Terms of Service | Colby’s Photos & Videos

These are the Terms of Service for Colby’s Photos & Videos. They apply to any and all jobs that we take on. If there is anything here that you would like to negotiate, please do so before engaging in our services.

(newest reversion since 7.28.20)

  1. DEFINITIONS
    1. For the purpose of this Agreement, “the Agency” and “the Client” shall where the context so admits include their respective assignees, sub-licensees, and successor in title. In cases where Colby’s Photos & Videos’ Client is a direct Client (i.e., no Agency or intermediary), all references in this Agreement to both “the Agency and “the Client” shall be interpreted as references to Colby’s Photos & Videos’ Client.
    2. For the purpose of this Agreement, the “Colby’s Photos & Videos” means Colby McLemore, including his assignees, sub-licensees, and successor in the title.
    3. “Content” means all visual representations furnished to the Client by Colby’s Photos & Videos, whether captured, delivered, or stored in photographic, video, magnetic, optical, or any other media.
  2. COPYRIGHT
    1. Colby’s Photos & Videos retains all intellectual property rights, including copyrights, to the Content.
    2. Digital files may contain copyright, and other information embedded in the image file or elsewhere; removing and/or altering such information is strictly prohibited and constitutes a violation of the Federal Copyright Act.
  3. USE
    1. When Agency or Client pays the Colby’s Photos & Videos in full, then Colby’s Photos & Videos grants the Agency or Client a limited license to use the Content for purposes stated in the invoice. Unless different license terms are stated in the invoice, this license is revocable, worldwide, non-exclusive, non-transferable, and non-sublicensable. If the invoice allows Agency or Client to reproduce the Content, this right to reproduce does not grant the Agency or Client to any intellectual property rights, including copyrights, in the Content.
    2. Agency or Client shall not use the Content until Agency or Client has paid Colby’s Photos & Videos in full.
    3. Any permission that may be given for prior use will automatically be revoked if full payment is not made by the due date. In the event that Colby’s Photos & Videos give Agency or Client written permission to use the Content before Agency or Client has paid Colby’s Photos & Videos in full, Agency or Client acknowledges that their license to use the Content automatically ends if Agency or Client fails to pay Colby’s Photos & Videos by 5:00 PM Eastern Time on the day that the payment is due.
    4. In the event that the Agency or Client desires to use the Content for purposes other than the allowed uses stated in the invoice, the Agency or Client must contact the Colby’s Photos & Videos to seek permission. This will involve new fees.
    5. The parties agree that, if Client uses the Content in an unauthorized way, Client automatically owes Colby’s Photos & Videos, as liquidated damages, three times the Colby’s Photos & Videos’ customary fee for such use or $3,000.00, whichever is greater.
  4. EXCLUSIVITY
    1. Unless the Colby’s Photos & Videos agrees otherwise in writing, this Agreement does not create an exclusive relationship between the Colby’s Photos & Videos and the Agency or Client.
    2. Colby’s Photos & Videos retains the rights in all cases to use the Content to include but not limited to Colby’s Photos & Videos’ self-promotion. The Colby’s Photos & Videos understands that for public relations, media and marketing uses, the Client may desire to release the Content first. In these cases, Agency or Client must notify Colby’s Photos & Videos at the time when the Agency of Client delivers the signed invoice to Colby’s Photos & Videos.
  5. INDEMNITY
    1. Client is solely responsible for ensuring that all necessary rights, model releases, clearances or consents which may be required for reproduction of people, places or items depicted within any Content and/or Content provided by Client to be edited or used by the Colby’s Photos & Videos be secured or obtained.
    2. Client acknowledges that Colby’s Photos & Videos gives no warranty or representation that any such rights, releases or consents are or will be obtained whether in relation to the use of names, people, trademarks, registered or copyright designs or Content of art depicted in the picture (“Permissions”). In the event that Colby’s Photos & Videos assists Client with obtaining Permissions, Client acknowledges that Client remains solely responsible for obtaining all necessary permissions.
    3. Client is solely responsible for ensuring that any location/venue restrictions will not negatively affect the Colby’s Photos & Videos duties or any location/venue fees are paid for by the Client before the assignment.
    4. Client agrees to indemnify, defend and hold harmless Colby’s Photos & Videos, his employees, heirs, and agents from all demands, claims, suits, actions, or liabilities resulting from claims, damages, losses, or costs that arise due to Client’s actions or omissions.
  6. ASSUMPTION OF RISK
    1. Client assumes full risk of loss or damage to or arising from materials furnished by Client to Colby’s Photos & Videos. Client also warrants that said materials are adequately insured against such loss, damage, or liability.
  7. RESCHEDULING
    1. Generally: Either party may reschedule Colby’s Photos & Videos’ services. Both parties agree to make every effort to reschedule any postponements such that Colby’s Photos & Videos will be able to perform within 30 days of either party rescheduling.
    2. More Than One Business Day: If Client postpones Colby’s Photos & Videos’ services by providing at least one business day notice in advance, the Client will pay for any expenses incurred by any postponement as well as a rescheduling fee. If Client postpones Colby’s Photos & Videos’ services, and the Client fails to agree on a reschedule date within the 30-day period, the parties will consider this as a cancellation by the Client, and Client shall pay for Colby’s Photos & Videos’ expenses incurred up to the date of cancellation, and Client forfeits any retained paid to Colby’s Photos & Videos.
    3. Same Day: Unless otherwise agreed in writing, Client will be charged a 100 percent fee if Client postpones the assignment on the day of the job.
  8. DELIVERY
    1. It is strongly suggested by the Colby’s Photos & Videos that the Client uses a professional advertiser and/or graphic designer when creating any marketing piece. If you need a suggestion of some that have worked well with the Colby’s Photos & Videos, ask for recommendations. It is the Client’s responsibility to communicate to Colby’s Photos & Videos, who is designing the advertising pieces so Colby’s Photos & Videos can have a better understanding of the style, look, and design of the most effective Content for the Client’s needs.
    2. Unless otherwise specified in the invoice, Colby’s Photos & Videos may deliver, and Client agrees to accept, Content encoded in an industry-standard data format that Colby’s Photos & Videos may select, at a resolution that Colby’s Photos & Videos determines will be suitable to the subject matter of Content and the reproduction technology and uses for which the Content is licensed.
    3. It is the Client’s responsibility to verify that the digital data (including color profile, if provided) are suitable, and Colby’s Photos & Videos’ sole obligation will be to replace or repair the data, but in no event will Colby’s Photos & Videos be liable for poor reproduction quality, delays, or consequential damages for these requested changes.
  9. REJECTION AND RESHOOTS
    1. Authorized Representative: Client is responsible for sending an authorized representative to the assignment so that the authorized representative can view and approve the unedited Content during the shoot. In the event that Client does not provide an authorized representative during the shoot, Client acknowledges that Client must accept Colby’s Photos & Videos’ judgment as to the acceptability of the Content.
    2. Rejection: Unless a rejection fee has been agreed to in writing in advance, there is no right to reject based on style or composition.
    3. Reshoots: In the event that Client desires a reshoot (i.e., a second shoot), Client will be charged a 100 percent fee and expenses for any reshoot required by Client. For any reshoot required because of any reason outside the control of Client, specifically including but not limited to acts of God, nature, war, terrorism, civil disturbance or the fault of a third party, Colby’s Photos & Videos will charge no additional fee, and Client will pay all expenses. If Colby’s Photos & Videos charges for special contingency insurance and is paid in full for the shoot, Client will not be charged for any expenses covered by insurance. A list of exclusions from such coverage will be provided on request.
  10. LIMITATION OF LIABILITY
    1. The parties intend to limit Colby’s Photos & Videos’ liability under this Agreement. Client acknowledges that this limitation of Colby’s Photos & Videos’ liability is reasonable and fair. Client further acknowledges that Colby’s Photos & Videos’ pricing is based on this clause and, thus, this clause is a material term of this Agreement. Accordingly, the parties agree that in no event will Colby’s Photos & Videos’ liability exceed the Client of the amount paid to Colby’s Photos & Videos under this Agreement.
  11. PAYMENT
    1. When a retainer is required, the Colby’s Photos & Videos will not reserve a date and time until the retainer and a signed agreement is received by the Colby’s Photos & Videos. The retainer is applied to the final invoice but is forfeit if the photography is canceled by Client.
    2. After the first day of the shoot, a partial invoice will be sent if the project stalls with no additional editing or scheduling for two weeks or more.
    3. Client shall strictly adhere to all payment deadlines as negotiated in this Agreement.
    4. A re-billing fee of 10% of the unpaid invoice will be applied to any late payment per 30 days.
    5. Returned checks will incur an additional $30 charge.
    6. All fees and expenses payable under this Agreement are required irrespective of whether Client makes actual use of the Content or the licenses to use them.
  12. PHOTO CREDIT
    1. If a photo credit is specified in this Agreement, all published usages of Content will be accompanied by written credit to Colby’s Photos & Videos or copyright notice. If no placement of a credit notice is specified in this Agreement, no credit or notice is required. If a credit is required but not provided, Client agrees that the amount of the invoiced fee will be subject to three-times multiple as reasonable compensation to Colby’s Photos & Videos for the lost value of the credit line. This amount is liquidated damages and not a penalty, and both parties agree that it would be difficult for Colby’s Photos & Videos to determine the amount of losses incurred as a result of Client’s failure to provide photo credit.
  13. STORAGE
    1. The Colby’s Photos & Videos strives to keep backups of all his data. Although this is true, unless otherwise expressly provided elsewhere in this Agreement, Colby’s Photos & Videos has no obligation to retain or archive any of the Content after they have been delivered to Client. Client bears the sole risk for data backup and storage. In the event that the Client requests backup files from Colby’s Photos & Videos, Colby’s Photos & Videos will charge Client a restoration fee.
    2. Content that the Client has not paid for, have not selected, and/or not been shown, will be deleted.
    3. Any materials furnished by Client to Colby’s Photos & Videos will be picked up within two weeks of delivery of the final invoice or if the project stalls with no additional editing or scheduling for two weeks. In the event Client fails to pick up and remove the materials they shall be considered and treated as abandoned and may at the option and discretion of Colby’s Photos & Videos be retained by and become the property of the Colby’s Photos & Videos, delivered to the Client at the cost and expense of the Client, or be disposed of in any manner and for whatever consideration Colby’s Photos & Videos shall deem advisable.
  14. DISPUTES
    1. Except as provided in 14.c. below, any dispute regarding this Agreement shall, at Colby’s Photos & Videos sole discretion, either:
      1. Be arbitrated in Knoxville, TN, under rules of the American Arbitration Association and the laws of Tennessee; provided, however, that irrespective of any specific provision in the rules of the American Arbitration Association, the parties are not required to use the services of arbitrators participating in the American Arbitration Association or to pay the arbitrators in accordance with the fee schedules specified in those rules. Judgment on the arbitration award may be entered in any court having jurisdiction.
        OR
      2. Be adjudicated in Knoxville, TN, under the laws of the United States and/or of Tennessee.
    2. In the event of a dispute, Client shall pay all court costs, Colby’s Photos & Videos’ reasonable legal fees, and expenses, and legal interest on any award or judgment in favor of Colby’s Photos & Videos.
    3. Federal Jurisdiction: Client hereby expressly consents to the jurisdiction of the Federal courts concerning claims by Colby’s Photos & Videos under the Copyright Act of 1976, as amended, including subsidiary and related claims.
  15. GENERAL
    1. Clients will be placed on the Colby’s Photos & Videos’ e-mail mailing list. If the Client wishes to be removed from the newsletter, they can be unsubscribed through links at the bottom of any newsletter or contact the Colby’s Photos & Videos.
    2. Waiver: The waiver by either party of a breach or violation of any provision of this Agreement shall not constitute a waiver of any subsequent or other breach or violation.
    3. Merger: This Agreement represents the entire Agreement between the parties.
    4. Modification: This Agreement may not be amended, changed, or supplemented in any way except by a written agreement signed by both parties. Where time is of the essence, Colby’s Photos & Videos entirely at its own discretion may accept an instruction given orally. In this event, the Colby’s Photos & Videos shall not accept liability for any error in executing the order.
    5. Severability: If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
    6. No Construction Against Drafter: The parties agree that each has had a chance to consult with legal counsel before signing this Agreement, and both parties agree that neither will be considered as the drafter of this Agreement. Accordingly, the parties agree that no principle of construing an agreement against the drafter will apply in the event of legal action between the parties.
    7. Third Parties: There are no third-party beneficiaries to this Agreement.
    8. Force Majeure: Except as provided in the Rejection and Reshoots section of this Agreement, neither party will be liable for failure or delay in the performance of any duties under this Agreement when such delay or failure is due to causes beyond the party’s control that could not have been avoided by the exercise of due care, including, but not limited to, acts of God; natural disasters; riots; war; epidemics; terrorist activities; government restrictions; failure of suppliers, subcontractors, or carriers; or the like. The impacted party shall give the other party notice of the failure or delay as soon as possible.
    9. Heirs/ assigns: Both parties agree that this Agreement will be binding on their heirs and assigns. Colby’s Photos & Videos may assign, subcontract, or delegate any rights or obligations under this Agreement.
    10. Counterparts: This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same Agreement. Scanned signatures, faxed signatures, or electronic signatures in Adobe Acrobat are binding on the parties.
    11. Time: If the front of this Agreement defines payment in half-day and day rate – 4 or 8 hours, respectively. In the event a shoot extends beyond eight consecutive hours, Colby’s Photos & Videos may charge for such excess time of assistants and freelance staff at the rate of 1.5 times their hourly rates.