Real Estate Photography Agreement
NOTE: THIS CONTRACT CONTAINS A MANDATORY ARBITRATION CLAUSE IN SECTION 19. PLEASE READ CAREFULLY.
1. Acceptance of Terms. By checking the boxes next to the Client name and by clicking the Submit & Pay button, each Client identified on the Schedule a Photo Shoot webpage (collectively, “Client”) and Beacon James, LLC (“Company”) enter into this Real Estate Photography Agreement (“Agreement”) to confirm the understanding and agreement of the parties. To the extent Client’s selected package does not include certain services or features, the provisions hereof related to such services or features shall not apply. Any modification of this Agreement will not be valid unless made in a writing signed or acknowledged by both parties. Client and Company agree that digital or electronic signatures or acknowledgments shall be binding on the parties and sufficient to execute, negotiate and finalize this Agreement.
3. Payments. If Client wishes to purchase any real estate photography or related service or product (collectively, “Services”) made available through www.beaconjames.com (the “Site”) (each such purchase, a “Transaction”), Client may be asked to supply certain information relevant to your Transaction including, without limitation, Client’s credit card number, the expiration date of the credit card, Client’s billing address, and Client’s shipping information. EACH CLIENT REPRESENTS AND WARRANTS THAT EACH CLIENT HAS THE LEGAL RIGHT TO USE ANY CREDIT CARD(S) OR OTHER PAYMENT METHOD(S) UTILIZED IN CONNECTION WITH ANY TRANSACTION. By submitting such information, each Client grants to Company and its affiliates the right to provide such information to third parties for purposes of facilitating the completion of Transactions initiated by Client or on your behalf. Verification of information may be required prior to the acknowledgment or completion of any Transaction.
Payment is due as follows: (1) twenty five percent (25%) of the title price for the Services shall be due upon booking, and (2) the balance shall be due on the date the subject property is purchased, sold or leased (“Closing Date”) or the date on which Client’s listing agreement expires, whichever is sooner. Client shall send written notice to the Company at least one day prior to the Closing Date to advise that the transaction is closing. If the transaction for the subject property does not close before Client’s listing agreement expires, Client shall notify the Company of the expiration and Client pay the balance due no later than the expiration date of the listing agreement.
4. Changes and Cancellations. No refunds are available under any circumstances. If Client wishes to cancel Services or reschedule a shoot: shoot dates or times may be changed or canceled without penalty up to 24 hours before the scheduled shoot time. Changes or cancellations less than 24 hours prior to shoot time will incur a change/cancellation fee. If the Company or its contractor cannot access the property due to the property owners or for any other reason, the change/cancellation fee shall apply. Client acknowledges and agrees that the Company reserves the right to charge additional fees due to rescheduling, cancellations and reshoots. Additional travel fees (“Long Distance Fees”) may be charged if the Services include on-site shoots at properties outside of the Company’s service area (as defined on the Site). Changes to the Services, including, without limitation, the addition of extra or other services, may require rescheduling and will incur additional fees.
5. Performance of Services.
(a) The P-V Content and any enhancements thereof (if applicable) included in the Services is described in the various packages offered through the Site. The Company shall provide the Services for Client subject to the terms and conditions of this Agreement. The Company may use affiliates or third party contractors to provide any of the services described in this Agreement and such affiliates may process Client’s payments due to the Company hereunder.
(b) Client shall ensure the property is clean, organized and camera-ready prior to the photo-shoot. In addition, Client shall arrange for the Company’s (or its contractor’s) access to the property and shall monitor weather, readiness of the property, and/or any other factors that may affect the Company’s ability to perform the Services.
(c) If Client selects a premium package, the Company will make the P-V Content accessible to Client for download by 5:00 p.m. Central Time the next business day (excluding weekends and holidays) after the photo shoot occurs provided that (i) the photo-shoot is scheduled more than two (2) business days in advance, (ii) the photo-shoot occurs before 5:00 p.m. Central Time on a business day, and (iii) Client makes the required initial payment at the time of booking.
(d) Client is responsible for determining whether any permits or licenses are required for any property, location or site where Services will be performed. Client is also responsible for payment of any fees and costs associated with such permits or licenses. Client agrees to obtain all necessary permits and licenses before the shooting date.
(e) The photographers and videographers (if applicable) are limited by the rules or guidelines of site management entities, such as condominium associations or home associations. Among other restrictions, the Company and its third party services and contractors are not responsible for lighting restrictions imposed at any shooting location. Client agrees to accept the technical results of any such rules, guidelines or other imposition on the photographer and videographer. Negotiation with third parties for alteration of rules or guidelines is Client’s responsibility; the Company will offer technical recommendations only. Client acknowledges that constraints of the physical environment can affect the quality and extent of photography and videography coverage possible.
(f) Client hereby represents and warrants to the Company that Client has obtained all appropriate releases, permissions, licenses, permits and/or authorizations for the production of P-V Content, including, without limitation, the consent and approval of the real estate owner and, if applicable, any third party condominium or home associations. Client agrees that any contact information of the property owner may be displayed online for public viewing in connection with the P-V Content.
(g) Client agrees to indemnify, defend and hold harmless the Company and its affiliates and third party contractors against any and all claims, costs, and expenses, including attorney’s fees, arising out of or relating to any failure by Client to obtain all appropriate releases, permissions, licenses, permits and/or authorizations for the production of P-V Content. The Company reserves the right at any time to modify or discontinue, temporarily or permanently, any Services or part thereof with or without notice. Client agrees that the Company shall not be liable to Client or to any third party for any modification, suspension or discontinuance of the Services.
6. Proprietary Rights of Company. The Company solely and exclusively owns and retains all photographic content, videographic content, 3D content, floor plans, graphics, software, images, audio, animation, files, data, information and other materials on the Site and accessible to Client in connection with the Services. The Site contains the copyrighted material, trademarks, and other proprietary information of the Company and its licensors. Except as expressly permitted in this Agreement, Client shall not copy, modify, publish, transmit, distribute, perform, display, or sell any such data, images, content, information or other materials.
7. Ownership of Photo-Video Content. All photographic content and/or videographic content created by the Company, its affiliates or its third party contractors in connection with the Services provided to Client pursuant to this Agreement (“P-V Content”) is solely and exclusively owned by the Company. Client does not acquire any right, title or interest in the P-V Content under the Agreement, by Client’s use or by any other means. Except as expressly provided in Section 8 below, Client does not acquire any license or usage rights in connection with the P-V Content. The Company reserves the right to use all P-V Content for the Company’s portfolio, samples, self-promotions, entry in contests or exhibitions, editorial use, or for display. The Company further reserves the right to publish, license or distribute the P-V Content to its affiliates or commercial partners. The Company reserves the right to send and distribute P-V Content created hereunder and real estate listing data to other real estate websites in order to promote Client’s listings.
8. Client Usage Rights and License.
(a) The Company hereby grants to Client a non-exclusive, non-transferable and non-assignable right to use and display the P-V Content for the purposes of promoting Client’s real estate business or the real estate property listings featured in the P-V Content. This license is for an unlimited time on websites controlled and owned by Client.
(b) Client may authorize third-party websites such as, but not limited to, a Multiple Listing Service (“MLS”) or real estate listing aggregator or portal websites to display the P-V Content solely for the purpose of advertising the real estate featured in the P-V Content, but only for as long as said the subject real estate is actively listed for sale by Client. Any usage by or authorization to third-party websites will automatically cease and expire once said the subject real estate is no longer available for sale or Client is no longer the active listing agent (or equivalent) for the subject property pursuant to a valid listing agreement, whichever comes first. Client shall not grant any usage rights to the P-V Content to any third party except as expressly permitted in this paragraph.
(c) Credit and acknowledgement of the Company’s name in the following format shall be included on each instance of all P-V Content when it is published: “© Beacon James, LLC”.
(d) Client shall not sell, distribute, alter, crop, copy, modify, reproduce, or create derivative works from the P-V Content or the Services or any products or services derived or developed from any Services provided by the Company to any third party.
9. Indemnification. In addition to the terms and conditions contained in Section 5, Client agrees to indemnify, defend and hold harmless the Company, its affiliates and its third party contractors and their respective officers, managers, members, employees, independent contractors and agents harmless from and against any and all liability, loss, expense (including reasonable attorneys’ fees), or claims for injury or damages arising out of or relating to: (i) Client’s performance or breach of this Agreement; (ii) any distribution of P-V created hereunder; (iii) Client’s acts or omissions and/or those of Client’s officers, agents, independent contractors, employees, customers, clients, family members, invitees, and/or guests.
10. Warranty. The P-V Content is provided to Client “as is” with no warranty regarding the suitability of the image for any purpose. The Company is not liable to Client or any person or entity for damages, costs or losses stemming from any usage of the P-V Content.
11. Taxes. Client is responsible for all sales, use or similar taxes related to the goods or services described in this Agreement. The amount of sales, use or similar taxes shall be determined and calculated on the date required by applicable law.
13. Force Majeure. Any delay or failure of the Company to perform its obligations under this Agreement will be excused to the extent that the delay or failure was caused directly by an event beyond the Company’s control, without the Company’s fault or negligence and that by its nature could not have been foreseen by the Company or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars, or acts of terrorism).
14. Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
15. Assignment. Client shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of the Company. Upon written notice to Client, the Company may assign or transfer any or all of its rights or obligations under this Agreement to any party that acquires all or substantially all of the Company’s business or assets.
16. Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.
17. No Third-Party Beneficiaries. This Agreement benefits solely the parties and their respective successors and permitted assigns and nothing in this Agreement, express or implied, confers on any third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
18. Choice of Law. This Agreement and all related documents and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute are governed by, and construed in accordance with, the laws of the State of Illinois, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Illinois.
19. AGREEMENT TO ARBITRATE – READ CAREFULLY. EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, DEMANDS, CLAIMS OR CONTROVERSIES HERETO ARISING OUT OF OR RELATING TO THIS CONTRACT OR THE BREACH, TERMINATION, ENFORCEMENT, INTERPRETATION OR VALIDITY THEREOF, INCLUDING THE DETERMINATION OF THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE DETERMINED AND SETTLED BY ARBITRATION BEFORE ONE ARBITRATOR THROUGH RESOLUTE SYSTEMS, LLC IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF RESOLUTE SYSTEMS, LLC. THE PARTIES AGREE THAT THE ARBITRATION SHALL BE CONDUCTED IN THE CITY OF CHICAGO, ILLINOIS.
THE PREVAILING PARTY IN THE ARBITRATION SHALL BE AWARDED ALL OF THE FILING FEES AND RELATED ADMINISTRATIVE COSTS. ADMINISTRATIVE AND OTHER COSTS OF ENFORCING AN ARBITRATION AWARD, INCLUDING THE COSTS OF SUBPOENAS, DEPOSITIONS, TRANSCRIPTS AND THE LIKE, WITNESS FEES, PAYMENT OF REASONABLE ATTORNEY’S FEES, AND SIMILAR COSTS RELATED TO COLLECTING AN ARBITRATOR’S AWARD, WILL BE ADDED TO, AND BECOME A PART OF, THE AMOUNT DUE PURSUANT TO THIS CONTRACT.
THIS CONTRACT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS, WITHOUT GIVING EFFECT TO ITS CONFLICT OF LAWS PROVISIONS. ANY AWARD RENDERED BY THE ARBITRATOR SHALL BE FINAL AND ENFORCEABLE BY A COURT, IN WHICH CASE CLIENT AND THE COMPANY HEREBY CONSENT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS LOCATED IN THE CITY OF CHICAGO, ILLINOIS.
THE MAKING OF CLAIMS OR RESOLUTION OF DISPUTES PURSUANT TO THIS CONTRACT SHALL BE IN EACH CLIENT’S INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. CLIENT AGREES THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW ANY AND ALL DISPUTES, CLAIMS, AND CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THIS CONTRACT WILL BE RESOLVED INDIVIDUALLY IN THE FORUM DESIGNATED IN THIS SECTION, WITHOUT RESORT TO ANY FORM OF CLASS ACTION.
NOTWITHSTANDING ANY CONTRARY PROVISIONS IN THIS AGREEMENT, THE COMPANY MAY FILE A LAWSUIT IN A COURT OF COMPETENT JURISDICTION IN ORDER TO COLLECT PAYMENTS DUE FROM CLIENT PURSUANT TO THIS CONTRACT. IF CLIENT BREACHES THIS CONTRACT (INCLUDING, WITHOUT LIMITATION, DUE TO CLIENT’S FAILURE TO MAKE TIMELY PAYMENT HEREUNDER), CLIENT SHALL BE REQUIRED TO REIMBURSE THE COMPANY’S AND ITS AFFILIATES’ COSTS AND REASONABLE ATTORNEYS’ FEES INCURRED IN THE ENFORCEMENT OF THIS CONTRACT.
20. In the event any provision of this Contract shall be declared invalid or unenforceable by a court of competent jurisdiction, such provision or term of such contract shall be amended and interpreted to accomplish the objects of such provision to the fullest extent possible under applicable law and all other provisions and terms shall remain valid and binding. The Company’s waiver of any breach or failure to enforce any term of this Contract will not be deemed a waiver of any subsequent breach or right to enforce this Contract which may thereafter occur. This Contract contains the complete and exclusive agreement of Client and The Company relative to the subject matter hereof and supersedes all prior or contemporaneous understandings and agreements relative to the subject matter hereof.
By checking the boxes next to each Client name and by clicking the Process Payment button, each Client identified on the Process Payment agrees to accept the terms and conditions of this Agreement with Beacon James, LLC.