Photography Services Agreement
This Photography Services Agreement (this "Agreement"), dated as of [DATE] (the "Effective Date"), is by and between Seltosamarts, LLC, a [New York] limited liability company ("Seltosamarts") and [CUSTOMER NAME] ("Customer").
WHEREAS, Seltosamarts has the capability and capacity to provide certain photography services; and
WHEREAS, Customer desires to retain Seltosamarts to provide the said services under the terms and conditions hereinafter set forth, and Seltosamarts is willing to perform such services;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seltosamarts and Customer (hereinafter, collectively, the "Parties", or each, individually, a "Party") agree as follows:
1. Services. Seltosamarts shall provide to Customer services consisting of the taking and editing of photographs (the “Photographs”) in accordance with the terms set forth on Exhibit A (the "Services").
2. Seltosamarts Obligations. Seltosamarts shall:
2.1 Perform the Services.
2.2 If Seltosamarts is unavailable during that period, Seltosamarts will promptly notify the Customer, and at its option, either (i) work with the Customer to schedule an alternate time and date or (ii) refund any fees or expenses already paid.
3. Customer Obligations. Customer shall:
3.1 Cooperate with Seltosamarts in its performance of the Services, including ensuring access to the premises upon which the Services shall take place on the date(s) and time(s) specified on Exhibit A.
3.4 Take all steps necessary to prevent Customer-caused delays in Seltosamarts' provision of the Services.
4. Fees and Expenses.
4.1 For the Services to be performed hereunder, Customer will pay to Seltosamarts a fee and expenses in the amounts specified on Exhibit A. A minimum of 50% of the fee is due and payable as of the date hereof. Unless otherwise provided, any outstanding portion of the fee and all expenses will be payable within 15 days of the date of the invoice from Seltosamarts.
4.2 Customer shall be responsible for all applicable sales taxes, which shall be listed on the invoice.
4.3 All amounts due hereunder but not paid when due under Section 4.1 shall bear interest at the lesser of the rate of 2% per month or the highest rate permissible under applicable law, calculated daily, commencing on the first date after such payment would have been due under Section 4.1, through and including the date of payment, and compounded monthly. Customer shall also reimburse Seltosamarts for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available at law (which Seltosamarts does not waive by the exercise of any rights hereunder).
5. Intellectual Property.
5.1 Seltosmarts shall own all intellectual property rights, including copyrights, in the Photographs.
5.2 Following receipt of payment of fees and expenses in full by Seltosamarts, Customer shall be granted a limited license to use, copy, distribute and display the Photographs, solely as follows:
(a) High-resolution Photographs may be printed, copied and displayed for personal use (for example, in picture frames, albums, and other physical forms); and
(b) Low-resolution Photographs, which will bear Seltosamarts' copyright watermark and which provides notice of Seltosamarts’ ownership of the copyright in the Photographs, may be displayed on social media or be distributed via other forms of electronic communication for non-commercial purposes. For the avoidance of doubt, if Seltosamarts’ copyright watermark is not clearly visible on any such Photograph, then such Photograph shall not be publicly displayed or distributed pursuant to this Section 5.2(b).
5.3 In no event shall Customer use any of the Photographs for commercial purposes without the express written consent of Seltosamarts. Further, Customer shall not modify or alter any Photograph in any way without the express written consent of Seltosamarts, except that cropping shall be allowed, provided that Seltosamarts’ copyright watermark, if applicable, is not cropped out.
6. Term, Termination, and Survival.
6.1 Either Party may terminate this Agreement, in whole or in part, at any time without cause by providing at least 7 days' written notice to other Party prior to the date that the first part of the Services are to be performed. In the case of the Agreement being terminated by the Customer, the Customer will remain liable for required payment for services rendered, and reimbursement for authorized expenses incurred, prior to the termination date.
6.2 Section 20 of this Agreement will survive any such termination or expiration of this Agreement.
7. Independent Contractor. It is understood and acknowledged that the Services which Seltosamarts will provide to Customer hereunder shall be in the capacity of an independent contractor and not as an employee or agent of Customer. Seltosamarts shall control the conditions, time, details, and means by which Seltosamarts performs the Services.
8. Limitation of Liability.
8.1 Seltosamarts warrants that it shall perform the Services:
(a) In accordance with the terms and subject to the conditions set forth in this Agreement
(b) Using personnel of required skill, experience and qualifications.
(c) In a timely, workmanlike and professional manner in accordance with generally recognized industry standards for similar services.
8.2 Seltosamarts' sole and exclusive liability and Customer's sole and exclusive remedy for breach of this warranty shall be the return of all fees and expenses paid by the Customer.
8.3 In the event that Customer is dissatisfied with Seltosamarts' performance of the Services, Customer must notify Seltosamarts in writing within 15 days of Customer's receipt of the Photographs. Failure to so notify will result in a waiver of any liability pursuant to Section 8.2
8.4 SELTOSAMARTS MAKES NO WARRANTIES EXCEPT FOR THAT PROVIDED IN SECTION 8.1, ABOVE. ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, ARE EXPRESSLY DISCLAIMED.
9. Entire Agreement. This Agreement, including and together with any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement between the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
10. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a "Notice", and with the correlative meaning "Notify") must be in writing and addressed to the other Party at its address set forth below.
11. Severability. If any term or provision of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such invalidity, illegality, or un-enforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
12. Amendments. No amendment to, modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing and signed by each Party.
13. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
14. Assignment. Neither Party shall assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of the other Party.
15. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
16. No Third-Party Beneficiaries. This Agreement benefits solely the Parties and their respective successors and permitted assigns and nothing in this Agreement, express or implied, confers on any third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
17. Choice of Law. This Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement and thereto, and all matters arising out of or relating to this Agreement, is governed by, and is to be construed in accordance with, the laws of the State of New York, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York.
18. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 10, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
19. Force Majeure. Seltosamarts shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seltosamarts including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage. In the event that a reshoot of the Services is required due to such a force majeure event, Customer shall be responsible for all additional expenses, but Seltosamarts will not charge any additional fee. If such a force majeure event requires the cancellation of the shoot, then Customer shall be responsible for all expenses incurred by Seltosamarts prior to such force majeure event.
20. Attorneys’ Fees. In the event that any action, suit or other legal or administrative proceeding is instituted or commenced by Seltosamarts arising from Customer's failure to pay, Seltosamarts arising out of or related to this Agreement, Seltosamarts shall be entitled to recover its reasonable attorneys’ fees and court costs from the Customer.
21. Non-Exclusivity. Seltosamarts retains the right to perform the same or similar type of services for third parties during the Term of this Agreement.