Terms and Conditions of The 3rd Eye Photography
This Agreement is between The 3rd Eye Photography., its employees, affiliates and representatives (“Photographer”) and [You] (“Client”) which includes Client’s principals, employees, affiliates, and representatives. Client agrees that it has the legal authority to enter into this Agreement on behalf of its employer, company, or organization. Photographer’s relationship with Client is that of an independent contractor.
“Image(s)” means all visual representations delivered to Client whether captured, delivered, or stored, in photographic, magnetic, optical, electronic, digital, analogue, or any other, media.
2.0 USAGE RIGHTS and OWNERSHIP:
Client acknowledges that Photographer is the author of the Image(s) and also the first and sole owner of all copyrights of the Image(s). All Images, copyrights and moral rights remain the exclusive property of Photographer without limitation. All usage rights to the Image(s) specifically granted by Photographer to Client include print for personal use, posting/sharing/publishing on social internet sites such as Facebook, Instagram or Twitter. No sale of photos or electronic publishing and/or Internet use of any kind is permitted where the Client receives compensation without the express written consent of the Photographer. Photographer reserves the right to claim all or partial monies received by Client for the consented or unconsented sale of any and all photos by the Client. Client agrees that $1000.00 is a fair amount to be paid to Photographer for unconsented sale or use of photos.
2.1 IMAGES ARE LICENCED FOR SPECIFIC USE(S) AND ARE NOT SOLD.
2.2 Client understands and agrees that it is not buying the Image(s) but is paying only for a license to use the Image(s) as specified on this Agreement. The term of license begins from the date Photographer receives full payment of invoice. The use of any Image(s) will not constitute a work of joint authorship. Copyright metadata contained within any digital file may not be altered, or removed, without the express consent of Photographer. Client agrees that $500.00 is a fair amount to be paid to Photographer for any changes made to the copyright metadata, or unauthorized edits in general, on the photos. Unless otherwise agreed, Photographer retains the right to use any Image(s) for their self-promotion.
3.0 PHOTOGRAPHIC INTEGRITY and ALTERATIONS:
Client will not make or permit any alterations, including, but not limited to, additions, subtractions, or adaptations, with respect of the Image(s), alone or with any other material, without the prior express permission of Photographer. Normal reproduction adjustments for colour, contrast, brightness, sharpness, and cropping, are permitted.
3.1 Any alteration or modification of the Image(s) will not constitute a work of joint authorship.
4.0 GENERAL LIABILITY and RELEASES:
Client will indemnify, defend, and hold harmless, Photographer, his contractors, and his representatives, against any and all claims, liabilities, damages, costs, and expenses, including reasonable legal fees and expenses, arising from Client’s use of the Image(s). Photographer is not responsible for obtaining model, property, trademark, or other releases in connection with any Image(s) unless specifically stated in this Agreement. It is Client’s responsibility to obtain the necessary permissions for any Image uses that require a release. It is Client’s responsibility to determine whether any releases delivered by Photographer are suitable for Client’s purposes. In any event, Photographer’s liability for all claims will not exceed the total amount paid under this Agreement.
4.1 Where assignments are equal to or greater than 2 hours, client is responsible for arranging and supplying all Photographers, Assistants and Photo Booth Staff assigned with a plate of food and drinks.
Time is of the essence for receipt of full payment under this Agreement. NO RIGHTS ARE GRANTED UNLESS AND UNTIL PHOTOGRAPHER HAS RECEIVED FULL PAYMENT INCLUDING OVERTIME FEES. ANY USE PRIOR TO FULL PAYMENT WILL BE CONSIDERED AN UNAUTHORIZED USE. CLIENT AGREES THAT THE REASONABLE AND STIPULATED AMOUNT THAT WILL BE PAID TO PHOTOGRAPHER FOR SUCH AN UNAUTHORIZED USE WILL BE DOUBLE THE INVOICE TOTAL. Interest is charged based on 100% of the INVOICE TOTAL. Interest is added to the invoice at a rate of 20% MONTHLY without limitation.
5.1 Photographer’s invoice will serve as Client’s receipt for work performed and services rendered.
6.0 CREDIT LINE and COPYRIGHT NOTICE:
Placement of a credit line or copyright notice is on photos is only required if the images are being posted for sale or use with monetary gain. If a credit line or copyright notice is not provided, Client agrees that the amount of DOUBLE THE INVOICE TOTAL 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.
7.0 CANCELLATIONS and POSTPONEMENTS:
Once Client and Photographer have agreed to time(s) and date(s) for a photography assignment, Photographer will not accept work from any other client for the same time(s) and date(s). Where Client postpones or cancels an assignment within 7 days of assignment, the full total of the assignment will not be refunded. Where Client postpones or cancels an assignment outside of 7 days prior to the assignment, a down-payment will be payable and not be refunded, but the outstanding balance will.
7.1 If the same assignment is rescheduled for a later date within 2 weeks of assignment, full fee and any additional expenses will be charged for the actual shooting plus 20% of invoice total. Any deposits paid on booking become non-refundable for cancellation, or postponement, once they are paid. Fees for cancellation or postponement will apply irrespective of the reasons for the cancellation or postponement. However, Photographer understands that life doesn’t always happen as planned and consideration will be given in any such circumstance.
7.2 Where client does not show up at agreed start time of the booking (no-show), Photographer agrees to remain at the agreed location for the entirety of the scheduled time. Photographer will do everything in their power to contact the client. Client agrees that 100% of the invoice total is a fair and just amount to pay despite not attending and not receiving any photos. Where client shows up late, Photographer will continue shoot as normal, in the remaining amount of time and no extra, for no additional charge. Client agrees that 100% of the invoice total is a fair and just amount to pay despite not receiving the full booked time for the session. If the client wishes to add more time to the booking, the client agrees that the per hour invoice total PLUS 50% per hour is a fair an just amount to pay. If Photographer leaves the site prior to the end of booked time, the Client will be responsible for paying $25 per hour that the Photographer attended and no more.
Client is responsible for sending an authorized representative to the shoot. If no representative is present, Client must accept Photographer’s judgment as to the execution of the Image(s). (a) If Client requires a reshoot, Client will pay Photographer an additional fee of one hundred percent of the fee stated in the invoice for the original shoot, plus all expenses for the reshoot. (b) If a reshoot is required for reasons beyond the control of Photographer or Client, including, but not limited to, weather conditions, acts of God or the fault of a third party, Photographer will not charge an additional fee, but Client agrees to pay all expenses for the reshoot.
9.0 FAILURE TO PERFORM:
If Photographer is unable to supply his photographic services due to illness, mechanical breakdown, accident, acts of God, or any other cause beyond his control, then Photographer will attempt to procure the services of another professional photographer to fulfill his obligations. If that does not succeed, Photographer will return any fees paid by Client and will have no further liability with respect to this Agreement, and Photographer will not be responsible or liable for any other damages beyond the amount of this Agreement. This limitation of liability will also apply in the event that any Images are lost or damaged through equipment malfunction, or otherwise, without the fault of Photographer.
9.1 In the event that the Photographer is in attendance of the event at an incorrect time or location, Photographer will be responsible for speaking with the Event Contact and arranging a solution to rectify the situation. Photographer will either continue booked work at the new time or delay their time and begin at the originally scheduled time. Alternatively, the Event Contact may propose a new time frame. The solution, once agreed upon by both the Event Contact and the Photographer, will render any previous agreements void. Photographer cannot be held responsible for error once an agreement has been made. In any instance, the Photographer will not exceed the original value of work to be performed.
9.2 Photographer does not, under any circumstances, guarantee the release of all photos taken during any given event, contract or obligation. It is the Photographer's sole discretion to omit, withhold or retain any images that are deemed unsuitable for post-production. Photographer retains the right to refuse access to these, and any other, photos. Photographer cannot guarantee that every part of an event will be photographed or delivered to the client. We will always do our best to capture every moment, but will not be held accountable for missed moments or corrupt files.
9.3 Photographer will, under no circumstances, release any RAW or unedited files to the client or other parties. RAW files are the sole property of the Photographer, including, but not limited to, copyrights and moral rights under any jurisdiction.
10.0 KILL FEE:
Provided that Photographer has executed the photography assignment in a professional and competent manner, Client agrees to pay Photographer all fees and expenses in connection with said assignment, whether or not Client uses any Image(s).
11.0 ARCHIVING DIGITAL FILES:
While Photographer may choose to archive the Image(s), it is Client’s responsibility to properly store and archive the Image(s) for the duration of the term of license. Photographer cannot guarantee the availability of any Image(s) beyond the date of first delivery to Client. Client is aware that optical, magnetic, electronic, and any other, media for storing digital data are inherently unstable. Client hereby releases Photographer and his contractors, and representatives, from any liability for any claims, damages, or costs, arising from any media supplied by Photographer becoming unusable.
12.0 DIGITAL FILE QUALITY:
Photographer is committed to providing high quality services. Unless otherwise specified on this Agreement, Photographer may deliver, and Client agrees to accept, the Image(s) 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 Image(s) is licensed.
12.1 Photographer uses cameras and monitors that are colour calibrated to industry standards. But due to variances in other monitors, software and computer platforms, the Image(s) may display differently on other monitors. Therefore, neutrals will be set for mathematical neutrality and colour will be adjusted for pleasing tonalities.
12.2 It is Client’s responsibility to verify that the digital data, including colour profile, if provided, are suitable for reproduction of the expected quality and colour 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.
13.0 PRINT QUALITY:
Photographer is committed to using high quality products. However, Client is aware that colour dyes, inks, and other materials, used in photography may fade or discolour over time. As such, Client releases Photographer and his contractors, and representatives, from any liability for any claims, damages, or costs, arising from any fading or discolouration of any photographic prints.
14.0 HARASSMENT and DISCRIMINATION:
The Management of The 3rd Eye Photography is committed to providing a work environment in which all individuals are treated with respect and dignity.
15.0 ACCEPTANCE OF TERMS:
Client may not assign or transfer this Agreement or any of the rights granted hereunder. This Agreement is binding upon, and inures to the benefit of, Client and Photographer, as well as their respective principals, employees, representatives, and successors. Client and its principals, and employees, are jointly and severally liable for the performance of all payments and other obligations hereunder.
15.1 No amendment or waiver of any items is binding unless set forth in writing and signed by the parties. E-mail and electronic signatures will be considered legal and binding. However, the invoice may reflect, and Client is bound by, Client’s oral authorizations for any additional Image(s), fees, and expenses, that could not be confirmed in writing due to the immediate proximity of completing the photography assignment.
15.2 This Agreement will be deemed to be a contract made under the laws of Canada and the Province of British Columbia, and for all purposes will be interpreted in its entirety in accordance with these laws. Client specifically and irrevocably confers personal jurisdiction over it by the courts of the district of Vancouver, British Columbia, Canada. Client will pay all arbitration and court costs, reasonable legal fees, expenses, and legal interest, on any award or judgment in favour of Photographer.
15.3 If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
15.4 In addition to oral and written agreements, use of any Image(s) by Client will constitute acceptance of all the above terms and conditions.