This Contract is between the “Client” and the “Provider”. Collectively, all of the above people or businesses entering this Contract will be referred to as the “Parties”.
- DEFINITIONS
As used herein and throughout this Contract:
1.1. “Copyrights” means the property rights in original works of Provider, expressed in a tangible medium of expression, as defined and enforceable under Copyright Law under related jurisdiction.
1.2. “Deliverables” means the services and work product, as mutually agreed upon by Client and Provider, to be delivered by Provider to Client, in the form and media agreed by both Parties.
1.3. “Final Deliverables” means the final versions of Deliverables provided by Provider and approved and accepted by Client.
- SCOPE OF WORK
2.1. Provider shall provide Client with the following services and/or products (“Services”) including, but not limited to:
- information services activities, information search for the Client about the photoshoot including, but not limited to ideas, visuals, locations, models
- a photography shoot
- post-processing / digital image editing services of photos where artistically necessary
2.2. Final Deliverables. А certain number of photographs as agreed between Parties.
2.3. Provider shall deliver Services to Client on the date and location(s) as agreed between Parties.
- COST, FEES, AND PAYMENTS
3.1. Cost. The total cost (“Total Cost”) for all Services is agreed upon between Parties.
3.2. Total Cost is inclusive of Contractor’s Services, including, but not limited to any setup time, travel time, transportation, accommodation, out-of-pocket costs, software licenses, administrative fees, taxes, assistance, and subcontractor costs.
3.3. Client shall pay the Total Cost to Provider as follows:
3.3.1. The first payment of 30% (unless otherwise specified in the contract) is a non-refundable retainer and is paid when the Client hires the Provider. At a minimum, Client agrees that the retainer fee fairly compensates Provider for committing to provide the Services and turning down other potential projects/clients.
3.3.2. The final payment is paid by the Client at the end of the day of the photoshoot unless otherwise agreed.
- TIMING AND ACCEPTANCE
4.1. Timing. Contractor shall prioritize performance of the Services as may be necessary or as agreed upon by the Parties, and will undertake commercially reasonable efforts to perform the Services. Client agrees to review Deliverables within the time identified for such reviews and to promptly either, (i) approve and accept the Deliverables in writing (which will then become the Final Deliverables) or (ii) provide written comments and/or corrections sufficient to identify the Client’s concerns, objections or corrections to Contractor.
4.2. Acceptance. Client, within 3 business days of receipt of each Deliverable, shall notify Contractor, in writing, of any failure of such Deliverable to comply with the specifications as agreed upon by the Parties, or of any other objections, corrections, changes, or amendments Client wishes made to such Deliverable. Any such written notice shall be sufficient to identify with clarity any objection, correction or change, or amendment, and Contractor shall undertake to make the same in a commercially timely manner. Any and all objections, corrections, changes, or amendments shall be subject to the terms and conditions of this Contract. In the absence of such notice from Client within said stated time period, the Deliverable shall be deemed accepted.
- ARTISTIC RELEASE
5.1. Style. Client has spent a satisfactory amount of time reviewing Provider’s work and has a reasonable expectation that Provider will perform the Services in a similar manner and style unless otherwise specified in this Contract.
5.2. Consistency. Provider will use reasonable efforts to ensure Client’s desired Services are produced in a style and manner consistent with Provider current portfolio and Provider will try to incorporate any reasonable suggestion made by Client. However, Client understands and agrees that:
5.2.1. Every client and wedding is different, with different tastes, budgets, and needs;
5.2.2. Photography services are often a subjective art and Provider has a unique vision, with an ever-evolving style and technique;
5.2.3. Provider will use its artistic judgment when providing Services for Client, which may not include strict adherence to Client’s suggestions;
5.2.4. Although Provider will use reasonable efforts to incorporate Client’s suggestions and desires when providing Client with the Services, Provider shall have the final say regarding the aesthetic judgment and artistic quality of the Services;
5.2.5. Dissatisfaction with Provider’s aesthetic judgment or artistic ability are not valid reasons for termination of this Contract or request of any monies returned.
- INTELLECTUAL PROPERTY
6.1. Copyright Ownership. Any copyrighted work(s) are created as a result of the Services provided by Provider in accordance with this Contract, Provider owns all copyrights in any and all work(s) it creates or produces pursuant to the copyright law of Portugal, whether registered or unregistered. Any and all products, whether tangible or intangible, produced or created in connection with, or in the process of fulfilling this Contract, are expressly and solely owned by Provider and may be used in the reasonable course of Provider’s business.
6.2. Client grants to Provider and his/her legal representatives and assigns, the irrevocable right to use and publish photographs and videos, still or moving, of Client or in which Client may be included, for the restricted purposes of self-promotion, including advertising the Provider’s business, in any manner and medium; and to alter and composite the same without restriction and without Client’s inspection or approval. Client hereby releases Provider and his/her legal representatives and assigns from all claims and liability relating to said photographs and videos.
6.3. Permitted Uses of Final Deliverables. Provider grants to Client an exclusive license of the product(s) produced with and for Client for personal/non-commercial use only without restrictions on time and place of use. Use includes, but is not limited to, use within the following contexts:
- In photos on Client’s personal social media pages or profiles; or
- In personal creations, such as a scrapbook or personal gift; or
- In personal communications, such as a family newsletter or email or holiday card, etc.
6.4. No licenses are granted before completion of the Services and are conditioned upon full payment of all fees.
6.5. Any unauthorized use of the Final Deliveries by Client, such as use for other purposes than those specified herein, will result in additional fees and/or royalty payments to Contractor.
6.6. Provider hereby represents, warrants, and covenants to Client that:
6.6.1. The Final Deliverables shall be the original work of Provider.
6.6.2. To the best of Provider’s knowledge, the Final Art provided by Provider does not infringe the rights of any party, and use of same in connection with the work will not violate the rights of any third parties.
6.6.3. Provider shall cooperate with Client and shall execute any additional documents reasonably requested by Client to evidence all such assignments of intellectual property.
- CANCELLATION POLICY
7.1. For all Services, if for any reason the Client cancels an order before the date, the Provider will keep the retainer fee paid to hold the event date as a cancellation fee. Cancellation must be sent in writing, by e-mail, or by messengers (Facebook, Instagram, Whatsapp, and Telegram). However, if Client wants to change the date minimum of 7 days before the date, the Provider will do his best to accommodate the change and no fee will be charged as long as the new date is available and within two months from the original date. If the Provider is not available for the new date, the original Contract will be canceled and subject to the cancellation policy.
7.2. In the case of camera failure, inclement weather, illness, emergency, any unforeseen incident, or other cause within or beyond the control, that prevents the Provider from working on a scheduled date, the Client will get a full refund of the retainer and/or other payments received for the Services. After the refund is done, the Provider shall have no further liability with respect to the Contract.
7.3. In the event Contractor cannot or will not perform his obligations in any or all parts of this Contract, he (or a responsible party) will immediately give notice to Client, and at the Contractor’s discretion, either attempt to find a reasonable substitute to fulfill the terms of this Contract or issue a refund payment based on a reasonably accurate percentage of Services rendered. In the case of a refund where, at the discretion of the Contractor, no reasonable substitute is found, Contractor shall excuse Client of further performance obligations in this Contract.
- LIMIT OF LIABILITY
8.1. Maximum Damages. Client agrees that the maximum amount of damages he or she is entitled to in any claim relating to this Contract or Services provided in this Contract are not to exceed the Total Cost of Services provided by Provider and paid by the Client before the claim date.
8.2. Loss of Product. The Provider takes the utmost care with respect to exposure, transportation, and processing of the photographs. However, in the unlikely event that photographs have been lost, stolen, or destroyed for reasons within or beyond the Provider’s control, Provider’s liability is limited to the return of the retainer and/or other payments received for the Services. The limit of liability for a partial loss of originals shall be a prorated amount of the exposures lost based on the percentage of the total number of originals.
8.3. Indemnification. Client agrees to indemnify, save and hold harmless Provider and its affiliates, employees, agents, and independent contractors from any and all damages, liabilities, costs, losses, or expenses arising out of any claim, demand, or action by a third party arising out of any breach of Client’s responsibilities or obligations, representations or warranties under this Contract. Under such circumstances, Client shall promptly notify Provider in writing of any claim or suit. Provider shall provide Client with commercially reasonable assistance, information, and authority necessary to perform Client’s obligations under this section.
8.4. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) control, including, but not limited to, the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) a natural disaster (fires, explosions, earthquakes, hurricane, flooding, storms, explosions, infestations), epidemic, or pandemic; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Contract; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities.
- SAFE WORKING ENVIRONMENT
9.1. The Client expressly agrees to make best efforts to provide Provider and Provider’s staff with safe and appropriate working conditions. In the event of circumstances deemed by either Provider or a bystander to present a threat or implied threat of injury or harm to Provider staff or equipment, harassing language or behavior to Provider staff, the Provider reserves the right to cancel all services remaining under this Contract and leave the event.
9.2. Client further understands that Provider complies with all health and safety laws, directives, and rules and regulations. Client expressly agrees that during the event Client and Clients’ agents shall not carry weapons or firearms, be exposed to severe illness, or request the Provider to do anything illegal or unsafe. Further, Provider will not provide services in any location or area deemed to be unsafe in its sole discretion, including, but not limited to, areas affected by communicable diseases, quarantined areas, or other similar occurrences.
- CONFIDENTIAL INFORMATION
10.1. Parties will treat and hold all information of or relating to this Contract, the Services provided and the Parties’ businesses in strict confidence and will not use any of this information except in connection with fulfilling the terms of this Contract, and, if this Contract is terminated for whatever reason, Parties will return all such information, including account access information, and any and all copies to the original Party and will remain bound to the Confidentiality provision of this Contract. Confidential information (herein “Confidential Information”) means information that is of value to its owner and is treated as proprietary or confidential including, but not limited to, intellectual property, inventions, trade secrets or information, financial data or information, speculation, knowledge, general Client data or reports, future business plans, strategies, customer lists and information, client acquisition strategies, advertising campaigns, information regarding executives and employees, and the terms and provisions of this Contract.
10.2. Further, at all times neither Party shall use or disclose any Confidential Information relating in any way to the past, present, or future business affairs, conditions, clients, customers, efforts, employees, financial data, operations, practices, products, processes, properties, sales, or services of or relating in any way to the Client in whatever form to any parties outside of this Contract, except as may be required by a court or governmental authority.
10.3. This Contract imposes no obligation upon the Parties with respect to any Confidential Information that was possessed before initial business interactions commenced between the Parties; is or becomes a matter of public knowledge through no fault of receiving Party; is rightfully received from a third party not owing to a duty of confidentiality; is disclosed without a duty of confidentiality to a third party by, or with the authorization of the disclosing Party; or is independently developed by either Party without prior knowledge of privileged or confidential information.
- GENERAL PROVISIONS
11.1. Contractor and any related sub-contractors are not employees, partners, or members of Client’s company, organization, or any company affiliated with Client. Contractor has the sole right to control and direct the means, manner, and method by which the services in this Contract are performed. This Contract does not create a partnership or joint venture, and neither Party is authorized to act as an agent or bind the other Party, except as expressly stated in this Contract.
11.2. By their execution, the Parties hereto have agreed to all of the terms and conditions of this Contract effective as of the last date of signature, and each signatory represents that it has the full authority to enter into this Contract and to bind her/his respective Party to all of the terms and conditions herein.
11.3. Contractor has the right to hire assistants, subcontractors, or employees to provide Client with its Services. Parties are individually and separately responsible for their own business operation and expenses, including securing or paying any licensing fees, insurance, taxes, registrations, or permits. Client is not responsible for paying for any benefits, workers’ compensation, insurance, or unemployment fees to Contractor.
11.4. Governing Law. The laws of Portugal govern all matters arising out of or relating to this Contract, including torts.
11.5. Severability. If any portion of this Contract is deemed to be illegal or unenforceable, the remaining provisions of this Contract remain in full force.
11.6. Notice. Parties shall provide effective notice (“Notice”) to each other using the contact Data from this Contract at the date and time on which the Notice is sent.
11.7. Merger. This Contract constitutes the final, exclusive agreement between the parties relating to the Services contained in this Contract. All earlier and contemporaneous negotiations and agreements between the parties on the matters contained in this Contract are expressly merged into and superseded by this Contract.
11.8. Amendment. The parties may amend this Contract only by the parties’ written consent via proper Notice.