Nathan Patrick Media
Effective Date:
June 15, 2021
PHOTOGRAPHY SERVICES TERMS & CONDITIONS:
1. PARTIES. The person requesting photography in association with these Terms and Conditions shall be referred to as the “Client.” The Person or entity which receives a request for photography in association with these Terms and Conditions shall be referred to as the “Photographer.”
2. SCOPE. These Terms and Conditions apply to any photograph, graphics, digital assets, video, or digital images created or taken by Photographer and delivered or produced to the Client (collectively known as “PHOTOS”) for the property requested subject property or properties. (“PROPERTY”). These Terms and Conditions govern the relationship between the parties.
3. 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 property of the Photographer.
4. LICENSE. This license provides the Client with the limited right to reproduce, publicly display, and distribute the Photos only for promotional or advertising purposes directly related to the sale or lease of the Property depicted (Subject Property). Photos used for any purpose not directly related to the sale of the Subject Property must be with the express written permission of Photographer and the payment of additional fees as set by the Photographer, unless otherwise agreed to in writing. Photos may be uploaded to any MLS listing service solely for promotion of the Subject 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.
In the event of non-compliance by Client, the license may be revoked at the discretion of Photographer. In case of revocation, Client must actively remove any disseminated content under the Licensed grant under Section "Amendment of Terms; Termination".
In addition, Photographer hereby grants to Client the limited right to sub-license the Licensed Content to one or more multiple listing services (each, an “MLS”) for comparable database use purposes, provided that Client is a member of each such MLS to which a sub-license is granted, and such sub-licenses shall not be further sub-licensable.
Notwithstanding the foregoing, Licensed Content used by Client prior to the expiration of an applicable representation agreement between Client and a third party may continue to be used by Client or the agent representing the subject property after the expiration of such representation agreement, for the sole purpose of marketing the Client or the agent that represented the subject property in the context of the Client or the agent that represented the subject property showing previous properties for sale/sold by Client or the agent that represented the subject property.
Licensed Content incorporated into a particular product or end use (e.g., in a brochure or a social media post) prior to the expiration of the Term may continue to be used in perpetuity solely in that product or end use.
All rights not explicitly granted in this Agreement are reserved to Photographer. Photographer is and will remain the sole and exclusive owner of the copyright and all other rights in and to the Licensed Content. No other rights or uses are permitted without the prior written consent of Photographer.
5. LICENSING PERIOD. 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, one (1) year from delivery of media to the Client, or at the termination of Client’s representation of the 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. Should the Client wish to utilize the photographs (photos and videos) beyond the licensing period, the Client may request to exclusively purchase the media upon photographer’s consent and agreement to sell exclusive rights for an additional fee.
5a. LICENSING PERIOD FOR MATTERPORT VIRTUAL TOURS. The licensing Period for Matterport virtual tours is subject to cloud hosting periods/increments and the Client may elect 1 month, 3-month, 6-month or 1-year cloud hosting subscription period. Upon expiration of the original subscription period, the client will be notified via email the subscription period is expiring and the Client will have the ability to renew the subscription for an additional cost or allow the subscription to expire and become archived. The Clients failure to respond to the expiration email will automatically archive the virtual tour. Clients may request to reactivate virtual tours after expiration for an additional fee.
6. RELATIONSHIP OF THE PARTIES. The parties agree the Photographer is an independent contractor, and 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 these Terms and Conditions. Neither party is authorized to act as agent or bind the other party except as expressly stated in these Terms and Conditions. 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 these Terms and Conditions.
7. CREATION. The manner and method of creating any Photographs is solely at the discretion of Photographer and the Client has no right to control Photographer’s manner and method of performance under these Terms and Conditions. Photographer will use his/her 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.
8. STANDARD RATES & SERVICES. Our Rates & Services are located Here: https://www.nathanpatrickmedia.com/services and are subject to change without notice.
9. DISCOUNTS & PROMOTIONAL PRICING. The photographer may offer discounts or promotional pricing at their discretion. Such Discount or Promotional pricing if offered by the Photographer must be presented by the Client at the time of submitting a formal request for service.
10. WEEKENDS, TWILIGHT & HOLIDAY SHOOT REQUESTS RATES. Shoots that are authorized and scheduled for weekends, twilight and during holidays will have an additional premium fee added to them.
11. REQUESTS FOR SERVICES. The Services of the Photographer may be requested by the Client or the Clients agents or employees at any time by submitting an online web form, email, text message or over the phone.
13. CLIENTS AUTHORITY TO APPROVE REQUESTS FOR SERVICES. Any request submitted by the Client represents the Client has the authority to request such services/work from the Photographer.
14. ACCESS TO PROPERTY. Once the Client and Photographer have confirmed a specific shoot time and date, it shall be the Clients responsibility to ensure proper and sufficient timely access to the respective property or Properties. Failure to complete the shoot due to lack of access shall not constitute a refund and all fees for requested services shall be due by the Client.
15. SHOOTS. For the purpose of this Agreement, a shoot is an authorized, scheduled and confirmed appointment with guaranteed access to the subject property. It’s the Client or the Clients agents responsibility to be present and/or guarantee access to subject properties which have been authorized and scheduled for a shoot. Failure of the Photographer to gain access or perform the shoot is subject to a non-cancelled access penalty of (100%) of the standard rates of service of the requested and authorized services.
16. CANCELLATION OF A SCHEDULED SHOOT. If the Client cancels a confirmed shoot less than 24-hours from the time and date of the scheduled shoot, Client will pay any expenses incurred and a one hundred (100) % cancellation fee. Cancellations by the Client at any time greater than 24-hours from the scheduled shoot time shall be subject to (0.00%) of the requested services rates. The Client understands the photographer does not control the weather and therefore shoots shall not be cancelled due to weather unless agreed to by the photographer.
17. RE-SHOOTS. In the event a shoot is cancelled or needs to be rescheduled, the re-shoot will be subject to the Photographers availability and the photographer reserves the right to charge for an additional shoot and any additional services requested.
18. DELIVERY OF REQUESTED MEDIA. 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.
19. FEES, BILLING & INVOICES. All fees associated with the shoot shall be paid in full no later than the day of the shoot, unless otherwise agreed to in writing. All fees and total costs are considered earned and due to Photographer by the Client upon arrival not completion of the photo shoot. The cost of work is not subject to debate or Client’s choice to use the media provided by the Photographer or clients opinion or quality of product.
20. CONFIDENTIALITY. The Client agrees to not disclose any terms of this Agreement to include rates and discounts.
21. DEFAULT OF TERMS. Client shall not be permitted to use any media provided by the Photographer for any purpose not intended. In the event Client violates these terms and conditions, Client shall be liable to Photographer for five times the original cost of services. Failure to pay invoices upon receipt shall constitute a default of the terms and conditions. Anytime there is a default of the Terms and Conditions, all discounts shall be null and the total price of the invoice excluding discounts shall become due. In the event a default invoice exceeds 30-days from the invoiced date and payment has not been satisfied, the balance due shall become 4 x times the total excluding discounts. Client understands Photographer may at his/her discretion file a mechanics lien in order to enforce satisfaction of unpaid invoices in compliance with these terms and conditions.
22. AMENDMENT OF TERMS; TERMINATION. Photographer reserves the right to change these Terms at any time. If we make any material changes to these Terms, we will post the new Terms on the Site and update the effective date set forth above. Therefore, we encourage you to check the effective date of Terms whenever you visit the Site to see if it has been updated since your last visit.
This Agreement and the Service provided hereunder shall continue until terminated as provided herein. Client may terminate this Agreement at any time for convenience. Client agrees that Photographer may at any time without notice to you: terminate this Agreement; suspend or terminate the Service or Site; or terminate your account and delete any content stored in your account; and you agree that Photographer may take the foregoing actions for any reason, including if, in Photographer’s sole discretion, you fail to comply with any of these Terms or if a competent regulatory authority requires us to do so, or may do so without cause.
Upon termination of this Agreement or termination or suspension of the Service, all rights and licenses granted by Photographer to Client hereunder shall immediately terminate; however, termination or suspension shall not affect any rights and licenses granted by Client to Photographer hereunder, and such rights and licenses shall survive such termination or suspension.
23. ADDITIONAL SERVICES. The Client and Photographer agree any additional services agreed to shall be requested/declared and agreed to in writing.
24. TRANSFERS & ASSIGNMENT. Client may not assign or transfer any rights granted. No amendment or waiver of any terms is binding unless in writing and signed by the parties. However, the invoice may reflect, and Client is bound by authorizations that could not be confirmed in writing because of insufficient time or other practical considerations.
25. 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 to include any claims, liability, damages to subject properties where services have been requested. It is the Client's responsibility to obtain the necessary model or property releases are ensure they are full effect and in force. In any Instance where the Client requests modification of any media that should alter the media and any representation of the medias existing state to be misrepresentation of the properties actual condition or size etc., the Client shall bare all responsibility and hold Photographer free from harm or liability.
26. GENERAL LAW/ARBITRATION. These Terms and Conditions sets forth the entire understanding and agreement of the parties and supersedes all prior agreements between the parties. These Terms and Conditions shall be governed and interpreted and enforced in accordance with the laws of the State of New York. Any claim or litigation arising out of this Agreement or its performance may be maintained only in courts physically located in New York County New York, 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. If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties.
27. SEVERABILITY. If one or more of the provisions contained herein are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforce-ability of the remaining provisions shall not be affected. Such provisions shall be revised only to the extent necessary to make them enforceable.
28. 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.
CLIENTS USE OF SITE, REQUEST FOR SERVICE, USE OF MEDIA PROVIDED BY PHOTOGRAPHER OR PAYMENT ARE ALL ACCEPTANCE ALL ABOVE TERMS AND CONDITIONS.