Estimate is valid for 15 days from the date of issue. Fees and expenses quoted are for the original job description and layouts only, and for the usage specified. Final billing will reflect actual expenses. A signed contract is due upon booking. All rights not specifically granted in writing, including copyright, remain the exclusive property of Brandy Forstie Photography, LLC.
Terms & Conditions
1. DEFINITIONS: This Agreement is by and between Brandy Forstie Photography, LLC (“Licensor”) and the “Client” named on the [front of this Agreement] [applicable Purchase Order]. “Image(s)” means all the visual representations and/or other forms of media, whether captured, delivered, or stored including prints, digital, chromes and any other visual materials in any format including digital information supplied by Licensor to Client. All Image(s) and rights relating to them, including copyright and ownership rights in the media in which the Image(s) are stored, remain the sole and exclusive property of Licensor. It is understood and agreed that the Licensor may use, at her discretion, selection of Image(s) for self promotion, include a printed portfolio and website usage, unless otherwise restricted, in writing. “Service(s)” means the photography and/or related digital or other related services described on the front of the Agreement that Client is specifically commissioning Licensor to perform pursuant to this Agreement. “Transmit” or “Transmission” means distribution by any device or process whereby an Image or copy of same, is fixed beyond the place from which it was sent. Licensor is an independent contractor and not an employee. If Licensor is deemed under any law to be an employee of the Client, and if the Image(s) are therefore considered works made for hire under U.S. Copyright Act, Client hereby transfers the copyright to all such Image(s) to Licensor. Client agrees to execute any documents reasonably requested by Licensor to accomplish, expedite or implement such transfer. “Copyright Management Information” or “Metadata” means the name and other image identifying information of Licensor and/or terms and conditions for uses of the Images, and such other information that Licensor may provide. Licensor has no obligation to retain or archive any of the Image(s) after they have been delivered to the Client.
2. FEES, CHARGES AND ADVANCES: Client and Client’s representative(s) are jointly and severally responsible for full payment of all fees, charges, expenses and advances. The rights licensed, fees, charges and advances set forth in this Agreement apply only to the original specification of the Services. Additional fees and charges shall be paid by Client for any subsequent changes, additions or variation requested by Client. All advance payments are due in full prior to production.
3. POSTPONEMENTS AND CANCELLATIONS: If Client postpones or cancels any photography “shoot date” or other Service, in whole or in part, without first obtaining Licensor’s written consent, Client shall pay Licensor 50% of Licensor’s quoted fees. If Client postpones or cancels with less than two (2) business days’ prior written notice to Licensor, Client shall pay 100% of Licensor’s quoted fees. Client shall in any event pay all expenses and charges incurred in connection with any postponed or cancelled shoot date or other Service.
4. FORCE MAJEURE: Licensor shall not be in default of this Agreement by reason of its delay in the performance of or failure to perform, in whole or in part, any of its obligations hereunder, if such delay or failure results from occurrences beyond its reasonable control and without its fault or negligence. Client will pay 100% of Licensor’s daily weather delay fee (as set forth on the front of this Agreement) for any delays due to weather conditions or any acts or occurrences beyond Licensor’s reasonable control, plus all charges incurred.
Clients will be charged 100% fee and expenses for any reshoot required by Client. For any reshoot required because of any reason outside the control of the Client, specifically including but not limited to acts of God, nature, terrorism, civil disturbance or the fault of a third party, Photographer will charge no additional fee, and Client will pay all expenses.
6. CLIENT APPROVAL: Client is responsible for having its authorized representative present during all “shooting” and other appropriate phases of the Service(s) to approve Licensor’s interpretation of the Service(s). The authorized representative is responsible for reviewing the images remotely during the Service(s). If no review is made during the service, Client is obligated to Licensor’s judgment as to the acceptability of the Images. If no representative is present, Licensor’s interpretation shall be deemed accepted “as-is”. Client shall be bound by all approvals and job changes made by Client’s representatives.
7. OVERTIME: In the event any Services extend beyond eight (8) hours in one day, Client agrees to and shall timely pay overtime for crew members and assistants at the rate of 1 ½ times their hourly rates or fees, and if the Services extend beyond 12 hours in one day, Client agrees to and shall pay overtime for crew members and assistants at the rate of double their regularly hourly rates or fees.
8. LIMITATION OF LIABILITY AND INDEMNITY: Even if Client’s exclusive remedy fails of its essential purpose, Licensor’s entire liability shall in no event exceed the license fee paid to Licensor. UNDER NO CIRCUMSTANCES SHALL LICENSOR BE LIABLE FOR GENERAL, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES ARISING FROM THIS AGREEMENT, THE IMAGE(S) OR ANY ACTS OR OMISSIONS OF LICENSOR. Client shall indemnify, defend and hold Licensor and Licensor’s representatives harmless from any and all claims, liabilities, damages, and expenses of any nature whatsoever, including actual attorneys’ fees, costs of investigation, and court costs arising from or relating to Client’s direct or indirect distribution, display or other use of any Image.
9. RIGHTS LICENSED: The licensed rights are transferred only upon: (a) Client’s acceptance of all terms contained in this Agreement, (b) Licensor’s actual receipt of full payment, and (c) the use of proper copyright notice and other Copyright Management Information requested or used by Licensor in connection with the Image(s). Licensor is willing to license the Image(s) to Client only upon the condition that Client accepts all of the terms of this Agreement. Unless otherwise specifically stated on the front of this Agreement, all licenses are non-exclusive; the duration of any license is one year from the date of Licensor’s invoice and is for English language use in the United States of America only. Unless otherwise specifically provided elsewhere in the document, no image licensed for use on a cover of a publication may be used for promotional or advertising purposes without the express permission of Licensor and the payment of additional fees. Licensor reserves all rights in the Image(s) of every kind and nature, including, without limitation, copyright, electronic publishing and use rights, in any and all media, throughout the world, now existing and yet unknown, that are not specifically licensed or transferred by this Agreement; including but not limited to the right to use the Image(s) at any time for its own marketing purposes. No license is valid unless signed by Licensor. This Agreement and any rights granted under it may not be assigned or transferred to a third party without the prior written consent of Licensor and provided that the assignee or transferee agrees in writing to be bound by all of the terms, conditions, and obligations of this Agreement. Any voluntary assignment or assignments by operation of law of any rights or obligations of Client shall be deemed a default under this Agreement allowing Licensor to exercise all remedies including, without limitation, terminating this Agreement, the right to all proceeds. Upon request by Licensor, Client shall provide Licensor with a full and complete disclosure of any and all uses of each Image and provide Licensor with three (3) copies, without charge, of each and every use of each Image within (60) days of issued publication. If any image is being published only in an electronic medium, Client agrees to provide Licensor with an electronic document, such as a PDF or URL of the published use of each such Image(s), within thirty (30) days after the date of first publication of each use. Unless specifically provided elsewhere in this document, no reprographic, reprint, republication or other secondary reproduction usages may be made, and usage rights are granted only for one-time.
Client will not make or permit any alterations, including but limited to additions, subtractions or adaptations in respect of the Image(s), alone or with any other material, including making digital scans unless specifically permitted on the purchase order.
11. PAYMENT AND COLLECTION TERMS: Invoices from Licensor are payable upon receipt by Client. Payment is required within 15 days of invoice date. Client agrees to pay a late payment fee equal to the lesser of (a) 2% per month or (b) the maximum interest permitted under applicable law, on any unpaid amount or balance. Such late fee(s) shall commence to run thirty (30) days after the issuance of this invoice. In any action to enforce the terms of this Agreement, the prevailing party shall be entitled to recover their actual attorneys’ fees, court costs and all other non-reimbursable litigation expenses such as expert witness fees and investigation expenses. The parties hereto consent to the jurisdiction of the courts of the State of Georgia, Fulton County. The parties agree that any dispute arising of this agreement shall be governed by the laws of the State of Georgia. Make checks payable to Brandy Forstie Photography, LLC. Failure to make payment voids any license granted and constitutes copyright infringement.
12. TAX: Client shall pay and hold Licensor harmless on account of any sales, use, or other taxes or governmental charges of any kind, however denominated, imposed by any government, including any subsequent assessments, in connection with this Agreement, the Image(s), the Service(s) or any income earned or payments received by Licensor hereunder. To the extent that Licensor may be required to withhold or pay such taxes, Client shall promptly thereafter furnish Licensor with funds in the full amount of all the sums withheld or paid.
13. RELEASES: No model, property, trademark, or other such releases exists for any image(s) unless Licensor submits to Client a separate release signed by a third-party, model, or property owner. Model and/or property release is on file for specific project mentioned in Purchase Order on the front of this Agreement.
14. ELECTRONIC RIGHTS: No electronic usage rights of any kind are licensed or granted hereunder unless as specifically set forth on the front of this Agreement. Licensor specifically reserves all rights not specifically conveyed to Client hereunder. Such rights reserved include but are not limited to all rights of publication, distribution, display or transmission in electronic and digital media of any kind, now existing and yet known. Usage rights for any kind of revision of a collective work including any later collective work in the same series, are expressly reserved by the Licensor.
15. MODIFICATION, GOVERNING LAW AND MISCELLANEOUS: This Agreement sets forth the entire understanding and agreement between Licensor and Client regarding the Service(s) and/or the Image(s). This Agreement supersedes any and all prior representations and agreements regarding the Service(s) and/or the Image(s), whether written or verbal. Neither Licensor nor Client shall be bound by any purchase order, term, condition, representation, warranty or provision other than as specifically stated in this Agreement. No waiver or modification may be made to any term or condition contained in this Agreement unless in writing and signed by Licensor. Waiver of any one provision of this Agreement shall not be deemed to be a waiver of any other provision of this Agreement. Any objections to the terms of this Agreement must be made in writing and delivered to Licensor within ten days of the receipt of this Agreement by Client or Client’s representative, or this Agreement shall not be binding. Notwithstanding anything to the contrary, no Image(s) may be used in any manner without Licensor’s prior written consent, and Client’s holding of any Image(s) constitutes Client’s complete acceptance of this Agreement. The formation, interpretation, and performance of this Agreement shall be governed by the laws of the State of Georgia, excluding the conflict of laws rules of Georgia. All paragraph captions in this Agreement are for reference only, and shall not be considered in construing this Agreement. This Agreement shall be construed in accordance with its terms and shall not be construed more favorably for or more strongly against Licensor or Client.
16. COPYRIGHT/ENFORCEMENT OF EXCLUSIVE LICENSE: The sole right to pursue and/or defend any and all claims sounding in infringement of Licensor’s copyright(s), trademark and/or intellectual property rights in the image(s), free from any claims by Client or any other person, whether or not the rights granted to Client are exclusive or non-exclusive shall be deemed retained by Licensor. If Licensor is determined not to possess such rights Client agrees to execute and deliver to Licensor such documents as Licensor reasonably requests to carry out the purpose of this clause so as to allow Licensor the right to pursue and/or defend any and all claims sounding in infringement of its copyright(s), trademark and/or intellectual property rights in the image(s). Nothing contained herein shall be construed as limiting or waiving Client’s right to enforce, defend or protect any copyright, trademark or intellectual property owned by it.
17. PHOTO CREDIT:
Client agrees all published usages of Image(s) will be accompanied by written credit to Licensor or copyright notice as: © Brandy Forstie, Brandy Forstie Photography, LLC or aviationphotoservices.com in conjunction with all uses of Licensor’s image(s).
18. EXPENSES ESTIMATES:
All expense estimates are subject to normal trade variance of 10%. The fees and expenses quoted for the original layout and job description only, and for the uses agreed. Any changes are subject to separate agreement.
Client acknowledges that it has received and reviewed these terms and conditions. No reproduction rights are granted until invoice is paid in full.