Photography Services Agreement
This Photography Services Agreement (the “Agreement”) between Jared Hackbarth (herein, “Photographer”) and End User (herein, “Client”)
Photographer and Client agree as follows:
Services. Photographer shall provide to Client the photography services (the “Services”) in accordance with the criteria set forth therein. As part of the Services, Photographer will deliver to the Client the photographic works (the “Photographs”). The terms and conditions of this Agreement apply to all Services and Photographs delivered to the Client during the Term (defined below.)
Assistants. Photographer reserves the right to bring a number of assistants to Client’s premises to help provide the Services.
Photograph Format and Delivery. Unless otherwise specified, Photographs shall be delivered in .jpeg format via WeTransfer. Photographs will be available for download for one week.
Client Responsibilities.
Site Access. The Client shall provide Photographer and any assistants with access to its premises to the extent necessary for the performance of the Services.
Client Representative. The Client is responsible for the presence of an authorized representative at the shoot to approve the Photographer’s interpretation of the assignment. If a Client representative is not present, the Photographer’s interpretation shall be deemed acceptable.
Waivers, Releases, and Permission. The Client shall provide Photographer with any necessary licenses, permissions, waivers, releases, or consents, including those relating to publicity and privacy, to photograph the property, persons, and/or items. Client hereby waives any rights to privacy, and grants permission to photograph the property, persons, and/or items.
Term. This Agreement is effective as of the Effective Date and will continue until the Services are completed and Final Payment is provided.
Copyright. All Photographs shall be the sole and exclusive property of the Photographer, including but not limited to all copyrights and other intellectual property rights therein, in perpetuity, throughout the universe. All rights not expressly granted herein shall be reserved by the Photographer. Modification of Photographs and/or incorporation of Photographs in any layout, concept, reproduction, or publication shall not constitute a Joint Work. Photographer shall have the sole power to enforce its copyrights and any other intellectual property, including without limitation all registration, renewal, and reversion rights, and the right to register and sue to enforce such rights against infringers.
Limited License. Photographer, on the condition of full compliance with this Agreement, including receipt of the Final Payment and Attribution duties, hereby grants to Client a non-exclusive, but unlimited right to use the images in marketing and advertising client’s brand and services, both in print and digital media in perpetuity.
Client’s Edits to Photographs. The terms of this Agreement shall apply to any edits, changes, modifications, or revisions made to the Photographs, and any duplicated work created in the future regardless of the extent or amount of edits, changes, modifications, or revisions, whether made by the Client or any other person or entity.
Attribution. Client agrees, for any and all use of the Photographs, including Client Publications and Outside Publications, to conspicuously indicate Photographer as the source of the Photographs. Failure to properly credit or tag Photographer will constitute copyright infringement.
The following notations, or similar, on or near the photo in legible text are acceptable:
“Jared Hackbarth”
“Image/images by Jared Hackbarth”
On instagram, a credit tagging “@Jared.Hackbarth” (Note: The tag must be clickable and in the body text of the post)
Use of Photographer’s Name. Photographer hereby grants to Client and its affiliates, and each of their respective direct and indirect successors, licensees, and assigns, the right to use Photographer’s name, in connection with the Photographs.
Additional Usage. If Client, or any other person or entity, wishes to make any additional uses of the photographs not covered in this Agreement, Client or other person or entity shall obtain permission from the Photographer and pay an additional fee to be agreed upon if necessary.
Improper Use Prohibited. Photographer reserves the right to halt the use of Photographs in any publication that could reasonably be deemed offensive or improper, including but not limited to use of the Photographs in virtual backgrounds, political advertisements, propaganda, or pornography works. Similarly, Photographer reserves the right to revoke Client’s right to use Photographer’s name, in connection with the Photographs. The determination of whether a publication is improper shall be at the sole discretion of the Photographer, provided it is reasonable and in a good faith attempt to avoid negative publicity.
Payment.
Due Date. Client shall make payment in full for the cost of all Services and Photographs provided (“Final Payment”) to Photographer in order to download final images.
Acceptable Forms. Acceptable forms of payment include:
Cheque; or
Credit Card
Aesthetic Disclaimer. Client is aware of Photographer’s personal style and portfolio and waives any right to refuse payment on the basis of dissatisfaction with the end result. No refunds will be provided unless for a material breach of this Agreement.
Representation and Warranties. To the best of its knowledge, Photographer hereby represents and warrants that each Photograph to be provided is Photographer’s sole and original creation and will not infringe or otherwise violate any right of any third party.
Embargoes. If Client wishes to temporarily prevent publication by Photographer of the Photographs, Client shall make an embargo request. Photographer will offer a 180-day courtesy embargo for publication at no cost if Client requests an embargo before the date of photography. Photographer may use Photographs for portfolio and social media uses, and reserves the right to license the Photographs to other parties, after the 180-day embargo has passed.
Indemnification. Client hereby agrees to indemnify, defend, and hold harmless the Photographer and its affiliates, agents, successors, and assigns, from and against any claims, judgments, damages, liabilities, settlements, losses, costs, and expenses, including attorneys’ fees and disbursements, arising from or relating to: (a) bodily injury, death of any person, or damage to real or personal property resulting from Client’s acts or omissions, or Client’s affiliates, agents, successors, and assigns acts or omissions; (b) any breach of this Agreement by Client, or Client’s affiliates, agents, successors, and assigns, of its representations, warranties, or other obligations hereunder; or (c) Client’s, or Client’s affiliates, agents, successors, and assigns, use of the Photographs.
Photographer agrees to indemnify and hold harmless Client against claims arising from Photographer’s negligence or material breach of this Agreement.
Limitation of Liability. Photographer’s aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, shall not exceed the amount of payment received for the Services.
Assignment. Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the Photographer. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the Client of any of its obligations under this Agreement.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy.
Capacity and Counsel. Client understands the entirety of this Agreement and the obligations herein. Client has had the opportunity to seek legal counsel to further understand and gain advice regarding this Agreement.
Governing Law. This Agreement and all matters arising out of or relating to this Agreement, including tort and statutory claims, are governed by the laws of New York.
Dispute Resolution. 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 Watertown, New York, and each party irrevocably submits to the jurisdiction of such courts in any legal suit, action, or proceeding.
As a condition precedent to filing such suit, action, or proceeding, the parties agree to attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between Client and Photographer. If such negotiation is unsuccessful, the parties agree to attend mediation that, unless the parties mutually agree otherwise, shall be administered by JAMS (Judicial Arbitration and Mediation Services, Inc.). A request for mediation shall be made in writing, delivered to the other party to this Agreement, and filed with the person or entity administering the mediation. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.
Attorneys’ Fees. In the event that any party institutes any legal suit, action, or proceeding, including arbitration, against the other party arising out of or relating to this Agreement, the prevailing party in the suit, action or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including reasonable attorneys’ fees and expenses and court costs.
Force Majeure. Neither Party will be liable for any failure or delay in performing an obligation under this Agreement that is due to any of the following causes, to the extent beyond its reasonable control: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, governmental acts or omissions, changes in laws or regulations, national strikes, fire, explosion, or generalized lack of availability of raw materials or energy.
For the avoidance of doubt, Force Majeure shall not include (a) financial distress nor the inability of either party to make a profit or avoid a financial loss, (b) changes in market prices or conditions, or (c) a party's financial inability to perform its obligations hereunder.
Covid-19. Client and Photographer acknowledge that the current Covid-19 crisis has been factored into the risks assumed by the parties and will not constitute grounds to excuse performance unless there is a mandatory Quarantine, Stay-At-Home, or Do-Not-Travel order in effect within the geographical location of Services or travel for Photographer to provide the Services. Client and Photographer shall endeavor to execute the Agreement in good faith.
Bad Weather. Photographer reserves the right to postpone Services due to bad weather including but not limited to rain, forecast of rain, clouds, or high wind. Client and Photographer may agree to postpone shoot to a reasonable date in the future in case of inclement weather at no additional charge beyond any expenses already incurred.
Hazardous Conditions. Photographer reserves the right to postpone or cancel Services due to reasonably dangerous conditions, as determined by the Photographer in good faith, including but not limited to working from height or on unstable platforms without adequate protection or safeguards, dangerous pets or other animals, and unsafe construction sites. Client shall be responsible for providing a safe location to take the photographs at the Property, and any necessary personal protective equipment if required by site rules.
Non-Disclosure Agreement. Client and Photographer agree to keep the terms of this Agreement, including but not limited to payment terms, confidential. Client and Photographer agree to keep Invoice Quote, and any communications or documents containing Photographer’s rates or pricing information, confidential.
Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement. Digital or scanned signatures are acceptable.
Modification. No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by Photographer of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Photographer. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Contractual Authority. If the Client is a business or other organization, the person signing below on behalf of the Client warrants that he or she has the authority to legally bind Client to the terms of this Agreement.
Merger. This Agreement 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.