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Independent Contractor Agreement and Limited Image Use License
This Independent Contractor and Limited Image Use License Agreement (the Agreement) between Svetlana Leahy Photography, LLC, a Maryland limited liability company, and Svetlana Leahy (referred to collectively as Photographer), who is an independent contractor that grants the right to use certain copyrighted works of original creation and authorship, and _____________________________________ (referred to individually and collectively as Client) who contracts with Photographer and purchases the right to use those certain copyrighted works. It is herein recognized and acknowledged that, to meet the dual purposes of this Independent Contractor Agreement and Limited Image Use License, Photographer is acting in the capacities of Independent Contractor and Licensor in this Agreement; and Client is acting in the capacities of both a Company (or individual) who is hiring an Independent Contractor and as Licensee.
In consideration of the terms and covenants of this Agreement, and other valuable consideration, the sufficiency of which is hereby acknowledged, the parties agree and declare as follows:
I. Dual Purposes of This Agreement.
Photographer is a company that creates original works of photography and an individual who holds all rights, including copyrights, to those works of photography. Client is an individual or business entity engaged in the brokering of sales, purchases or leases of real property. By virtue of this Agreement, Client shall hire Photographer as an Independent Contractor and shall have the limited right to reproduce, publicly display and distribute the licensed photographs in accordance with the terms and conditions specified herein. Photographer is, and at all times, shall remain the sole and exclusive owner of both the licensed photographs in any form stored or created and the copyright of those licensed photographs. This is a non- exclusive Agreement and therefore Photographer may display, use, license or sell the same Photographs elsewhere and Client is free to purchase the license of other works of photography from other sources.
II. Definitions.
A. Photo Ready:
Photo Ready means that the area planned for photography is in the condition Client desires for that area to appear in the Photographs. Photo Ready means that an area is clean, free of clutter and/or obstructions and is safely accessible to Photographer and Photographer's employees; and there is no preparation, renovation or alteration of or to the area required before Photographer can begin work. Any pet, service animal, farm animal or livestock at the Property must be removed from the Property or otherwise crated or caged. Any furniture desired to be on any porch, patio, balcony, sunroom or other outdoor or partially outdoor space for the Photographs, must be in place and properly positioned at the time of the appointment. All hurricane or security shutters that may be present on a Property must be opened, regardless of whether they are electric or mechanical. Photographer has prepared a list of suggestions for making the area to be photographed Photo Ready and this list is available upon request.
B. Photographs - The parties recognize and acknowledge that the rights conveyed herein are those rights associated with certain images that Photographer creates by using a camera or other image capturing device that is focused onto film or other light sensitive material or stored digitally. As a component of Photographer's professional and creative processes, such images may be altered, enhanced or refined through the use of various editing techniques. In the context of this Agreement, Photographer's works of photography include any item created by Photographer in one or more of the following categories and shall be referred to as Photographs:
1. One of a kind original works of photography in all forms;
2. limited edition signed and numbered prints;
3. prints/giclees of original works of photography;
4. JPEGs/PNGs/TIFFs or any other digitally stored form of original works of photography
for purposes of viewing, storage and duplication; and
5. any data or metadata affixed, attached to or made part of the original works of photography
by Photographer.
C. Property - For the purposes of this Agreement, the real property, any structures upon the real property, and any contents of or fixtures in or upon the real property, that is presented for sale or lease by Client shall be referred to as the Property. All of the limited rights conveyed in this Agreement are so limited in that they are only to be used by the Client in conjunction with the sale or lease of said Property. It is therefore understood and acknowledged by Client that this definition of Property shall be used in the manner described in this section for the purpose of limiting the uses conveyed to Client by this Agreement.
III. Independent Contractor Relationship.
The execution of this Agreement shall result in Client engaging Photographer for the purpose of taking photographs of the Property. Photographer's service in this capacity is subject to the terms and conditions of this section and by Client's full compliance with this section and the other sections of this Agreement.
A. Limit of Relationship Between Parties.
Photographer and Photographer's agents and/or employees shall not be agents or employees of Client. There is therefore no actual or apparent agency relationship, employment relationship, franchise relationship, or partnership relationship between or among the parties by virtue of this Agreement. Photographer will not be considered to work for hire and the Photographs shall not be considered work made for hire under The Copyright Act of 1976, 17 U.S.C. 106, et seq. All costs associated with taxes or other governmental requirements associated with this independent contractor relationship, if any, shall be the responsibility of Photographer.
B. Compensation of Photographer.
Client shall compensate Photographer for the work Photographer performs in taking, editing and arranging the Photographs. Such payment will be invoiced by Photographer at the time of delivery of the Photographs to Client. Payment is due upon receipt of the invoice by Client and, in any event, no later than seven (7) business days from the date the Photographs are delivered to Client. Prices, fees and expenses are subject to change without notice. Payment of the invoice or invoices is not conditioned upon the use or non-use of the Photographs as envisioned by the limited grant of license of rights to Client. Payment of the invoice or invoices is not conditioned by the sale or lease, or payment following from sale or lease, of the Property. Client recognizes and acknowledges that Photographer is providing a valuable service and, while this service may result in the Photographs, it is not conditioned upon if or how the Photographs are ultimately used by Client.
C. Management of Client's Business.
Client shall have entire charge of the management and operation of its business; it shall furnish equipment and/or vehicles, and hire employees as required for the operation of its business. Photographer reserves no supervision or control over Client in the facilities, employees, and methods to be used and employed by Client in carrying out the purposes of this Agreement and shall in no event be responsible for negligence or recklessness of Client or Client's employees.
IV. Limited Copyright Licensing Agreement
All Photographs remain the property of Photographer unless Photographer sells its copyrights to Client or another party in writing and under a separate legal agreement. After the term of this Agreement is completed, or if the parties otherwise terminate this Agreement, Client agrees to destroy or delete all copies, JPEGs/PNGs/TIFFs or other images and all files pertaining to the Photographs that were delivered to Client under this Agreement. Photographer retains the copyright for the Photographs and that copyright gives Photographer the option to license the use of the Photographs to Client to use the Photographs in certain ways for a period of time. Photographer's copyrights to the Photographs and the specific limits to Client's licensed use of the Photographs are as follows:
A. Acknowledgement of Rights Granted to Photographer as Copyright Holder.
The rights granted to Photographer by The Copyright Act of 1976, 17 U.S.C. 106, et seq. are the right to reproduce the Photographs into copies; the right to create derivative works of the Photographs; the right to distribute copies of the Photographs to the public by sale, lease or rental; and the right to display the Photographs publicly. These are the exclusive rights of Photographer as holder of the copyrights to the Photographs. The stated purposes, protections and authority of the creator of a copyrighted work is specified in The Copyright Act of 1976, 17 U.S.C. 106, et seq., which is incorporated herein by reference and whose requirements are made a part hereof. Client specifically recognizes and acknowledges the validity of these copyrights and agrees not to infringe or otherwise interfere with those rights.
B. Allowable Uses of Photographs by Client Under this Agreement.
This Agreement grants limited use of the Photographs to Client for a specific period of time and under certain terms and conditions. By granting Client limited rights to use the Photographs, Photographer is exercising its rightful ownership rights of and copyrights to the Photographs as allowed by The Copyright Act of 1976, 17 U.S.C. 106, et seq. Photographer expressly limits Client's use to the reproduction, public display and public distribution of the Photographs for the purposes and time limits specified herein. Client is responsible for informing its agents or employees of the limited use rights conveyed herein and Client is liable for any violation of this agreement resulting from Client's breach of this Agreement including any breach related to conduct of Client's agents or employees. Photographer conveys no other ownership rights or copyrights to Client other than those expressly described in this Agreement. Client's exercise of the limited rights granted by this Agreement are not exclusive and Photographer may license the same Photographs to others. Client recognizes that any exclusive use request may result in additional fees at the option of Photographer.
C. No Editing of Photographs Allowed by Client.
Client must use the Photographs that are provided by Photographer without Client edits of any type, including deletions, additions, shading, filters or any other physical or digital manipulation of the Photographs whatsoever. Any editing Client desires or requires must be performed by Photographer by request in accordance with Section V(A)(4) below.
D. Multiple Listing Services.
As a component of allowable display and reproduction, and only for the term hereof, the Photographs may be uploaded by Client to a multiple listing service (MLS) and such listing, notwithstanding any terms and conditions of the MLS or any agreements related to the MLS or use of the MLS by Client, shall not entitle Client to any exclusive rights of copyright beyond those expressly conveyed herein. At the expiration of the term of this Agreement, Client shall remove all Photographs from any MLS on which the Photographs were displayed or to which they were uploaded, downloaded or otherwise digitally transferred. This removal shall include
E.
the removal of the Photographs as well as any cookie, site data, data or metadata associated with the Photographs.
Displaying Photographs on and Copying Photographs from Social Media Platforms.
Photographs may be used on social media platforms in accordance with this section for promotional purposes only and are not to be used as cover photographs for Client or any of Client's agents or employees. Any display, link or reference to any of the Photographs on any social media platform must be accompanied by a credit to Svetlana Leahy Photography and/or with a tag or link to Photographer's internet website at https://svetlanaleahy.com or Photographer's Facebook page at @Svetlana.LeahyPhotography. Client shall not cut, copy, download or duplicate copies of Photographs from any online source or social medial platform and is only given license to display the Photographs that are provided to Client from Photographer pursuant to this Agreement.
Copyright Management Information.
In recognition of The Copyright Act of 1976, 17 U.S.C. 106, et seq. and Photographer's exclusive copyrights to the Photographs, Client, in using the Photographs in exercise of the limited license granted hereunder, shall include any copyright management information (CMI) that is contained in, or provided with, the Photographs. Such CMI is included for the purpose of conveying and protecting Photographer's copyrights to the Photographs and may include either a copyright mark on the Photograph with the copyright holder's name and date of creation of the Photograph and/or the same or additional copyright information embedded in the metadata accompanying the Photographs, or anywhere else, at the discretion of Photographer. Client, in compliance with The Copyright Act of 1976, 17 U.S.C. 106, et seq. and the Digital Millennium Copyright Act, 17 U.S.C. 512, et seq., shall not remove, alter or otherwise circumvent or attempt to circumvent the CMI or any other technical measures in place to protect Photographer's copyrights to the Photographs or to control access to the Photographs. Client recognizes and acknowledges that any alteration or removal of any CMI shall only be allowed with the express written consent of Photographer.
F.
G. UsesNotGrantedtoClient.
The only uses granted to Client are the limited rights to use, reproduce, publicly display and publicly distribute the Photographs in strict compliance with the terms and conditions of this Agreement; and no other rights belonging to Photographer are granted to Client by this Agreement. Therefore, Client shall not transfer the copyright or create derivative works of the Photographs. Further, the rights of Client to reproduce, publicly display and publicly distribute the Photographs are limited by the terms and conditions of this Agreement. Client recognizes these specific grants of this license and the limits placed thereupon by this Agreement. No transfer of ownership in the Photographs shall result from this Agreement but noncommercial personal use of one or more of the Photographs may be licensed at Photographer's option and by separate agreement.
H. Scope of Use of Photographs by Client.
Client's uses of the Photographs shall be limited to use for only the identification, promotion or advertising of the Property as defined above. Client must obtain the written authorization of Photographer (Additional Use Agreement) to use the Photographs in any other ways and shall pay additional use fees as so required by Photographer and as included in any such Additional Use Agreement. Any exclusive use desired by Client for any Photographs depicting interiors of Properties will require the execution of an Additional Use Agreement. Exclusive use will not be granted for any exterior Photographs. Client shall not convey, sell, transfer, assign or sublicense any of the Photographs.
I. Term for Use of Photographs by Client.
The limited use rights granted to Client hereunder shall become effective on the date of delivery of the Photographs from Photographer to Client. Unless the parties enter into another written agreement, this Agreement and the license granted hereunder, shall remain effective until the earlier of: 1) one (1) year from the date of delivery of the Photographs to Client; or 2) the termination of Client's representation of the Property for real estate sale or lease; or 3) an earlier date if agreed to by the parties. Any other period of use by Client shall be at the discretion of Photographer and shall only be allowed by Photographer's express written consent to either extend the terms and conditions of this Agreement or by the parties executing a different agreement. Any extension of the period of allowable use of the Photographs by Client may only be granted after payment of additional fees by Client at the option of Photographer.
J. Use Limited to Client.
Unless specific written authorization is provided by Photographer, Client shall not allow any third parties to use the Photographs. Such third parties include, but are not limited to, other brokers or agents, architects, builders, stagers, designers, sellers, buyers, landlords or tenants. In the event that Client shares or otherwise transfers the Photographs to any other party, Photographer will seek enforcement of the copyrights and Client may be liable for damages accordingly. Anyone other than Client that is interested in displaying the Photographs must be provided license to do so by Photographer and therefore should be referred to Photographer for this purpose.
K. Photographs Not to be Comingled with Other Works.
Use of the Photographs is limited such that they shall not be used with photographs taken by any other photographer other than Photographer, the party immediately hereto.
L. Warranty of Photographer.
Photographer hereby warrants that Photographer possesses sole unencumbered title to the Photographs, that the Photographs are original and do not infringe upon the work of any other person, that the Photographs are free of all liens. This warranty will survive termination of this Agreement and Photographer agrees to hold Client harmless against any cost resulting from a breach of this warranty. Furthermore, Photographer warrants to Client that Photographer shall not, during the term of this Agreement, grant any lien or security interest in the Photographs to any other person or entity or encumber the Photographs in any manner, or permit or allow such lien, security interest, or encumbrance to remain against the Photographs except in accordance with the sale of license to use the Photographs if and as specified by Photographer below.
M. Revocation of License if Invoices not Timely Paid.
Client recognizes that, at the option of Photographer, the limited rights granted to Client under this Agreement shall be revoked, rescinded or terminated in the event that an invoice is not paid within thirty (30) days of the date of delivery of the Photographs to Client. In the event that the license is revoked, Client shall provide Photographer a written statement acknowledging that all copies of the Photographs, in any format or form of media in print or otherwise displayed, have been deleted or destroyed and all online reproductions or displays, including in or on any MLS, have been removed. All deletion, destruction or removal of Photographs resulting from revocation of the license must occur within ten (10) days of the revocation of the license.
N. Delivery of Photographs.
Photographer will deliver the Photographs in JPEG format at their highest resolution with a maximum of 300 dots per inch (dpi). Photographer warrants that the Photographs delivered will be suitable for printing, reproduction and display for the purpose of showing the Property online or in printed format. Once Photographs have been delivered to Client, Photographer is not responsible for archiving or otherwise storing or maintaining the Photographs.
V. Miscellaneous Provisions Generally Applicable to this Agreement.
A. Order and Scope of Work of Photographer.
1. Client must obtain any permissions, authorizations or releases necessary for Photographer to be present on a Property and Client shall ensure that such permissions, authorizations or releases remain in full force and effect for any time Photographer's presence is required at a Property.
2. Client must make an appointment with Photographer to schedule a time for Photographer to be present on a Property for the purpose of taking the Photographs. All Property must be Photo Ready before Photographer arrives for an appointment. Photographer reserves the right to cancel any appointment at Client's expense if the Property to be photographed at the scheduled appointment is not Photo Ready.
3. Photographer's availability is based on Photographer's schedule and may be varied. Client should contact Photographer for more details about Photographer's availability at the time(s) Client desires Photographer's services. Processing times are determined by Client through Photographer's online ordering procedure. Photographer does not operate during hurricanes, nor easters, tornado watches or if cloud to ground lightening is occurring. In any situation in which weather conditions may impact the scheduling of a session, Photographer will contact Client in advance to determine if a session will be rescheduled. If Photographs are taken in cloudy conditions, sky replacement is available free of charge for up to ten (10) Photographs at the option of Client. Photographer will not provide editing to remove the appearance of puddles on decks, balconies, driveways, or other outdoor structures.
4. Editing - Digital image editing software may be used to alter the Photographs at the option of Client.
B. Manner and Method of Payment of Photographer.
Client's obligation to pay Photographer is not conditioned upon Client's actual use of the Photographs and is not conditioned upon any sale or lease of the Property. Photographer charges different fees based on whether a Photograph will be used for lease or sale of a Property and, therefore, the nature of Client's desired use for the Photographs must be disclosed at or
before an appointment with Photographer. Photographer will submit invoices to Client before the time of delivery of the Photographs and such invoices will include licensing fees and reasonable expenses incurred by Photographer in production and/or preparation of the Photographs. Payment of licensing fees and any pre-existing expenses shall be made by Client at the time of execution of this Agreement to the extent practicable, and, in any event, shall be due and payable before the Photographs are delivered to Client. If not otherwise already paid, all fees and expenses due hereunder shall be paid by Client within seven (7) business days from the date of delivery of the Photographs.
C. Default Provisions.
Client recognizes that Photographer's rights of ownership of and copyrights to the Photographs are allowed by and protected by State and Federal law, including, but not limited to, The Copyright Act of 1976, 17 U.S.C. 106, et seq., the Digital Millennium Copyright Act of 1998, 17 U.S.C. 512, et seq., and Maryland Code Annotated, Commercial Law Article 22-105. Any violation of Photographer's rights under these and any other statutory or regulatory provisions, shall be enforced by Photographer as required. This may include any criminal or administrative enforcement available for such violation, any private cause of action allowed by statute, as well as any remedy available to Photographer at law or equity as a result of Client's conduct under this Agreement. Both parties are entitled to pursue any appropriate remedy at law or equity in the event of breach of any term or conditions of this Agreement.
D. Client Cancellation of Appointments with Photographer.
If Client cancels an appointment more than 48 hours before the scheduled session with
Photographer, there will be no charge to Client. If Client cancels 48 hours or less before a scheduled session with Photographer, fees are not refundable.
E. Risk of Loss.
Client is responsible for any losses of or damages to Photographer or Photographer's equipment resulting from any act, omission or occurrence that is the fault of Client or Client's invitees while Photographer is present on a Property. Client is responsible for any losses of or damages to Photographer, Photographer's employees or equipment resulting from any act, omission or occurrence that is related to or caused by any pet, service animal, farm animal or livestock that may be present in or on a Property.
F. Limitation of Liability.
Photographer is not liable for poor reproduction quality of the Photographs; any costs associated with delays in delivery of the Photographs; or any consequential or incidental damages incurred as a result of the delivery of the Photographs, including the storage, display, or reproduction of the Photographs by Client. Photographer is not liable for any injury to any person or damage that may occur on any Property. Photographer is not liable for any loss, damage or claim to or by any invitee to any Property. Photographer is not liable for any claims associated with damage to or from any pet, service animal, farm animal or livestock that may be present in or on a Property.
G. Indemnification.
Client agrees to indemnify and hold Photographer harmless, as well as Photographer's members, officers, agents or employees, from and against any and all liabilities, losses, penalties, fines, damages, claims or expenses arising from, or in connection with the use, display, storage or reproduction of the Photographs; or from losses arising from the proposed or actual sale or lease of any Property and from any transactions Client may have with any other parties in the normal course of Client's business. Client agrees to indemnify and hold Photographer harmless, as well as Photographer's members, officers, agents or employees, from and against any copyright, patent, trademark, proprietary information or privileged information claims that may arise from any images that are in the Photographs of any original work of art, trademark, business secret, patent information or other protected or privileged images or information present in or on the Property when photographed by Photographer. Client is responsible for removing such images or information or otherwise for securing releases or waivers from the owners, licensees or privilege holders of those images or information that may be present in or on a Property. Photographer agrees to indemnify and hold Client harmless, as well as Client's members, shareholders, officers, agents or employees, from and against any and all liabilities, losses, penalties, fines, damages or claims arising from, or in connection with Photographer's use, display storage or reproduction of the Photographs, or from its transactions with other parties in the normal course of Photographer's business.
H. Governing Law.
The laws of Maryland shall govern the interpretation, construction, and enforcement of this Agreement, and any disputes arising from this Contract shall be litigated in the courts of Maryland in the county in which the dispute arises or the United States District Court for the District of Maryland. The parties hereby waive any and all rights to a jury trial in connection with all disputes arising from this Contract and consent to the jurisdiction, venue and authority of the courts of the State of Maryland.
I. Alternative Dispute Resolution.
If a dispute arises under this Agreement, the parties agree to attempt to negotiate, in good faith, to resolve the dispute. Should negotiation be unsuccessful, the parties recognize that mediation and/or arbitration of any such dispute may be mutually beneficial. Therefore, either party may initiate mediation and/or arbitration and the other party agrees to cooperate with such efforts in good faith. If the parties agree that a dispute will be resolved by arbitration, the decision of the arbitrator(s) shall be binding upon the parties, unless the parties agree that it shall be non- binding.
Photographer shall bear all attorney's fees, costs and expenses related to the negotiation, drafting and execution of this Agreement. In the event of a breach of this Agreement by any party, the non-breaching party shall be entitled to recover their reasonable attorney's fees, litigation expenses, and mediation or arbitration fees and costs incurred in connection with enforcing the Agreement and/or pursuing and recovering remedies for a breach thereof.
In the event any provision or part of this Agreement is found to be invalid or unenforceable, only that particular provision or part so found, and not the entire Agreement, will be inoperative.
M. Counterparts
This Agreement may be executed in counterparts and shall be effective as of the last date of execution.
N. Entire Agreement.
This Agreement shall supersede any and all other prior understandings and agreements, either oral or in writing, between the parties with respect to the subject matter hereof and shall constitute the sole and only agreements between the parties. All prior negotiations and agreements between the parties hereof are merged into this Agreement. Each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party or by anyone acting on behalf of any party,
J. Attorney's Fees and Court or Dispute Resolution Costs.
K. No Waiver.
The failure of any of the parties to this Agreement to insist on the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any terms and conditions of this Agreement, shall not be construed as waiving any such terms and conditions, and such terms and conditions shall continue and remain in full force and effect as if no forbearance or waiver had occurred.
L. Effect of Partial Invalidity.
which are not embodied in this Agreement and that any agreement, statement or promise that is not contained in this Agreement shall not be valid or binding or of any force or effect.
O. No Exclusive Relationships or Licenses Created.
There is and shall not be an exclusive relationship created between or among the parties by this Agreement. Client may engage, hire or employ other persons or entities to photograph the Properties. Photographer will provide photography services to others and will license its copyrights to others during and after the term of its Agreement with Client. Photographer may license the Photographs, even if they are the same Photographs, to others during and after the term of this Agreement. Client recognizes and acknowledges that the license it purchases by virtue of this agreement is non-exclusive and that similar or identical Photographs may be licensed by Photographer to others during and after the term of this Agreement.
P. Agreement Not Transferrable or Assignable.
Neither party may assign their rights or obligations under this Agreement and neither party shall transfer this Agreement to any other party. This Agreement is only binding upon Client and Photographer as have both signed hereunder. If Photographer has not obtained written confirmation of Client?s authorization to make a payment, Client remains obligated to make said payment and is still bound by the terms and conditions of this Agreement.
Q. Notice.
Any notice or delivery required hereunder shall be considered valid if in writing and if delivered by certified mail or email as follows (if Client does not provide an email address, notice and delivery shall be by certified mail only):
To Photographer:
Svetlana Leahy Photography, LLC 4001 Doe Run Dr.
Salisbury, MD 21804
[email protected]To Client:
______________________________
______________________________
______________________________
______________________________
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
Photographer
___________ _______________________________________(SEAL) Date Svetlana Leahy, Individually and as Authorized Member
of Svetlana Leahy Photography, LLC
?Client?
___________ _________________________________________(SEAL) Date Client Signature
_________________________________________
Client's Printed Name
