TERMS & CONDITIONS
By downloading any images from SoCal Property Portraits or SandKasl Imaging, the following terms and conditions become binding to all parties involved.
Scope of this Agreement: This Agreement applies to any digital assets, or digital images, photographs, or graphics created or taken by Gary Kasl or any other parties, D.B.A. SoCal Property Portraits or SandKasl Imaging (“Photographer,” together with Client, “Parties”) and delivered to Client (“Photos”) for the specific property location(s) (“Property”). This Agreement governs the relationship between the Parties. Any amendments or modifications to this Agreement must be agreed to in writing and signed by the Parties.
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. This license solely 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 of the Property for the time period specified in this Agreement. Photos used for any purpose not directly related to the sale of the Property must be with the express permission of Photographer and payment of additional fees, unless otherwise agreed to in writing and signed by the Parties.
Photos may be uploaded to any MLS listing service solely for promotion of the Property during the pendency of this Agreement. However, regardless of any MLS terms and conditions, 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 a copyright notice © and/or 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 a violation of the Digital Millennium Copyright Act (DMCA), and Client shall be responsible to the Photographer for any penalties and available awards. Client is solely responsible for ensuring that the Photos are removed from MLS databases at the expiration of this Agreement.
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, 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 express permission and additional fees. Rights are assigned to the Client immediately upon delivery of the Photos.
All alterations and adjustments to images must be done by SoCal Property Portraits exclusively. No 3rd party alterations are to be done to the licensed images as the rights of ownership still belong to SoCal Property Portraits.
Relationship of the Parties: The Parties agree that Photographer is an independent contractor, and that 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 this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. 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 this Agreement.
Creation: The manner and method of creating any Photos is solely at the discretion of Photographer and the Client has no right to control Photographer’s manner and method of performance under this Agreement. Photographer will use his/her best efforts to ensure that the Photos conform to Client’s specifications, and submit all Photos to Client in publishable quality, on or before the applicable deadlines.
Delivery: 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, if the Photos are not deemed suitable, to notify the Photographer within five (5) business days of delivery of Photos to Client. 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 larger than 8”x10” at 300 dpi, or in a format higher than 8-bit or in RAW format. Photographer has no obligation to retain or archive any Photos delivered to Client.
Fees: All fees and expenses payable under this Agreement are required before the delivery of the Photos and payable irrespective of whether Client makes actual use of the Photos. If full payment has not been received within thirty (30) days, all rights are revoked at Photographer’s discretion. In the event rights are revoked, all images in Client’s possession shall be removed from all forms of media and permanently destroyed within ten (10) days of notice by Photographer. Client shall provide Photographer with written statement that all images have been removed and destroyed within fifteen (15) days of notice by Photographer.
Cancellation: If Client cancels this Agreement within 24 hours prior to the Property shoot, Client will pay any expenses incurred and a $50 cancellation fee. If Client cancels this Agreement less than 24 hours prior to the Property shoot or the Property is not ready to be photographed, Client is responsible for 100% 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 Photographer, and Photographer shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Photographer.
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.
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. It is the Client’s responsibility to obtain the necessary model or property releases to ensure they are full effect and in force.
Entire Agreement: This Agreement is the entire agreement and understanding of the Parties. There are no oral understandings, terms, or conditions, and neither party has relied upon any representation, express or implied, not contained in this Agreement. All prior understandings, terms, or conditions, written, oral, express, or implied, are superseded by this Agreement. This Agreement cannot be changed or supplemented orally and may be modified or superseded only by written agreement signed by the Parties.
Governing Law/Arbitration: This Agreement is entered into, and shall be construed and interpreted in accordance with, the laws of the State California. Any claim or litigation arising out of this Agreement or its performance may be maintained only in courts physically located in San Diego, California, and the Parties hereby consent to the personal jurisdiction of such courts. If the 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 any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, that determination shall not invalidate or render unenforceable any other provision of this Agreement.
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.
© 2017 SandKasl Imaging / SoCal Property Portraits