The Terms of Service (“Agreement”) is between the above-named individual/company/brokerage (“Client”) and Matt Waclo Photography (“Photographer”) to perform the services chosen by Client on Photographer’s website (“Specified Work”) and is entered into and effective this date, INSERT DATE.
Scope of this Agreement. This Agreement applies to any photograph, graphic, digital asset, digital image, or video created or taken by Photographer of real property for marketing or portfolio purposes and delivered to the Client (collectively known as “Photos”). 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 real property of the Photographer. This Agreement provides Client with a license that provides Client with the limited right to reproduce, publicly display, and distribute the Photos only for promotional or advertising purposes directly related to the sale of the real property. Photos used for any purpose not directly related to the sale of the real 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 MLS listing service solely for promotion of the Real property during the pendency of this Agreement. However, regardless of any terms and conditions of the MLS, 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 will be responsible to the Photographer for any penalties and awards available under the statute. Client is responsible for ensuring that the Photos are removed from MLS databases at 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 representation of the Real property, whichever occurs first. Further use of images beyond one (1) year requires Photographer’s permission and 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. 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 Photos 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.
Creation: The manner and method of creating any Photographs is solely at the discretion of Photographer and Client has no right to control Photographer’s manner and method of performance under this Agreement. Photographer will use his best efforts to: (a) ensure that the Photos conform to Client’s specifications; and (b) submit all Photos to Client in publishable quality, on or before the applicable deadlines.
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 Photos as licensed. It is the Client's responsibility to verify that the Photos are suitable for reproduction and that if the Photos are not deemed suitable, to notify the Photographer with five (5)business days. Photographer’s sole obligation will be to replace the Photos at a suitable resolution but in no event will Photographer be liable for poor reproduction quality, delays, or consequential damages.
Unless otherwise specifically provided, Photographer is not responsible to provide 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 Photos delivered to Client.
Photos will be available to view online within 24 hours of the completion of the Specified Work. Mode of delivery will be a Dropbox link sent via email to Client. You do not need to have a personal Dropbox account to access the Photos.
Online photography will be hosted for 90 days following completion of the Specified Work. Virtual Tours will be hosted online until the MLS Listing is expired, withdrawn or when Client gives written indication there is no further need for hosting. Work may or may not be removed after 90 days at the sole discretion of the photographer unless specific written notice is provided requesting removal.
Fees: All fees and expenses payable under this agreement shall be paid the date the Agreement is effective If full payment is not received, all rights granted to Client under this Agreement are revoked.
Cancellation: Photographer may cancel this Agreement due to Client’s failure to adhere to this Agreement, failure to grant access to the real property, delay in photographing/videoing the real property due to latent staging, cleaning, construction and/or unsafe conditions of the real property that endanger the health, safety, and/or welfare of the Photographer. If the Agreement is canceled, payment shall not be refunded. Photographer may, at its sole discretion, offer to schedule a new session, but is under no obligation to do so.
Access to Real Property on Date of Photos: Only Client or agents representing Client shall be present during the Specified Work. Photographer reserves the right to authorize additional individuals to be present during the Specified Work.
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: 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 by Client. It is the Client's responsibility to obtain the necessary real property releases and ensure they are in full effect and force.
Limitation of Liability: Photographer’s liability under this Agreement shall be limited to the amounts paid by Client to Photographer pursuant to this Agreement.
Photographer is not liable for failure to perform the Specified Work due to any act of God, weather event, act of government or other occurrences, act or event that is outside of Photographer’s exclusive control. Additionally, Photographer is not responsible for any damage to raw files, proofs, prints or photos that results in the inability to print or duplicate any of the Photos due to failure of equipment/software/computer medium/electronic medium.
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. This Agreement shall be governed and interpreted and enforced in accordance with the laws of the State of Nevada. Any claim or litigation arising out of this Agreement or its performance may be maintained only in courts physically located in Washoe County, Nevada, 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.
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.
