COMMERCIAL LICENSING AGREEMENT
Scope of this Agreement: This Agreement applies to any photograph, graphics, digital assets, video, or digital images created or taken by Foto Staging LLC/Casey Pickard and delivered to the Client (collectively known as “Photos”). This Agreement governs the relationship between the parties and in no event shall any e-mail communication or other exchange, amend or otherwise modify the terms of this Agreement unless agreed to in writing.
Usage 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 Foto Staging LLC. This license provides the Client with the unlimited non-exclusive, non-transferable perpetual license to use in Client’s own advertising, print ads, website and social media.
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 Foto Staging LLC 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 Foto Staging LLC for any penalties and awards available under the statute.
Photos may not be resold or otherwise transferred to those including, but not limited to: builders, architects, sellers, buyers, interior designers, stagers, magazines or listing agents. These entities must purchase a separate image license directly from Foto Staging LLC.
Relationship of the Parties: The parties agree that any representative of Foto Staging LLC is an independent contractor, and that neither Foto Staging LLC, nor their 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 this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Foto Staging LLC and the Photos or any other deliverables prepared by Foto Staging LLC 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 this Agreement.
Creation: The manner and method of creating any Photographs is solely at the discretion of Foto Staging LLC and the Client has no right to control Foto Staging LLC”s manner and method of performance under this Agreement. Foto Staging LLC will use their 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.
Delivery: Foto Staging LLC may select delivery of photographs in JPEG, TIFF, PNG, or other standard format, at a resolution Foto Staging LLC 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 Foto Staging LLC within five (5) business days. Foto Staging LLC sole obligation will be to replace the Photos at a suitable resolution but in no event will Foto Staging LLC be liable for poor reproduction quality, delays, or consequential damages.
Fees: All fees and expenses payable under this agreement are required at time of booking or image delivery. If full payment is not received all rights are revoked at the discretion of Foto Staging LLC. In the event rights are revoked, all images in the possession of Client will be removed from all forms of media and permanently destroyed within five (5) days. Client shall provide Photographer with written statement that all images have been removed and destroyed.
Cancellation: For Client cancellation within one (1) days of the Property shoot, Client is responsible for 50% of the fee and any expenses incurred.
No Exclusivity: This Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Foto Staging LLC, and Foto Staging LLC shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Foto Staging LLC.
Transfer and Assignment: Client may not assign or transfer this agreement or any rights granted under it. 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.
Indemnification: Client will indemnify and defend Foto Staging LLC 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. It is the Client’s responsibility to obtain the necessary model or property releases are ensure they are full effect and in force.
General Law/Arbitration: This Agreement sets forth the entire understanding and agreement of the parties, and supersedes any and all prior agreements between the parties. This Agreement shall be governed and interpreted and enforced in accordance with the laws of the State of Arizona (State). Any claim or litigation arising out of this Agreement or its performance may be maintained only in courts physically located in Maricopa County, AZ (County, State), 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.
Severability: If one or more of the provisions contained in the Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. Such provisions shall be revised only to the extent necessary to make them enforceable.
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.