Terms & Conditions of Demetrius Austin
These Terms and Conditions constitute a valid and binding legal agreement between Demetrius Austin (“Photographer”) and Client (as defined in the Estimate, Work Order and/or Invoice provided to Client). By accepting the Estimate, Work Order and/or Invoice or any services rendered by Photographer, Client agrees to be bound by these Terms and Conditions, which may be revised by Photographer at its sole discretion. In the event of conflict, the terms of any applicable Estimate, Work Order or Invoice agreed to in writing by Photographer shall control over these Terms and Conditions. It is Client’s sole responsibility to check this website from time to time to view any such changes to these Terms and Conditions. Client’s use of Photographer’s services after any modifications to the Terms and Conditions will indicate that Client accepts and agrees to the modifications. No amendment or modification of these Terms and Conditions (except as set forth in this paragraph) shall be valid or binding unless expressly approved by Photographer in writing.
Definitions of terms used in these Terms and Conditions and any accompanying Estimate, Work Order and/or Invoice may be found on the website for the Photographer at http://demetriusaustin.com/terms-conditions. These definitions, including any subsequent revisions by Photographer at its sole discretion, are incorporated herein by reference.
Image(s) means all visual representations, moving or still, created and/or produced for and/or furnished to Client by Photographer, regardless of Client’s ultimate use thereof, whether captured, delivered, or stored in photographic, magnetic, optical, electronic, or any other media. All Image(s) produced for a given project, as defined by the applicable Work Order, may also be referred to as “Body of Works.”
Publicity use means when the Client submits an Image to an outside publication (whether print or electronic) for editorial use and the Client (or their client) does not pay or provide other compensation for that use.
Advertising use means when the Client (or their client) pays or provides other compensation for the placement of an Image in whatever media it appears, such as a newspaper, magazine, billboard, or website.
Collateral use means the appearance of the Image in a publication produced by the Client, such as a magazine, annual report, brochure, pamphlet or poster.
Time Period or Length of Time means the length of time an Image may be used pursuant to a validly granted license (e.g., one year, two year, one time, etc.).
Rights and/or Quantity means the limitations on licensed usage of the Image within the Time Period or Length of Time. All rights are considered Limited pursuant to these Terms and Conditions unless expressly set forth otherwise in the terms of the applicable Work Order.
Limited: Image use is limited to a specific number of times such as “2 insertions” or “run of 5,000” within the licensed Time Period.
Unlimited: Image use is for an unlimited (unspecified) number of times within the licensed Time Period. Client remains bound by the license grant from Photographer and Unlimited does not allow a transfer or assignment of copyright or the ability to sublicense and Unlimited does not mean the same as “unlimited time.” Client only is granted the right to use the image, not to resell it or allow a third party to use it.
Total Buyout: Client has purchased all ownership rights, including all copyright rights, to the Image.
Exclusivity means the Photographer’s ability to sell and/or use the Image(s) during the licensed Time Period or thereafter. Usage of the Image(s) is considered Non-Exclusive unless expressly set forth in the applicable Work Order.
Exclusive: The Image (and related data and outtakes, if specified) cannot be sold or licensed to any other party during the licensed Time Period.
Exclusive to Industry: The Image (and related data and outtakes, if specified) cannot be sold or licensed to any other party within the specified industry (Liquor, Banking, etc.)
Non-Exclusive: The Image (and related data and outtakes, if specified) can be sold or licensed to any other party without limitation at any time.
Geographic Region is the area in which the Image(s) are intended to be seen pursuant to the licensed Usage.
National: US only. Includes provinces of the US such as Puerto Rico and the Caribbean.
North America: Includes the US and its provinces, Canada and Mexico.
Global or International: Throughout the world (Internet usage is considered Global).
Local: Specified city or area (San Francisco Area, etc.)
Regional: Specified region (Midwest, Southeast, etc.)
Europe: Includes the European continent, including Great Britain, Spain, France, the Netherlands, Scandinavia, Germany, and Italy.
By Country: Specified country.
Media means the format in which the Image(s) are intended to be seen pursuant to the licensed Usage. The term Media refers to all forms of media identified below unless otherwise specified in the applicable Work Order.
Print: Includes Image(s) printed onto paper or other tangible format, including newspaper, magazine, collateral, POS, and direct mail.
Direct Mail: Print Image(s) that are mailed to people and/or entities.
Point-of-Sale (POS) or POP (Point-of-Purchase): Image(s) intended to be seen where a product or service is sold, including banners, signage, counter cards, displays, in-store posters, table tents, and hang tags.
Out-of-Home (OOH) or Outdoor: Image(s) intended to be seen in an outside environment, including outdoor boards, bus sides, trans stops, rail cards, and GO cards.
Trade Show: Image(s) intended to be seen at trade show booths or materials used in a trade show.
Digital: Includes any form of electronic or digital media, including media for Internet usage and excluding Print media as defined above.
(a) Unless otherwise specified in an applicable Work Order, the terms of which shall control, Photographer may deliver, and Client agrees to accept, Image(s) 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.
(b) Client is responsible for verifying that the digital data of the Image (including color profile, if provided) is suitable for image reproduction of the expected quality and color accuracy, and that all necessary steps are taken to ensure correct reproduction. If the data is not deemed suitable, 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. Unless otherwise specifically provided elsewhere in this document or applicable Work Order, Photographer has no obligation to retain or archive any Image(s) after they have been delivered to Client.
(c) The Client is responsible for the presence of an authorized representative at all photo shoots to approve the Photographer’s interpretation of the assignment. If a Client representative is not present, the Photographer’s interpretation shall be deemed acceptable. Client is responsible for having an authorized representative review the Image(s) as produced, either remotely or in-person, as necessary during the assignment. Shoot processing for client review, select Image(s) processed for reproduction and retouched files will be delivered in a timely fashion, within a mutually agreed upon schedule. If Client elects not to review during the assignment, Client is obligated to accept Photographer’s judgment as to the acceptability of the Image(s).
Estimates are valid for 15 days from the date of issue. Fees and expenses quoted by the Photographer in an Estimate are solely for the original job description and layouts only, and for the usage specified as presented by the Client and are not binding until formalized in a Work Order signed by both Photographer and Client. Actual amounts are subject to a normal trade variance of 10%. Any subsequent changes, whether made orally or in writing, may result in additional charges. All expenses are estimated in good faith. Actual expenses, including without limitation travel expenses, which may be greater or less than those set forth in the Estimate, will be invoiced and/or set forth in the applicable Work Order and Client is responsible for payment of all actual expenses as invoiced. Client does not have the right to prior approval of travel expenses unless Photographer expressly agrees in writing and lack of prior approval is not a sufficient basis to withhold payment. Sales tax is not included in the estimate. Any applicable sales tax will be added at time of invoice. Client is responsible for all applicable fees and expenses set forth in Paragraph 10 in the event of cancellation. All rights not specifically granted in writing, including copyright, remain the exclusive property of Photographer.
(a) Unless otherwise agreed to in writing, Client shall make payment to Photographer for all invoiced fees and expenses within thirty (30) days of invoice. To the extent permitted by applicable law, late payments will be billed a $20.00/month handling fee and 1.5%/month interest. Failure to make any payment in a timely manner immediately voids any license granted to Client and continued use of any unlicensed Image constitutes copyright infringement. All rights not specifically granted in writing, including copyright, remain the exclusive property of Photographer.
(b) Client acknowledges and agrees that 50% advance payment, as determined by the applicable Work Order and invoice(s), is required prior to Photographer’s initiation of production. Checks should be made payable to Photographer.
(5) Intellectual Property
(a) The Image(s), including all related data and Media in which the Image(s) are stored, and all intellectual property rights, including all copyright that may exist, are the sole and exclusive property of Photographer. All rights not expressly granted are reserved by Photographer. Modification of Image(s) and/or incorporation of Image(s) in any layout, concept or media shall not constitute a joint work and Client agrees to transfer and assign any rights thereto to Photographer.
(b) Unless otherwise specifically provided in the applicable Work Order, Photographer grants to Client a limited, non-exclusive, non-transferable, non-sublicenseable license to use of the Image(s) and related data for a Time Period of one (1) year from the date of Photographer’s receipt of payment in full pursuant to the applicable Work Order and/or Invoice. Unless specifically provided in the applicable Work Order, no reprographic, reprint, republication or other secondary reproduction usages may be made, and Client is granted a license only for a one-time, English language, North American editorial print edition of the publication listed on the applicable Work Order and six month searchable archive use on the website of that publication. Unless otherwise specifically provided in the applicable Work Order, no Image licensed for use on a cover of a publication may be used for other promotional or advertising purposes without the express permission of Photographer and the payment of additional fees. No license is granted unless and until Photographer has received payment in full pursuant to the applicable Work Order and/or Invoice. Photographer reserves the right to immediately revoke and declare void any and all license rights in the event of non-payment of any amounts invoiced more than thirty (30) days after the date of the invoice, in addition to any other legal remedies Photographer may have, which it expressly reserves.
(c) If Client wishes to make any additional uses of Image(s) in a manner not covered in the license set forth in Section 5(b) above, Client shall obtain permission from the Photographer and pay an additional fee to be agreed upon. The parties agree that any usage of any Image contrary to the license grant set forth in Section 5(b) above without the prior written permission of Photographer will be invoiced at three times Photographer’s customary fee for such usage, without waiver of any other legal rights the Photographer may have, which Photographer expressly reserves.
(d) Client agrees to provide Photographer with three copies of each published use of each Image no later than thirty (30) days after the date of first publication of each use. If any Image is published only in a digital medium, Client agrees to provide Photographer with an electronic tear sheet, such as a PDF facsimile or URL of the published use of each such photograph, within fifteen (15) days after the date of first publication of each use.
(e) Unless otherwise specifically provided in the applicable Work Order or in Section 5(b) above, all usage rights are limited to print media, and no digital usages of any kind are permitted. This prohibition includes any rights or privileges that may be claimed under §201(c) of the Copyright Act of 1976 or any similar provision of any applicable law. Digital files may contain copyright and other information embedded in the header of the image file or elsewhere; removing and/or altering such information is strictly prohibited and constitutes violation of the Copyright Act.
(f) All fees and expenses agreed to in the applicable Work Order are required irrespective of whether Client makes actual use of the Image(s) or its license to use them.
(6) Return and Removal of Images
(a) All print copies of the Images shall be returned, and all digital files created by or on behalf of Client containing any Images shall be delivered to Photographer, deleted or certified as destroyed, within thirty (30) days after the later of: (1) the final licensed use as provided in this document, and (2) if not used, within thirty (30) days after the date of the expiration of the license.
(b) To the extent Client has agreed to return all Images, it agrees to do so prepaid and fully insured, safe and undamaged. Reimbursement for loss or damage of each digital image shall be in the amount of Two Hundred Dollars ($200). Photographer and Client agree that said amount represents the fair and reasonable cost of the time and materials required to replace each item. Client understands that its acceptance of the stipulated value of the Images is a material consideration in Photographer’s acceptance of the terms and prices in this agreement.
(c) To the extent that Client fails to return, remove or destroy any Image(s) pursuant to this section or the applicable Work Order, Client assumes any and all liability to reimburse, indemnify and defend Photographer for loss, damage, or misuse of any Images after the agreed upon date of return or removal. Client assumes full liability for its principals, employees, agents, affiliates, successors, and assigns (including without limitation independent contractors, messengers, and freelance researchers) for any loss, damage, delay in returning or deleting, failure to return, or misuse of the Images.
(d) The parties agree that failure to return Images on time will result in loss to Photographer. Client therefore agrees to pay a holding fee of five dollars and fifty cents ($5.50) per day for each Image from the return date until the day on which the Images are received by Photographer. Photographer further reserves all rights arising from any unlicensed usage.
(7) Photo Credit
Unless otherwise specified on the applicable Work Order, all published usages of Image(s) will be accompanied by written credit to Photographer or copyright notice identifying Photographer as the copyright holder. If a credit is required but not included with any published Image, Client agrees to pay Photographer liquidated damages in the amount of three times the invoiced fee for production of the Image as reasonable compensation to Photographer for the lost value of the credit line.
Client agrees that it will not make or permit any alterations, including but not limited to additions, subtractions, or adaptations in respect of the Images, alone or with any other material, including making digital scans, unless specifically permitted in writing by Photographer, with the exception of cropping and non-substantive alterations of contrast, brightness, and color balance, consistent with reproduction needs discussed in advance with Photographer.
(9) Overtime and Reshoots
(a) In the event a photo shoot extends beyond eight (8) consecutive hours, Client agrees that Photographer may charge Client for such excess time of assistants and freelance staff at the rate of 1.5 times their usual hourly rates.
(b) Client agrees that it will be charged 100 percent of all fees and expenses assignment (including all subcontractor fees and expenses) in the event of any reshoot requested 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, but Client agrees that 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.
(10) Assignment Cancellations and Postponements
(a) In the event of cancellation by Client, Client is responsible for payment of all expenses incurred by Photographer prior to the time of cancellation of the assignment (including all subcontractor fees and expenses), plus 50 percent of Photographer’s fee; however, if notice of cancellation is given within 24 hours before the shoot date, Client will be charged 100 percent of Photographer’s fee plus expenses incurred (including all subcontractor fees and expenses).
(b) In the event of postponement by Client, unless otherwise agreed in writing, Client will be charged a 100 percent of Photographer’s fee if postponement of the assignment occurs after Photographer has departed for location of photo shoot, and 50 percent of Photographer’s fee if postponement occurs before departure to location in addition to all expenses incurred by Photographer (including all subcontractor fees and expenses).
(c) Fees for cancellations and postponements will apply irrespective of the reasons for them, specifically including but not limited to weather conditions, acts of God, nature, war, terrorism, civil disturbance, and the fault of a third party. If a photo shoot is postponed due to weather, in addition to any payment made by Client to Photographer prior to the postponement, Client will also be responsible for all subcontractor and crew fees and expenses incurred on each Weather Day, plus a Photographer fee of $1,500 per Weather Day unless otherwise agreed in writing.
(a) Photographer shall have the right to terminate its contractual relationship with Client, as set forth in the applicable Work Order(s) and/or Invoice(s), in its sole discretion upon providing fourteen (14) days’ written notice to Client. In the event of termination by Photographer pursuant to this Section 11(a), Photographer shall be entitled to collect and/or retain all fees and expenses invoiced for services previously rendered as of the date of termination.
(b) Photographer shall have the right to immediately terminate its contractual relationship with Client, as set forth in the applicable Work Order(s) and/or Invoice(s), upon written notice in the event that Client commits a material breach of its obligations set forth in these Terms and Conditions or any applicable Work Order(s) and/or Invoice(s), including without limitation, failure to pay any amounts invoiced by Photographer more than thirty (30) days after the date of the invoice, in addition to any other legal remedies Photographer may have, including legal action for copyright infringement, which it expressly reserves. In the event of termination due to material breach by Client pursuant to this Section 11(b), Photographer shall be entitled to collect and/or retain all fees and expenses invoiced or incurred, whichever is greater, as of the date of termination.
(c) In the event of termination pursuant to Sections 11(a) and (b) hereof, all license rights granted to Client shall terminate as of the date of termination. All print copies of the Images shall be returned, and all digital files created by or on behalf of Client containing any Images shall be delivered to Photographer, deleted or certified as destroyed by no later than the termination date, unless otherwise agreed to in writing by Photographer. Termination or expiration of the contractual relationship between Photographer and Client shall not terminate the rights set forth in Sections 5, 6, and 12-16 hereof, which shall survive.
(a) Client and its successors and assigns will indemnify, defend and hold Photographer and its heirs, successors and assigns harmless against any and all claims, liability, damages, costs, and expenses, including reasonable legal fees and expenses, arising out of or related to the creation, production, or any use of any Image(s), including without limitation those arising from the use of any property or models in such creation or production, regardless of Client’s election to ultimately use the Image(s), any materials furnished by Client, or Client’s use of the Image(s) or any other work of Photographer. Client agrees and acknowledges that Photographer does not represent that a model or property release exists for all model(s) or property contained or used in the production of any Image, and it is Client’s sole responsibility to obtain the necessary permissions and/or releases for use of the image, voice, character, description, or likeness of any and all models or property contained, used in, or relating to the Image(s). Client further agrees and acknowledges that it is Client’s sole responsibility to determine what model or property releases are required and whether any model or property releases delivered by Photographer are suitable for Client’s purposes.
(b) Photographer will indemnify, defense and hold Client harmless against any and all claims, liability, damages, costs, and expenses, including reasonable legal fees and expenses, arising out of or related to Photographer’s negligence. Photographer’s liability for all claims, including claims raised by Client or any third party pursuant to this Section 12(b), shall not exceed in any event the total amount paid to Photographer by Client and under no circumstances shall Photographer be held liable for any indirect or consequential damages.
(13) Assumption of Risk
Client assumes full risk of loss or damage to or arising from materials furnished by Client and warrants that said materials are adequately insured against such loss, damage, or liability. EXCEPT AS EXPRESSLY AGREED TO IN WRITING, PHOTOGRAPHER EXPRESSLY DISCLAIMS AND MAKES NO WARRANTIES ABOUT ITS SERVICES OR PRODUCTS, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY THAT ITS SERVICES AND PRODUCTS:
• ARE MERCHANTABLE;
• ARE FIT FOR A PARTICULAR PURPOSE OR NEED;
• ARE NON-INFRINGING;
• CONTAIN ACCURATE, GENUINE, COMPLETE, UP TO DATE, OR RELIABLE INFORMATION;
• PROVIDE QUALITY, ERROR FREE OR ANYTHING OTHER THAN “AS IS” RESULTS AND SERVICES; OR
• WILL HAVE COMMUNICATIONS SENT TO YOU THAT ARE FREE FROM VIRUSES OR OTHER HARMFUL ELEMENTS.
(14) Transfer and Assignment
(a) Client acknowledges these Terms and Conditions constitute a valid and binding legal agreement for which consideration has been provided and it may not assign or transfer this agreement or any rights granted under it. This agreement binds Client and inures to the benefit of Photographer, as well as their respective principals, employees, agents, and affiliates, heirs, legal representatives, successors, and assigns. Client and its principals, employees, agents, and affiliates are jointly and severally liable for the performance of all payments and other obligations hereunder.
(b) No amendment or waiver of any terms is binding unless set forth in writing and signed by the parties. However, invoice(s) may reflect, and Client is bound by, Client’s oral authorizations for additional Image(s), fees and expenses that could not be confirmed in writing because of insufficient time or other practical considerations. This agreement incorporates by reference the Copyright Act of 1976, as amended. It also incorporates by reference those provisions of Article 2 of the Uniform Commercial Code that do not conflict with any specific provisions of this agreement; to the extent that any provision of this agreement may be in direct, indirect, or partial conflict with any provision of the Uniform Commercial Code, the terms of this agreement shall prevail. To the maximum extent permitted by law, the parties intend that this agreement shall not be governed by or subject to the UCITA of any state.
(c) Photographer is an independent contractor and not an employee of Client. Notwithstanding the foregoing, if any court or tribunal of competent jurisdiction determines that Photographer is deemed under any law to be an employee of Client, and if the Image(s) are therefore considered works made for hire under the U.S. Copyright Act, Client hereby agrees to transfer and assign the copyright to all such Images to Photographer. Client agrees to execute any documents reasonably requested by Photographer to accomplish, expedite or implement such assignment.
Any dispute arising between Client and Photographer shall, at Photographer’s sole discretion, either: (a) be arbitrated in Denver, CO, under rules of the American Arbitration Association and the laws of CO; 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 $900 or less may be submitted without arbitration to any court having jurisdiction thereof located in Denver, Colorado; OR (b) be adjudicated in any state or federal court sitting in Denver, Colorado under the laws of the United States and/or of the State of Colorado and Client expressly submits to the personal jurisdiction of such court. 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. 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.
The section headings used herein are for convenience only and shall be of no legal force or effect. Failure of Photographer to require performance by Client of any provision expressed herein shall in no way affect Photographer’s right to thereafter enforce such provision; nor shall the waiver by Photographer of any breach of any provision expressed herein be taken or held to be a waiver of any succeeding or other breach of such provision or as a waiver of the provision itself or of any other provision. If any provision of these Terms and Conditions is declared void or unenforceable by a court or tribunal of competent jurisdiction, such provision shall be deemed severed from the remaining portion of these Terms and Conditions, which shall otherwise remain in full force and effect.
191 University Blvd, #722
Denver, CO 80206