Terms and Conditions of Service | Colby’s Photography

  1. 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 photographs during the photo-shoot. In the event that Client does not provide an authorized representative during the photo-shoot, Client acknowledges that Client must accept Photographer’s judgment as to the acceptability of the Images.
    2. Rejection: Unless a rejection fee has been agreed to in writing in advance, there is no right to reject on the basis of style or composition.
    3. Reshoots: In the event that Client desires a reshoot (i.e. a second photo-shoot), Client will be charged 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, Photographer will charge no additional fee, and Client will pay all expenses.  If Photographer 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 insurance will be provided on request.
  2. DELIVERY
    1. It is strongly suggested by the Photographer that the Client use 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 Photographer, ask for suggestions. It is the Clients responsibility to communicate to the Photographer who is designing the advertising pieces so the Photographer can have a better understanding of the style, look, and design of the most effective photography for the Client’s needs.
    2. Unless otherwise specified in the invoice, Photographer may deliver, and Client agrees to accept, Images encoded in an industry-standard data format that Photographer may select, at a resolution that Photographer determines will be suitable to the subject matter of each Image and the reproduction technology and uses for which the Image is licensed.
    3. It is the Client’s responsibility to verify that the digital data (including color profile, if provided) are suitable, and Photographer’s sole obligation will be to replace or repair the data, but in no event will Photographer be liable for poor reproduction quality, delays, or consequential damages for these requested changes.
  3. RESCHEDULING
    1. Generally: Either party may reschedule the Photographer’s services. Both parties agree to make every effort to reschedule any postponements such that the Photographer will be able to perform within 30 days of either party rescheduling.
    2. More Than One Business Day: If Client postpones the Photographer’s services by providing at least one business day notice in advance, the Client will pay for any expenses incurred by any postponement. If Client postpones the Photographer’s 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 Photographer’s expenses incurred up to the date of cancellation, and Client forfeits any retained paid to Photographer.
    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 assignment.
  4. ASSUMPTION OF RISK
    1. Client assumes full risk of loss or damage to or arising from materials furnished by Client to Photographer. Client also warrants that said materials are adequately insured against such loss, damage, or liability.
  5. INDEMNIT
    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 Images are obtained.
    2. Client acknowledges that the Photographer 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 Images of art depicted in the picture (“Permissions”). In the event that Photographer 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 negativity affect the Photographers duties or any location/venue fees are paid for by the Client prior to the assignment.
    4. Client agrees to indemnify, defend and hold harmless Photographer, 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. EXCUSIVITY
    1. Unless the Photographer agrees otherwise in writing, this agreement does not create an exclusive relationship between the Photographer and the Agency or Client.
    2. The Photographer retains the rights in all cases to use the Images to include but not limited to Photographer’s self-promotion. The Photographer understands that for public relations, media and marketing uses, the Client may desire to release the images first. In these cases, Agency or Client must notify Photographer at the time when Agency of Client delivers the signed invoice to Photographer.
  7. USE
    1. When Agency or Client pays the Photographer in full, the Photographer grants the Agency or Client a limited license to use the Images 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 Images, this right to reproduce does not grant the Agency or Client to any intellectual property rights, including copyrights, in the Images.
    2. Agency or Client shall not use the Images until Agency or Client has paid Photographer 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 Photographer gives Agency or Client written permission to use the Images before Agency or Client has paid Photographer in full, Agency or Client acknowledges that their license to use the Images automatically ends if Agency or Client fails to pay Photographer 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 Images for purposes other than the allowed uses stated in the invoice, the Agency or Client must contact the Photographer to seek permission. This will involve new fees.
    5. The parties agree that, if Client uses an Image in an unauthorized way, Client automatically owes Photographer, as liquidated damages, three times the Photographer’s customary fee for such use or $3,000.00, whichever is greater.
  8. COPYRIGHT
    1. Photographer retains all intellectual property rights, including copyrights, to the Images.
    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 Copyright Act.
  9. 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 the Photographer’s 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 the Photographer’s Client.
    2. For the purpose of this agreement the “Photographer” means Colby McLemore, including his assignees, sub-licensees and successor in the title.
    3. “Images” means all visual representations furnished to the Client by Photographer, whether captured, delivered, or stored in photographic, magnetic, optical, or any other media.
  10. LIMITATION OF LIABILITY
    1. The parties intend to limit Photographer’s liability under this agreement. Client acknowledges that this limitation of Photographer’s liability is reasonable and fair.  Client further acknowledges that Photographer’s 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 Photographer’s liability exceed the amounts Client paid to Photographer under this agreement.
  11. PAYMENT
    1. When a retainer is required, the Photographer will not reserve a date and time until the retainer and a signed contract is received by the Photographer. The retainer is applicable to the final invoice but is forfeit if the photography is canceled by client.
    2. After the first day of photography 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 or $50 (whichever is greater) 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 Images or the licenses to use them.
    7. Payments (excluding retainer) using credit cards will incur an additional 4% charge.
  12. PHOTO CREDIT
    1. If a photo credit is specified in this agreement, all published usages of Images will be accompanied by written credit to Photographer 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 actually provided, Client agrees that the amount of the invoiced fee will be subject to three-times multiple as reasonable compensation to Photographer 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 Photographer to determine the amount of losses incurred as a result of Client’s failure to provide photo credit.
  13. ELECTRONIC STORAGE
    1. The Photographer strives to keep backups of all his data. Although this is true, unless otherwise specifically provided elsewhere in this agreement, Photographer has no obligation to retain or archive any of the Images 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 Photographer, Photographer will charge Client a backup fee.
    2. Images that the Client has not paid for, have not selected, and/or not been shown, will be deleted.
  14. DISPUTES
    1. Except as provided in 14.c. below, any dispute regarding this agreement shall, at Photographers sole discretion, either:
    2. 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. Any dispute involving $5,000 or less may be submitted without arbitration to any court having jurisdiction thereof.

OR

  1. Be adjudicated in Knoxville, TN under the laws of the United State and/or of Tennessee.
  2. In the event of a dispute, Client shall pay all court costs, Photographer’s reasonable legal fees, and expenses, and legal interest on any award or judgment in favor of Photographer.
  3. Federal Jurisdiction: Client hereby expressly consents to the jurisdiction of the Federal courts with respect to claims by Photographer under the Copyright Act of 1976, as amended, including subsidiary and related claims.
  1. GENERAL
    1. Clients will be placed on the Photographer’s 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 Photographer.
    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 written agreement signed by both parties. 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 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 if 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 permitted assigns.
    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 front of document defines payment in half day and day rate – 4 or 8 hours respectively. In the event a shoot extends beyond 8 consecutive hours, Photographer may charge for such excess time of assistants and freelance staff at the rate of 1.5 times their hourly rates.

Newest Revision – 3.21.17

If you have any question or concerns about any of the terms and conditions, feel free to contact us.