These terms and conditions constitute as an agreement (hereinafter referred to as the “Agreement”) between Ian James (hereinafter known as the “Photographer”), Aytrus, Inc. (hereinafter known as the “Company”), and the Clients (hereinafter also known as “You”/”Your”/the “User”) which includes the Client’s principals, employees, affiliates, and representatives. The Client agrees that it has the legal authority to enter into this Agreement on behalf of its employer, company, or organization. The Photographer’s relationship with the Client is that of an independent contractor.
1.) Trade Marks, Copyrights, and Restrictions:
This site is controlled and operated by the Company. All material on this site, including, but not limited to images, illustrations, audio clips, and video clips, is protected by copyrights which are owned and controlled by the Company, the Photographer, or by other parties that have licensed their material to the Company. (the “Copyrights”). Material from this Website may not be copied, reproduced, republished, uploaded, posted, transmitted or distributed in any way. Modification of the materials or use of the materials for any other purpose is a violation of the copyrights and other proprietary rights. For purposes of this Agreement, the use of any such material on any other website or networked computer environment is prohibited.
The Photographer retains the copyright of all images taken and may be used for advertising, competitions or promotional purposes at the Photographer’s discretion. The photographer also retains the right to restrict the Client from giving the images files to any third party for advertising without written permission from the Photographer. Illegal copying is a breach of copyright. On receipt of full payment of the Client will be licensed to use the images as specified. This license is non-transferable. License for use does not pass to the Client until full payment has been received by the Photographer or the Company.
No one other than the Photographer is permitted to edit any photographs provided by the Photographer unless the Photographer grants permission. In hiring the Photographer, You have taken into consideration the Photographer’s style and are granting artistic license in all aspects relating to the photographs taken during your photoshoot.
2.) Delivery and Quality of Finished Work:
Generally, finished work is delivered ASAP within 96 hours of completion following a photoshoot. Rush rates may apply to urgent work, i.e. within 24 hours after the shoot.
Image files will be provided by digital download in JPEG file format via an HTML link connecting to a third party online server that will be delivered to the Client’s associated e-mail address. The Client will receive every photograph taken during the photoshoot, however the Client will not receive RAW files or negatives. This digital download link will remain active online for 14 days after being uploaded, and it is Your responsibility to download these image files during this period. After this 14 day period, the image files will be deleted from the server and the associated HTML link will become deactivated.
The Photographer and the Company shall not be liable for any legal action or damages from or arising out of the publication of the Photographs, the Company, or other use by the Client.
The Photographer may give suggestions for location photographs, if requested by the Client, but will not be liable for the guarantee of the use of the location nor the conditions of the location including any charges.
4.) Client Approval:
The Client is responsible for having its authorized representative present during all shooting phases of the Assignment. If no representative is present, the Photographer’s interpretation shall be accepted. The Client shall be bound by all approvals, and job changes made by the Clients representatives. Unless a rejection fee has been agreed in advance there is no right of rejection.
5.) Cancellations and Postponements:
Once the Client and the Photographer have agreed to time(s) and date(s) for a photography assignment, the Photographer will not accept work from any other client for the same time(s) and date(s).
Where the Client postpones or cancels an assignment, the Client will pay all expenses incurred by the Photographer up to the time of postponement or cancellation, plus all fees for any subcontractors booked for the assignment, and:
a.) 35% of the Photographer’s fees for postponement, or cancellation, less than twenty-four hours from the scheduled time, or
b.) 50% of the Photographer’s fees for postponement, or cancellation, after the Photographer has departed for location.
If the same assignment is rescheduled for a later date, full fee and any additional expenses will be charged for the actual shooting.
Any deposits paid on booking become non-refundable for cancellation, or postponement, less than five business days from the date of photography.
Fees for cancellation or postponement will apply irrespective of the reasons for the cancellation or postponement. However, the Photographer understands that emergency circumstances do occur and consideration will be given in any such circumstance.
6.) Client Co-operation & Reshoots:
If the Photographer is unable to shoot and complete the Client’s requested services due to the Client or the photographed subject’s lack of co-operation, the full Photographer’s fees will apply.
The Client is responsible for sending an authorized representative to the shoot. If no representative is present, the Client must accept the Photographer’s judgment as to the execution of the Image(s).
a.) If the Client requires a reshoot, the Client will pay the Photographer an additional fee of 100% of the fee stated in the invoice for the original shoot, plus all expenses for the reshoot.
b.) If a reshoot is required for reasons beyond the control of the Photographer or the Client, including, but not limited to, weather conditions, acts of a supreme being or the fault of a third party, the Photographer will not charge an additional fee, but the Client agrees to pay all expenses for the reshoot.
7.) Day and Half-Day Rates:
A half day is designated at 4 hours and full day at 8 hours. If the photoshoot is extended from the original quoted amount, then extra costs may be charged. Rates may vary outside normal working hours.
8.) Additional Shots:
If applicable, i.e. a quote based on number of shots; if extra shots are requested then they will be charged on a pro-rata basis based on total cost of quote.
9.) Exclusive Capture:
The Photographer reserves the right to be the sole photographer on the shoot for the client (unless agreed in advance).
10.) Talent and Model Releases:
Please be advised that it is the responsibility of the Client to ensure that all persons involved or featured in images shot on the Clients behalf, sign model or talent releases. The Photographer and the Company can provide upon request (prior to the shoot) a sample model release form. A copy of our Model Release Form can be found at this link.
The Client agrees to pay a 20% non-refundable deposit to secure Your desired date and understand that in any event of cancellation this deposit is non-refundable and non-transferable to any other products or services.
The Client agrees that if the original date booked is changed to another date by the Client to suit the Client, then the second date is also subject to a 20% deposit from the remaining balance at the time of the date change.
NO RIGHTS ARE GRANTED UNLESS AND UNTIL PHOTOGRAPHER HAS RECEIVED FULL PAYMENT. ANY USE PRIOR TO FULL PAYMENT WILL BE CONSIDERED AN UNAUTHORIZED USE. CLIENT AGREES THAT THE REASONABLE AND STIPULATED AMOUNT THAT WILL BE PAID TO PHOTOGRAPHER FOR SUCH AN UNAUTHORIZED USE WILL BE DOUBLE THE INVOICE TOTAL.
All invoices are due upon receipt. Adjustments of amounts or terms must be requested within ten days of invoice receipt.
Photographer does not provide any receipts to Client. Photographer’s invoice will serve as Client’s receipt for work performed and services rendered.
Any payments made are non-refundable and non-transferrable.
12.) International Clients:
Full Payment to be cleared prior to delivery of work – can be arranged as an International Funds Transfer.
The Photographer is not required to keep a copy of any image files taken during the photoshoot after the 14 day period (described in section 2) where the image files are deleted from the server and the associated HTML link becomes deactivated. IT IS THE SOLE RESPONSIBILITY OF THE CLIENT TO RETAIN A COPY OF THE DELIVERED IMAGES FILES. THE COMPANY AND THE PHOTOGRAPHER ARE NOT RESPONSIBLE FOR RETAINING A COPY OF YOUR IMAGES FILES AFTER THIS PERIOD.
All Photography, Images, and Graphic Art appearing on this website are copyright the Photographer, and may not be reproduced, copied, stored, manipulated or used in any other way without the prior written permission of the Photographer, and are protected by International and United States copyright laws.
The Photographs, Images, or Graphic Art appearing on this website are NOT Public Domain. The use of any image as a basis for another photographic concept or illustration is a violation of copyright.
15.) Linked Websites:
The Company, whether or not affiliated with websites which may be linked to this Website, is not responsible for their content (the “Linked Sites”). The Linked Sites are for Your convenience only and You access them at Your own risk.
The materials on the Website are provided “as is” and without warranties of any kind either express or implied. To the fullest extent permissible pursuant to applicable law, the Company disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability and fitness for a particular purpose. The Company does not warrant or make any representations regarding the use or the results of the use of the materials in this Website in terms of their correctness, accuracy, reliability, or otherwise. You (and not the Company) assume the entire cost of all necessary servicing, repairs, or corrections. Applicable law may not allow the exclusion of implied warranties, so the above exclusion may not apply to You. The material that You read in this Website is provided solely for entertainment and promotional purposes. Neither the Company nor its affiliated or related entities or its content providers are responsible or liable to any person or entity whatsoever (including, without limitation, persons who may use or rely on such data/materials or to whom such data/materials may be furnished) for any loss, damage (whether actual, consequential, punitive or otherwise), injury, claim, liability, or other cause of any kind or character whatsoever based on or resulting from any information or opinions provided on this Website.
In the unlikely event of total or part photographic failure, equipment failure, hard drive failure, memory card failure, theft, death, injury or illness, accident or other unforeseen circumstances beyond the photographers control, the photographers liability shall be limited to a full refund of all moneys paid and the photographer shall not be responsible for other consequential damages, emotional or otherwise.
17.) Jurisdictional Issues:
This agreement shall be governed by, construed and enforced in accordance with the laws of the State of Massachusetts of the United States of America, as it is applied to agreements entered into and to be performed entirely within the state. Any action You, any third party, or the Company bring to enforce this agreement or, in connection with, any matters related to this site shall be brought only in the courts of the State of Massachusetts, and You expressly consent to the jurisdiction of said courts. If any provision of this agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this agreement and shall not affect the validity and enforceability of any remaining provisions. This is the entire agreement between the parties relating to the matters contained herein and shall not be modified except in writing, signed by the Photographer.
18.) Additional Definitions:
“Image(s)” means all visual representations delivered to the Client whether captured, delivered, or stored, in photographic, magnetic, optical, electronic, digital, analogue, or any other media.
19.) Usage Rights and Ownership:
The Client acknowledges that the Photographer is the author of the Image(s) and also the first and sole owner of all copyrights of the Image(s). All Images and copyrights remain the exclusive property of Photographer without limitation. No electronic publishing, or Internet use, of any kind is permitted unless specifically stated.
IMAGES ARE LICENSED FOR SPECIFIC USE(S) AND ARE NOT SOLD.
The Client understands and agrees that it is not buying the Image(s) but is paying only for a license to use the Image(s). The term of license begins from the date Photographer receives full payment of invoice.
The use of any Image(s) will not constitute a work of joint authorship.
Copyright metadata contained within any digital file may not be altered, or removed, without the express consent of the Photographer.
Unless otherwise agreed, the Photographer retains the right to use any Image(s) for his self-promotion.
20.) Photographic Integrity and Alterations:
The Client will not make or permit any alterations, including, but not limited to, additions, subtractions, or adaptations, with respect of the Image(s), alone or with any other material, without the prior express permission of the Photographer. Normal reproduction adjustments for color, contrast, brightness, sharpness, and cropping, are permitted.
Any alteration or modification of the Image(s) will not constitute a work of joint authorship.
21.) General Liability and Releases:
The Client will indemnify, defend, and hold harmless, the Company, the Photographer, his contractors, and his representatives, against any and all claims, liabilities, damages, costs, and expenses, including reasonable legal fees and expenses, arising from Client’s use of the Image(s).
The Photographer is not responsible for obtaining model, property, trademark, or other releases in connection with any Image(s) unless specifically stated in this Agreement. It is the Client’s responsibility to obtain the necessary permissions for any Image uses that require a release.
It is the Client’s responsibility to determine whether any releases delivered by the Photographer are suitable for the Client’s purposes.
In any event, the Photographer’s liability for all claims will not exceed the total amount paid under this Agreement.
22.) Force Majeure & Failure to Perform:
If the Photographer is unable to supply his photographic services due to illness, mechanical breakdown, accident, acts of a supreme being, or any other cause beyond his control, then the Photographer will attempt to procure the services of another professional photographer to fulfill his obligations. If that does not succeed, the Photographer will return any fees paid by the Client and will have no further liability with respect to this Agreement, and the Photographer will not be responsible or liable for any other damages beyond the amount of this Agreement.
This limitation of liability will also apply in the event that any Images are lost or damaged through equipment malfunction, or otherwise, without the fault of the Photographer.
23.) Kill Fee:
Provided that the Photographer has executed the photography assignment in a professional and competent manner, the Client agrees to pay the Photographer all fees and expenses in connection with said assignment, whether or not Client uses any Image(s).
24.) Archiving Digital Files:
While the Photographer may choose to archive the Image(s), it is the Client’s responsibility to properly store and archive the Image(s) for the duration of the term of license. The Photographer cannot guarantee the availability of any Image(s) beyond the date of first delivery to Client.
The Client is aware that optical, magnetic, electronic, and any other, media for storing digital data are inherently unstable. The Client hereby releases the Photographer and his contractors, and representatives, from any liability for any claims, damages, or costs, arising from any media supplied by the Photographer becoming unusable.
All digital files created by, or on behalf of, the Client that contain any Image(s) will be deleted or destroyed within thirty days after the expiration date of license.
25.) Digital File Quality:
The Photographer is committed to providing high quality services. The Photographer may deliver, and the Client agrees to accept, the Image(s) encoded in an industry-standard data format that the Photographer may select, at a resolution that Photographer determines will be suitable to the reproduction technology and use(s) for which the Image(s) is licensed.
The Photographer uses cameras and monitors that are color calibrated to industry standards. But due to variances in other monitors, software and computer platforms, the Image(s) may display differently on other monitors. Therefore, neutrals will be set for mathematical neutrality and color will be adjusted for pleasing tonalities.
It is the Client’s responsibility to verify that the digital data, including color profile, if provided, are suitable for reproduction of the expected quality and color accuracy, and that all necessary steps are taken to ensure correct reproduction. If the data are not deemed suitable, the Photographer’s sole obligation will be to replace or repair the data, but in no event will the Photographer be liable for poor reproduction quality, delays, losses, expenses, or consequential damages, resulting directly, or indirectly, from defects or errors in digital files or their use.
26.) Travel Expenses:
Travel fees are pre-determined and will be set out in the initial payment total. Clients are responsible for all location fees and permits.
27.) Creative License:
Images are edited at the Photographer’s discretion, and delivered prints may not include all images shot. The Photographer reserves the creative rights to edit and release only those images deemed creditable as professional in quality and within the photographer’s artistic standards.
28.) Returned NSF Checks:
Returned checks are subject to a $25.00 returned NFS checks fee. Client assumes responsibility for any and all collection costs and legal fees incurred by the Photographer in the event that enforcement of this contract becomes necessary. All legal action shall be taken appropriately.
Please make all checks payable to: Aytrus, Inc.
29.) Credit Card Payments:
Visa and MasterCard Credit Cards are accepted modes of payment. There will be a 2.75% bank processing fee to be added on top of the after-tax balance per transaction as posted by Square, Inc.
30.) Acceptance of Terms:
The Client may not assign or transfer this Agreement or any of the rights granted hereunder. This Agreement is binding upon, and inures to the benefit of, the Client and the Photographer, as well as their respective principals, employees, representatives, and successors. The Client and its principals, and employees, are jointly and severally liable for the performance of all payments and other obligations hereunder.
No amendment or waiver of any items is binding unless set forth in writing and signed by the parties. E-Mail and electronic signatures will be considered legal and binding. However, the invoice may reflect, and the Client is bound by, the Client’s oral authorizations for any additional Image(s), fees, and expenses, that could not be confirmed in writing due to the immediate proximity of completing the photography assignment.
This Agreement will be deemed to be a contract made under the laws of the United States of America and the State of Massachusetts, and for all purposes will be interpreted in its entirety in accordance with these laws. The Client specifically and irrevocably confers personal jurisdiction over it by the courts of Suffolk County, Massachusetts, USA. The Client will pay all arbitration and court costs, reasonable legal fees, expenses, and legal interest, on any award or judgment in favor of the Photographer.
If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
In addition to oral and written agreements, use of any Image(s) by the Client will constitute acceptance of all the above terms and conditions.