entire understanding of the parties and supersedes all prior agreements between the parties. This Agreement shall be governed, interpreted and enforced in accordance with the laws of the State of New York. Any claim or litigation arising out of this Agreement or its performance may be commenced only in courts physically located in New York County, New York, and 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, the prevailing party shall be entitled to recover its attorneys’ fees incurred in the litigation. If parties are unable to resolve the dispute, either party may request mediation and/or binding arbitration in a forum mutually agreed to by the parties.
Miscellaneous. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. The failure of either party to partially or fully exercise any rights or the waiver of either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement. The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless expressly provided otherwise in this Agreement. This Agreement embodies the entire understanding among the Parties with respect to its subject matter and supersedes all previous communications, representations or understandings, either oral or written. No amendment or modification of this Agreement shall be valid or binding unless signed by both parties hereto. This Agreement may be executed on facsimile copies and in counterparts, each of which shall, when executed, be deemed to be one and the same instrument.
[LD1]So keep in mind that if a corporate client, the entity cannot provide this permission for its employees. You need to get from the individual depicted. Low risk but true from a legal perspective. Happy to explain if you don’t know this nuance.