1. Parties | This agreement is between Arturo Ayala, LLC and his contractors, employees, agents, representatives, and assigns, hereinafter referred to as the “Photographer,” and the person(s) whose name(s) appear on the beginning of photo session agreement, hereinafter referred to as the “Client,” who have the obligation to comply with this agreement. The agreement shall entail a service contract for the photo session, hereinafter referred to as the “Session”.
2. Exclusive Photographer | It is agreed that the Photographer shall be the exclusive commercial photographer retained for the Session. Simultaneous photographic coverage by another contracted photographer or guest releases the Photographer from this agreement in full and forfeits all fees paid to Photographer by Client.
3. Digital Images |The Photographer shall possess sole ownership of the copyright of all digital or electronic versions of images created through this contract (“Digital Images”) The Photographer shall have the right to sublicense and grant use of the Digital Images to third parties, and all compensation for use of, and credit for the images shall remain the property of the Photographer. The Client will not copy or reproduce the images in any way for commercial purposes or for financial gain without the Photographer’s express written permission. Client agree to not supply Digital Images to any third party without giving due and proper credit to the Photographer.
4. Physical Medium | The Photographer shall possess sole ownership and intellectual property rights of all hard disks, storage drives, digital cards, USB drives, flash drives, and all other storage devices of any kind or nature, including equipment, storing the images created through this contract. Storage media (such as computer disks and digital cards) that contain electronic copy of any or all of the Images shall be the sole property of Photographer. All photographic materials, including but not limited to digital files, negatives, transparencies, proofs, and previews, shall be the exclusive property of the Photographer.
5. Uses and Licenses | Photographer shall have irrevocable, worldwide, paid-up, royalty-free rights to use, alter, reproduce, display, and make derivative uses of the Digital Images in any form or format as part of a portfolio, as samples, for self-promotion, educational, advertising, display, and/or similar uses, individually, as a compilation, or otherwise.
6. Additional Uses | Photographer shall have irrevocable, worldwide, paid-up, royalty-free rights to use, alter, reproduce, display, and make derivative uses of the Digital Images in any form or format for contests, art exhibitions, editorial uses, commercial uses, and all other uses, including uses online, social media, or other uses on the Internet, individually, as a compilation, or otherwise.
7. Name, Likeness, Image Release | Client grant Photographer an irrevocable, worldwide, paid-up, royalty-free, and nonexclusive right to their images, likenesses, and biographical details, and on behalf of all person(s) including MINOR CHILDREN who are present at the Session(s), authorizes Photography’s right to the images, likenesses, and biographical details of all person(s) who appear in the images taken by the Photographer. Client shall defend, indemnify, and hold Photographer harmless from any third-party claims, demands, losses, and expenses (including attorneys’ fees) made by any individuals or entities asserting a violation of rights or law, including trespass, violations of rights of publicity, violations of privacy, violations of name, likeness, image, and all other claims resulting from Photographer’s photography.
8. Photographer Liability | In the event the Photographer cannot comply with the terms of this contract due to negligence, oversight, accident, error, omission, or any other avoidable or unavoidable circumstance, whether caused by the Photographer or otherwise, the Photographer’s liability for this or any other circumstance shall be limited to the amount paid up to that time by the Client. The Photographer does not guarantee to capture any particular image(s) or meet any particular aesthetic criteria as part of his performance under this contract. The Client understand and accept the Photographer’s artistic style, having seen the Photographer’s work on his website/blog at www.arturoayala.com, and understand that the photographic results will be contingent on environmental and other circumstances that are beyond the control of the Photographer. Photographer does not provide lighting and has no control over lighting conditions, as the photographs will all be taken using natural lighting conditions. No shots throughout the Session are guaranteed, and no shots of specific people, moments, or events are guaranteed. Client acknowledges that Photographer is using Photographer’s artistic discretion to create photographs as Photographer sees fit. The Services and nature, type, quantity, quality, and other characteristics of Images are subject to venue drawbacks, lighting, weather conditions, late schedules, interruptions, unforeseen accidents or mishaps. As such, the Client understand and accept that such circumstantial differences can and may result and the images captured may differ from those seen on the Photographer’s website/blog. Because this is an uncontrolled event, the Photographer cannot guarantee delivery of any specific number of images.
In the unlikely event that all digital files have been lost, stolen, or destroyed for reasons beyond the Photographer’s control, including, but not limited to, camera, memory cards, hard drive, or equipment malfunction, the Photographer’s liability is limited to the return of all payments made for the Session. In the event that some digital files have been lost (but not all), the Photographer’s liability is limited to a prorated amount based on the numbers of images lost compared to the total number of images taken during the Session.
In addition, failure by the Client to make any payment as and when agreed shall release the Photographer from any further responsibility under this contract, without the responsibility of reimbursing any monies previously paid by the Client under this contract. Client understand that Photographer shall not be obligated to perform on any obligations until Photographer’s payment is paid in full, at least 30 days prior to the session(s).
9. Waiver of Ownership or Inspection | The Client waive all claims of ownership, income, editorial control, reproduction, and use of the images for all uses other than personal. Further, the Client waive all rights to inspect or approve the images, finished version incorporating the images, or uses, including derivative uses, to which the images may be applied, including written copy that may be created and appear in connection therewith. Unless specifically noted, this contract does not provide the Client with any rights to use the negatives or digital files created under this contract in any way other than for personal use. The Client hereby release the Photographer and his legal representatives, heirs, and assigns from all liability and claims in connection with the photographic images produced by the Photographer under this contract. This release is binding to the Client, their legal representatives, heirs, and assigns, indefinitely.
10. Prices | Prices quoted on any communication between the Photographer and Client shall be valid for a period of sixty (30) days after the date of the Session. For any additional items, or for contracted items not fully specified or ordered by Client after the sixty (30) days, applicable prices shall be those that are in effect at the time any such additional or late order is made.
11. Personnel | If the Photographer cannot personally perform the services agreed to for any reason including, but not limited to, illness, disability, emergency, or any unforeseen circumstances, the Photographer may elect a substitute professional photographer. The Photographer may use one or more assistants at the Session, at his own expense, and such delegation or assistance shall not increase Client’ overall expenses.
12. Photographer’s Performance | The Client understand that the Photographer will create a graphic and artistic portfolio of the Session, in a manner consistent with the Photographer’s artistic and aesthetic style, and that the Photographer will try in earnest to include as many details as possible. The Client understand and accept that a usable or acceptable image is an image in focus, exposed so that flesh tones are not blown out, with shadow and highlight details visible. The Client understand, and agree, that the Photographer will determine what are acceptable images and will make adjustments for artistic expression as the Photographer deems appropriate.
13. Selected Images | Of the total digital images captured during the Session, the Photographer shall have the power to select the images that will be delivered to the Client and these shall be known as the “Selected Images". If the Client are due to receive Selected Images, this shall be available for purchase or given to the Client within thirty (30) days of the day of the Session in an electronic format chosen by the Photographer, including, but not limited to, USB, CD, DVD, or via a web page.
If the Client order Selected Images, the Photographer grants permission to the Client to use his/her/their photo laboratory of choice to make reproductions of the images in any size or quantity for personal use only. Any unauthorized use and/or sale of the described images by Client are not permitted under this agreement nor under Federal Copyright Laws. The Photographer grants the Client permission to share Digital Images on social networking websites, with family and friends, and on blogs/personal websites, for personal use, as long as the images remain unaltered and textual credit is explicitly given to the Photographer.
14. Print Deliverables | If the Client order prints of the product of the Session, including albums, photo magazines, and any other type of printed material or hard/physical copies, the Client shall have thirty (30) days from the date of receipt of the Digital Images to choose the images they would like to be printed. The Photographer will provide the finished product no later than (sixty) 60 days after the selection has been made by the Client.
15. House Rules | The Client understand that the Photographer, his agents, and his employees shall be bound by the laws, rules, or regulations of the place, city and/or country in which the Session will take place. It is the sole responsibility of the Client to secure permission of the location as well as of all individual participants, for the Photographer to photograph the Session and attendees at the Session. Many cities, counties, state agencies and private venues/businesses require photography permit fee(s) or other license(s) for Sessions. The Client accept the technical results of such impositions on the Photographer’s work and understand that any negotiations for the modification of such rules or regulations with those responsible shall depend on the Client. The Photographer, his agents, and his employees will offer technical recommendations only.
16. Photograph Wear and Watermarks | The Client understands that photographs may fade or discolor over time due to the inherent qualities of dyes, inks, and materials, and agree to release the Photographer from any liability for any claims based on such fading or discoloration. Prints made at different times, from different cameras, or from digital media and/or film, are expected to have variations from each other in color balance and finish. Proof images may bear watermarks indicating they are proofs and showing the Photographer’s name and copyright information. All print sizes are nominal sizes, not exact measure.
17. Deposit | By signing this contract the Client agree to pay the Session in full. In return, the Photographer, upon receipt of the payment, agrees to separate and hold exclusive the date of the Session. Any outstanding balance must be satisfied no later than 30 days prior to the Session date. If the Client do not pay the entire balance within the period mentioned above, the Client will lose the reservation date and the contract will be resolved without any party being entitled to any refund. Client understands that bounced, cancelled, or overdrawn checks or payments will cancel the booking and forfeit all fees paid.
18. Retainer Payments | Once the Photographer reserves the date for the Client, he cannot promote or sell his services to someone else for the same date. Should the Session be canceled or postponed, the Photographer would suffer a substantial loss; therefore, deposits and/or payments made by the Client are not refundable under any circumstances.
19. Jurisdiction | The laws of the state of California shall govern this contract and any dispute shall be settled accordingly. The Client assume responsibility for all legal fees and costs incurred by the Photographer should enforcement of this contract become necessary.
20. Compulsory Mediation and Arbitration | Any dispute or claim raised by Client arising out of, or in connection with, this contract shall, at first instance, be referred to a mediator for resolution; the Parties (herein referred to as the Client and the Photographer) shall attempt to agree upon the appointment of a mediator and cover the costs equally. Should mediation fail, in whole or in part, either Party may, upon giving written notice, and within thirty (30) days thereof, apply for the appointment of a single arbitrator to be agreed upon between the Parties, for final resolution. The arbitrator shall have no connection with the mediator or the mediation proceedings, unless both Parties have consented in writing. Each Party shall pay the fees and expenses of the mediator or arbitrator set out in accordance with the total divided by the number of Parties unless otherwise agreed. Both Parties agree that the Mediation and Arbitration processes could take place through an internet video or telephone conference.
21. Counterparts | The Parties agree that electronic signatures are acceptable and shall have the same force and effect as an original signature.
22. Construction and Severability | Wherever possible, each provision of this Agreement shall be interpreted so that it is valid under applicable law. If any provision of this Agreement is held illegal or unenforceable, that provision will be reformed only to the extent necessary to make the provision legal and enforceable; all remaining provisions will continue in full force and effect. This is a binding contract which incorporates the entire understanding of the Parties, and any modifications must be in writing, signed by both Parties, and physically attached to the original agreement.
23. Limitation on Liability | Photographer shall not be responsible for loss of, or interference with, the images or photography purchased by Client, due to restrictions on the location, including but not limited to, interference from surrounding devices, access limitations, flash restrictions, and the like. This limitation on liability shall also apply in the event that photographic materials are damaged in processing (film and digital), lost through camera malfunction, lost in the mail, fire or otherwise lost or damaged. Client understands and assumes the risk of the unpredictable and non-posed nature of photojournalism and waives all legal rights or claims to assert liability claims against Photographer arising out of, due to, or relating to missed or lost photographs/Images (including but not limited to unintentional infliction of emotional distress and negligence). Photographer makes no guarantee, either expressed or implied, in regard to the quality of the Images, because they are subjective and in addition, may be influenced by many factors beyond the control of the Photographer, especially during live or un-staged events. It is also understood that the Client is hiring the Photographer for its technical and artistic expertise and, therefore, the Photographer reserves the right to edit the Images as Photographer sees fit. Client is aware that digital files may be corrupted due to inherent media deficiencies and random interference. PHOTOGRAPHER SHALL NOT BE LIABLE TO CLIENT FOR ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES, OR ANY DAMAGES FOR LOST DATA, EMOTIONAL DISTRESS, INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR TERMS AND CONDITIONS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, ARISING OUT OF THE AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
24. No Guarantees or Warranties |. Photographer makes no warranty, guarantees, or representations as to the quality, kind, nature, characteristics, or quantity of Images to be provided to Client or Services provided hereunder. PHOTOGRAPHER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES IN CONNECTION WITH THE AGREEMENT OR THESE TERMS AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TITLE, ANY WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING OR TRADE USAGE, AND THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION.
Each person signing as the Client below shall be fully responsible for ensuring that full payment is made pursuant to the terms of this Agreement. By signing below, the Parties acknowledge that they understand English and have read and agree to the terms of this contract.