Terms of Service for Samantha K Henderson

 1.    DEFINITIONS

a.    For the purpose of this agreement “the Agency” and “the Client” shall where the context so admits include their respective assignees, sub-licensees and successor in title. In cases where the Photographer’s Client is a direct Client (i.e. no Agency or intermediary), all references in this agreement to both “the Agency” and “the Client” shall be interpreted as references to the Photographer’s Client.

b.    For the purpose of this agreement the “Photographer” means Samantha K Henderson, including her assignees, sub-licensees and successor in the title.

c.    “Images” means all visual representations furnished to the Client by Photographer, whether captured, delivered, or stored in photographic, magnetic, optical, or any other media.

d.    “Sound Recordings” means all audio representations furnished to the Client by Photographer, whether captured, delivered, or stored in analog, digital, or any other media.

2.    COPYRIGHT

a.    Photographer retains all intellectual property rights, including copyrights, to the Images and Sound Recordings.

b.    Digital files may contain copyright and other information embedded in the image file or elsewhere; removing and/or altering such information is strictly prohibited and constitutes a violation of the Copyright Act.

3.    USE

a.    When Agency or Client pays the Photographer in full, the Photographer grants the Agency or Client a limited license to use the Images or Sound Recordings for purposes stated in the invoice. Unless different license terms are stated in the invoice, this license is revocable, worldwide, non-exclusive, non-transferable, and non-sublicensable. If the invoice allows Agency or Client to reproduce the Images or Sound Recordings, this right to reproduce does not grant the Agency or Client to any intellectual property rights, including copyrights, in the Images or Sound Recordings.

b.    Agency or Client shall not use the Images until Agency or Client has paid Photographer in full.

c.    Any permission that may be given for prior use will automatically be revoked if full payment is not made by the due date. In the event that Photographer gives Agency or Client written permission to use the Images or Sound Recordings before Agency or Client has paid Photographer in full, Agency or Client acknowledges that their license to use the Images or Sound Recordings automatically ends if Agency or Client fails to pay Photographer by 5:00 PM Pacific Time on the day that the payment is due.

d.    In the event that the Agency or Client desires to use the Images or Sound Recordings for purposes other than the allowed uses stated in the invoice, the Agency or Client must contact the Photographer to seek permission. This may involve additional fees.

e.    The parties agree that, if the Agency or Client uses an Image or Sound Recordings in an unauthorized way, the Agency or Client automatically owes Photographer, as liquidated damages, three times the Photographer’s customary fee for such use or $5,000.00, whichever is greater.

4.    EXCLUSIVITY

a.    Unless the Photographer agrees otherwise in writing, this agreement does not create an exclusive relationship between the Photographer and the Agency or Client.

b.    The Photographer retains the rights in all cases to use the Images or Sound Recordings to include but not limited to Photographer’s self-promotion. The Photographer understands that for public relations, media and marketing uses, the Agency or Client may desire to release the images or sound recordings first. In these cases, the Agency or Client must notify Photographer at the time when the Agency or Client delivers the signed invoice to Photographer.

5.    INDEMNITY

a.   The Agency or Client is solely responsible for ensuring that all necessary rights, model releases, clearances or consents which may be required for reproduction of people, places or items depicted within any Images or Sound Recordings are obtained.

b.    The Agency or Client acknowledges that the Photographer gives no warranty or representation that any such rights, releases or consents are or will be obtained whether in relation to the use of names, people, trademarks, registered or copyright designs or Images of art depicted in the picture, or Sound Recordings (“Permissions”). In the event that Photographer assists Agency or Client with obtaining Permissions, Agency or Client acknowledges that Agent or Client remains solely responsible for obtaining all necessary permissions.

c.    Agency or Client agrees to indemnify, defend and hold harmless Photographer, his employees, heirs, and agents from all demands, claims, suits, actions or liabilities resulting from claims, damages, losses, or costs that arise due to Agency’s or Client’s actions or omissions.

6.    ASSUMPTION OF RISK

a.    Agency or Client assumes full risk of loss or damage to or arising from materials furnished by Agency or Client to Photographer. Agency or Client also warrants that said materials are adequately insured against such loss, damage, or liability.

7.    CANCELLATION & RESCHEDULING

a.    Cancellation:

i.    More than Two Business Days in Advance: Agency or Client may cancel this agreement on the condition that Agency or Client provides, more than two business days in advance, notice to Photographer and Agency or Client pays all expenses incurred by Photographer up to the time of cancellation, and Agency or Client forfeits any retainer Client paid to Photographer.

ii.    Two Days or Fewer: If Agency or Client fails to provide Photographer with more than two business days’ notice and Agency or Client cancels this agreement, Agency or Client shall pay all expenses incurred by Photographer up to the time of cancellation, plus 100% of the fee listed in the invoice.

b.    Rescheduling:

i.    Generally: Either party may reschedule the Photographer’s services. Both parties agree to make every effort to reschedule any postponements such that the Photographer will be able to perform within 30 days of either party rescheduling.

ii.    More Than One Business Day: If Agency or Client postpones the Photographer’s services by providing at least one business day notice in advance, the Agency or Client will pay for any expenses incurred by any postponement. If Agency or Client postpones the Photographer’s services, and the Agency or Client fails to agree on a reschedule date within the 30-day period, the parties will consider this as a cancellation by the Agency or Client, and Agency or Client shall pay for Photographer’s expenses incurred up to the date of cancellation, and Agency or Client forfeits any retainer paid to Photographer.

iii.    Same Day: Unless otherwise agreed in writing, Agency or Client will be charged a 100 percent fee if Agency or Client postpones the assignment on the day of the assignment.

8.    DELIVERY

a.    Unless otherwise specified in the invoice, Photographer may deliver, and Agency or Client agrees to accept, Images or Sound Recordings encoded in an industry standard data format that Photographer may select, at a resolution or size that Photographer determines will be suitable to the subject matter of each Image or Sound Recording and the reproduction technology and uses for which the Image or Sound Recording is licensed.

b.    It is the Agency’s or Client’s responsibility to verify that the digital data (including color profile, if provided) are suitable, and 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, or consequential damages for these requested changes.

9.    REJECTION AND RESHOOTS

a.    Authorized Representative: Agency or Client is responsible for sending an authorized representative to the assignment so that the authorized representative can view and approve the unedited images or sound recordings during the shoot. In the event that Agency or Client does not provide an authorized representative during the shoot, Agency or Client acknowledges that Agency or Client must accept Photographer’s judgment as to the acceptability of the Images or Sound Recordings.

b.    Rejection: Unless a rejection fee has been agreed to in writing in advance, there is no right to reject on the basis of style or composition.

c.    Reshoots: In the event that Agency or Client desires a reshoot (i.e. a second shoot), Agency or Client will be charged 100 percent fee and expenses for any reshoot required by Agency or Client. For any reshoot required because of any reason outside the control of Agency or Client, specifically including but not limited to acts of God, nature, war, terrorism, civil disturbance or the fault of a third party, Photographer will charge no additional fee, and Agency or Client will pay all expenses. If Photographer charges for special contingency insurance and is paid in full for the shoot, Agency or Client will not be charged for any expenses covered by insurance, subject to certain exclusions.

10.  LIMITATION OF LIABILITY

a.    The parties intend to limit Photographer’s liability under this agreement. Agency or Client acknowledges that this limitation of Photographer’s liability is reasonable and fair. Agency or Client further acknowledges that Photographer’s pricing is based on this clause and, thus, this clause is a material term of this agreement. Accordingly, the parties agree that, in no event will Photographer’s liability exceed the amounts Agency or Client paid to Photographer under this agreement.

11.  PAYMENT

a.    Client shall strictly adhere to all payment deadlines as negotiated in this agreement.

b.    A 10% late fee or $50 (whichever is greater) will be applied to any late payment per 30 days.

c.    Returned checks will incur an additional $30 charge.

d.    All fees and expenses payable under this agreement are required irrespective of whether Agency or Client makes actual use of the Images or Sound Recordings or the licenses to use them.

12.  PHOTO CREDIT

a.    If a photo credit is specified in this agreement, all published usages of Images or Sound Recordings will be accompanied by written credit to Photographer or copyright notice. If no placement of a credit notice is specified in this agreement, no credit or notice is required. If a credit is required but not actually provided, Agency or Client agrees that the amount of the invoiced fee will be subject to three-times multiple as reasonable compensation to Photographer for the lost value of the credit line. This amount is liquidated damages, and not a penalty, and both parties agree that it would be difficult for Photographer to determine the amount of losses incurred as a result of Agency or Client’s failure to provide photo credit.

13.  ELECTRONIC STORAGE

a.    The Photographer strives to keep backups of all data. Although this is true, unless otherwise specifically provided elsewhere in this agreement, Photographer has no obligation to retain or archive any of the Images or Sound Recordings after they have been delivered to Agency or Client. Agency or Client bears the sole risk for data backup and storage. In the event that the Agency or Client requests backup files from Photographer, Photographer will charge Agency or Client a backup fee.

14.  DISPUTES

a.    Except as provided in 14.c. below, any dispute regarding this agreement shall, at Photographers sole discretion, either:

i.    Be arbitrated in Vallejo, CA, under rules of the American Arbitration Association and the laws of California; provided however, that irrespective of any specific provision in the rules of the American Arbitration Association, the parties are not required to use the services of arbitrators participating in the American Arbitration Association or to pay the arbitrators in accordance with the fee schedules specified in those rules. Judgment on the arbitration award may be entered in any court having jurisdiction. Any dispute involving $5,000 or less may be submitted without arbitration to any court having jurisdiction thereof.

OR

ii.    Be adjudicated in Vallejo, CA under the laws of the United States and/or of California.

b.    In the event of a dispute, Agency or Client shall pay all court costs, Photographer’s reasonable legal fees, and expenses, and legal interest on any award or judgment in favor of Photographer.

c.    Federal Jurisdiction: Client hereby expressly consents to the jurisdiction of the Federal courts with respect to claims by Photographer under the Copyright Act of 1976, as amended, including subsidiary and related claims.

15.  GENERAL

1.    Waiver: The waiver by either party of a breach or violation of any provision of this agreement shall not constitute a waiver of any subsequent or other breach or violation.

2.    Merger: This agreement represents the entire agreement between the parties.

3.    Modification: This agreement may not be amended, changed, or supplemented in any way except by written agreement signed by both parties. Where time is of the essence the Photographer entirely at her own discretion may accept an instruction given orally, in
this event the Photographer shall not accept liability for any error in executing the order.

4.    Severability: If any provision of this agreement is held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this agreement is invalid or unenforceable, but that by
limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed and enforced as so limited.

5.    No Construction Against Drafter: The parties agree that each has had a chance to consult with legal counsel before signing this agreement and both parties agree that neither will be considered as the drafter of this agreement. Accordingly, the parties agree that no principle of construing an agreement against the drafter will apply in the event of legal action between the parties.

6.    Third Parties: There are no third-party beneficiaries to this agreement.

7.    Force Majeure: Except as provided in the Rejection and Reshoots section of this agreement, neither party will be liable for failure or delay in the performance of any duties under this agreement when such delay or failure is due to causes beyond the party’s control that could not have been avoided by the exercise of due care, including, but not limited to, acts of God; natural disasters; riots; war; epidemics; terrorist activities; government restrictions; failure of suppliers, subcontractors, or carriers; or the like. The impacted party shall give the other party notice of the failure or delay as soon as possible.

8.    Heirs/Assigns: Both parties agree that this agreement will be binding on their heirs and permitted assigns.

9.    Counterparts: This agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement. Scanned signatures, faxed signatures, or electronic signatures are binding on the parties.

10.  Time: If Invoice defines payment in half day and day rate – 4 or 8 hours respectively. In the event a shoot extends beyond 8 consecutive hours, Photographer may charge for such excess time of assistants and freelance staff at the rate of 1.5 times.

Last Updated on May 26, 2015