Terms & Conditions for all Commercial Photography Services
(includes all commercial “Branding,” “Product,” ‘and “Event” services)
Purpose of this Agreement
Client wishes to hire Art by D’Artisan to provide photography services to create image(s) for commercial use. Art by D’Artisan has agreed and shall provide client’s selected and specified services according to the terms of this Agreement, within the stated limits of those terms. Such terms will be limited to the most constraining term of the specified deliverables to be provided by Art by D’Artisan. Where specific quantities are specified, those quantities are an estimate only and subject to the specified needs of the client and will not exceed the agreed upon camera time with Art by D’Artisan. “Photographer” and “artist” are one and the same and used interchangeably herein.
Art by D’Artisan shall provide Client with the following additional services on an 'as needed' basis at the discretion of the artist and or Art by D’Artisan:
Pre-project Consultation
Art by D’Artisan shall provide Client the opportunity of up to a one hour long pre-Service consultation. The Parties shall agree on an acceptable date and time for conducting the pre-Service consultation, but the manner by which the consultation shall be conducted shall be at the discretion of the artist and Art by D’Artisan. In most instances, this consultation is conducted via phone, video chat, or in person. This consultation may be scheduled no later than 72 hours before Art by D’Artisan’s professional services are to be provided. It is agreed that it is in the client’s best interests to clearly communicate their needs and desires for the final images to be created at this time and prior to the actual photo shoot in order to maximize client’s deliverables. Changes in style or setting by the client within seventy two (72) hours of the scheduled photo shoot require implicit waiver of defect(s) or refund due to any change(s) requested by client affecting quality or quantity of the resulting deliverables.
Amount(s) Due
Art by D’Artisan agrees to provide professional services to Client on the basis of a lump sum total cost basis (the "Total Cost”). Total Cost is inclusive of Art by D’Artisan's specified services as selected by the client, inclusive of unspecified setup time, software licenses, administrative fees, and processing time(s) to provide the deliverables edited to client’s requested specifications.
This initial total cost and amount due Art by D'Artisan from client under this Agreement has been established below by client's day rate selections or by separate written quote and invoice of Art by D'Artisan, hereby incorporated herein by reference as an addendum to this agreement. An absolute minimum of 25% of that total invoiced amount is due and to be paid in advance within one week of execution of this agreement as a retainer and advance payment for preparations for any corporate event. Product, branding, or other non-event corporate photo sessions require a deposit of not less than half (50%) of the total cost paid in advance by the lesser of the business day requested or not less than seven days prior to the requested photo session date before there is any binding contractual term upon artist and or Art by D’Artisan.
This total cost or amount due, if established by separate invoice, is hereby included herein as a written addendum to this clause which clearly indicates both parties' explicit agreement. Client's signature upon this contract indicates explicit acceptance of the same total invoiced amount as the amount due under this contract, including all specific terms of any specified deliverables therein.
In the absence of client’s selection specifying a “day rate” for these services, client hereby expressly agrees to compensate Art by D’Artisan for each camera hour over the allotted amount of time designated under “Services” above that is spent on Client's Services at an hourly rate of $500 per hour of camera time, Art by D’Artisan's current standard hourly rate, unless a separate per-item cost is separately agreed upon by separate written amendment to this contract in advance of performance by Art by D’Artisan, irregardless of cause (i.e. late model, late product arrival or delivery, set malfunction not directly attributable to malice or negligence on the part of artist or Art by D’Artisan, etc.).
Parties also agree that any standard specified additions beyond the specified day or package rate (i.e. individual headshots, travel beyond city of San Diego, additional hard costs specific to client’s request(s), additional required assistance, subcontractor costs, etc.) will be separately invoiced to client within two (2) weeks after the final date of services at the event and client hereby agrees that that additional invoice will be due and payable in full upon receipt, prior to receipt of any event deliverables to any party(ies) of the event.
Failure to timely pay for any added services upon presentation of their invoice will be a material breach of this agreement by client and void all further obligations by Art by D'Artisan under this agreement.
Expenses
Any additional or exceptional expense(s) incurred by Art by D’Artisan while providing Client with Services will be invoiced in writing to Client in a timely manner, hereby defined as within 72 hours of their necessity or assessment whichever occurs later and where possible prior to the photo shoot absent separate written amendment, or within two weeks of the conclusion of event if incurred during the contracted day(s) of the photo shoot and or event itself. Art by D’Artisan is responsible for relaying to client the necessity of any anticipated additional expense(s) and is entitled not to proceed until client provides verbal or written acceptance of the additional expense(s). Client’s acceptance is to be construed as an explicit agreement to pay any and all such additional expense(s) necessary for Art by D’Artisan to provide the requested deliverable image(s). Client is responsible for paying for and delivering any third party software licenses or products Client wishes Art by D’Artisan to utilize in the creation of the deliverable image(s). Failure by client to deliver any item necessary to create the image(s) or to agree to pay any necessary additional expense(s) to create the requested image(s) is to be construed as Client’s sole breach of contract, and same exempts Art by D’Artisan of any and all liability related to or arising therefrom including non-delivery of the requested and contracted image(s).
At Art by D’Artisan's sole discretion, Art by D’Artisan will make reasonable efforts to integrate Client's desired software or products with Art by D’Artisan’s services.
Late Fees
If Art by D’Artisan does not receive payment from Client within fourteen calendar days of any agreed upon payment date, or in the event that client habitually pays for services on a “Net 30” basis, it is hereby expressly agreed that Client will be charged and hereby agrees that a late fee of 1% of the outstanding amount will be due and payable to Art by D’Artisan per each day or partial day of delay that Art by D’Artisan does not receive that payment, until that payment is paid in full, inclusive of these fees, and that client is not due any deliverable(s) until all fees due, including late fees, have been paid in full by client and received by Art by D’Artisan.
No Refunds
Due to the custom and artistic nature of custom product and commercial photography, digital files cannot be returned and all monies paid are nonrefundable.
Subjects / Products
Client shall provide at client’s sole expense and effort any and all client product(s) and or desired specific model(s) to be incorporated into the desired and contracted image(s). In the event that it is appropriate and client desires return after the photo shoot of any such utilized product(s) provided to Art by D’Artisan for the purpose of creating the requested image(s), it is the sole responsibility and duty of the client to provide the means and method of that return to client at the client’s sole expense. Client’s failure to provide accommodation for the return of any product(s) following the scheduled photo shoot is to be construed as an express waiver of any further ownership right(s) or interest(s) in any and all property or product surrendered or provided to artist or Art by D’Artisan for any purpose related to the photo shoot and or creation of the desired image(s). Artist and Art by D’Artisan are within their rights to retain, liquidate, or destroy any such property as they see fit in their sole discretion in the absence of any specific written term to this contract to the contrary specifying disposition of such product(s) or property item(s). In the event of a contractual breach or default by client, these same terms apply and it will remain client’s sole responsibility to provide for the return of any and all product(s) or property’s return to client if that is client’s wish, at no expense or further obligation of Art by D’Artisan, the same as if the photo session had been completed and images delivered.
Account(s) & Resource(s) Access
Client shall provide Art by D’Artisan with full required access and authorization to any and all necessary account(s) & or resource(s) necessary and essential to the creation and or delivery of the images being contracted no later than 72 hours before the scheduled event for which services are herein contracted, regardless of the method of access required, whether material, digital, or otherwise. Client’s failure to do so will be a material breach by client and client expressly agrees they will be entitled to no refund for any related default or deficiency that results.
Confidentiality
Parties will treat and hold all related information of or relating to this Agreement, the Services provided, any related product(s), and the Parties' respective business in strict confidence and will not use any of this information except in connection with fulfilling the terms of this Agreement, and, if this Agreement is terminated for whatever reason, Parties will return all such information, including account access information, and any and all copies to the original Party and will remain bound to the Confidentiality provision of this Agreement. Confidential information (herein "Confidential Information") means information that is of value to its owner and is treated as proprietary or confidential including, but not limited to, intellectual property, inventions, trade secrets or information, financial data or information, speculation, knowledge, general Company data or reports, future business plans, strategies, customer lists and information, client acquisition strategies, advertising campaigns, information regarding executives and employees, information regarding access or use of services & or platforms related to the services or business platforms of any of the parties involved and the terms and provisions of this Agreement.
Further, at all times neither Party shall use or disclose any Confidential Information relating in any way to the past, present, or future business affairs, conditions, clients, customers, efforts, employees, financial data, operations, practices, products, processes, properties, sales, or services of or relating in any way to the Company in whatever form to any parties outside of this Agreement, to include the terms of this agreement itself.
This Agreement imposes no obligation upon the Parties with respect to any Confidential Information that was possessed before initial business interactions commenced between the Parties; is or becomes a matter of public knowledge through no fault of receiving Party; is rightfully received from a third party not owing a duty of confidentiality; is disclosed without a duty of confidentiality to a third party by, or with the authorization of the disclosing Party; or is independently developed by either Party without prior knowledge of privileged or confidential information.
Relationship of the Parties
Art by D’Artisan and any related sub-contractor of Art by D’Artisan's are not employees, partners or members of Client's company or organization. Art by D’Artisan has the sole right to control and direct the means, manner, and method by which the services in this Agreement are performed. Art by D’Artisan has the right to hire assistants, subcontractors or employees to provide Client with its Services as deemed necessary or appropriate by the artist or Art bv D’Aritsan. Parties are individually and separately responsible for their own business operation and expenses, including securing or paying any related modeling, licensing, insurance, taxes (including FICA), registrations, permits, or other fees. Client is not responsible for paying any benefits, Workers Compensation, insurance or unemployment fees to Art by D’Artisan or any model(s) contracted unless provided for by separate agreement or direct contract between client(s) and those model(s) or other party(ies).
Model Release
Client is responsible for obtaining all necessary model releases for all models that will participate in the photo session. Artist and or Art by D’Artisan may provide comprehensive model releases but this remains the sole duty and responsibility of the client, whether or not client or Art by D’Artisan sources and utilizes professional models for the photo session. Client will provide all signed model release(s) to the photographer prior to the start of the shoot. Lack of any necessary fully executed model release permits photographer to exempt and refuse to photograph that person without penalty, recourse, or refund due to client for any reason whatsoever. Client hereby releases Photographer and his/her legal representatives, heirs, and assigns from any and all claims and liability relating to resulting images and photographs.
Intellectual Property
Parties retain ownership of their respective trademarks and any intellectual property used in the normal and separate course of their business and agree not to infringe upon or otherwise use each other's respective intellectual property except as agreed to herein for the provision of Client with the contracted Services.
Copyright:
Client understands that Photographer and Art by D’Artisan are the sole and exclusive holders and owners of the copyright of each image taken during the services provided under this Agreement. Artist and Art by D’Artisan retain ownership of copyright in any and all designs, images, or related work product(s) pursuant to federal copyright law (Chapter 17, Section 201-02, of the United States Code) nd allows all violators to be punished to the full extent of the law.
Any and all work produced in connection with, or in the process of fulfilling this Agreement, are expressly and solely owned by Art by D’Artisan. Client is receiving a Limited Commercial Use License as set forth below. Photographer retains all rights to the images, including but not limited to, the right to copy, display, and/or publish any and all images, for any reasons, including but not limited to marketing, advertising, print competitions, and for use on Photographer’s website, portfolio, blog, and social media platforms, including, but not limited to, Facebook, Instagram, and Twitter absent separate written agreement otherwise.
In recognition that actual damages can be difficult to valuate, client hereby agrees that liquidated damages will be due to Art by D'Artisan and or photographer in an amount of fifteen times (15x) the total invoiced amount due Art by D'Artisan under this contract in the event of a breach of copyright in lieu of an award of statutory damages under 17 USC §504(c)(2).
The client may not use any image(s) or photograph(s) printed from any Art by D’Artisan digital files and or negatives for any commercial or editorial purposes not specifically designated & allowed for pursuant this contract, such as for & including: entry into any contest or competition, advertisements, endorsements, or publication in any books, magazines, ezines, newspapers or other forms of commercially distributed material without the express written authorization of the photographer & Art by D'Artisan.
Limited Commercial Use License Granted:
Client is purchasing un-watermarked high-resolution digital image files from photographer and photographer and or Art by D'Artisan is issuing to Client a perpetual limited commercial license for {ExclusiveYesNo} use by client in the normal course of Client’s business including, but not limited to: advertising, marketing or other promotions, or on Client’s website, blog, or social media platforms. Client understands that the digital files are meant for use in print, online marketing, advertising materials, or campaigns online or with a physical distribution of less than 50 units. Print distribution to a greater audience will require an additional separate license and fee. The digital files may be not altered, edited, or manipulated in any way, except that Client may add their business name, logo, website or other advertising or marketing campaign text to the digital files so long as it does not affect the elements of the image as styled and presented by Photographer. The digital files may not be used by anyone other than the client. The Client cannot sell, lease, transfer, or give this image license to any third party. This license is non-transferable.
Art by D’Artisan hereby grants to Client a nontransferable, non-exclusive, royalty-free license of image(s) produced with and for Client for the specific express allowed purpose(s) set forth in this contract & no other. Any unauthorized use by the client or a third party of the image(s) or their derivative(s), such as using the images for other purposes than those specified herein, will result in Client’s voluntary and hereby express agreed forfeiture of additional fee(s) and/or royalty payments to Art by D’Artisan equal to the higher of fifteen times (15x) the Total Cost of this contract with all addenda or maximum statutory damages under 17 USC §504(c)(2), which Client hereby acknowledges such fees will be due & payable within fourteen (14) days of Art by D’Artisan’s discovery, in any amount specified by Art by D’Artisan, in Art by D’Artisan’s sole discretion up to and including the maximum said statutory damages, absent advance written agreement and permission by Art by D’Artisan as to that use and any related licensing fee(s).
Artistic Style Release
Client has spent a satisfactory amount of time reviewing in advance Art by D’Artisan's work, references, & or any portfolio, and has a reasonable expectation that Art by D’Artisan's Services will produce a satisfactory outcome and result for Client. Art by D’Artisan will use reasonable efforts to ensure Client's services are carried out in a style and manner consistent with Art by D’Artisan's current portfolio and services unless otherwise specified and agreed to by client, and Art by D’Artisan will try to incorporate any suggestions Client makes. However, Client understands and agrees that:
• Every client and final delivery of product & services is different, reflective & inclusive of different tastes, budgets, needs, and interpretation(s) by the artist;
• Photography and art are subjective services and Art by D’Artisan possesses a unique & personal professional vision, with an ever-evolving style and technique(s);
• Artist and Art by D’Artisan will use their personal judgment to create favorable results for Client, which may not include strict adherence to Client's suggestions;
• All posing of model(s) and or product(s) is at artist’s sole discretion, client relies on the experience, vision, and execution in the artist’s discretion for the artistic expression contracted herein;
• All selection and delivery to client of final image(s) for selection, purchase, and delivery will remain at the sole discretion of artist and Art by D’Artisan, subject to their rigorous standards as to quality and content, client has no rights or interest whatsoever in any undelivered image(s) regardless of reason they were not delivered;
• Dissatisfaction with Art by D’Artisan's independent judgment, interpretation of client’s vision, or individual management style are not a breach of this agreement and are also not valid reasons for any of the following: termination of this Agreement, request or return of any monies paid, or nonpayment of any outstanding monies due Art by D’Artisan for work contracted and performed.
Selection of Images
Except in the instance where client is on site at time of the photoshoot and makes in person image selections at that time, client will be provided a selection of final image(s) in excess of those contracted for delivery and will be provided a private gallery of images by electronic means within two (2) weeks of the photo session, or at the earliest possible opportunity by Art by D’Artisan, whichever is less. Client understands and agrees that photographer and Art by D’Artisan, in their sole artistic discretion, decides which images taken during the session are of sufficient quality to be edited and presented in the Client’s gallery; not all images taken during the session will be presented to the Client. Client will be responsible to make their final selections for delivery from those images presented,, along with any final feedback or requests for modification to the artist and Art by D’Artisan.
Client may select a greater number of images than agreed and provided for under this agreement so long as client pays any additional fee(s) and or cost(s) associated with those additional images as designated by Art by D’Artisan at the time of selection. Client forfeits all right and or interest in any image(s) not paid for or selected for delivery at this time. Selection(s) of a lesser number of images than those contracted, selection without feedback or request by client for further modification(s), failure to make final selection(s) within two (2) weeks of provision for review and selection by Art by D’Artisan to client, or failure to pay the provided fee(s) for any additional image(s) in excess of this agreement selected by client will waive in perpetuity all further interest and rights of client in any and all related images as well as to make further demand(s) upon artist and Art by D’Artisan under this agreement.
Art by D'Artisan recommends use of professional print lab services available from www.maxartpro.com for printing any further photographic art from any digital images and or negatives provided as a result of these services. Art by D’Artisan will on request provide an option for direct submission of any desired image to this same or another photolab approved by Art by D’Artisan for production at will by the client. Neither Art by D’Artisan nor artist can or does guarantee the quality of any produced prints that are not printed by these same photolabs and does not provide technical support for any such files or unapproved photo labs. Any and all such production made separate from these platforms & related submission(s) is/are at client’s sole risk and discretion.
Artist and Art by D’Artisan recommends that you back up your purchased digital images and or negatives in several locations. We can offer additional backup copies if necessary for an additional fee. Please contact us with the number, manner of backup, digital or hardware, and specific images desired for our rates, dependent upon the manner and duration of such backup storage and provision of these images is desired.
Limit of Liability
Client agrees that the maximum amount of damages they are entitled to in any claim relating to this Agreement or related Services provided are not to exceed the lesser of Art by D’Artisan's total cost as set forth in this Agreement or any monies actually paid to Art by D’Artisan by client up to the time claim is made, under any set of circumstances related to the provision of services or delivery of product(s) & or image(s) related to this agreement.
Indemnification
Client agrees to indemnify and hold harmless Art by D’Artisan and its employees, agents, artists, and or subcontractors for any and all injury, property damage, liability, claim or other cause of action arising out of or related to Services provided herein.
Assumption of Risk
Client and related parties, participants expressly assume any risk(s), environmental or otherwise, of any & all photography and activities related to the photo session, its execution, or delivery of resulting image(s) or product(s) as set forth & described herein.
Cancellations and Rescheduling
Any rescheduling of the agreed services without a minimum one week or seven days notice will be subject to a minimum fee of one half the amount(s) paid to date to Art by D’Artisan up to that point, above and beyond any other agreed cost(s), to address the related logistics and expense(s) involved in rescheduling all necessary parties and resources. If the Client desires to cancel the designated Services of Art by D’Artisan for any reason at any time, Client shall provide at least one week or seven full days’ Notice to Art by D’Artisan in order to cancel this contract in order to be eligible for a partial refund of any monies paid, less any actual expenses incurred by Art by D’Artisan on client’s behalf up to that point. Client may choose instead to reschedule Services with at least that same one week or seven days Notice and written agreement from Art by D’Artisan. Failure to provide sufficient notice under this clause shall be deemed a cancellation by client. In the event of any cancellation by client, Art by D’Artisan shall retain all monies paid up to that point without refund, for preparation and services already performed without further recourse to client.
Providing Notice to reschedule will not relieve the Client or affect any current outstanding payment obligations under this contract. Art by D’Artisan will not be obligated to refund any portion of monies Client has previously paid to Art by D’Artisan; they are considered paid for services already rendered in the advance scheduling & preparation of Art by D’Artisan and or Art by D’Artisan’s subcontractors. If Art by D’Artisan is able to re-book further services on or before Client's scheduled date, Client may be issued a partial credit for future services with Art by D’Artisan at Art by D’Artisan's sole discretion. Art by D’Artisan has no obligation to attempt to re-book further Services to make up for Client's cancellation or rescheduling. Any cancellation or rescheduling by client is at client’s sole discretion and hazard. Client assumes full responsibility and hereby agrees to hold Art by D’Artisan harmless for any related event, occurrence, loss, or inconvenience related to client’s need to reschedule or any inability whatsoever on the part of Art by D’Artisan to reschedule.
In the event Art by D’Artisan cannot or will not perform their contracted obligations in any or all parts of this Agreement, it (or a responsible party) will immediately give Notice to Client, and at the sole discretion of Art by D’Artisan, either attempt to find a reasonable substitute to fulfill the terms of this Agreement or issue a refund or credit based on & reflective of a reasonable percentage of the Services yet to be rendered to client. In the case of a refund where, at the discretion of the Art by D’Artisan, no reasonable substitute or alternative delivery is found, Art by D’Artisan shall excuse Client of all further performance obligations in this Agreement, in return for full reciprocation of this consideration by Client, with no further action or remedy available to either party.
No Shows
If it becomes impossible for Art by D’Artisan to render Services due to the fault of the Client or parties related to Client, such as failure to provide necessary elements of the Services or failure of one or more essential parties to the Services to complete tasks in a timely manner, or to fail to appear at the designated time and place of the photo session, it is within the Art by D’Artisan's sole discretion to allow for any additional time or dates to render Services. In such an event, any outstanding amount will immediately become due and payable to Art by D’Artisan, with no recourse or remedy to Client as if client had Cancelled all services without notice. No refund will be due client.
Force Majeure
Either party may choose to be excused of any further performance obligations in the event of a disastrous occurrence outside the control of either party that materially affects the performance of Services, including: any act of God (fires, explosions, earthquakes, hurricane, natural disasters, flooding, storms or infestation), or War, Invasion, Act of Foreign Enemies, Embargo, other Hostility (whether declared or not), domestic government tyranny or fiat, or any hazardous situation created outside the control of either party such as a riot, disorder, nuclear leak or explosion, or act or threat of terrorism.
Governing Law
The laws of the state of California govern all matters arising out of or relating to this Agreement, including any and all related torts, excepting only those matters whose original jurisdiction lies within federal law extant at the time this agreement is executed.
Notice
Parties shall provide effective notice (“Notice") to each other, including any payments or invoices, via any of the following methods of delivery at the date and time which the Notice is sent, whether delivered in person, materially, or electronically, at any of the addresses provided by the parties, under “parties” above, whether by:
1. Email: 2. Phone 3. Text 4. Physical Address.
Art by D’Artisan’s addresses for these purposes shall be to any written medium published on Art by D’Artisan’s public facing website at the time notice is given.
Severability
If any portion or tenet of this Agreement is later deemed to be illegal or unenforceable, the remaining provisions of this Agreement remain in full force, if the essential provisions of this Agreement for each party remain legal and enforceable.
Amendments
The parties may amend this Agreement only by the parties' written agreement in advance.
Assignments
Client may not assign or transfer any rights or obligations in this Agreement without written permission from artist and or Art by D’Artisan and providing proper Notice.