CONTRACT
THIS PHOTOGRAPHY AGREEMENT (“Agreement”) is made on the date signed and is between Sarah Marie Photography (“Photographer”) and parties listed above (“Client”) (collectively, with Photographer, the “parties”). In consideration of the mutual promises, covenants, terms and conditions set forth in this Agreement, and other good and valuable consideration, Photographer and Client agree as follows:
1. Services. Client agrees to hire Photographer for the event, location, date and time, products, services and fees set forth in the Client Information and Order Form attached to this Agreement.
2. Fees. The total fee for the Photography Session and Services is listed above (hereinafter, the “Fee”). This Agreement shall not be effective until Client tenders a signed copy of this Agreement to Photographer. The Fee is due prior to or at the beginning of the date and time of the Photography Session. In the event Photographer does not receive Fee prior to the date and time of the Photography Session, then Photographer shall have no obligation under this Agreement or otherwise to provide any photography services and Client hereby waives and releases any and all rights, claims, remedies and any other recourse against Photographer arising out of, or relating to, this Agreement.
3. Exclusive Photographer. Photographer shall be the exclusive photographer retained by Client for the purpose of photographing the event set forth in the attached Client Information and Order Form (hereinafter, the “Event”).
4. Cancellation. If Client cancels this Agreement the Photographer shall have no obligation under this Agreement or otherwise to provide any photography services and Client hereby waives and releases any and all rights, claims, remedies and any other recourse against Photographer arising out of, or relating to, this Agreement.
5. Weather. If, in the opinion of Photographer, inclement weather or other adverse conditions prevent the creation of portraits meeting the artistic standards of Photographer, then Photographer and Client will reschedule the Photography Session on an agreed date at the earliest date possible, with no additional charge.
6. “No Shows”. Client, Photographer and any other persons that are participating in the Photography session (hereinafter, “Models”) shall timely arrive to the Photography Session and cooperate with each other. Photographer is not responsible if Client and/or Models fail to appear during the Photography Session. If Client and/or Models fail to appear at the Photography Session, thereby preventing the Photography Session, then, in Photographer’s sole and absolute discretion: (a) Photographer shall have no obligation under this Agreement or otherwise to provide any photography services and Client hereby waives and releases any and all rights, claims, remedies and any other recourse against Photographer arising out of, or relating to, this Agreement; or (b) the Photography Session may be rescheduled for the price of the Fee, plus an additional deposit in an amount determined by Photographer. If the Photography Session does not commence within ten (10) minutes of its scheduled start time due to the absence of the Client, Models or any other key individuals, then, in Photographer’s sole and absolute discretion: (a) Photographer shall have no obligation under this Agreement or otherwise to provide any photography services and Client hereby waives and releases any and all rights, claims, remedies and any other recourse against Photographer arising out of, or relating to, this Agreement; or (b) the Photography Session may be rescheduled for the price of the Fee, plus an additional deposit in an amount determined by Photographer.
7. Reshoots. In the very unlikely event that Client is completely dissatisfied with the final results based solely on personal preference, Photographer will photograph a new session for a fee that is seventy-five percent (75%) of the Fee, if and only if Client notifies Photographer in writing within seventy-two (72) hours of Client’s initial receipt of the images. The final photography product (e.g., CDs, flash drives, prints, etc) will be only from this subsequent photography session. In the unlikely event that the finished product from a portrait session is unusable due to technical problems (e.g., camera failure, exposure issues, etc.), then Photographer will photograph a new photography session at no additional charge. Said new photography session will be rescheduled on a date and at a time mutually agreed upon by Photographer and Client.
8. Copyright. All images are protected under Federal Copyright Law and all rights in said images, including copyrights, shall remain the property of Photographer. It is unlawful and subject to statutory prosecution to scan, copy, download, print, modify, reproduce or otherwise steal any images created by the Photographer unless given written consent (ie: 'print rights' when booking a session). This applies to images posted in private online galleries, blogs, Facebook, web pages, hard copy images or prints, or otherwise.
9. Client Usage. Client hereby warrants and represents that Client is obtaining photographs or images for personal use only. Client shall not sell said photographs or images nor authorize any reproductions by any person or entity other than Photographer. If, included in the Photography Session and Services, Client receives as the final product or as part of final product a flash drive, memory card, CD, DVD or other electronic form of storage of digital photography, Photographer, as copyright owner of these images, grants a lifetime, personal use license solely to Client to print or have printed reproductions of these images for display in their home, online or workplace. This is the only license granted by Photographer to Client, and these images may not be sold, entered into any photography, competition, contest, exhibit, display or publication, or otherwise used or sold without the express written consent of Photographer. No waiver by either party of any of the terms or conditions of this license shall be deemed or construed to be a waiver of such term or condition for the future, or of any subsequent breach of said license. Waivers are only valid when they are in writing. All photographs, whether in hardcopy or digital format, received by Client from Photographer shall not be edited in any way.
10. Model Release. Photographer reserves the right to use photographs and images created pursuant to this Agreement for advertising, exhibition, display, publication, portfolio, website development and other commercial purposes (hereinafter, “Commercial Use”). By signing this Agreement, the undersigned individuals hereby: (a) consent to Photographer’s use of his or her photograph, image, persona or likeness for Commercial Use; (b) represents and warrants that he or she is the parent, guardian and/or legal custodian of any minors contained in the photographs or images taken by Photographer, and he or she consents to Photographer’s use said minor’s photograph, image, persona or likeness; (c) waives and releases any and all rights, claims, remedies and any other recourse against Photographer arising out of, or relating to, Photographer’s use of his, her or any minors photograph, image, persona or likeness for Commercial Use; (d) waives and releases all rights to review or approve any photographs or images prior to Photographer’s use of any photographs of himself, herself or said minors for Commercial Use; and (e) acknowledges and agrees that he, she and any said minor, has no rights to any photographs of himself, herself or said minors, all said rights belong to Photographer, and he, she nor any said minor shall not be entitled to any compensation for Photographer’s use of any photographs of himself, herself or said minors.
11. Limitation and Waiver of Liability. In the unlikely event that all original photographs or images from the Photography Session are lost or damaged through camera or media malfunction, delivery services, or otherwise lost, stolen, damaged or destroyed within or beyond Photographer’s control prior to Client receiving said photographs or images, then Photographer’s liability is limited to the refund of all payments received by Photographer from client for the Photography Session and Services or a new photography session by Photographer at no additional cost. In the event of partial loss, destruction, theft or damage of original photographs or images within or beyond Photographer’s control prior to Client receiving said photographs or images, then the amount paid by Client to Photographer for the Photography Session and Services shall be a prorated based upon the percentage of originals lost, stolen, damaged or destroyed. In the unlikely event that Photographer is injured or becomes too ill to attend the Photography Session, Client’s sole remedy shall be the rescheduling of the Photography Session. In the event that rescheduling of the Photography Session is not possible, then Client’s sole remedy shall be the refund for all payments Photographer received from Client for the Photography Session and Services. If Photographer cannot, or fails to, perform its obligations under this Agreement due to fire or other casualty, accident, strike, act of God, or other cause beyond the control of the parties, due to Photographer’s illness or emergency, or for any other reason, then Photographer shall return any payment received from Client for the Photography Session and Services, and Photographer shall have no further liability with respect to, or under, this Agreement. Client hereby expressly releases Photographer, its employees, representatives, agents and independent contractors, from any and all claims, injuries, damages, that may result from accidents or incidents that occur during the Photography Session unless solely caused by Photographer’s gross negligence and/or willful misconduct. Recommendations regarding location, wardrobe, etc., are merely recommendations, and Photographer is not responsible for Client’s dissatisfaction of the use of the recommended option. This waiver of liability includes waiver of any claim that may be a result of negligence. In the unlikely event that Client is unhappy or otherwise dissatisfied with the photographs or images taken by Photographer during the Photography Session, or Client otherwise believes he or she has a claim arising out of, or related to, this Agreement, Client hereby waives and releases any and all damages, rights, and claims against Photographer or any other remedies set forth in this Agreement, unless Client notifies Photographer in writing of such unhappiness, dissatisfaction, damages, rights or claims within thirty (30) days from the date Client first receives proofs, copies or digital images of the photographs or images taken during the Photography Session from Photographer. Client acknowledges, understands and agrees that giving written notice to Photographer of any unhappiness, dissatisfaction, damages, rights or claims within thirty (30) days from the date Client first receives proofs, copies or digital images of the photographs or images taken during the Photography Session from Photographer is an express condition precedent to Client recovering any damages against Photographer or Client being entitled to any remedies set forth in this Agreement.
12. Inherent Qualities. Client acknowledges that color dyes in photography may fade or discolor over time due to the inherent qualities of dyes as well as DVD, CD, flash cards or any other electronic media which may deteriorate due to delamination, oxidation, wear or tear, and Client hereby waives and releases Photographer from any liabilities or claims whatsoever based upon the deterioration due to such inherent qualities.
13. Governing Law; Legal Fees; Arbitration. This agreement shall be governed by and construed in accordance with the laws of the physical location for which the session occurs. The parties agree that in the event of any suit or proceeding brought by one party against the other, the party prevailing therein shall be entitled to payment from the other party hereto of its reasonable attorneys’ fees and all costs incurred. Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction or other equitable relief to preserve the status quo or prevent irreparable harm pending the selection and confirmation of the arbitrator(s), any controversy or claim arising out of, or relating to, this Agreement or breach hereof shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction.
14. Limitation of Damages. Client hereby agrees that in the event there is a determination by a court (if applicable), arbitrator, or any other tribunal (if applicable) that Photographer breached this Agreement, then the maximum damages that Client is entitled to recover from Photographer is the total amount of money Client paid to Photographer for the Photography Session and Services. Client hereby agrees that he or she is not entitled to recover actual damages, direct damages, indirect damages, punitive damages, treble damages, special damages or consequential damages arising out of, or related to, Photographer’s breach of this Agreement. Under no circumstances whatsoever shall Client be entitled or able to recover a damage award that would exceed the money paid by the Client to Photographer.
15. Print Fees. Prints and print products are not included with any fees listed above but are available for an extra cost based on the Photographer’s Standard Price List and may be purchased through Photographer’s website with the balance due at the time the products are ordered. All prints include standard retouching and once products are ordered, all sales are final.
16. Incorporation of Documents. The Client Information and Order Form attached to this Agreement are fully incorporated herein by reference.
17. Miscellaneous. The terms of this Agreement are contractual and are not mere recitals. This Agreement contains the entire Agreement of the parties and shall not be modified or amended in any way except upon written agreement signed by the parties. This Agreement shall inure to the benefit of and be binding upon the parties and their respective assigns, independent contractors, members, successors, attorneys, employees, representatives, heirs, and estates.
18. Final Images. Photographer will provide final images via digital download available for 14 days. Guaranteed edited images are as listed on the website or communicated via email/messenger/etc. Photographer reserves the right to charge a fee should the client need that collection re-uploaded past the 14 days. Photographer also provides images deemed up to their personal artistic standards and this may include a variety of color, black and white or other artistic measures.
This Agreement may be executed in counterparts, with the signature of each party on one copy being deemed that party’s signature on each other’s copy. Electronic transmissions of a signed document shall be the same as delivery of a signed original document. No failure or delay by the parties in exercising any right, power or remedy under this Agreement shall operate as a waiver of the right, power or remedy of this Agreement or shall be construed as a waiver of any other term, condition or default. Any provision of this Agreement that may be deemed invalid or unenforceable by a court of competent jurisdiction shall in no way invalidate or render unenforceable the remainder of this Agreement, which shall remain in full force and effect.