Terms and Conditions
Scope of the Agreement: This Agreement applies to any photograph, graphics, digital assets, or digital images created or taken by Photographer (Daniel Cothran, D.B.A. ThruTheViewer) and delivered to the Client (known as “PHOTOS”) for the specific property location (“PROPERTY”). This Agreement governs the relationship between the parties and in no event shall any e-mail communication or other exchange, amend or otherwise modify the terms of this Agreement unless agreed to in writing.
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 and he may use them for his own marketing and advertising. This license 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. Photos used for any purpose not directly related to the sale of the Property must be with the express permission of Photographer and the payment of additional fees, unless otherwise agreed to in writing. 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 terms and conditions of the MLS, 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 1) a copyright notice © and/or 2) other copyright and ownership information embedded in the metadata or elsewhere, unless otherwise agreed to by the Parties.
Relationship of 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.
Delivery: Photographer may select delivery of photographs in JPEG, or other standard format, at a resolution that Photographer determines will be suitable for the Photos as licensed. For MLS the photographs will be sized to 1280 x 960. It is the Client’s responsibility to verify that the Photos are suitable for reproduction and that if the Photos are not deemed suitable, to notify the Photographer within three (3) business days. 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.
Creation: The manner and method of creating any Photographs 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. The Photographer will put forth his best efforts to represent the property in a way that will showcase its features the best.
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.
Cancellation: If Client cancellation of this Agreement occurs 24 hours prior to the Property shoot, Client will pay any expenses incurred and a $50 cancellation fee. For Client cancellation on the same day of the Property shoot, or the Property is not ready to be photographed, Client is responsible for 100% of the fee and any expenses incurred.
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 are ensure they are full effect and in force.
General Law/Arbitration: This Agreement sets forth the entire understanding and agreement of the parties, and supersedes any and all prior agreements between the parties. This Agreement shall be governed and interpreted and enforced in accordance with the laws of the State Alabama. Any claim or litigation arising out of this Agreement or its performance may be maintained only in courts physically located in Huntsville, Alabama, and the parties hereby consent to the personal jurisdiction of such courts. In the event of any litigation arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its attorneys’ fees incurred in the litigation. If 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.