Contract

Real Estate Photography Services Agreement

 

Terms for Photography of Real Estate

Definitions

For the purpose of this agreement “the Agency” “the Broker” and/or “the Client” shall where the context so admits include their respective assignees, sub-licensees and successor in title. In cases where The Photographer’s Client is a direct Client (i.e. with no Agency or intermediary), all references in this agreement to both “the Agency” and “the Client” shall be interpreted as references to The Photographer’s Client. For the purpose of this agreement “The Photographer” will mean the Author of the Photograph, R\E Media UTAH and/or Dave Koch. And shall where the context so admits include their respective assignees, sub-licensees and successor in title. “Photographs”, “Images”, and “Works” means all photographic material furnished by The Photographer, whether transparencies, negatives, prints, digital files or any other type of physical or electronic material in existence now or yet to be developed.

All contracts verbal or written are only accepted on the basis that the Terms and Conditions of The Photographer are the only ones applicable. Other Terms and Conditions proffered by The Client are specifically excluded unless agreed in writing beforehand by The Photographer. Where time is of the essence The Photographer entirely at its own discretion may accept an instruction given orally, in this event The Photographer shall accept no liability for any error in executing the order. Unless The Photographer is given prior written notice by the Client, the person placing or signing the order on behalf of The Client is deemed to be authorized to do so. When a Client’s policy is not to rely on email confirmations, hard-copy paperwork must be supplied, if none is provided, then the email traffic will constitute a contract in law.

Scheduling and Contact Information

Requests for photography appointments should be submitted via email to images@photoslc.com or via the Contact Form or the Booking Form on the The Photographer website with as much detail as possible. We will reply back within 24 hours to verify the date, time and location of the shoot. Next day orders are difficult to schedule, cannot be guaranteed and are subject to an additional charge. A tentative scheduling is not considered booked until a deposit is made, and may be pre-empted by another part who posts a deposit. No appointments are guaranteed until a full deposit is made. Once both parties have acknowledged the date and time of the appointment and a deposit made, the appointment will be considered “booked”, and the terms of this document are considered agreed to and enforceable.

At the Shoot

The Client is responsible for the presence of an authorized representative at the shoot to approve and/or direct The Photographer’s interpretation of the project. If a Client or Brokerage representative is not present and no specific written directions are given The Photographer, The Photographer’s interpretation shall be deemed correct, acceptable and final.

Property will be deemed “photo-ready” at the client-scheduled date and time of the appointment. The Photographer‘s responsibility begins and ends at taking photographs of the property. We will not make judgments about the property or it’s readiness, cleanliness or configuration; we will assume the property is in the form and state of readiness The Client wants to portray it when we arrive.

It is the responsibility of the property owner, their agent or tenant to straighten rooms, remove litter or stray objects and tidy up the spaces; as The Client has deemed the property “photo-ready” for the shoot in no case will The Photographer be held responsible for the properties state of readiness (or lack thereof) in the images shot. If, after the completed shoot, The Client determines a reshoot is required because of the properties lack of readiness, that second shoot will be billed at our full rate and no refund will be considered for the first shoot.

The Client is expected to have the property staging and cleaning completed prior to the photo shoot. If The Photographer is kept waiting or asked to return to bring the property to a state of readiness, additional charges as outlined on our site will apply.

Twilight Photography

We LOVE shooting twilight images of properties. Nothing is more fun, or, in my opinion, more beautiful. But they are not the easiest images to shoot. And in summer, with sunsets at 9 PM or later, it can extend our working day to twelve hours or more. And we lose time we could have been editing other projects waiting for the sun to go down. So twilights have a tremendous impact on our schedule and our ability to do our jobs… and that is why we charge a premium to shoot them.

More than anything, this section is here to set (and limit) expectations for our twilight shoots. More than any other type of photography we do, we are at the whims of nature when we shoot twilights. We do not have complete control over what the sky, the sun and the clouds will do. We do our best, and we have a lot of tricks we can pull… but we cannot control the weather. Every sunset is a one-of-a-kind occurrence, and we use our experience and expertise to do the best we can do for each one. Because of all the variables involved, we may not get you the exact images you may want, no matter what we do.

Therefore, we want to make it clear that twilight shoots are non-refundable from 24 hours before the shoot. You may cancel your shoot (for a full refund of any deposit) up to 24 hours before a twilight shoot. Once we are in that final 24-hour period, that shoot is now set in stone and non-refundable. If the weather acts up, you get what you get; we will not be held responsible for acts of nature. Further, if you want a twilight reshot, it will be at full price; we will not discount a second twilight under most circumstances. We hope you understand and appreciate the unique situation of this type of photography.

After the Shoot – Deliverables

Once the images have been made, The Photographer will perform digital retouching and deliver the still photos as follows, unless otherwise specified.

• Day 1 – Shoot Day
• Day 3 – Proofs of Photos delivered by 8pm, subject to client notes or changes
• Day 5 – Photos delivered by 8pm
• Day 7 – Proofs of Video or Tour, subject to client notes or changes by 8pm
• Day 10 – Video or Tour by 8pm

Delivery is via a DropBox, Google download or similar image download service link sent to the email address(es) you supply. All images will be delivered in this format: JPG images MLS size 2000×1600; additional sizes & crops available on request. WE DO NOT DELIVER RAW OR UNEDITED FILES. If Proofs are sent, they are for Client approval process only, and may not be used on any live site or for any use other than for client to approve or make notes for final edits. Any other use of Proof Images will be considered a MATERIAL BREACH of this contract.

Images will be available for download for a maximum of 30 days; requests for downloads after 30 days will incur additional costs, or may not be available at all. PLEASE SAVE YOUR IMAGES AFTER DELIVERY. This delivery and notice via e-mail shall be deemed completion of this contract in full by The Photographer. A USB thumb drive can be provided for an additional fee.

HDR Photography Policy

Our HDR Photography option is a special case, no-frills, budget option for quick and inexpensive MLS images. By it’s very nature, it has very few options and a streamlines production funnel so it can remain a low-cost option. For our HDR option, all images of the property shall be made as-is when the photographer arrives, with no photographer staging or lighting (other than the naturally-available light). Images are machine AI edited, not edited by hand; any additional editing is custom, and will be made at additional cost. Photographer is limited to one-hour on-site total time; PROPERTY MUST BE 100% PHOTO READY AT SCHEDULED APPOINTMENT TIME. If photographer is kept over time due to poor property preparation or presentation, you will be billed $50 (fifty) dollars for 15 minute increment (or portion thereof) of overage.

Cancellation & No-Show Policy

If cancellation or re-scheduling is necessary, please do so with a minimum of 24 hours notice to avoid cancellation fees. We will do our absolute best to work with you to reschedule, but we do expect the courtesy of as timely a notification as possible. Any shoot postponed or canceled within 24 hours of a booked appointment is subject to a $50 Cancellation Fee. If The Photographer is kept waiting longer than 1/2 hour (30 minutes) after the scheduled shoot time at a site for access to the property, The Photographer may add a 25% fee; if The Photographer must wait an hour, 50%; at one hour we consider the deposit forfeit and we will cancel the appointment. The Photographer reserves the exclusive right to kill the shoot after one hour or more of waiting, at our sole digression. Late or cancel/kill fees must be paid in full before new date will be scheduled or photos will be released.

Inclement Weather Policy

If the weather is inclement, The Photographer will continue with all indoor shooting as scheduled, and reschedule exteriors for the next available clear day. There is no penalty for weather delays (for either party). Either party may invoke the Inclement Weather policy- even at the shoot and with no notice- with no penalty.

MLS Waivers

The Photographer acknowledges that images uploaded to the MLS may be redistributed to third-party real estate platforms such as Zillow and Redfin, which is beyond The Client’s or the MLS’s control. The Photographer permits such redistribution of the original MLS postings, provided all other terms of this contract remain in force and the license is active, specifically: the listing remains active, or it has not been one year since the delivery date of the images. The Client (and the MLS) will be indemnified and held harmless by The Photographer against any unauthorized use of the images by third parties beyond The Client’s and the MLS’s control.

In the course of promoting the home for sale, The Client is specifically allowed to post to FSBO sites, and other sites that promote the home for sale, so long as the contract and its terms remain in effect. Images may also be used by client to promote the sale of the home on social media (Facebook, Twitter, InstaGram, etc.) without restriction. Images may be posted to a Realtors site to promote the sale of the house, but may not be used to promote the Realtor, staging company, or for any other promotional purpose without additional license. In any case, such reposts may NOT alter the images in any way other than resizing/cropping to the format supported by that site.

Substitution

The Photographer may substitute another photographer to take the photographs in the event of The Photographer’s illness or of scheduling conflicts. In the event of such substitution, The Photographer warrants that The Photographer taking the photographs shall be a competent professional and capable of performing all the tasks set out in this agreement.

Copyright

The Photographer retains the full and unrestricted copyright in the Photographs and Works at all times, throughout the World and the known universe. All rights are reserved by The Photographer. The Photographer grants limited and time period specific license to use the images as directed in your license terms, but in no case is copyright of images transfered to The Client.

All materials created by The Photographer for The Client, as well as all material contained on this web site are protected by United States copyright law and may not be reproduced, distributed, transmitted, displayed, published or broadcast without the prior written permission of R/E Media UTAH.

Alteration of Images

Unless prior agreement is reached and an additional license paid for in advance, The Client will have no rights to alter images except in regard to size and crop of full size image as furnished by The Photographer. The Client has no right to alter, change, edit, add to (or subtract from) or create derivative works from the original (whether minor or transformative in nature).

Ownership of Materials

Title to all Photographs remains the property of The Photographer. When the License to Use has expired the Photographs must be returned to The Photographer in good condition within 30 days and any archived digital files destroyed.

Payment of the invoice covers the photographer’s time, expenses, and the license of images ONLY. Title and Copyright to any materials used in producing the Works are not transferred to The Client unless a specific and additional license to that effect is purchased. CLIENT HAS NO RIGHTS UNDER THIS LICENSE TO EXTEND OR TRANSFER THEIR LICENSE TO ANY THIRD PARTY. Under no circumstances is The Client authorized to engage in any negotiations or agreement pertaining to the utilization or licensing of The Photographer‘s images or to act as an authorized agent of The Photographer.

The Client is expressly prohibited from representing, negotiating, speaking for, or entering into any contracts on behalf of The Photographer or The Works. The Client is hereby notified that, as per this agreement, The Client is obligated to redirect any and all requests for image use or licensing for any purpose to The Photographer.

Exclusivity

The licensing granted to The Client is non-exclusive and non-transferable unless explicitly outlined in an additional Licensing of Rights agreement signed by The Photographer. No exclusivity is granted or implied to The Agency and/or The Client unless specifically stated in writing in the License to Use and the Invoice. The Photographer reserves the right to use or sell the Photographs at their discretion. Exclusivity will not be unreasonably denied but must be agreed upon in writing with The Photographer prior to the commencement of work and will incur additional fees.

Any third-party use of the images, including but not limited to architects, builders, stagers, designers, sellers, or buyers, or new or successive Realtors is strictly prohibited, whether with The Client’s permission or not. The Client must not share any images and is required to direct any third-party image usage requests to The Photographer.

Guest Photography

It is understood that The Photographer will act as the sole and exclusive photographer for this shoot. The Photographer reserves the right to bring one or more assistants at their discretion. Since flashes from other cameras may disrupt or even ruin shots taken by The Photographer, The Client acknowledge(s) that they are responsible for notifying all of their guests that guest photography is not permitted at any time while the professional photographer is in session. The formal photography time is for the exclusive use of The Photographer to capture specific images at the specified location. Due to time constraints and the need for subjects to pay full attention to the professional photographer, guest photography is requested to be done at a separate time.

Client Confidentiality

The Photographer will keep confidential and will not disclose to any third parties or make use of information communicated to him/her in confidence for the purposes of the photography, save as may be reasonably necessary to enable The Photographer to carry out his/her obligations in relation to the commission.

Payment

Invoice is due in full and payable on receipt. We invoice upon delivery of images. Images will not be released to The Client for use until the invoice is paid in full.

Charges billed to The Client cover The Photographer’s time, experience, expertise, and work in preparing for, shooting, and editing the assignment, as well as the licensing of those images. The Client is NOT purchasing the actual images but paying for the licensing of those images and the work, travel time, and costs to create them. The invoice is due in full and payable on receipt, and we invoice upon delivery of images. If we have delivered proofs, and final images are not chosen by The Client within 10 days after the delivery of proofs, and other arrangements are not made, the images are deemed accepted by The Client, and we reserve the right to bill for the delivery of final images. The invoice in full is due even if images are not used for the full duration of the license term or not used at all. No discount or favor will be granted to The Client if they decide not to use the images.

Unless other prior arrangements are made, R\E Photography UTAH considers invoices overdue at 30 days, and grossly overdue at 60 days. Invoices overdue after 60 days will be charged an additional 1½ percent interest per month from day 61, compounded monthly or part thereof for each 30-day period overdue, backdated to the invoice date. Should an invoice be referred to collections, an additional 30% will be added to the total billing to cover collection costs. Additionally, reasonable collection costs, attorney fees, and court costs incurred by Receivables Management Services (RMS) may be added to the final amount due. Licensing of images may be suspended or revoked if accounts are grossly overdue or in arrears at R\E Photography UTAH‘s discretion. The Client will be charged a minimum of $100 per day per image if images are used outside the scope of the licensing.

Grant of License

The Photographer owns the Photographs (the Works). In accordance with this Agreement, The Photographer grants The Client a non-exclusive license, as described herein, to use the photos for an initial term of one year, which can be extended, or until the sale of the property closes. The Photographer retains title and ownership of the Authored Work and derivative works.

Rights and Usage

Upon and after payment in full, all images delivered are released to The Client and may be used for any and all marketing materials and campaigns associated with the sale and presentation of the property and for The Client’s self-promotion for the duration of the listing or for one year from the delivery date, whichever is shorter. Any usage beyond that specific time period or by any party other than The Client specifically named on the Invoice requires a separate Licensing of Rights agreement with The Photographer and a corresponding payment for such rights. No other usage is allowed or implied without a separate Licensing of Rights agreement with The Photographer and a corresponding payment for such rights.

No use may be made of the Photographs before payment in full of the relevant invoice(s) without The Photographer‘s express permission in writing. Any permission that may be given for prior use will automatically be revoked if full payment is not made by the due date or if the Agency is put into receivership or liquidation. Where restricted in the Agreement, permission to use the Photographs for other purposes will normally be granted upon payment of a further fee to be mutually agreed.

Note: A written agreement must be reached with The Photographer before the Photographs may be used for other purposes. Where uses of an image are made which breach the license to use, further charges will be made. Any reproduction rights granted are by way of license only, and no partial or other assignment of copyright shall be implied. In the event of The Client‘s death or bankruptcy, or if The Client is a Company, in the event of a Resolution, Petition, or Order for winding-up being made against it, or if a Receiver or an administration is appointed, any license granted shall immediately cease.

Revocation of License

The Photographer reserves the right to revoke the Grant of License of Photographs for cause. If The Client breaks the terms of this contract, including (but not limited to) using images prior to paying their invoice in full, defaulting on any payment, using Proofs on a live site, or sub-licensing images without a license, The Photographer reserves the right to immediately and completely revoke any and all usage licenses that The Client may be operating under or presumed to be operating under.

In the event that The Photographer is forced to revoke the Grant of License of Photographs for cause or due to a breach of the terms of this contract, The Photographer will not be liable for any costs incurred by The Client for the removal and replacement of Photographs held or in use by The Client and subject to license revocation. The Photographer will not be liable for any loss of business as a result of the revocation or for any other direct or indirect costs resulting from the revocation of the license.

Use of Images Outside of of License

Any use of images by The Client, their agents, or assignees outside of the scope of the Grant of License or Licensing of Rights, or without any license at all, will be considered a copyright infringement and treated as such. All images created by The Photographer are immediately copyrighted by The Photographer.

Actual awarded statutory damages for photography registered with the US Copyright Office can range from $750 to $30,000, with a maximum award of up to $150,000 in especially egregious cases. If someone removes or falsifies copyright management information (CMI) embedded in the image, additional statutory damages of $2,500 to $25,000 may be sought under the Digital Millennium Copyright Act (DMCA). These numbers are applicable per image use.

Failure to Perform

If The Photographer cannot perform this agreement in whole or in part due to a cause beyond the control of the parties, changing of details that no longer fit with The Photographer‘s originally agreed terms, or due to The Photographer‘s illness or injury, then The Photographer will return all fees to the client(s) but shall have no further liability with respect to this Agreement. This is the parties’ entire agreement on this matter, superseding all previous negotiations or agreements.

In case of failure to faithfully perform the terms and covenants herein set forth, The Client shall pay all costs, interest, expenses, and reasonable attorney’s fees resulting from the enforcement of this agreement or any right arising out of such breach.

Refunds

If you are not satisfied with your photos, your first remedy is to inform The Photographer of the specific reasons for your displeasure and allow The Photographer to make the images conform to your wishes. This may include a re-edit or reshoot, at The Photographer‘s discretion. If the property is reshot, you agree to make the property available in a timely manner.

If The Photographer still cannot produce images to your satisfaction, your sole remedy is to be refunded up to half of the total price paid for the package. In the event of a refund, all rights revert to The Photographer, and the Client may not use any images for any purpose. Any deposit is non-refundable. In the event of an emergency, equipment failure, or other unforeseen circumstance, The Photographer will return any money given up to that point but claims no further liability.

WAIVER AND INDEMNIFICATION

Client and its agents, family members, and assignees, if any, shall indemnify and hold harmless The Photographer, R\E Media UTAH, and DAVE KOCH from any and all claims for damages arising out of the performance of any of the services contemplated by this Agreement, with the exception of intentional or illegal acts.

Upon hiring The Photographer, the parties agree that they fully understand and will be bound only by the terms above. Any other terms must be agreed to in writing. Otherwise, the above terms will be considered the consolidated, exclusive terms between the parties.