LICENSING & TERMS
LICENSING & TERMS
What does all this mean?
Basically speaking, by using this website or downloading photos, video or other media from Estate Media Services, you agree to the terms and conditions outlined below. In summary, those terms mean the following:
- The Photographer owns the images. As a Client you are licensed to use them temporarily in exchange for a licensing fee.
- As a Client you cannot sell any of the Photos, Video or other Media, or give them to any third party without permission.
- As a Client you are only licensed to use the photos for a specific purpose. If you want to use them for anything else you have to contact the Photographer first for permission.
Make sure to read through the rest of the details below. Have any specific questions? Feel free to call us at 714-334-5429 and we'll be happy to address them.
REAL ESTATE PHOTOGRAPHY LICENSING TERMS
Terms and Conditions: By downloading or other means of delivery of media provided by Estate Media Services, its Photographers, employees, subsidiaries or assigns ("PHOTOGRAPHER"), you agree to abide by the terms set forth in the Real Estate Photography Licensing Terms ("AGREEMENT"). You, the User ("CLIENT") agree to abide by the terms of the Agreement and by the Copyright and Licensing Laws of the United States of America.
Scope of this Agreement. This Agreement applies to any photograph, video, graphics, digital assets, or digital images created or taken by Photographer and delivered to the Client (collectively known as “PHOTOS”) for the property __________________________________________________________ (“PROPERTY”) provided in exchange for consideration of an agreed upon sum due and payable prior to delivery of PHOTOS. This Agreement governs the relationship between the parties and in no event shall any e-mail communication or other exchange, amend or otherwise modify the terms of this Agreement unless agreed to in writing.
Rights: All Photos, Videos and rights relating to them, including copyright and ownership rights in the media in which the Photos and Video are stored, remain the sole and exclusive property of the Photographer. This license provides the Client with the limited right to reproduce, publicly display, and distribute the Photos only for promotional or advertising purposes directly related to the sale of the Property or the Client’s services as a Real Estate Agent. Photos or Videos used for any purpose not directly related to the sale of the Property or Client’s Services as a Real Estate Agent must be with the express permission of Photographer and the payment of additional fees, unless otherwise agreed to in writing.
Photos may be uploaded to any MLS listing service solely for promotion of the Property during the pendency of this Agreement, as well as Syndication Sites contracted by the MLS. However, regardless of any terms and conditions of the MLS, at no time does this Agreement provide Client with the right to transfer copyright, or any other exclusive rights as provided by the Copyright Act 17 U.S.C § 106. Photos may contain copyright management information (CMI) at the discretion of the Photographer in the form of either 1) a copyright notice © and/or 2) other copyright and ownership information embedded in the metadata or elsewhere, unless otherwise agreed to by the Parties. Removing and/or altering such information is prohibited and constitutes violation of the Digital Millennium Copyright Act (DMCA) and Client will be responsible to the Photographer for any penalties and awards available under the statute.
Unless otherwise specifically provided elsewhere in this document or other signed agreement between the parties, any grant of rights is limited to a term of either one (1) year from the date of this Agreement, or (2) at the termination of Client’s representation of the Property, whichever occurs first. Further use of images beyond one (1) year requires Photographer’s permission and additional fees. Rights are assigned to the Client immediately upon delivery of the Photos. Photos or Video uploaded to the MLS, subsequent Syndication Sites, or Social Media under the Client’s Account may remain indefinitely. However, the Photos and/or Video may not be used to sell the home again under another contract, or to rent the property out or for use as a Vacation Rental without purchase of a Multi-Use License.
Relationship of the Parties: The parties agree that Photographer is an independent contractor, and that neither Photographer, nor Photographer’s employees or contract personnel are, or shall be deemed to be, employees of Client. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. Photographer and the Photos or any other deliverables prepared by Photographer shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by this Agreement.
Creation: The manner and method of creating any Photographs is solely at the discretion of Photographer and the Client has no right to control Photographer’s manner and method of performance under this Agreement. Photographer will use his/her best efforts to: (a) ensure that the Photos conform to Client’s specifications; and (b) submit all Photos to Client in publishable quality, on or before the applicable deadlines.
Delivery: Photographer may select delivery of photographs in JPEG, TIFF, PNG, or other standard format, at a resolution that Photographer determines will be suitable for the Photos as licensed. It is the Client's responsibility to verify that the Photos are suitable for reproduction and that if the Photos are not deemed suitable, to notify the Photographer with five (5) business days. Photographer’s sole obligation will be to replace the Photos at a suitable resolution but in no event will Photographer be liable for poor reproduction quality, delays, or consequential damages.
Unless otherwise specifically provided, Photographer is not responsible to provide images 1) larger than 8”x10” at 300 dpi or 2) in a format higher than 8-bit or in RAW format. Photographer has no obligation to retain or archive any Photos delivered to Client.
Photographer agrees to deliver 2 sets of images to Client. High Resolution images for printing and marketing, and a lower resolution for easier upload to the MLS Services. Neither set of images is guaranteed to meet specific MLS or Syndication Site guidelines, or print work specifications. If specific guidelines or specifications exist, Client must notify Photographer within five (5) business days.
Retouching: Photos and Video may be retouched by Photographer to allow for corrections, such as exposure, contrast, saturation, white balance, sharpening, barrel distortion, pin cushion distortion and chromatic aberration, among other things. The Photographer is not responsible for removing any items from the photos, either physically on site, or digitally through photo manipulation software. It is Client’s responsibility to ensure the home is ready as-is. On site delays caused by Ill-prepared Sellers may cost $50 per half hour the Photographer spends over the allotted appointment time, or may require an additional trip at a later date at a cost of $50 + $10 per photo at the Photographer’s sole discretion.
Removing items through photo manipulation software may be possible, depending on the request. The Client is advised any manipulation of the photos outside of retouching services may be considered a material misrepresentation of the property, and as such Client agrees to hold the Photographer harmless of any action arising from such a request. The request must be made in writing, and the costs start at $10 per photo, and may be higher depending on the complexity of the request, and the time it takes to complete.
Timing: Unless otherwise specified, Photographer will deliver edited photos within two (2) business days, and completed videos within four (4) business days. On rare occasion circumstances may not allow for delivery within these timeframes. If such occurs, Photographer will communicate the delivery time to Client.
Fees: All fees listed are for Cash, Check or other electronic payment transfers that do not involve processing Fees. Credit card payments will incur a surcharge of 4%, or the state, federal or local maximum, whichever is lower. All fees and expenses payable under this agreement are required to be paid in full prior to the delivery of the Photos and payable irrespective of whether Client makes actual use of the Photos. If full payment is not received prior to delivery, all rights provided herein are revoked at Photographer’s discretion. In the event rights are revoked, all images in the possession of Client will be removed from all forms of media and permanently destroyed within ten (10) days. Client shall provide Photographer with written statement that all images have been removed and destroyed.
Cancellation: If Client cancels this Agreement 2 business days prior to the appointment date, then no charges are incurred and the Agreement is null and void. If Client cancels this Agreement within 2 business days of the scheduled appointment, then a 25% Cancellation Charge shall be paid by Client. There are no refunds of any kind available once photos have been delivered due to the nature of electronic media.
No Exclusivity: This Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by Photographer, and Photographer shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Photographer.
Transfer and Assignment: Client may not assign or transfer this agreement or any rights granted under it. No amendment or waiver of any terms is binding unless in writing and signed by the parties. However, the invoice may reflect, and Client is bound by authorizations that could not be confirmed in writing because of insufficient time or other practical considerations.
Indemnification: Client will indemnify and defend Photographer against all claims, liability, damages, costs, and expenses, including reasonable legal fees and expenses, arising out of the creation or any use of the Photos or materials furnished by Client. It is the Client's responsibility to obtain the necessary model or property releases are ensure they are full effect and in force.
General Law/Arbitration: This Agreement sets forth the entire understanding and agreement of the parties, and supersedes any and all prior agreements between the parties. This Agreement shall be governed and interpreted and enforced in accordance with the laws of the State of California. Any claim or litigation arising out of this Agreement or its performance may be maintained only in courts physically located in Los Angeles California, and the parties hereby consent to the personal jurisdiction of such courts. In the event of any litigation arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its attorneys’ fees incurred in the litigation. If parties are unable to resolve the dispute by negotiation, either party may start mediation and/or binding arbitration in a forum mutually agreed to by the parties.
Severability: If one or more of the provisions contained in the Agreement is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. Such provisions shall be revised only to the extent necessary to make them enforceable.
Waiver: No action of either party, other than express written waiver, may be construed to waive any provision of this Agreement and a single or partial exercise by either party of any such rights or remedies will not preclude further exercise of other rights or remedy.
ESTATE MEDIA SERVICES 2019
Matthew J Davis, Owner