Incorporation by Reference. These “Terms and Conditions” include and incorporate by reference the Package Detail & Pricing Sheet (“Package Sheet”), as well as the attached House Rules Addendum (the “House Rules”). Collectively, the Package Sheet, Terms and Conditions, and the House Rules shall be referred to as the “Agreement”. To the extent there are any conflicts between the Package Sheet, the House Rules and these Terms and Conditions, these Terms and Conditions shall prevail unless otherwise expressly specified. Capitalized terms not defined in these Terms and Conditions are defined in the Package Sheet.
Engagement. Client hereby engages Company to provide the services as set forth on the Package Sheet (the “Services”). Company hereby accepts this engagement and agrees to provide the Services to Client. During the Term (defined herein), Company shall devote the necessary time, energy, and abilities to perform the Services in a timely and productive manner and shall cooperate with Client in any reasonable manner in connection with the Services and in accordance with and subject to the terms and conditions of the Agreement.
Term; Termination. The term shall commence as specified on the Package Sheet and shall continue until the completion of the Services unless otherwise specified on the Package Sheet (the “Term”).
a) Termination. Either party may immediately terminate the Agreement prior to the end of the Term upon the occurrence of any one of the following: (i) a breach of the Agreement that remains uncured for five (5) days after receiving written notice thereof from the other party; (ii) any grossly negligent, intentional, or willful misconduct by the other party; or (iii) the dissolution, bankruptcy, or similar liquidation or reorganization of the other party.
b) Mutual Termination. The parties may terminate the Agreement prior to the end of the Term by mutual written consent of the parties, which such consent may be withheld by either party at it is sole and absolute discretion.
c) Effect of Early Termination. Upon the early termination of the Agreement as set forth in this Section 3, any earned but unpaid Fees (defined herein) due to Company shall be paid as specified on the Package Sheet.
Fees & Payment. In consideration for the Services provided by Company, Client shall pay the Fees and make payment to Company as follows:
a) Fees. During the Term, Client shall pay Company the fees as set forth on the Package Sheet, attached hereto (the “Fees”).
b) Payment Terms. Company shall invoice Client for the Fees as specified in the Package Sheet. Failure to pay Fees by the applicable due date shall be considered a default of the Agreement. Client shall remit all Fees to Company by check, wire transfer, cash, credit card (subject to 3% credit card fee), automated clearing house (ACH) transfer, or similar electronic transaction to a bank account designated by Company. Client shall be responsible for any insufficient funds (NSF), bounced check, or other similar charges incurred by Company in depositing Fees, and in the event of any such charges, Client shall also be charged a $25.00 penalty per occurrence, which amount shall automatically be deemed to be part of the Fees.
(i) Any late payments by Client of Fees or other amounts due and owing to Company pursuant to the Agreement shall be subject to a late charge in the amount of one and one-half percent (1.5%) per month or the maximum amount allowable by law, whichever is less. Such interest shall accrue from the day after the date on which payment is due up to and including the date on which payment is received by Company.
(ii) Client hereby authorizes Company to file any actions for collection, liens, or other similar legal action designed to recover payment of any Fees or other amounts due and owing from Client to Company which remain outstanding for sixty (60) days or more past the applicable due date. Client shall be responsible for all reasonable legal costs and expenses associated with Company’s actions pursuant to this paragraph.
Expense Reimbursement. Except for any applicable “Studio Fees” (as specified on the Package Sheet), during the Term, Company shall be responsible for all expenses related to its performance of the Services. Company and Client may mutually agree in advance on expenses to be incurred by Company for, and on behalf of, Client, if any. Except for such mutually approved expenses incurred by Company, no other costs or expenses of Company shall be charged by Company to Client, and Client shall have no obligation to reimburse Company for any such other costs and expenses.
Company as Independent Contractor. Company and Client agree that Company shall perform the Services as an independent contractor, at all times retaining control over and responsibility for its own operations and personnel. None of Company or its directors, officers, employees, or agents shall be considered employees, officers, directors, members, or shareholders of Client as a result of the Agreement nor shall any of them have authority to contract in the name of or bind the Client, except as expressly agreed to in writing by the parties.
Insurance. During the Term, Company shall possess and maintain adequate liability insurance and workers’ compensation insurance in accordance with industry standards and applicable state and federal law.
Warranty, Indemnity, and Limitation of Liability. Company warrants that it will perform the Services in a professional and workmanlike manner. Company hereby disclaims all other warranties, express or implied. Client hereby agrees to indemnify, defend and hold harmless at Client’s sole expense: the Company, its employees, agents, representatives, directors and shareholders, from and against any and all claims arising out of or based upon Client's use of the Services, equipment, or materials provided hereunder, provided however, that nothing herein shall be construed to require Client to indemnify Company from any intentional, grossly negligent, fraudulent, or willful misconduct by Company. NOTWITHSTANDING THE ABOVE, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING HEREUNDER.
Restrictive Covenants. a) Nondisclosure of Confidential Information. Except as required by law, from and after the Order Date, Client agrees that it shall not, and shall direct its respective affiliates and/or representatives not to disclose or use any Confidential Information (as defined below), with respect to the Company or its affiliates, furnished to Client or its affiliates or representatives (directly or indirectly) at any time or in any manner. “Confidential Information” means any information whatsoever about the Company or its affiliates, provided that it does not include information which (i) is or becomes generally available to or known by the public other than as a result of a disclosure made by Client in breach of the Agreement; (ii) was available to Client on a nonconfidential basis prior to disclosure to such party by the Company; or (iii) is or was disclosed to Client on a nonconfidential basis from a source other than the Company provided that Client is aware, after due inquiry, that such source is or was then bound by a confidentiality agreement with the Company or otherwise prohibited from transmitting the information to such party by any contractual, legal, or fiduciary obligation or by any other obligation enforceable by law or in equity.
b) Copyright Protection. Client acknowledges and agrees that all original creations, photographs, or other works of authorship that are made or otherwise created by the Company, including those created for Client pursuant to a fully executed Package Sheet (collectively, the “Copyrights”) are owned solely and exclusively by Company, and are protected by applicable state and federal copyright law and international copyright treaties. Client may not, at any time during or after the Term, engage in any conduct directly or indirectly that would infringe upon or harm the Company’s rights in any of its Copyrights, including in any media, including but not limited to print, electronic, or social media. Client shall not at any time do or cause to be done any act or thing which may in any way impair or contest any part of Company’s right, title, or interest in and to the Copyrights or assist any third party in doing so. Client shall not in any manner represent that it has any ownership or other rights in or to the Copyrights except for as otherwise permitted in the Agreement.
c) Publicity and Copyrights Usage. Subject to the terms of the Agreement, Company grants to Client a worldwide, non-exclusive, non-transferable, non-sublicensable, royalty-free license to use the Copyrights as expressly set forth in this subsection 9(c).
(i) Subject to Company’s prior written approval, Client may publicize the Copyrights using the name of the Company and/or Company logo in any such publication or promotional materials, including print and electronic media. All such Copyrights posted on social media must tag the Company (currently, @amaes_photography, but subject to change from time to time as may be reasonably communicated by the Company to Client), and state that Company is the creator and owner of the Copyrights. For media platforms other than social media, Client must reference the Company website (currently, www.amaesphotography.com, but subject to change from time to time as may be reasonably communicated by the Company to Client) where the Company and/or the Copyrights are referenced, cited, or a photograph is posted.
(ii) Client must obtain Company’s express written consent to engage in any commercial usage of the Copyrights, which Company may grant or deny in its sole discretion. Any usage of the Copyrights other than for Client’s own personal use shall be considered commercial usage for purposes of this Agreement. In addition to the Fees and all other amounts payable under the Agreement, Company reserves the right to require fair market value usage payments for the privilege of any such commercial usage by Client and/or any other parties to whom Client has transmitted copies of the Copyrights to.
(iii) By signing this Agreement, Client expressly acknowledges and agrees to the provisions of this Section 9.
Mutual Representations and Warranties. Each party represents, warrants, and covenants to the other party, as follows: (a) it has the full right, power, and authority to enter into the Agreement and be bound by the terms therein without the consent of any other person or entity; (b) the execution and delivery of the Agreement and the performance by each party of its obligations therein do not and will not constitute a breach of or a default under any other agreement or obligation; (c) upon execution and delivery of the Agreement, it will constitute the valid and binding obligation between the parties; and (d) all information supplied will be true, complete, and correct and it will not fail to state a material fact necessary to make any of such information not misleading.
Notices. Each party shall provide any notices required or permitted hereunder to the other party in writing and: (a) delivered by personal service; (b) transmitted via electronic mail; or (c) mailed through a registered or certified mail service to the parties’ respective addresses herein. Notices required herein are deemed given upon the earlier of the date of such notice’s confirmed receipt, or three (3) business days following the date of mailing or electronic mailing as provided herein.
Assignment. Except in connection with a merger, acquisition, or sale of all or substantially all of a party’s assets or voting securities, neither party may assign the Agreement without the advance written consent of the other party and consent shall not be unreasonably withheld.
No Third-Party Beneficiaries. No term or provision of the Agreement is intended to be, or shall be, for the benefit of any person, firm, organization or corporation not a party hereto, and no such other person, firm, organization or corporation shall have any right or cause of action hereunder.
Alternative Dispute Resolution. Any controversy or dispute arising out of or relating to the Agreement or the breach of any provision hereof shall first be attempted to be resolved informally through good faith negotiations between a representative of each of Company and Client within fourteen (14) days’ notice of the dispute thereof. If the parties cannot resolve such dispute informally, then the parties shall attempt to resolve the dispute by mediation within forty-five (45) days of the date the representatives from each of the parties informally met, with one (1) neutral mediator mutually agreed upon by the parties, and each party bearing its own attorneys’ fees and costs associated with such mediation. If the parties cannot resolve such dispute by mediation, then the parties shall submit the dispute to binding arbitration under the rules of the American Arbitration Association, with one (1) arbitrator selected in accordance with such rules, or by the mutual selection of the parties, with venue in Phoenix, Arizona. The prevailing party to the arbitration may enter any final arbitration judgment in any court having jurisdiction thereof.
Attorneys’ Fees. If any party to the Agreement institutes any legal cause of action—including mediation or arbitration—against another party arising out of or relating to the Agreement, the prevailing party will be entitled to the costs incurred in conducting the cause of action, including reasonable attorneys’ fees and expenses and court costs.
Force Majeure. If performance by either of the parties of any portion of the Agreement is made impossible by any prevention, delay, or stoppage caused by governmental approvals, war, acts of terrorism, strikes, lockouts, labor disputes, acts of God, inability to obtain services, labor, or materials or reasonable substitutes for those items, governmental actions, civil commotions, pandemic, epidemic, fire or other casualty, or other causes beyond the reasonable control of the parties, performance by the parties for a period equal to the period of that prevention, delay, or stoppage is excused.
Survival of Rights and Obligations. The rights and obligations of the parties pursuant to Sections 8, 9, 14, and 15, shall survive the termination of the Agreement.
Counterparts. The Agreement may be executed and delivered by each party hereto in separate counterparts (including by facsimile or electronic transmission), each of which when so executed and delivered shall be deemed an original and all of which taken together shall constitute but one and the same agreement.
Entire Agreement; Modification; Governing Law. The terms and conditions hereof constitute the entire agreement between the parties hereto with respect to the subject matter of the Agreement and supersede all previous communications, either oral or written, representations or warranties of any kind whatsoever, except as expressly set forth herein. No modifications of the Agreement nor waiver of the terms or conditions thereof shall be binding upon any party unless approved in writing by an authorized representative of such party. All issues concerning the Agreement shall be governed by and construed in accordance with the laws of the State of Arizona, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Arizona or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the State of Arizona.
Severability. The invalidity or unenforceability of any provision of the Agreement does not affect the validity or enforceability of any other provision of the Agreement. If a court of competent jurisdiction determines that any provision is invalid, the remaining provisions of are to be construed as if the invalid provision had never been included in the Agreement.