We will always do our best to fulfill and, hopefully, even exceed your photography needs. But it’s often best for everyone to have a few things written down so that we both know what’s what, who does what and when, and what happens if something goes wrong.
As is the industry standard, all our photography is conditioned upon the Terms and Conditions of our business. These terms may vary with each photo assignment. You, the client, will always receive exact details in advance of your proposed assignment. A Terms and Conditions will be included with every estimate and invoice.
Here’s a look at our general Terms and Conditions. Remember that these may not all apply in every situation and are subject to change, depending on the job at hand. The following is for informational purposes only.
You may already have a relationship with an advertising agency, graphic design company, marketing agency or public relations agency. That’s great because we’re not any of those things. We are a company that produces photography and we’re happy to help you with any photography-related issues. But we’re not qualified to help with such things as advertising layouts, web site design, graphic design, marketing or public relations campaigns.
This Agreement is between Salli Gainsford (“Photographer”) and [You] (“Client”) which includes Client’s principals, employees, affiliates, and representatives. Client agrees that it has the legal authority to enter into this Agreement on behalf of its employer, company, or organization. Photographer’s relationship with Client is that of an independent contractor.
“Image(s)” means all visual representations delivered to Client whether captured, delivered, or stored, in photographic, magnetic, optical, electronic, digital, analogue, or any other, media.
2. USAGE RIGHTS and OWNERSHIP:
Client acknowledges that 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. Use of the Image(s) is restricted to private and personal use only unless other usage rights are specifically granted by Photographer.
IMAGES ARE LICENCED FOR SPECIFIC USE(S) AND ARE NOT SOLD.
Client understands and agrees that it is not buying the Image(s) but is paying only for a licence to use the Image(s). The term of licence 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 Photographer.
Unless otherwise agreed, Photographer retains the right to use any Image(s) for his self-promotion.
3. PHOTOGRAPHIC INTEGRITY and ALTERATIONS:
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 Photographer. Normal reproduction adjustments for colour, contrast, brightness, sharpness, and cropping, are permitted.
Any alteration or modification of the Image(s) will not constitute a work of joint authorship.
4. GENERAL LIABILITY and RELEASES:
Client will indemnify, defend, and hold harmless, 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).
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 Client’s responsibility to obtain the necessary permissions for any Image uses that require a release.
It is Client’s responsibility to determine whether any releases delivered by Photographer are suitable for Client’s purposes.
In any event, Photographer’s liability for all claims will not exceed the total amount paid under this Agreement.
Time is of the essence for receipt of full payment under this Agreement.
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.
6. CANCELLATIONS and POSTPONEMENTS:
To do our best work, we focus (no pun intended) on only one client per day. Once Client and Photographer have agreed to time(s) and date(s) for a photography assignment, Photographer will not accept work from any other client for the same time(s) and date(s).
Where Client postpones or cancels an assignment, Client will pay all expenses incurred by Photographer up to the time of postponement or cancellation, plus all fees for any subcontractors booked for the assignment, and:
(a) Thirty-five percent of Photographer’s fees for postponement, or cancellation, less than twenty-four hours from the scheduled time, or
(b) Fifty percent of Photographer’s fees for postponement, or cancellation, after 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, Photographer understands that life doesn’t always happen as planned and consideration will be given in any such circumstance.
Client is responsible for sending an authorized representative to the shoot. If no representative is present, Client must accept Photographer’s judgment as to the execution of the Image(s).
(a) If Client requires a reshoot, Client will pay Photographer an additional fee of one hundred percent 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 Photographer or Client, including, but not limited to, weather conditions, acts of God or the fault of a third party, Photographer will not charge an additional fee, but Client agrees to pay all expenses for the reshoot.
8. FAILURE TO PERFORM:
If Photographer is unable to supply her photographic services due to illness, mechanical breakdown, accident, acts of God, or any other cause beyond his control, then Photographer will attempt to procure the services of another professional photographer to fulfill his obligations. If that does not succeed, Photographer will return any fees paid by Client and will have no further liability with respect to this Agreement, and 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 Photographer.
9. KILL FEE:
Provided that Photographer has executed the photography assignment in a professional and competent manner, Client agrees to pay Photographer all fees and expenses in connection with said assignment, whether or not Client uses any Image(s).
10. ARCHIVING DIGITAL FILES:
While Photographer may choose to archive the Image(s), it is Client’s responsibility to properly store and archive the Image(s) for the duration of the term of licence. Photographer cannot guarantee the availability of any Image(s) beyond the date of first delivery to Client.
Client is aware that optical, magnetic, electronic, and any other, media for storing digital data are inherently unstable. Client hereby releases Photographer and his contractors, and representatives, from any liability for any claims, damages, or costs, arising from any media supplied by Photographer becoming unusable.
All digital files created by, or on behalf of, Client that contain any Image(s) will be deleted or destroyed within ten days after the expiration date of licence.
11. DIGITAL FILE QUALITY:
Photographer is committed to providing high quality services. Unless agreed otherwise, Photographer may deliver, and Client agrees to accept, the Image(s) encoded in an industry-standard data format that 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 licenced.
12. ACCEPTANCE OF TERMS:
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, Client and Photographer, as well as their respective principals, employees, representatives, and successors. 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 Client is bound by, 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 Canada and the Province of Ontario, and for all purposes will be interpreted in its entirety in accordance with these laws. Client specifically and irrevocably confers personal jurisdiction over it by the courts of the district of Toronto, Ontario, Canada. Client will pay all arbitration and court costs, reasonable legal fees, expenses, and legal interest, on any award or judgment in favour of 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 Client will constitute acceptance of all the above terms and conditions.