Terms and Conditions
The parties to this Agreement are John Magnoski Photography (“JMP”, or “our”, “me”, “I”) and you, the client (“client” or “you”) (collectively, the “Parties”).
Oral, written, or electronic acceptance of the details of the Project Proposal, Estimate, and the Terms and Conditions (collectively the “Agreement”) shall be fully enforceable.
1. Fees, Retainer and Expenses
a. The total fee for your project is detailed on the Estimate and/or Invoice sent to you.
b. You agree that JMP will not begin work on the Project until you have deposited with JMP a minimum retainer of 50%. The balance being due upon completion of the Project. JMP will begin work as outlined previously once this retainer has been paid. If JMP is required to begin work on the Project prior to receiving this retainer, you agree to pay a premium of 15% on the unpaid retainer.
c. You also agree that payment of the required retainer is evidence of and constitutes your acceptance and approval of all provisions of this Agreement.
d. You agree to pay all expenses related to the Project within five (5) days of our request for payment.
e. JMP is an independent contractor and not an employee of yours. This is not a work for hire agreement.
2. Dispute Resolution
The Parties will do their best to resolve disputes related to this Agreement. If this doesn’t work, and the dispute involves $5000 or more, the Parties will use binding arbitration in Washington County, MN in accordance with the rules and procedures of the American Arbitration Association then in effect, and judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The Parties will split the cost of arbitration, except that each Party shall pay for the cost of its own experts, evidence, and legal counsel.
3. Amendments to the Agreement
Amendments and alterations to this Agreement need to be in writing and signed by both Parties. However, JMP invoices may reflect, and you are bound by, any authorization, including but not limited to oral, written and electronic, for additional services, images, and expenses that could not be confirmed in writing because of insufficient time or other practical considerations.
If any part of this Agreement shall be found invalid, the remainder of this Agreement shall not be affected.
This Agreement may be executed in separate pieces, each of which shall be deemed an original, but together shall constitute one and the same Agreement. The Parties agree that electronic signatures and email confirmations used to accept and sign this Agreement or matters within this Agreement shall be fully enforceable.
6. Governing Law
This Agreement shall be governed by the laws of Minnesota, and any dispute shall be litigated in Washington County, MN. Each Party waives any objection to the laying of venue in Washington County, and waives any claim that such action has been brought in an inconvenient forum.
7. Onsite Liability
You agree to hold harmless JMP, and their agents, for any damages to your property caused in the performance of any aspect of the Project caused by ordinary negligence.
8. Photo Credit
Any print, electronic or other customarily published usages of Images must be accompanied by written credit to “John Magnoski” or copyright notice as specified by JMP. Any images published online must also link back to JMP's website, which at the execution of this Agreement is www.magnoski.com. If no placement of a credit or copyright notice is specified by JMP, no credit or notice is required. If a credit is required but not actually provided, you agree that the amount of the invoiced fee will be subject to a three-times multiple as reasonable compensation to JMP for the lost value of the credit line.
In the event a shoot extends beyond eight (8) consecutive hours, JMP may charge for such excess time of assistance and freelance staff at the rate of 1 ½ times their hourly rate. (Listed on your Estimate)
10. Cancellations, Reshoots and Postponements
Cancellations: You are responsible for payment of all expenses incurred up to the time of cancellation of any aspect of the Project Proposal, plus 50 percent of JMP’s fee; however, if notice of cancellation is given less than two (2) business days before a shoot date, you will be charged 100 percent of the fee. Reshoots: If you request a reshoot, we will charge 100% of the fee and expenses. If a reshoot is required for any reason outside of your control, you will pay all expenses but we will charge no additional fee. Postponements: Unless otherwise agreed in writing, you will be charged a 100 percent fee if postponement of the photography assignment occurs after JMP has departed for location, and 50 percent fee if postponement occurs before departure to location. Fees for cancellations and postponements will apply irrespective of the reasons for them.
"Image(s)" means all visual representations furnished to Client by JMP (photographic stills or motion-video), whether captured, delivered, or stored in photographic, magnetic, optical, electronic, or any other media. Unless otherwise specified in the Project Proposal, JMP may deliver, and Client agrees to accept, Images encoded in an industry-standard data format that JMP may select, at a resolution that JMP determines will be suitable to the subject matter of each Image and the reproduction technology and uses for which the Image is licensed. It is Client's responsibility to verify that the digital data (including color profile, if provided) are suitable for reproduction of the expected quality and color accuracy, and that all necessary steps are taken to ensure correct reproduction. If the data are not deemed suitable, JMP's sole obligation will be to replace or repair the data, but in no event will JMP be liable for poor reproduction quality, delays, or consequential damages. Client is responsible for sending an authorized representative to the photography assignment or for having an authorized representative review the images remotely during the assignment. If no review is made during the assignment, Client is obligated to accept JMP's judgment as to the acceptability of the Images.
12. Rights and Responsibilities
All Images and rights relating to them, including copyright and ownership rights in the media in which the Images are stored, are the sole and exclusive property of JMP and are protected under federal copyright laws. JMP may sell, reproduce, publish or exhibit products of the Project for use as stock, as samples of photographic work to be shown to prospective clients, as marketing material, or for instructional purposes. You agree to hold JMP harmless against all claims with regard to any such products. JMP has no obligation to retain or archive any of the Images after they have been delivered to Client.
Unless specifically provided elsewhere in this document, no reprographic, reprint, republication, resale, or other secondary reproduction usages may be made, and usage rights are granted only as more fully described in the Non-Exclusive Image License to be included in the final image delivery. Client may not sell, or transfer any usage rights to any third party. No rights are transferred to Client unless and until JMP has received payment in full.
Client may not make any alterations to the Images provided by JMP, alone or with any other material, including making digital scans/copies unless specifically permitted in writing by JMP, except that cropping and alterations of contrast, brightness, and color balance, consistent with reproduction needs may be made.
Client agrees to provide JMP with three copies of each published use of each Image no later than 60 days after the date of first publication of each use. If any Image is being published only in an electronic medium, Client agrees to provide JMP with an electronic tear sheet, such as a PDF facsimile or URL of the published use of each such photograph, within fifteen (15) days after the date of first publication of each use.
Digital files may contain copyright and other information embedded in the header of the image file or elsewhere; removing and/or altering such information is strictly prohibited and constitutes violation of the Copyright Act.
All fees and expenses payable under this agreement are required irrespective of whether Client makes actual use of the Images or the licenses to use them.