You Agree To The Following Terms and Conditions By Booking Your Session With Kemp Photography:
Definitions
Kemp Photography is defined as "Contractor".
Company or Individual(s) purchasing services is defined as "Client".
SERVICES TO BE PERFORMED
Contractor will provide all photographic and related equipment necessary. Contractor shall capture digital portrait photographs of predetermined participants at predetermined locations. Each participant will then immediately have access a web-hosted gallery of high-resolution headshots within 7 business days of the scheduled session date.
Terms and Conditions
Acceptances
The payee has the authority to enter into this Agreement on behalf of Client. Client agrees to cooperate and to provide Contractor with everything needed to complete the Services as, when and in the format requested by Contractor.
Contractor has the experience and ability to do everything Contractor agreed to for Client and will do it all in a professional and timely manner. Contractor will endeavor to meet every deadline that’s set and to meet the expectation for Services to the best of its abilities.
Warranty
Contractor warrants that: (i) the Services will be performed in a professional and workmanlike manner and that none of such Services or any part of this Agreement is or will be inconsistent with any obligation Contractor may have to others; (ii) none of the Services or Inventions or any development, use, production, distribution or exploitation thereof will infringe, misappropriate or violate any intellectual property or other right of any person or entity (including, without limitation, Contractor); (iii) Contractor has the full right to provide Client with the assignments and services provided for herein; (iv) Contractor shall comply with all applicable laws in the course of performing the Services and (v) if Contractor’s work requires a license, Contractor has obtained that license and the license is in full force and effect.
EXCEPT AS SET FORTH IN THIS AGREEMENT CONTRACTOR DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, COMPLETENESS OR RESULTS TO BE DERIVED FROM THE WORK.
EXCEPT AS SET FORTH HEREIN, ALL SERVICES ARE DELIVERED ON AN “AS-IS” BASIS.
Confidentiality & Non-Disclosure
Each party shall maintain, in the strictest confidence, all Confidential Information (as defined in the next sentence) of the other party. “Confidential Information” means all information disclosed by a Party (the “Disclosing Party”) during the Term to the other Party (the “Receiving Party”) that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.
In the event a party is required to disclose Confidential Information pursuant to a judicial or other governmental order, such party shall, to the maximum extent permitted by law or opinion of counsel, provide the other party with prompt notice prior to any disclosure so that the party or its client may seek other legal remedies to maintain the confidentiality of such Confidential Information.
Each party receiving Confidential Information shall be responsible for any breach of this provision that is caused by any of its employees, affiliates, representatives or agents and such party agrees to indemnify and hold harmless the other party from and against any liabilities, claims, damages, losses, costs and expenses resulting, directly or indirectly, from any breach by a party, or any of its employees or independent contractors, of any provision of this Agreement. The obligations of this Section shall survive termination of this Agreement for a period of 3 years.
Confidential Information of Client shall include all copies of the digital photos taken by Contractor for Client.
Confidential Information does not include information that: (a) is or becomes generally known to the public without breach of the obligations contained in this Agreement by the Receiving Party; (b) was known to the Receiving Party prior to disclosure by the Disclosing Party, without breach of any obligation owed to the Disclosing Party under this Agreement or improper use of the other Party’s Confidential Information; (c) is received from a third party without breach of any obligation owed to the Disclosing Party under this Agreement; or (d) was independently developed by the Receiving Party without use of the other Party’s Confidential Information. All Confidential Information is and shall, subject to any right of any other owner, remain the property of the Disclosing Party. By disclosing Confidential Information to the Receiving Party, the Disclosing Party does not grant any express or implied rights (e.g., under patent, copyright, trademark, or trade secret laws). All rights not expressly granted herein are reserved by the Disclosing Party.
The Receiving Party will: (a) protect the Disclosing Party’s Confidential Information with the same degree of care that the Receiving Party uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care); (b) not use the Disclosing Party’s Confidential Information for any purpose other than the provision or use of the Services or performance of their respective obligations under this Agreement; and (c) limit access to the Disclosing Party’s Confidential Information to employees who need that access for providing Services or a purposes otherwise allowed by the terms of this Agreement and who are bound by confidentiality provisions no less stringent than those set forth herein.
The Receiving Party acknowledges that the Confidential Information is valuable to the Disclosing Party and that any unauthorized disclosure or use may cause irreparable damage to the Disclosing Party. The Receiving Party therefore agrees that money damages alone would be insufficient and that upon any actual or threatened violation or breach of the obligations herein, the Disclosing Party will be entitled, in addition to any other rights or remedies available to it at law or equity, to seek specific performance or injunctive relief without the posting of a bond.
Ownership and Licenses
Client agrees that Contractor retains ownership of all deliverables and materials developed pursuant to this Agreement (including, without limitation, all presentations, writings, ideas, concepts, designs, text, plans, and other materials that Contractor conceives or develops in connection with Contractor’s services for Client, including all materials incorporated therein whether such materials were conceived or created by Contractor individually or jointly, on or off the premises of Client, or during or after working time) and Contractor grants Client the license to use the work product in the following way(s) only upon full payment of all fees due to Contractor pursuant to this Agreement: Any and all commercial uses.
Non-Solicit
Contractor agrees that during the period in which it is providing Services and for one year thereafter, Contractor will not encourage or solicit any employee, vendor, client or contractor of Client to leave Client for any reason.
Relationship of Parties
Nothing contained in this Agreement shall be construed to create a partnership, joint or co-venture, agency, or employment relationship between Contractor and Client. Both Parties agree that Contractor is, and at all times during this Agreement shall remain, an independent contractor.
Term & Termination
Either Party may terminate this Agreement at any time, with or without cause, upon 7-days written notice.
Either Party also may at any time terminate the Agreement immediately if: (i) the other party commits a breach of this Agreement and such party does not cure a breach within 5 days of written notice from the non-breaching party of such breach.
If this Agreement is terminated earlier by Client for any cause, Client agrees to pay Contractor a non-refundable booking retainer equal to 50% of the total service fees in addition to any and all sums which are due and payable for: (i) services provided as of the date of termination; and (ii) expenses already incurred, including those from documented non-cancelable commitments. Contractor agrees to use the best efforts to minimize such costs and expenses.
Termination for any reason shall not affect the rights granted to Client by Contractor hereunder. Upon termination, Client shall pay to Contractor all undisputed amounts due and payable. If upon termination Client has not paid undisputed fees owed for the material, deliverables or Services provided by Contractor as of the date of termination, Client agrees not to use any such material or the product of such Service, until Client has paid Contractor in full. Any provisions or clause in this Contract that, by its language or context, implies its survival shall survive any termination or expiration of this Agreement. Notwithstanding anything to the contrary in this Agreement, Contractor shall retain a perfected security interest in the deliverable or material until Client has made payment in full for all undisputed amounts as of the termination date. Contractor hereby agrees to release and waive its security interest in the deliverable and material upon receipt of full payment for all undisputed amounts.
Payment Terms
Client understands the importance of paying independent contractors in a timely manner and wants to maintain a positive working relationship with Contractor to keep the project moving forward.
Payments for the Booking Retainer equal to 50% of the total service fee are due immediately upon booking. Payments for the remaining 50% are due on the date of Client’s booking. In case of overdue payments, Contractor reserves the right to stop work until payment is received. Balances not paid within terms are subject to a $250 late fee that accrues monthly in addition to a 1% monthly finance charge. If any refund occurs, Client understands that they will be refunded the amount minus credit card processing fees.
Booking Retainers
A non-refundable booking retainer equal to 50% of the total service fee is due upon the acceptance of this Agreement before work will begin.
Expense Reimbursement
Client shall reimburse all expenses that are reasonable and that have been authorized in writing by Client in advance; payable within 7-days of itemized invoice.
Changes
Any material changes to the Services, including work to be performed and related fees must be approved by the prior written consent of both parties.
Indemnification and Limitation of Liability
Client agrees to indemnify, defend and hold harmless Contractor from any and all claims, actions, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys’ fees) arising in any manner caused by Client’s (i) gross negligence; (ii) out of any claim that Client provided content, or any portion thereof in fact infringes upon or violate any proprietary rights of any third party, including but not limited to patent, copyright and trade secret rights; or (iii) from a breach or alleged breach of any of Client’s representations, warranties or agreements herein.
TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, CONTRACTOR SHALL NOT BE LIABLE TO THE CLIENT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOST PROFIT, LOSS OF BUSINESS OR THE LIKE) ARISING OUT OF OR RELATING TO THIS THIS AGREEMENT, CONTRACTOR’S PERFORMANCE HEREUNDER OR DISRUPTION OF ANY OF THE FOREGOING, EVEN IF CLIENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE CAUSE OF ACTION, WHETHER SOUNDING IN CONTRACT, TORT, BREACH OF WARRANTY OR OTHERWISE. TO THE MAXIMUM EXTENT ALLOWABLE BY LAW, CONTRACTOR’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AGGREGATE COMPENSATION PAID BY CLIENT TO THE CONTRACTOR UNDER THIS AGREEMENT.
Insurance
Contractor shall at its own cost and expense, acquire and maintain the following insurance coverage with insurers having an A.M. Best rating of at least A- VII or better:
Commercial General Liability insurance written on an occurrence form, including but not limited to premises-operations, property damage, products/completed operations, contractual liability, personal and advertising injury, and liability assumed under an insured contract, with limits of $1,000,000 per occurrence and $2,000,000 general aggregate, and $1,000,000 Products/Completed Operations aggregate;
If Contractor’s creation and delivery of any of the services hereunder involves the use of motor vehicles, Commercial Automobile Liability Insurance, including hired, borrowed and non-owned automobile coverage, in the amount of $1,000,000 combined single limit each occurrence;
Umbrella Liability on a follow form basis, with limits of $1,000,000 per occurrence and aggregate in excess of the limits in (b), (c), and (d) above; and
If Contractor’s creation and delivery of any of the services hereunder involves professional services or design work, Professional Liability/Errors & Omissions (E&O) with limits of $1 million per claim and aggregate. Such policy shall include but not be limited to coverage for liability arising out of wrongful acts while providing the professional services under this contract.
Proof of insurance in the form of a certificate of insurance shall be provided by Contractor upon Client's request.
Right to Authorship Credit
Both Parties agree that when asked, Client must properly identify Contractor as the creator of the deliverables. Client does not have a proactive duty to display Contractor’s name together with the deliverables, but Client may not seek to mislead others that the deliverables were created by anyone other than Contractor.
Client hereby agrees Contractor may use the work product as part of Contractor’s portfolio and websites, galleries, and other media.
Governing Law and Dispute Resolution
This Agreement and any dispute arising hereunder shall be governed by the laws of The State of California, without regard to the conflicts of law provisions thereof. For all purposes of this Agreement, the Parties consent to exclusive jurisdiction and venue in the courts located in Orange County, California.
The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights.
Force Majeure
No failure or omission by a party in the performance of any obligation under this Agreement shall be deemed a breach of this Agreement or create any liability if such failure or omission shall arise from any cause or causes beyond the reasonable control of such party which cannot be overcome through that party’s reasonable diligence, e.g., strikes, riots, war, acts of terrorism, acts of God, severe illness, invasion, fire, explosion, floods and acts of government or governmental agencies or instrumentalities. If the force majeure results in a delay of goods and/or services, the date of delivery or performance of any other obligations of Contractor hereunder shall be extended for a period equal to the time lost by reason of the delay. If any force majeure event results in a cancellation of the Event or any portion thereof, then Client shall pay Vendor for any portion of goods and/or services provided by Contractor through the date of cancellation or termination. A force majeure event shall not include any event that a party could reasonably have prevented by any exercise of diligence; and any failure of any systems, facilities, or hardware that could have been prevented by a reasonable amount of testing. A force majeure event shall not relieve or suspend a party’s obligations under this Agreement unless the party affected by the force majeure event has used commercially reasonable efforts to mitigate or eliminate the cause of such delay or its effects.
Notices
Any notices to either Party made pursuant to this Agreement shall be made and sent (i) via US mail or a nationally recognized carrier to the other Party’s address on file; (ii) or via e-mail to the other Party’s designated representative. Each Party shall have an independent obligation to provide and update, as necessary, the mail and e-mail address on file for such notices. Notices sent by e-mail shall be deemed effective once sent if no error or “bounce back” has been received within twenty-four (24) hours of submission.
Appropriate Conduct
Client and Contractor will seek to maintain a professional relationship that is free from harassment of any kind and from any other offensive or disrespectful conduct. If at any time during the term of this Agreement Contractor believes that he/she has been subjected to harassing behavior on the part of Client or Client’s staff, Contractor will notify Client immediately and demand that appropriate actions will be taken to correct the matter. In the event that the reported behavior continues following Contractor’s second notice, such behavior will constitute a breach of this Agreement and entitle Contractor to terminate this Agreement in accordance with the Agreement’s Term and Termination Clause, and be paid in full for the ordered project or for the planned monthly service hours, as applicable, without limiting any other right or remedy available to Contractor by law.
Miscellaneous
The section and subsection headings used in this Agreement are for convenience only and will not be used in interpreting this Agreement. Both parties have had the opportunity to review this Agreement and neither party will be deemed the drafter of this Agreement for the purposes of interpreting any ambiguity in this Agreement. The parties agree that this Agreement may be signed by manual or facsimile signatures and in counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. In the event that any provision of this Agreement will be determined to be illegal or unenforceable, that provision will be first revised to give the maximum permissible effect to its original intent or, if such revision is not permitted, that specific provision will be eliminated so that this Agreement will otherwise remain in full force and effect and enforceable.
Assignment
Contractor may assign or delegate this Agreement or any of its rights or obligations under this Agreement without the prior written consent of Client. Subject to the provisions of this Section, this Agreement shall be binding upon and shall insure to the benefit of the parties hereto and their respective successors and assigns.
COVID-19 Wavier
Client is hereby notified and agrees that:
While the State of California has eased or eliminated various COVID-19 based restrictions on businesses, the conduct and performance of the services being provided by the Contractor are subject to those rules in place at the time the photography services are to be performed.
Based upon the scope of the social distancing restrictions in place at the time of the photography services, certain aspects of the contractor/client interaction may be altered by necessity.
Client and all members of Client’s party agree to abide by the social distancing measures in force at the time of their session or event. Client and members of Client’s party explicitly agree and understand that failure to adhere to such social distancing measures places them at increased risk of COVID-19 exposure or transmission.
WAIVER
Client and members of Client’s party assume all risks associated with potential COVID-19 transmission or exposure in relation to the photography services being provided and accept sole responsibility for an illness, injury, damages, claims or expense arising therefrom regardless of the identity of the person alleged to be at fault for such transmission or exposure.
As consideration for this waiver, Contractor agrees to waive any liability or claim against Client or members of Client’s party for COVID-19 transmission or exposure.
Notwithstanding the foregoing, the Waivers contained in Sections 4 and 5 of this Notice and Waiver shall not be interpreted to prohibit actions or claims against persons who knowingly participate in the photography services while exhibiting COVID-19 symptoms or who knowingly participate while having an active COVID-19 infection.
Rescheduling and No-Shows
Rescheduling is allowed with 48 hours notice and any balances paid by Client to Contractor will be applied to the rescheduled booking. Rescheduling without 48 hours notice or not showing for an appointment without any prior notice forfeits the Booking Retainer equal to 50% of the service fee.
Entire Contract
This Agreement and any exhibits, schedules, or attachments, between the Parties supersedes any previous arrangements, oral or written, and may not be modified in any respect except by a future written agreement signed by both Parties.