Terms & Conditions
CREATIVE SERVICES AGREEMENT
This Commercial Photography Agreement (“Agreement”) is made effective and entered into by and between Raul Esparza of Psalms Thirty Four, LLC, a Arizona Limited Liability Company (“Photographer” "Filmmaker" "Editor"), and (“Client”), each a “Party” and collectively the “Parties.”
DEFINITIONS – The following words contained in this agreement shall have the following meanings:
• “Photographer” “Filmmaker” “Editor” means Raul Esparza of Psalms Thirty Four, LLC.
• “Client” means the party who signed this agreement. Couple, Model, Vendor, or Business, etc.
• The Terms “Photographer”, “photography team”, “us”, “we”, and “our” refer to Psalms Thirty Four, LLC and all agents, employees, or other representatives.
• The term “session”, “event”, and “photography session” refers to a hired photographic session for the purposes of taking custom photographs to be scheduled for photographing at Location address where photography services will be performed (“Location”).
• The terms “agreement” and “contract” refer to this duly executed contractual obligation between parties.
• The term “photographs”, “photograph”, “photographic materials” or “images” refer to the digital materials being produced out of this Agreement.
• The term “Accounting Point of Contact” refers to the Client’s representative handling all payments under this Agreement.
For good and valuable in consideration of the mutual promises set forth below, which the Parties acknowledge and agree as follows:
1. DESCRIPTION OF SERVICES: Photographer will provide Client with the following services and/or products ("Services") described here:
XX hours of consecutive photography coverage
Up to XXXXX (XX) high-resolution digital files
All additional charges are outlined in the Photographer’s Rates found on the Photographer's website, which is also incorporated with this Agreement.
2. COMPLETION & DELIVERY OF SERVICES: Photographer will provide an online gallery for Client’s review with download accessibility within 2-8 weeks after official shoot date.
• Final edited digital materials will be delivered processed high-resolution .jpeg file format. High resolution means images will be delivered with the following minimum, technical specifications: 3600px, 300dpi. Editing/Processing services include light retouching in a highly stylized artistic approach. All editing/processing choices that are delivered to Client are within the sole discretion of Photographer and understanding of the Client. Any failure by Photographer to deliver any specifics is not a breach of this Agreement and does not result in a refund of any money paid by Client to Psalms Thirty Four, and Client will not have further remedy against Photographer and/or Psalms Thirty Four, LLC.
• Client will make additional processing requests with sufficient time to allow for normal delays and notify Photographer at the time of the order if there are any extenuating circumstances requiring a quicker turn around.
• The Photographer does not retain archives on the photographs and all Photographer responsibility for the photographs is completed at delivery.
• An expedited process fee of $800.00 will be applied to expedited processing requests, in addition to additional requested processing services priced in accordance with the Photographer’s Rates.
• The Photographer will not be held responsible for delivery delays due to the fault of manufacturing, delivery, or other necessary third-party services outside of the Photographer’s control.
• Raw files of digital materials are not apart of this agreement and Client understands/acknowledges to have no ownership and/or rights of raw files and/or raw images. Client agrees will not have further remedy against Photographer and/or Psalms Thirty Four, LLC.
• The Client agrees that Photographer is not responsible for any specific image requests that are not delivered. Client acknowledges that Photographer uses a highly stylized and artistic approach with Psalms Thirty Four creative services (photography, filmmaking, editing, etc). All editing choices and that are delivered to Client are within the sole discretion of Photographer and understanding of the Client. Any failure by Photographer to deliver any specifics is not a breach of this Agreement and does not result in a refund of any money paid by Client to Psalms Thirty Four, and Client will not have further remedy against Photographer and/or Psalms Thirty Four, LLC.
3. PAYMENT FOR SERVICES: The Photographer's total price for these services is $______ (“Total Price”).
• The Photographer requires a 50% non-refundable retainer fee of $_______ (“Initial Payment”) that must be paid within forty-eight (48) hours of signing to execute the Agreement and official booking of Photographer. The listed date will not be reserved until this Agreement is fully executed. Upon receipt of Initial Payment, the Photographer will reserve the time and date agreed upon by both parties. The Client agrees that this Initial Payment is non-refundable, earned by the Photographer when paid, and is remitted in consideration of the experience, reputation, and skill of the Photographer, and in consideration of the inability of the Photographer to schedule other clients during this time.
• Acceptable payment methods include check or credit card. Returned checks are subject to a $100 returned check fee. Client assumes responsibility for any and all collection costs and legal fees incurred by Photographer in the event enforcement of this Agreement becomes necessary.
• Payments will be made in accordance with the following schedule:
Retainer Fee Payment Date:
Retainer Fee Payment Amount:
Remaining Payment Date:
Remaining Payment Amount:
• All payments will be invoiced by Photographer via Quickbooks to the Accounting Point of Contact and must be paid by Remaining Payment date. In the event of any missed payments, all invoices become due immediately, including the remaining unpaid balance of the Total Price under this Agreement.
• At execution of this Agreement, the Photographer will reserve the time and date agreed upon by both parties.
4. RELATIONSHIP OF PARTIES: It is understood by the parties that Photographer is an independent Contractor with respect to Client, and not an employee of Client. Nothing herein will be deemed to constitute a partnership or joint venture between the Client and Contractor. By entering into this Contract, and in providing services. The Contractor has the status of an Independent Contractor, and nothing herein contained will contemplate or constitute an agent or employee relationship and neither the Photographer nor Client will have any authority to bind the other in any way.
5. ENTIRE AGREEMENT: This Contract contains the entire agreement of the Parties, and there are no other promises or conditions in any other agreement whether oral or written.
6. APPLICABLE LAW: This Contract shall be governed by the laws of the State of Arizona and the United States Federal Law.
Cancellation, Reschedule and Late Arrival: If the Client fails to show or does not provide appropriate access and materials (including but not limited to models, props), the Total Price is due immediately.
• If the Client requests to reschedule or cancels fourteen (14) or fewer calendar days before the agreed upon photographic event date, the Initial Payment will be forfeited by Client, and a new Initial Payment will be required prior to scheduling of a new session date. This is to protect the Photographer financially and ensure that the Photographer can meet financial obligations in an appropriate time period. This contract between the Client and the Photographer who signs it shall not become effective until it is signed and the initial amount due has been paid. For this reason, in the event that Client cancels the contract for any reason, all monies paid shall be retained by Photographer in order to offset its loss of business.
• If Client requests to reschedule a photographic session (“rescheduled session”), Photographer may apply the initial payment to a rescheduled session if notice is given at least fourteen (14) calendar days prior to the scheduled session. • A reschedule fee of $100 may be applied and must be paid prior to the rescheduled session date. The rescheduled session must take place within six (6) calendar months.
• Any Client or necessary personnel of Client that arrives late to the session will have the amount of time late deducted from the time allotted for the session. Photographer will not provide a partial refund or other compensation for the time deducted from the session due to late arrival of the Client or Client’s necessary personnel.
Outdoor Sessions and Inclement Weather: In the event the session location is outdoors, and the weather conditions are not desirable for an outdoor session based on Photographer recommendations, the session will be rescheduled and the reschedule fee will be waived, or an alternative indoor location agreed upon. Due to liability and equipment damages, this decision will be at Photographer’s sole discretion. Should inclement weather prevent the safe travel to or from the session location, the shoot may be rescheduled at the Photographer’s discretion, and the reschedule fee waived.
Location & Travel: The photographic session will occur at Location identified herein, unless otherwise agreed upon in writing. If Client specifies a certain location to be used during the shoot, the Client is responsible for all location fees involved such as location access fees, parking, and other expenditures directly required for fulfillment of this Agreement.
•The Client will pay $0.52 per mile outside the initial twenty (20) mile radius from the Photographer’s address. Sessions occurring over fifty (50) miles from the Photographer’s address require an additional $200 travel fee.
• All mileage and travel (lodging, flights, etc) must be paid prior to the session date, unless otherwise specified within.
• Travel fees (lodging, flights, etc) are not included in Photographer's rates.
Client Representative: Client is responsible for the presence of an authorized representative at the session to approve Photographer’s interpretation of the assignment. If Client’s representative is not present, the Photographer’s interpretation will be deemed acceptable.
Re-Edits/Additional Editing: The client agrees that they will under no circumstances alter any work completed under this agreement (unless with permission by Ariel and/or Raul) that are placed in the public eye; Internet, social media, promotional materials, etc. As Psalms Thirty Four, we need any final work that are placed online to be accurate representations of our brand and our work, so that future clients have a good understanding of the type of quality and service they’ll receive. The Client is trusting Editor’s unique judgment when editing, retouching (editing or manipulating the body, skin or environment in a way that is not an actual portrayal of Client or Event) and finalizing work. Editor is not required to do any extensive additional editing upon Client’s disapproval or request(s). Any additional editing will require purchase at Editor’s discretion at $350 per hour.
Archival Fee: (4 week upon delivery) You will have one week to download completed work and store it for safe keeping. If the Client does not preform the necessary acts in order to attain the work within 2 weeks after the date of the Services, the Client shall be charged a $500 archive fee to regain access of unattained work.
Photographic Materials & Artistic Rights: The Photographer’s use of the photographic materials will be in accordance with executed Model Release written below in this agreement.
• The Client will provide Photographer with a copy of any publication the Photographers appear in.
• No photographic materials will be released until the agreed upon amount is paid in full per the payment schedule outlined in this Agreement. The Client will use the photographic materials in accordance with the Commercial License executed between the parties, which is incorporated into this Agreement by reference.
• The Photographer retains the right of discretion in selection and processing of the photographic materials released to the Client.
• All photographic materials, including but not limited to negatives, transparencies, proofs, and previews, will be the exclusive intellectual property of the Photographer. If necessary, Client will execute any documents and undertake any other reasonable action necessary to effectuate or memorialize. ownership of all intellectual property by the Photographer.
Liability: Client agrees that the maximum amount of damages he or she is entitled to in any claim relating to this Agreement or Services are not to exceed $500.00.
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 Services and/or product(s) Photographer provides to Client. Claims against Photographer for the delivered artistic works must be brought to Photographer 's attention within one calendar (1) week from date of. At that time, the Client waives any right to submit a claim to Photographer for reimbursement of any fees previously paid or for their waiver or forgiveness of any fees that may still be outstanding.
Force Majeure: Neither party will be liable for any delay in performing or failing to perform obligations if that delay or failure results from events or circumstances outside its reasonable control. Such delay or failure will not constitute a breach of this agreement and the time for performance will be extended by a period equivalent to that during which performance is so prevented provided that if such delay or failure persists for more than 90 days, nothing in this Clause will be taken to limit or prevent the exercise by either party of its rights of termination under this Agreement without claim [arising from the termination] against the party defaulting by reason of force majeure cure provided that any outstanding pre-existing claims will not be thereby terminated.
Termination: This agreement will terminate if either Party materially breaches any portion of this agreement. Such termination will take effect immediately after notice of the breach from one party to the other. Both parties will have the right to notify the other of their intent to take substantial steps to cure any breach. If such notice is delivered, the Agreement will not terminate, unless such substantial steps towards cure of the breach do not occur.
• This Agreement will terminate in the event of bankruptcy or judicial or administrative declaration of insolvency of Photographer or Client that relate to any duty of performance under this Agreement.
Safe Working Environment: In a situation where the Client creates an unhealthy, stressful, negative, unethical, emotionally difficult, or constraining working relationship with the Photographer, such that the Photographer feels they can no longer do their job effectively for the Client, the Photographer has the right to exit this Agreement and must refund all monies paid by the Client, including any payments remitted.
• The Client agrees to undertake the best efforts to ensure that any session location attendees within Client’s control treat the Photographer and the Photographer’s staff with respect and dignity and that the Photographer is provided with a safe working environment. Should an issue arise, the Photographer will make reasonable effort to contact the designated Point of Contact (________) to handle the matter. If the situation is not remedied in a reasonable amount of time, the Photographer retains the right to cancel the remainder of the session and all monies will be forfeited without further responsibility by Photographer. Safe working environment issues include but are not limited to, guests, attendees or other vendors committing any instances of sexual harassment, violence, threats, or other similar behavior that would lead a reasonable person to feel unsafe in such an environment. In the event of such cancellation the Client will not be entitled to any refund.
Confidentiality: All terms and conditions of this agreement, and any duties and performances due under this agreement will remain confidential. Neither Party will use any information related to the photographs or business operations of the other party, except in as much is necessary for adequate performance under this agreement. The obligations contained in this Provision will expressly survive the termination, expiration or assignment of this Agreement.
Model Release: Client(s) agree(s) as follows: For consideration of my engagement as a model, and for other good and valuable consideration which I acknowledge as having been received, I authorize the Photographer to use and to create images for promotional material, online usage, commercial usage and other areas of marketability. I further authorize the distribution of photographs to potential clients of the Photographer for commercial use purposes under a commercial license agreement. I agree and understand that the photos will be taken digitally. I further acknowledge that I will not be compensated, either now or at any time in the future, for any use of marketing and that the Photographer of such photos exclusively owns all rights. I acknowledge and agree that Photographer shall have the exclusive, perpetual and irrevocable right to take, use, re-use, publish and republish photographic materials which contain my image. I hereby acknowledge and agree that photographer may modify, change, or alter such images without restriction. I hereby acknowledge and affirm that no pre-existing agreements of any sort exist between myself and any other entity which may prevent or restrict Photographer from using my likeness in any commercial manner. I hereby acknowledge and agree that the photographs created by the photographer shall become and remain the exclusive property of Photographer, and that I retain no rights to said photographs unless specified particularly in this agreement. I also hereby waive all rights and claims and release the photographer from any claim or cause of action, whether now known or unknown, relating to the sale, display, license, use and exploitation of the photos. I hereby covenant and agree that I shall not bring any action or proceeding or maintain a complaint against the photographer in any court of law, state or local, or before any administrative body, related in any way whatsoever, to the use of the photographs. I also consent to the use of my own name or any fictitious name, which may be chosen in connection with the aforesaid photographs. I hereby release any and all claims whatsoever in connection with the use of my photograph and name and the reproduction thereof as aforesaid. I hereby waive any right that I may have to inspect and/or approve the photographs or any advertising copy that may be used in connection therewith or the use to which it may be applied. I expressly acknowledge that photographer may sell, utilize or authorize for use the images created by the photographer in marketing campaigns for products, public service announcements and campaigns with which I may not personally agree. I recognize that the publication of the image in conjunction with such campaigns may give the impression that I endorse the message of such campaign or product, or that I am suffering from a condition related to a public service announcement, and I none-the-less consent to such use.
Miscellany:This Agreement incorporates the entire understanding of the parties. Any modifications of this Agreement must be in writing and signed by both parties. Any waiver of a breach or default hereunder will not be deemed a waiver of a subsequent breach or default of either the same provision or any other provision of this Agreement.
• This Agreement will be construed under Arizona State law, without regard to its choice of law provisions. The state and federal courts for Maricopa County will have exclusive jurisdiction over any dispute arising under or relating to this Agreement. The parties agree to proceed with a bench trial, and each hereby waive any right to a jury. In any such suit, the prevailing party will recover all costs incurred and a reasonable attorney’s fee.
• This document may be executed by countersignature, in which case it will be effective on the date the final party signs the Agreement.
• This Agreement will last indefinitely and will continue even if any other Agreement between the parties governing their business relationship terminates or otherwise concludes.
• Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not apply in interpreting this Agreement. The language in this Agreement will be interpreted as to its fair meaning and not strictly for or against any party.
• If any portion of this Agreement is deemed to be illegal or unenforceable, the remaining provisions of this Agreement remain in full force.