TPF! Travel Plus Photography Services Agreement
THIS AGREEMENT is made as of today's date that will be recorded upon the submittion of the form (the “Effective Date”) between client named on this form with a primary contact address that was entered on this form (“Client”), and TPF! Travel Plus (“Photographer”).
1. Engagement of Photographer
1.1 Services. Subject to the terms set out herein, Client engages Photographer to provide, and Photographer agrees to provide, the photography services described in this Section 1.1 (the “Services”).
Description of Services:
- Job date: Noted on this form
- Booked Order:
- Minimum booked time of 1 hour.
- Photography to include, at photographer’s discretion dependant on final agreement between the parties, at least 25 photos per hour.
- Access to online gallery of low-resolution previews.
- Other services and products available at Photographer's current pricing.
As part of the Services, the Photographer will produce or take similar action to create materials from Images and provide related deliverables (as set out above) pursuant to the provision of the Services (“Work Product”). “Images” means photographic material, whether still or moving, created by Photographer pursuant to this Agreement and includes, but is not limited to, transparencies, negatives, prints or digital files, captured, recorded, stored or delivered in any type of analogue, photographic, optical, electronic, magnetic, digital or any other medium.
1.2 Delivery. Within a period of fourteen following the Job Date, Photographer will cull, edit and deliver a set of photos as indicated under "Description of Services," the exact number of which may vary slightly or significantly due to the uniqueness of each client and/or photographic conditions. Client is not entitled to every image taken. Client is not entitled to select images for delivery. Photographer will make digital images and products available for a period of 30 days once the gallery is delivered, after which Photographer may make the gallery unavailable. Client is not entitled to indefinite access to images on Photographer's storage or delivery platform.
1.3 Exclusivity. Client acknowledges and agrees that Photographer will be the exclusive provider of the Services, unless otherwise agreed to by the parties in writing.
1.4 Scope. This agreement shall not be construed to create a partnership between the parties. Each party is acting hereunder as an independent contractor.
2. Fees and Payment
2.1 Fees. Client will pay Photographer the fees set out herein in this Section 2.1 (“Fees”), including any applicable federal or state/provincial sales or value-added taxes due on such Fees.
- Total Fee for Services: $400 per hour
- Additional Hourly Pricing: $400
- Retainer due upon signing: $0
- Additional Digital JPEG images will be available for download starting at $75 (1), $300 (10), $600 (40), including basic color correction
- Client may purchase the full gallery of high resolution JPEGs for a flat fee of: Included in hourly price
- Fees for any additional products or services are due prior to delivery
2.2 Retainer. Client acknowledges and agrees that the retainer amount set out above is due upon the signing of this Agreement and is not refundable (“Retainer”), so as to fairly compensate Photographer for committing his/her time to provide the Services and turning down other potential projects or clients. Both parties agree that the Retainer will be credited towards the total Fees payable by Client.
2.3 Invoice. Photographer will issue an invoice to Client upon agreement of the Services (“Invoice”). Client agrees to pay all Fees outstanding on or prior to the due dates set out in Section 2.1. Client acknowledges that the final amount payable may be subject to change depending on the amount actual expenses incurred. Client confirms and agrees that the final calculations provided in the Invoice, should they be different from the total listed in Section 2.1, will be the final amount payable.
2.4 Retouching/Change Orders: Images made available in the online gallery will receive basic color correction (exposure, contrast, sharpness, white balance). At Photographer's discretion, basic retouching (minor blemish/stray hair removal, eye enhancement, teeth whitening) may be applied for each digital file purchased. Additional retouching and change orders (redos) will be charged at Photographer's current pricing.
2.5 Reshoot. Client is not entitled to any free reshoots. Client may request reshoots at the Photographer's current rates plus mileage.
2.6 Refunds. In the event that any refunds are due under the terms of this Agreement, Photographer will issue such refunds to the person or entity from whom or which the funds derived, only in the amount of the monies paid, not the value, real or perceived, of products purchased.
3. Client Responsibilities
3.1 Required Consents. Client will ensure that all required consents, as applicable, have been obtained prior to performance of the Services, including any consents required for the performance of Services and the delivery of Work Product by Photographer and, as applicable, from venues or locales where the Services are to be performed or from attendees or participants of the photo shoot.
3.2 Expenses. Client will provide the means of travel or be responsible for reasonable travel expenses incurred by Photographer that are necessary for the performance of the Services or travel that is otherwise requested by Client where the location of the performance of the Services is not in the city of Branson, Missouri. Client will be responsible for any other expenses incurred by Photographer that are necessary for the performance of the Services as more particularly set out in Article 2.
3.3 Waiver. Client (on behalf of himself/herself and any other participant whose image or recording may be captured by the Services) hereby waives all rights and claims, and releases Photographer from any claim or cause of action, whether now known or unknown, relating to the sale, display, license, use and exploitation of Images pursuant to this Agreement.
3.4 Cooperation. The Photographer is not responsible in the event that an anticipated subject of a photograph fails to be present or to cooperate during photography sessions. Photographer shall not be responsible for allegedly "missing" any photographs caused by client's failure to communicate a desire to receive photographs of the subject matter of the allegedly "missed" photograph(s). To facilitate the process, Photographer expects Client to designate or point out desired subjects.
4. Photographer Responsibilities
4.1 Equipment. Client will not be required to supply any photography equipment to Photographer.
4.2 Manner of Service. Photographer will ensure that the Services are performed in a good, expedient, workmanlike and safe manner, and in such a manner as to avoid unreasonable interference with Client’s activities.
4.3 Photography Staff. Photographer will, and will ensure that all Photography Staff (employees, assistants or other parties engaged by Photographer to assist with the Services):
- comply with the reasonable directions of Client from time to time regarding the safety of attendees or participants at the photo shoot and applicable health, safety and security requirements of any locations where the Services are provided;
- ensure that Work Product meets the specifications set out in Section 1.1 in all material respects.
- Photographer will be responsible in every respect for the actions of all Photography Staff.
5. Artistic Release
5.1 Consistency. Photographer will use reasonable efforts to ensure that the Services are produced in a style consistent with Photographer’s current portfolio, and Photographer will use reasonable efforts to consult with Client and incorporate any reasonable suggestions.
5.2 Style. Client acknowledges and agrees that:
- Client has reviewed Photographer’s previous work and portfolio and has a reasonable expectation that Photographer will perform the Services in a similar style
- Photographer will use its artistic judgement when providing the Services, and shall have final say regarding the aesthetic judgement and artistic quality of the Services; and
- Disagreement with Photographer’s aesthetic judgement or artistic ability are not valid reasons for termination of this Agreement or request of any monies returned.
6. Term and Termination
6.1 Term. This Agreement will begin on the Effective Date and continue until the latter of (i) the date where all outstanding Fees under this Agreement are paid in full; or (ii) the date where all final Work Product has been delivered (“Term”).
6.2 Cancellation. Client may terminate the Agreement (“Cancellation”) and/or reschedule the Services (“Rescheduling”) by providing Photographer with written notice no later than 2 days before the original date of the Services (the “Minimum Notice”). Client acknowledges and agrees that Client is not relieved of any payment obligations for Cancellations and Rescheduling unless the Minimum Notice in accordance with this Article 6 is duly provided or unless the parties otherwise agree in writing.
6.3 Rescheduling. In the event of Client Rescheduling, Photographer will use commercially reasonable efforts to accommodate Client’s change. If Photographer is not able to accommodate Client’s change despite using commercially reasonable efforts, the parties agree that such Rescheduling will be deemed as Cancellation by Client and that Photographer will be under no obligation to perform the Services other than on the original date of the Services.
6.4 No Refund. Client acknowledges and agrees that Cancellation by Client will not result in a refund of any fees paid on or prior to the date of Cancellation by Client.
6.5 Replacement. In the event that Photographer is unable to perform the Services, Photographer, subject to Client’s consent, which is not to be reasonably withheld, shall cause a replacement photographer to perform the Services in accordance with the terms of this Agreement. In the event that such consent is not obtained, Photographer shall terminate this Agreement and shall return the Retainer and all fees paid by Client, and thereafter shall have no further liability to Client.
7. Ownership of Work Product by Photographer
7.1 Ownership of Work. Photographer will own all right, title and interest in all Work Product. Client (on behalf of itself and any attendees or participants at the photo shoot) hereby grants Photographer and any of its service providers an exclusive, royalty-free, worldwide, irrevocable, transferable and sublicensable license to use any materials created by Client or attendees, during the performance of the Services, that may be protected by copyright or any intellectual property rights (“Client Materials”) as part of any Work Product or in connection with the marketing, advertising or promotion of Photographer’s services, including in connection with Photographer’s studio, portfolio, website or social media, in any format or medium. Client acknowledges and affirms that no other person or entity has any rights that may prevent or restrict Photographer from using Client Materials as provided herein.
8. Limited License to Client
8.1 Commercial Use. Photographer hereby grants Client a non-exclusive, irrevocable, royalty-free, non-transferable, non-sublicensable and perpetual license to use, reproduce, and distribute the copyrighted Work Product for profit or otherwise and to incorporate the copyrighted Work Product, in whole or in part, into derivative works for sale and distribution. Client is prohibited from using the Work for any other purpose, including: selling or distributing electronic copies of the Work as standalone files or as part of a product from which a person is able to extract the Work as a standalone file; distributing the Work in or as part of an electronic template (e.g., as an image available in a word processing or Web page creation application) intended to be reproduced by third parties on electronic or printed products; or using the Work as part of a trademark, service mark or logo.
9. Indemnity and Limitation of Liability
9.1 Indemnification. Client agrees to indemnify, defend and hold harmless Photographer and its affiliates, employees, agents and independent contractors for any injury, property damage, liability, claim or other cause of action arising out of or related to the Services and or Work Product Photographer provides to Client.
9.2 Force Majeure. Neither party shall be held in breach of or liable under this Agreement for any delay or non-performance of any provision of this Agreement caused by illness, emergency, fire, strike, pandemic, earthquake, or any other conditions beyond the reasonable control of the non-performing party (each a “Force Majeure Event”), and the time of performance of such provision, if any, shall be deemed to be extended for a period equal to the duration of the conditions preventing performance. If such Force Majeure Event persists for more than 60 days, the party not affected by the Force Majeure Event may terminate the Agreement and any prepaid fees for Services not performed (other than the Retainer) shall be returned within 15 days of the date of termination of the Agreement.
9.3 Failure to Deliver. Photographer shall not be held liable for delays in the delivery of such Work Product, or any Work Product undeliverable, due to technological malfunctions, service interruptions that are beyond the control of Photographer (including as a result of delays in receipt of instructions from Client) and for Work Product that fails to meet the specifications set out in Section 1.1 due to the actions of Client or attendees or participants at the photo shoot that are beyond the control of Photographer (e.g., camera flashes).
9.3. Uncovered Damages. Neither provider nor any studio that it subcontracts shall be liable for any claims arising from damage during the handling of digital files or prints caused by the following: a. Human Error; b. Mechanical Malfunction; or, c. An Act of God.
9.4 Fading or Discoloration. To ensure best possible results, all photographic images will be captured with professional digital cameras, professional accessories and lighting equipment, and Photographer uses only quality professional materials. However, color permanence and durability of any products will depend on the lighting and storage of the photographs and products by the clients; therefore, Client releases the Photographer from any liability for any claims whatsoever based upon fading or discoloration.
9.5 Maximum Liability. Notwithstanding anything to the contrary, Client agrees that Photographer’s maximum liability arising out of or related to the Services or the Work Product shall not exceed the total Fees payable under this Agreement. While every reasonable effort will be made to produce and deliver outstanding photographs for the Client, Photographer's liability to client for an actual, verified, claim, loss or injury arising out of Photographer's performance is limited to a refund paid to client for any amount(s) paid for services. Prior to refund of any monies, a full and proper investigation will be made by Photographer into Client's alleged claim, loss, or injury.
10. Additional Provisions
10.1 Abandoned Goods. Photographer is not responsible for goods not picked up or downloaded beyond 6 months after completion.
10.2 Photographic Limitations. Photographer is limited by the guidelines of property owners or site management. Client agrees to accept the technical results of their imposition on the photographer. Negotiation for moderation of guidelines is the Client's responsibility; the Photographer will offer technical recommendations only.
11. General
11.1 Notice. Parties shall provide effective notice (“Notice”) to each other via either of the following methods of delivery at the date and time which the Notice is sent:
11.2 Survival. Articles 7, 8, 9 and 10 will survive termination of this Agreement.
11.3 Governing Law. This Agreement will be governed by the laws of Missouri, United States of America
11.4 Arbitration. In the event of any dispute under or relating to the terms of this agreement or any breach thereof, it is agreed that the same shall be submitted to arbitration in Taney County, Missouri. In the event of arbitration arising from or out of this agreement or the relationship of the parties created hereby, the trier thereof may award to any party any reasonable attorneys' fees and other costs incurred in connection therewith.
11.5 Amendment. This Agreement may only be amended, supplemented or otherwise modified by written agreement signed by each of the parties.
11.6 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the Services and supersedes all prior agreements and understandings both formal and informal. A waiver by either party hereto or a breach of any provision herein shall not be deemed a waiver of any subsequent breach, nor a permanent modification of such provision, except as otherwise provided elsewhere in another section or subsection of this agreement. Each party acknowledges that no statement, promise or inducement has been made to such party, except as expressly provided for herein.
11.7 Severability. If any provision of this Agreement is determined to be illegal, invalid or unenforceable, in whole or in part, by an arbitrator or any court of competent jurisdiction, that provision or part thereof will be severed from this Agreement and the remaining part of such provision and all other provisions will continue in full force and effect.
