Description of Services.
Client wishes to retain Photographer and Client agrees to perform certain photography services including shooting, editing and delivering of photographs or other deliverables as agreed to between the parties (the “Services”) for Client, via one or more photography sessions, each a (“Session”).
1. Payment.
In order to secure Client’s Session date and time, a non-refundable upfront retainer fee (the “Retainer”) in an amount not less than $300.00, along with the submission of this form and agreement to the Agreement terms contained herein, are required. A Retainer necessary to secure the services of Photographer for the agreed upon Session time and is applied towards the total balance of the Session. Certain location upgrades, Session Add-Ons or Rush Editing require an additional Retainer as listed, at the time of booking. Photographer will email Client an invoice for the balance of the Session fees in advance of the Session.
The Session invoice must be paid by Client before or on the day of Session. If final payment is not received, the Photographer will not complete Services for the Session or will delay the post-process editing until the final payment is made. Should Client delay payment by more than ten (10) days, Photographer reserves the right to delete any files related to Client’s Session.
Any payments that are not made on or before the applicable due date will, at Photographer’s sole discretion, bear interest at the rate of 1.5% per month. In addition to the fees listed above, Client shall be solely responsible for all expenses in connection with the Services at the time such expenses are incurred, including, but not limited to, any unanticipated location fees, permits, transportation fees and admission fees. Client may pay via Cash, Check, or Credit Card via Square.
2. Reschedules and Cancellation Policy.
Client understands that pursuant to this Agreement, Photographer may forgo opportunities to book other Sessions on the date of Client’s Session. In exchange for this consideration, Client agrees that in the event Client cancels the Session without providing at least 30 days’ notice, Client shall, in Photographer’s discretion, forfeit its entire Retainer. Should Client cancel the Session with more than 30 days’ notice, Client shall forfeit $100.00 of the Retainer.
Weather. Notwithstanding the foregoing, Sessions are scheduled and completed based on permitting weather. In the event of inclement weather which in Photographer’s opinion would pose a risk to health and safety of Photographer or Client, the equipment or has the potential to prevent successful photo, capture, Photographer reserves the right to change the date or time of the Session to a more suitable date or time.
When unfavorable weather is expected the backup date or plan selected in these terms will be used and confirmed between Client and Photographer. In the event of inclement weather or “Act of God” (an accident or other natural event caused without human intervention that could not have been prevented by reasonable foresight or care) that poses threat to the location, general well-being, or equipment used on both dates, the Session will be rescheduled for a different time or a later date with no forfeiture of Client’s Retainer. For Clients residing outside of South Carolina, every attempt to reschedule the Session will be made within the time frame of Client’s visit to the Charleston area. If the Session is not completed due to Act of God or inclement weather, at the Photographer’s discretion, a portion of the Retainer (minus $100.00) may be refunded or applied towards a future Session.
Illness. Client will immediately inform Photographer should illness or injury prevent Client from attending the Session. Should Client or Client’s family/friends attend a Session while ill, it is in Photographer’s sole discretion as to whether to continue the Session.
Arrangements must be initiated by Client to reschedule any Sessions impacted by illness within 2 weeks from the original Session date. If 2 weeks pass without communication from Client, the entire Retainer shall be forfeited and Client must begin the booking process again.
Photographer shall not be liable for any delays or failure to deliver the agreed upon photos if caused by any element which is Client’s responsibility or outside of Photographer’s reasonable control.
3. Re-shoots.
Client shall assist and cooperate with Photographer in obtaining desired photographs. Photographer shall not be responsible for photographs not taken as a result of Client or participating parties' lack of cooperation during the Session. This includes all adults, children, and/or pets that are participating in the Session. Client will be respectful to Photographer and all parties being photographed. Photographer has the right to end the Session, without refund, if there is lack of cooperation or respect. All completed Services are non-refundable and a re-shoot shall only be offered at the Photographer's discretion if desired photographs were not obtained for circumstances beyond both parties' control. If a re-shoot has been granted, the Photographer may determine the cost of a reshoot based on the location and type of Session.
4. Creative License and Limitations.
As may be applicable, Photographer is limited by the rules and local laws of the Session location. Client agrees to accept the technical results of such imposition on the Photographer. Should Client provide a list of photograph requests, including, but not limited to, specific locations, subjects, and detail shots, Photographer will make every reasonable effort to take requested pictures, but no specific pose or photograph can be guaranteed, and no refunds will be given for missed shots. Client understands and agrees that Photographer is being hired to provide an artistic service and that art is inherently subjective. Photographer reserves the creative license and right to edit and release only those photographs or that footage deemed as professional in quality and within Photographer’s artistic standards. Photographer will not issue any refunds once the Session is held. In the unlikely event that photographs are lost, stolen, or destroyed, Photographer’s liability is limited to the return of payments received by Client for the Session at issue. Where a partial loss is incurred, refund payments shall be prorated based on the number of photos lost, stolen or destroyed.
5. Copyright.
Photographer shall retain ownership of the copyright to any photographs or deliverables produced by Photographer, and any derivative works therefrom, pursuant to Federal Copyright Law, which states that copyright ownership of such creative works rests with the creator unless otherwise agreed. Photographer hereby grants to Client a non-exclusive, perpetual, fully paid-up and royalty-free right and license to use the photographs and other deliverables, in all formats and media, throughout the universe, for Client’s personal use. Client may not convey or sell this license or otherwise transfer the images or rights to any third party without the express prior written permission of Photographer. Other than in cases where a commercial use license is granted, Client’s license grant does not include use that results in a financial gain, including but not limited to: advertising, stock photography, print sale profits, personal branding, blogging, or resale of any nature. Upon delivery of the online gallery Clients are able to download un-watermarked High Resolution images from their gallery as well as low resolution watermarked images. Clients will also be given a print release to make personal printed copies of images from their digital files. Client understands the digital images given cannot be used for contests, personal profit, or self-advertising without Photographer’s express written permission. Photographer requests that photographs shared on the internet contain the Photographer’s watermark or be acknowledged as photographs by the Photographer.
6. Release.
Client agrees that Photographer may use any photograph, image or deliverable for Photographer’s portfolio, website, blog, samples, advertisements, marketing, self-promotion, entry in contests or art exhibitions, editorial use, and any other means of promotion of Photographer’s business, and Photographer has the right to alter such photograph, image or deliverable. Client hereby waives any right to payment, royalties or any other consideration for the use of the photographs, images or deliverables. Client waives the right to inspect or approve the finished product, including written or electronic copy, wherein Client or Client’s employees, contractors, or representatives, likeness appear. Photographer is hereby held harmless and released and forever discharged from all claims, demands, and causes of action which Client, its heirs, representatives, executors, employees, administrators, or any other persons acting on Client’s behalf or on behalf of Client’s estate have or may have by reason of this authorization. Where necessary, Client shall assist Photographer in obtaining releases from Client’s family or friends who may appear in photographs.
7. Online Galleries and Proofing.
The online gallery provided by the Photographer to Client is of handpicked and artistically edited images only and will be emailed to the address Client has noted in the Agreement. Turnaround time for completed galleries is between 2 - 3 weeks depending on the package selected. This duration and delivery deadline shall be considered by Client to be an estimation. Photographer will use all reasonable efforts to meet such timelines, provided there is prompt payment and communication from Client. After release of any digital files to Client, Client is fully responsible for the safekeeping of all proofs, files, prints and albums. Photographer does not warrant the longevity of any files delivered to Client. Client bears the sole responsibility for backing up, archiving, and maintaining the integrity of any files following delivery of files to Client. Original and unedited photographs are not included in the delivery of photographs. Client does retain a print release to purchase prints from any lab of their choosing, but understands that in the event that Client purchases prints and products from an outside consumer lab the Photographer will not be held accountable for the image print or product quality.
Clients who have selected The Highlights Package will receive a Proofing Gallery in which they are able to hand select their own final images for their gallery. These selections must be made within 2 weeks of receipt of the Proofing Gallery. Additional images may be purchased at the rate of $25.00 per image. If more than 2 weeks pass without communication from Client, Photographer reserves the right to choose the images to be delivered in Client's final gallery. Re-opening the Proofing Gallery past the 2-week deadline to add additional images will enlist a $100.00 fee. Professional quality prints and products are available to Client via the online gallery that is emailed to Client.
8. Session Etiquette.
Clients are expected to arrive on time for Sessions, since oftentimes Sessions take place during the best available light and/or there are others scheduled shortly after. If outfit changes need to be made prior to the scheduled Session time then Client agrees to arrive early in order to be ready when the Session begins.
If Client or other parties being photographed will be arriving more than 10 minutes past the scheduled Session start time the Photographer must be notified and it is at the discretion of the Photographer to continue the Session, deduct time from the Session, or to reschedule the Session. In the event of a Session being delayed or canceled due to Client’s failure to adhere to the agreed dates, times, access, facilities, or any other matter specified agreed to between the parties, Photographer reserves the right to reschedule the affected Session and to charge for any additional costs which arise. No refund or credit will be given in respect of costs associated with the delayed or canceled original Session. For the avoidance of doubt, tardiness of more than 15 minutes for Sunrise or Sunset Session will result in a cancellation without any refund.
Client agrees to put away all cameras, cell phones, and video or game devices during the Session to prevent Session participants from distraction. Client may be sent a prep guide in advance of its Session. Client agrees to review and comply with the applicable prep guide.
9. Pets.
Pets are family and are included in your Session depending on location, local laws, and temperament of the pet. All pet owners assume full liability and agree to indemnify, defend and hold harmless Photographer for the animal's behavior, interactions and waste. Client must keep pets leashed, be respectful to the environment and be prepared to clean up the pet's waste. Client’s shall inform Photographer if planning to bring a pet to ensure that all local laws and pet regulations are researched before the Session. A pet handler is required for Sessions if Client plans to have portraits taken with and without the pet. Client shall bring along an additional person to act as handler, or, if requested in advance, one will be provided by the Photographer at the rate of $75.00 per hour.
10. Product Add-Ons.
All product add-ons shipped within the state of South Carolina are subject to Charleston City Taxes of 9% and will be charged on the final invoice. Keepsake and Heirloom Albums are custom designed after the final gallery delivery and shipped to the address listed on the final invoice within 4-6 weeks of gallery delivery.
11. Independent Contractor.
The parties specifically agree that the Photographer is performing the Services as an independent contractor and is not an employee of Client. Nothing in this Agreement shall be construed as creating an employer employee relationship. Photographer shall be responsible for all of her own federal and state taxes, withholding, social security insurance and other benefits.
12. Indemnification, Limitation of Liability.
Client agrees to indemnify, defend and hold harmless Photographer and its employees, agents and independent contractors for any injury, property damage, liability, claim or other cause of action, including claims alleging a breach of a third party’s intellectual property rights, arising out of or related to the Services or the acts or omissions of Client.
Client agrees that, to the fullest extent permitted by law, Photographer’s maximum total liability for any claims, breaches or damages by reason of any act or omission, including breach of contract or negligence, shall be limited to the amount of the fees paid by Client to Photographer. In the unlikely event that images or data on media have been lost, stolen, or destroyed for any reason, Client agrees that the limit of Photographer’s liability for a partial loss of original files shall be a prorated amount calculated based upon the percentage of original files lost in relation to the total number of original files. Client agrees that Photographer shall not be liable for any claims for emotional distress, mental anguish, punitive damages, consequential damages, lost profits, loss of enjoyment, lost revenues and/or replacement costs.
13. Miscellaneous.
This Agreement, and all matters arising out of or relating to this Agreement, shall be governed by the laws of the State of South Carolina, and any claim arising under this Agreement shall be brought exclusively in any court within Charleston County, South Carolina, including Small Claims Court. If any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect. Accordingly, the parties agree that if any provisions are deemed not enforceable, they shall be deemed modified to the extent necessary to make them enforceable. This Agreement in no way whatsoever confers third party beneficiary status to anyone. This Agreement and any attachments hereto constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof. The parties may sign and deliver this Agreement by electronic transmission or electronic signature and each agrees that the delivery of this Agreement by electronic signature or submission shall have the same force and effect as delivery of original signatures.