This Photography Services Agreement (the “Agreement”) is a binding contract between you (“Client”) and Shii Took It Photography, LLC, a Florida limited liability company (“Photographer”).
WHEN BOOKING A SESSION (AS DEFINED BELOW), THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE “SCHEDULE EVENT” BUTTON (THE "EFFECTIVE DATE") AT THE BOTTOM OF THE BOOKING QUESTIONNAIRE (THE “BOOKING QUESTIONNAIRE”). BY CLICKING ON THE “SCHEDULE EVENT” BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND, IF ENTERING INTO THIS AGREEMENT FOR AN ORGANIZATION, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ORGANIZATION; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
1. Services.
(a.) Client hereby engages Photographer, and Photographer accepts such engagement, as an independent contractor to provide to Client the photography services described in the Booking Questionnaire (the "Services") at the date, time, and location set forth in the Booking Questionnaire (the “Session”), in accordance with the criteria set forth in the Booking Questionnaire and on the terms and conditions set forth in this Agreement. As part of the Services, Photographer will deliver to Client the photographic works (the "Photographs") described in the Booking Questionnaire. The terms and conditions of this Agreement apply to all Photographs that the Client commissions through the Booking Questionnaire, regardless of whether any such Photographs are completed, delivered, or accepted.
(b.) Client will not control the manner or means by which Photographer performs the Services.
2. Payment.
(a.) In consideration of Photographer's Services, timely delivery of the Photographs, and the License (as defined below), Client shall promptly pay all fees in accordance with the following payment schedule:
(i.) Fifty percent (50%) of the Fee on the Effective Date (the “Retainer”);
(ii.) The balance of the Fee at least one (1) day before the Photographer performs the Services; and
(iii.) Any Expense Reimbursement (as defined below) within fourteen (14) days after receipt of invoice.
As used herein, “Fee” means the fee specified in the Booking Questionnaire.
(b.) Except as expressly provided in this Agreement, the Fee is non-refundable.
(c.) NO PHOTOGRAPHS WILL BE DELIVERED AND NO LICENSE TO USE THE PHOTOGRAPHS WILL BE GRANTED UNTIL PHOTOGRAPHER HAS RECEIVED FULL PAYMENT, INCLUDING, IF APPLICABLE, ANY LATE-PAYMENT CHARGES.
(d.) If Photographer is required to travel outside of the twenty (20) mile radius of Photographer’s offices located in Dunwoody, GA, in connection with the performance of the Services, Client shall pay Photographer a gas mileage reimbursement at $0.50 per mile (the “Expense Reimbursement”).
3. Cancellation or Rescheduling of the Session.
(a.) If Client cancels the Session, the Retainer is forfeited and may not be applied to another session.
(b.) Client may reschedule the Session without forfeiting the Retainer if Photographer receives Client’s written request to reschedule the Session at least seven (7) business days’ prior to the scheduled Session. The rescheduled Session shall occur within thirty (30) calendar days after Photographer’s receipt of Client’s written request to reschedule the Session (the “Reschedule Period”). If the rescheduled Session does not occur within the Reschedule Period, the Retainer is forfeited and may not be applied to another session.
4. Reshoot.
(a.) If Client requires the Photographer to reperform the Services after the Session (a “Reshoot”), Client will pay Photographer an additional fee of one hundred percent (100%) of the Fee, plus any Expense Reimbursement (if applicable) for the Reshoot.
(b.) If a Reshoot is required due to a Force Majeure Event (as defined below), Client will only pay an Expense Reimbursement (if applicable) for the Reshoot.
5. Location of Services.
(a.) The Services shall be conducted at a location agreed upon by Photographer (the “Location”).
(b.) Client shall be solely responsible for obtaining any and all permits, consents, and approvals required by governmental and other regulatory authorities and/or property owner(s) or any other person(s) for the performance of the Services at the Location.
(c.) Photographer is not responsible for hazards at the Location and Client agrees to enter into the Session and the Location at Client’s own risk. Client hereby (for itself and all persons claiming under, by or through Client) releases Photographer and Photographer’s past, present, and future officers, managers, shareholders, members, agents, employees, attorneys, and their respective heirs, successors, assigns, and representatives (the “Photographer Releasees”), from all claims and demands of every kind resulting from any accident, damage, or injury sustained by Client, or any person claiming through Client, and resulting from any accident, occurrence, or condition in or upon the Location, except as directly caused by Photographer’s willful or grossly negligent actions.
6. Delivery of Photographs.
(a.) The Services include editing of the Photographs, which consists of changes to the color, crop, contrast, and exposure of the Photographs, at Photographer’s discretion. It is anticipated that the editing of the Photographs may take up to three (3) weeks after the Session. Client may request that the editing process be expedited for an additional fee, to be mutually agreed to in writing between the parties.
(i.) Expedited delivery can be considered (per photographers discretion) and should be discussed prior to hiring. Requests made post-session may not be considered.
(b.) Upon the completion of the editing process and payment in full of the Fee (and any applicable late-payment charges), Photographer shall deliver digital files of the Photographs to the Client’s email address, as set forth in the Booking Questionnaire, via a private gallery link with instructions on how to download the Photographs. The Photographs shall be available for download from the gallery link for up to fifteen (15) days.
(c.) A flash drive of the digital files of the Photographs is also available for an additional fee, to be mutually agreed to in writing between the parties.
(d.) Prints (including canvas prints) of the digital files of the Photographs are also available for an additional fee, to be mutually agreed to in writing between the parties. Photographer is not responsible for any prints that are not ordered directly from Photographer.
(e.) Client is responsible for downloading, archiving, and protecting the Photographs. Client is aware that optical, magnetic, electronic, and any other media for storing digital data are inherently unstable. Client hereby releases Photographer and the Photographer Releasees from any liability for any claims, damages, or costs, arising from any media supplied by Photographer becoming unusable.
(f.) All digital files created by, or on behalf of, Client that contain any Photographs will be deleted or destroyed within two (2) years after the Session (the “Archive Period”). Any requests for Photographer to reproduce Photographs that were already delivered to Client will incur a $75.00 processing fee; provided that any such requests must be made prior to the expiration of the Archive Period.
7. Digital File Quality.
(a.) Unless otherwise specified, Photographer may deliver, and Client agrees to accept, the Photographs encoded in an industry-standard data format that Photographer may select, at a resolution that Photographer determines will be suitable to the reproduction technology and use(s) for which the Photographs are licensed.
(b.) Photographer uses cameras and monitors that are color calibrated to industry standards. But due to variances in other monitors, software and computer platforms, the Photographs may display differently on other monitors. Therefore, neutrals will be set for mathematical neutrality and color will be adjusted for pleasing tonalities.
(c.) It is Client’s responsibility to verify that the digital data, including color profile, if provided, are suitable for reproduction of the expected quality and color accuracy, and that all necessary steps are taken to ensure correct reproduction. If the data are not deemed suitable, Photographer’s sole obligation will be to replace or repair the data, but in no event will Photographer be liable for poor reproduction quality, delays, losses, expenses, or consequential damages, resulting directly, or indirectly, from defects or errors in digital files or their use.
(d.) All editing is done at Photographer’s discretion. Photographer reserves the right to refuse any additional edits requested.
8. Grant of Rights. Upon payment in full of the Fee, Photographer shall grant to Client an exclusive, perpetual, irrevocable, freely transferable and sublicensable, fully paid-up and royalty-free right and license to use the results and proceeds of the Services, including but not limited to the Photographs (the “Works”), including all copyrights and other intellectual property rights therein and all renewals and extensions thereof, throughout the universe, for all or any purposes whatsoever (the “License”). For purposes of clarity and without limiting the foregoing, (a) Photographer agrees that the foregoing grant includes the right to reproduce, perform (publicly or otherwise), display (publicly or otherwise), and transmit the Works, in whole or in part, and as provided by Photographer unmodified, including without limitation in any and all formats and media whether now or hereafter known or devised and by any and all technologies and means of delivery whether now or hereafter known or devised, and (b) Client agrees that the foregoing grant does not include the right to modify, edit, combine with other materials, translate, include in collective works, or create derivative works of the Works, without Photographer’s prior written consent. By way of example and not limitation, Client shall not re-edit or place an Instagram filter on any of the Photographs, without Photographer’s prior written consent.
9. Ownership. Photographer owns and retains all right, title, and interest in and to the Photographs, subject to the license granted in 8.
10. Display. Unless mutually agreed to in writing, Photographer retains the right to use the Photographs for marketing, promotional, competitions, exhibitions, social media, and editorial purposes.
11. Attribution/Credit. Client shall provide Photographer with the following source attribution for each Photograph in connection with any publication of such Photograph in its entirety:
Attribution: Photos by Shii Took It Photography.
Placement: Directly below the Photograph.
Client shall also either include a hyperlink to Photographer’s website (https://www.shiitookitphotography.com/) or a tag linked to Photographer’s social media page on Facebook or Instagram.
Placement of a credit line or copyright notice is required when posting the Photographs on the Internet. If a credit line or copyright notice is required but not actually provided, Client agrees that the amount of DOUBLE THE FEE is the fair and reasonable compensation that will be paid to Photographer for the loss of recognition, or lack of copyright protection, resulting from the lack of, or an improper, copyright notice or credit line.
12. Relationship of the Parties. Photographer is an independent contractor of Client, and this Agreement will not be construed to create any association, partnership, joint venture, employee, or agency relationship between Photographer and Client for any purpose. Neither party has the authority (and shall not hold itself out as having authority) to bind the other party and shall not make any agreements or representations on the other party’s behalf without the other party’s prior written consent.
13. Indemnification. Client will defend, indemnify, and hold harmless Photographer and Photographer’s officers, managers, shareholders, members, agents, and employees (each being an “Indemnified Party”) against all reasonable attorneys’ fees, costs and expenses of the Indemnified Party and all liability of the Indemnified Party arising from or in connection with (a) Client’s use of any of the Photographs, and (b) Client’s participation in the Activities (as defined below). Client shall cooperate with the defense of any such claim. Client may, at its own expense, assist in such defense if it so chooses, provided that Photographer will control such defense and all negotiations relative to the settlement of any such claim.
14. Limitation of Liability.
IN NO EVENT WILL EITHER PARTY OR ITS OFFICERS, MANAGERS, SHAREHOLDERS, MEMBERS, AGENTS, OR EMPLOYEES BE LIABLE TO THE OTHER PARTY OR ITS OFFICERS, MANAGERS, SHAREHOLDERS, MEMBERS, AGENTS, OR EMPLOYEES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUE, BUSINESS INTERRUPTION, LOSS OF DATA, OR LOSS OF USE, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN ANY WAY RELATED TO THIS AGREEMENT, THE PERFORMANCE OF ANY SERVICES PURSUANT TO THIS AGREEMENT, OR USE OF THE PHOTOGRAPHS , WHETHER IN AN ACTION IN CONTRACT, BREACH OF WARRANTY OR TORT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF, OR COULD HAVE REASONABLY FORESEEN, THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL EITHER PARTY’ S LIABILITY TO THE OTHER EXCEED THE AGGREGATE AMOUNTS PAID TO PHOTOGRAPHER PURSUANT TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, NEGLIGENCE, TORT, OR OTHERWISE. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO CLIENT’S INDEMNIFICATION OBLIGATIONS IN SECTION 13.
THE LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
15. Waiver and Release.
(a.) Client full understands that: (i) the activities and actions that take place during the Session (the “Activities”) may involve risks and dangers of serious bodily injury, including permanent disability, paralysis, and death; (ii) these risks and dangers may be caused by Client’s own actions or inactions, the actions or inactions of others participating in the Activities, the conditions in which the Activities take place, or the negligence of the Photographer Releasees; (c) there may be other risks or social and economic losses either not known to Photographer or not readily foreseeable at this time; and Client fully accepts and assumes, personally, all such risks and all responsibility for losses, costs, and damages Client incurs as a result of Client’s participation in the Activities. Client further agrees that if at any time during the Session, Client feels anything to be unsafe, Client will immediately cease from further participation in the Activities.
(b.) Client assumes full responsibility for any risk to Client of bodily injury, death or property damage arising out of or related to the Activities.
(c.) If Client is a parent or guardian of any child participant(s) in the Activities, Client, personally and on behalf of any such child, acknowledges and agrees to all the provisions in this Section 15.
(d.) Photographer reserves the right to cancel or change the Activities without prior notice, and reserves the right to cancel the Session (without refund of any portion of the Fee), if Photographer deems Client unable to meet Photographer’s safety requirements.
16. Force Majeure Events. If Photographer is unable to perform the Services due to acts beyond Photographer’s reasonable control, including without limitation the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) inclement weather, flood, fire, earthquake, or other catastrophes, such as epidemics or pandemics; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order, law, or actions; and (e) national or regional emergency, Photographer will attempt to procure the services of another professional photographer to fulfill the Services. If Photographer is unable to procure such substitute services, Photographer will refund any portion of the Fees paid by Client (including the Retainer), and upon such refund, Photographer shall not be liable or responsible to Client, nor be deemed to have defaulted under or breached this Agreement.
17. Miscellaneous.
(a.) No waiver by any party of any of the provisions hereof will be effective unless explicitly set out in writing and signed by the party so waiving. No waiver by any party will operate or be construed as a waiver of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(b.) This Agreement and all matters arising out of or relating to this Agreement are governed by the laws of the State of Georgia, without giving effect to any conflict of laws provisions thereof. Either party shall institute any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or state courts in each case located in Atlanta, Georgia, and each party irrevocably submits to the exclusive jurisdiction of such courts in any legal suit, action, or proceeding.
(c.) This Agreement, including any exhibits and schedules, constitutes the entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such subject matter. No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each party. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement nor invalidate or render unenforceable such term or provision in any other jurisdiction.
(d.) For purposes of this Agreement: (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation"; and (b) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole. This Agreement is intended to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.
Updated: March 2022 (KH655280)
