Photography License Agreement
This Photographic Images License Agreement (the “Agreement”) is entered into between , an located at (“Licensee”), and casey and her camera LLC d/b/a casey and her camera, an Indiana limited liability company (“Photographer”) on the date of Licensee’s execution of this Agreement as indicated in the electronic signature block of this Agreement (the “Effective Date”).
WHEREAS, Photographer is the owner of various originally produced photographic images as described in Section I below; and
WHEREAS, Photographer is the owner of the copyright rights to the photographic images; and
WHEREAS, Photographer has a license to the rights of publicity of all of the models that are the subject of the photographic images; and
WHEREAS, Photographer has the sole and exclusive right to sell, license, or authorize the use of the photographic images; and
WHEREAS, Licensee desires the right to use certain of the photographic images produced by Photographer for commercial purposes; and
NOW, THEREFORE, in consideration of the mutual promises and covenants hereinafter set forth, and other valuable consideration as hereinafter described, the parties hereto agree as follows:
TERMS AND CONDITIONS
I. THE LICENSE:
a. All Images captured and/or created by Photographer in connection with the Photography Shoots, including any copyrights and other intellectual property rights related thereto, shall remain the sole and exclusive property of Photographer.
b. Photographer hereby grants Licensee the revocable non-exclusive right (the “License”) to utilize Images from the online gallery website provided by Photographer (the “Licensed Images”), subject to the following terms:
c. Licensee may use an unlimited number of the Images for licensing hereunder as Licensed Images.
d. Licensee will not pay the Photographer any additional licensing fees (the "Licensing Fees")per Licensed Image provided the following guidelines are adhered to.
e. Licensee may use the Licensed Images for an unlimited time beginning from delivery of the selected Images to Licensee by Photographer.
f. The use of the Licensed Images is limited to the following commercial uses:
Digital use on Licensee websites
Digital use on Licensee blogs
Use on Licensee social media platforms (including, but not limited to Facebook and Instagram)
Submission to digital or print media sources that may feature the Licensee
Basic print products (business cards, brochures and pamphlets)
g. This License does not grant use of the Licensed Images for any print advertisements, including but not limited to flyers, local ads, billboards, magazine advertisements, newspaper advertisements. Additional Licensing Fees for print advertisements will be quoted per use per Licensed Image, payable upon invoicing by Photographer.
h. The grant of this License shall not be assignable or sub-licensable by Licensee without the prior written consent of Photographer.
i. Licensee understands and acknowledges that Photographer retains a right to utilize the Licensed Images for its own commercial purposes without any compensation to Licensee or reduction or refund of any Licensing Fees paid by Licensee hereunder.
II. USE OF LICENSED IMAGES:
a. Licensee agrees to utilize the Licensed Images in a commercially reasonable manner and in such manner that will not harm the professional reputation of Photographer. Licensee agrees not to utilize the Licensed Images in any pornographic, illegal, libelous, scandalous, or such other manner that would tend to damage the image and reputation of Photographer.
b. It is understood that any commercial use of any of the Licensed Images by Licensee must be of a workmanlike quality acceptable to Photographer, who shall evaluate such acceptability in accordance with traditional standards of good faith and fair dealing.
c. Upon receipt of a timely disapproval by Photographer, Licensee may submit changes or revisions which Photographer will approve or disapprove in the manner described in Clause III(C) above.
d. Photographer and Licensee shall at all relevant times herein maintain the utmost good faith and fair dealing in their mutual duties under this Agreement.
a. Licensee hereby covenants and agrees to affix a proper copyright notice to any Licensed Images utilized under this Agreement. Such notice shall properly identify Photographer as the owner of the Licensed Images.
b. Licensee acknowledges that Photographer shall remain the sole author, sole owner and sole copyright claimant of any Licensed Images and does not transfer ownership or control of said copyrights except as hereto agreed.
IV. ACKNOWLEDGMENT OF RIGHTS:
During the term of this Agreement and at all times thereafter Licensee acknowledges and agrees not to contest, or assist or induce others to do so, Photographer’s rights in and to any Licensed Images.
Photographer shall at all times during the term of this Agreement, and at all times after the termination hereof, indemnify and keep indemnified and hold Licensee harmless from and against all expenses incurred (including reasonable attorneys’ fees and costs) and damages paid by Licensee in respect of any third party claim or action against Licensee arising from any adverse claim of ownership to any rights, title, and interest in and to the Licensed Images, including, but not limited to, actions existing in copyright, trademark, unfair competition, passing off, or any other claim or cause action based on the rights of and/or ownership to the Licensed Images, or other intellectual properties which comprise this Agreement. Photographer, at Licensee's request, shall defend Licensee in any such third party claim.
Licensee shall at all times during the term of this Agreement, and at all times after the termination hereof, indemnify and keep indemnified and hold Photographer harmless from and against all expenses (including reasonable attorneys’ fees and costs) incurred and damages paid by Photographer in respect of any third party claim or action against Photographer arising from or relating to any claims for harm caused by Licensee’s use of the Licensed Images pursuant to this Agreement and the License granted hereunder. Licensee, at Photographer’s request, shall defend Photographer in any such third party claims.
VI. THIRD PARTY INFRINGEMENT:
Licensee will promptly call to the attention of Photographer the use of the Licensed Images by any third party which Licensee considers to be an infringement of Photographer’s rights in and to the Licensed Images. Photographer and Licensee shall consult one another as to whether proceedings shall be brought against such third parties. In the event that Photographer and Licensee decide that action should be taken against such third parties, Photographer may take such action in its own name or, alternatively, Photographer may authorize Licensee to initiate such action in Licensee's name. Licensee and Photographer agree to cooperate fully with one another to whatever extent it is necessary to prosecute such action, all expenses being borne by Photographer and all damages that may be recovered being solely for the account of Photographer.
VII. FORCE MAJEURE:
Neither party shall be liable for any delay in performing or failing to perform obligations if that delay or failure results from events or circumstances outside its reasonable control. Such delay or failure shall not constitute a breach of this Agreement and the time for performance shall be extended by a period equivalent to that during which performance is so prevented provided that if such delay or failure persists for more than 90 days, nothing in this clause shall be taken to limit or prevent the exercise by either party of its rights of termination under Clause IX without claim against the party defaulting by reason of force majeure cure provided that any outstanding pre-existing claims shall not be thereby terminated.
a. This Agreement shall terminate in the event that Photographer or Licensee materially breaches any portion of this Agreement provided, however, that such termination shall not take effect until fourteen calendar days after written notice of the breach has been delivered from one party to the other and the breach has not been cured by the breaching party during that time period.
b. This Agreement shall terminate forthwith in the event of bankruptcy or judicial or administrative declaration of insolvency of Photographer or Licensee that relate to any duty of performance under this Agreement.
c. Upon termination of this Agreement, Licensee shall discontinue all use of the Licensed Images in any manner whatsoever and shall return any and all Images to Photographer that remain in Licensee’s care, custody and control.
All terms and conditions of this Agreement, and any duties and performances due under this Agreement shall remain confidential. Neither Licensee nor Photographer shall use any information related to the commercial use of the Licensed Images or business operations of the other party, except in as much is necessary for adequate performance under this Agreement. The obligations contained in this provision shall expressly survive the termination, expiration or assignment of this Agreement.
X. DISCLAIMER OF WARRANTIES:
As the Licensed Images are provided at Licensee’s request and direction, they are provided “as is”, without any sort of warranty. Photographer specifically disclaims and any all warranties with respect to the Licensed Images, including, without limitation, the warranties of fitness for a particular purposes, non-infringement, title, merchantability and those that may arise from any course of dealing or performance.
XI. LIMITATION OF LIABILITY:
a. In no event shall Photographer be liable, whether in contract, tort or otherwise, for any incidental, consequential, special, exemplary, punitive or indirect damages, losses, or expenses or costs of any kind arising out of this Agreement, even if advised of the possibility.
b. In any event, Photographer’s total liability under this Agreement shall be limited to the Creative Fees, Expenses and/or Licensing Fees paid by Licensee under this Agreement.
a. Any waiver by either Licensee or Photographer of any breach of a term or condition of this Agreement, or failure to perform under this Agreement, shall not be considered as a waiver of any subsequent breach of the same or any condition hereof.
b. If any provision, clause or section of this Agreement is declared void or unenforceable by any judicial or administrative authority, the remaining portions of this Agreement shall remain in full force and effect.
c. This Agreement shall not create or be construed to create a partnership, joint venture, association or any type of combination among or between the parties. No party shall have the power or authority to act as the agent of the other or to authorize or incur obligations on behalf of the other or to make on behalf of the other party any promises, warranties or representations.
d. If any dispute arises between Photographer and Licensee in connection with, or arising out of, this Agreement, the parties within thirty (30) days shall attempt to settle such dispute informally through discussions. If the parties are unable to resolve the dispute within five (5) business days of convening for informal dispute resolution discussions, the dispute must immediately be referred to mediation either as a final resolution, or as a condition precedent to, the initiation of any adjudicative action or proceeding. Such mediation shall be held in Indianapolis, Indiana. The parties shall have thirty (30) days, from the date written notice is given by one party to the other of the need for mediation, to agree upon a mediator and commence mediation or either party may bring legal action, including litigation, to have a mediator appointed. Any dispute that has not been resolved amicably among the parties by mediation, may proceed to litigation.
e. The parties expressly consent to the exclusive jurisdiction and venue of the federal and state courts of Marion County, Indiana, with respect to any suit, claim or dispute arising out of, or relating to, this Agreement. It is understood and agreed by the parties that the court where litigation is first commenced will retain jurisdiction over any and all related claims or disputes arising out of and concerning this Agreement. This Agreement shall be deemed to have been made in the State of Indiana and shall be governed by and construed in accordance with the laws of such state.
f. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors, assigns, parents, subsidiaries or otherwise related or affiliated companies.
g. This Agreement, including this paragraph, may be modified or amended only by a writing signed by all parties to this Agreement.
h. This Agreement represents the entire agreement of the parties, and all prior assertions, understandings, warranties and representations are merged herein. It is a final integrated Agreement which embodies all the terms, conditions, and representations between the parties, and the parties make no warranties, covenants or agreements, express or implied, except as expressly set forth herein.
i. If either party to this Agreement brings a legal action against the other party to secure the specific performance of this Agreement, collect damages for breach of this Agreement, or otherwise enforce or interpret this Agreement, the prevailing party shall recover reasonable attorney’s fees and all costs, premiums for bonds, fees, and other expenses expended or incurred in the action in addition to any other relief that may be awarded.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date(s) set forth below, via electronic signature.
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Signed by Casey Rucinski
Signed On: July 20, 2020
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Document Name: Photography License Agreement
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casey and her camera is an Indianapolis Photographer specializing in couple, lifestyle, senior, wedding and family photography for Indianapolis, Indiana and the surrounding areas.