Terms of service.
Agreement to Terms of Service: By executing an Agreement that references the Terms of Service (including, but not limited to, placing an order online with Prime Marketing Photography, LLC), Client agrees that the Terms and Conditions will apply to any services and/or products to be delivered by Prime Marketing Photography, LLC under such Agreement.
Terms: This Photographer Licensing Agreement (the “AGREEMENT”) is entered into effect between (PRIME MARKETING PHOTOGRAPHY, LLC) “PRIME” and (THE END USER) respectfully referred to as “CLIENT”. All references to the Client in this Agreement shall include Client’s parent companies, affiliates, and subsidiaries.
Agreement: This Agreement applies to any photograph, video, floor plan, graphics, digital assets, or digital images created or taken by Prime and delivered to the Client (collectively known as “PHOTOS”) for the property that this order is being requested for “PROPERTY”. 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 and rights relating to them, including copyright and ownership rights in the media in which the Photos are stored, remain the sole and exclusive property of the Prime. 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. Photos used for any purpose not directly related to the sale of the Property must be with the express permission of Prime 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. 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 Prime 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 Prime for any penalties and awards available under the statute. Client is responsible for ensuring that the Photos are removed from MLS databases at the expiration of this Agreement.
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 Prime’s permission and additional fees. Rights are assigned to the Client immediately upon delivery of the Photos.Relationship of the Parties: The parties agree that Prime is an independent contractor, and that neither Prime, nor Prime’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. Prime and the Photos or any other deliverables prepared by Prime 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 Photos is solely at the discretion of Prime and the Client has no right to control Prime’s manner and method of performance under this Agreement. Prime 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: Prime may select delivery of photographs in JPEG, TIFF, PNG, or other standard format, at a resolution that Prime 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 Prime within five (5) business days. Prime’s sole obligation will be to replace the Photos at a suitable resolution but in no event will Prime be liable for poor reproduction quality, delays, or consequential damages.Unless otherwise specifically provided, Prime 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. Prime has no obligation to retain or archive any Photos delivered to Client.
Payments and Fees All fees and expenses payable under this agreement are required no later than ten (10) business days from the delivery of the Photos and payable irrespective of whether Client makes actual use of the Photos. If full payment has not been received within thirty (30) days all rights are revoked at Prime’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 Prime with written statement that all images have been removed and destroyed
Out-of-Area Fees: Any property outside of Montgomery County, Maryland and Frederick County, Maryland may be subject to an out of area fee to compensate for lost income for the Photographer due to 1.) Travel expenses (gas, vehicle maintenance) and 2.) Other Agreements that may have been lost due to travel outside of the Prime’s normal operating zone. Any out-of-area fees will be specified upon order placement. The Client will be responsible for any out-of-area fees to be paid at the time of the due date of the invoice.
Cancellation: If Client cancellation of this Agreement occurs within one (1) hour prior to the Property shoot, including, at the time of, Client will pay a seventy-five dollar ($75) cancellation fee. For Client cancellation within twelve (12) hours of the Property shoot, Client will pay a thirty-five dollar ($35) cancellation fee. Client is responsible for providing reasonable access to Prime for the Property. If Property cannot be accessed within twenty (20) minutes after the scheduled start time, then this Agreement shall be deemed canceled and the Client will incur the appropriate cancellation fees. If Client deems the Property “not photo ready” and cancels this Agreement, the Client is responsible for paying the appropriate cancellation fee. All out-of-area fees are still enforceable with a cancellation and are subject to charge on top of the cancellation fee and are not inclusive in the thirty-five (35) or seventy-five (75) dollar cancellation fee.
Payment: The entire balance is deemed earned and owed upon performance of the photographic shoot, floor plan drafting, or any other service provided by Prime, regardless of whether the final product is needed by the time of delivery (for example, if the relevant property goes off market, goes under contract, or is sold prior to delivery of the product).
Invoicing: An invoice for services will be sent electronically the next business day from the service date. The invoice may be paid online manually using any credit card or bank transfer, however after 5 business days the Prime will charge out the invoice using the credit card on file. A $45 late fee per invoice will be assessed for every 30 days from the date of service for all unpaid invoices.
Disputed Invoices: Interest, due and payable with an invoice, will accrue at a monthly rate of 1.50% on undisputed amounts outstanding greater than thirty (30) calendar days. In the event that Client disputes in good faith an invoice in whole or in part, Client will provide notice of such dispute to Prime within five (5) business days after Client’s receipt of the disputed invoice (“Dispute Notice”). If Client fails to provide such Dispute Notice within the aforementioned five (5) day period, Client agrees that it has accepted the products or services associated with said invoice. For the Dispute Notice to be valid, it must specify in detail the extent to which, and the reasons why, Client disputes the invoice. Any disputed amounts withheld will be paid within ten (10) calendar days after resolution of the dispute.
Refunds: Prime does not provide refunds for services completed. Prime will attempt to resolve any product shortfalls and will, in its sole discretion, issue for future work.
Matters Regarding Services: The following governs the matter of services covered by Prime but is not limited to only that which is listed and may include any products provided by Prime which is not listed herein.
Time Limits: All Services are scheduled for a finite amount of time. Overrun of this time may incur an hourly fee of $75/hour if determined not to be the fault of Prime.
Property Condition: The Client is solely responsible for the preparation and condition of the Property to be photographed. If Prime determines that the Property is not properly prepared or that preparation of the Property will delay the photographer, Prime reserves the right to cancel the appointment and charge a seventy-five dollar ($75) cancellation fee. It is Prime’s policy that the photographer is not required to stage or move anything on the Property and the Property shall be photographed as presented.
Safety: Prime or the employers/contractors of Prime may deem the Property unsafe due to events such as hazardous work areas, major construction, squatters, unsafe entry, and any other unforeseen circumstances. It is up to the sole discretion of Prime as to what is considered unsafe for service and Prime will notify the Client of said unsafe circumstances. If a Property is deemed unsafe then the Client will incur the seventy-five dollar ($75) cancellation fee. Prime retains the right to seek legal action regarding any and all injuries sustained on the Property.
Unfinished Properties: Prime does NOT provide services to major construction projects for the purpose of inspections. Major construction is considered to be any Property that has the majority of drywall not installed. Prime will not provide services for any Property requiring hard hats or steel-toed boots. Any Unfinished Property visited by Prime for services rendered, the client shall incur the seventy-five dollar ($75) cancellation fee
Pets/animals: Prime reserves the right to request that pets and animals be removed from the property if Prime deems it unsafe for the pet/animal to remain while services are being provided by Prime or its employees/contractors. Refusal to acknowledge the request may result in the seventy-five dollar ($75) cancellation fee.
Arrival Time: Prime shall notify any Client of a late arrival. Although we aim to be on time to every appointment, we cannot control the traffic, weather, or other factors that may cause a delay. We will make every effort to keep within our allotted time slot and to arrive as scheduled. Extreme lateness due to circumstances beyond Prime’s control may be eligible for a discount on the next service, at Prime’s sole discretion.
Discounts: Prime may decide to offer discounts if Prime finds that the work Prime performed is not up to its standards. Any discount is at the sole discretion of the owners of Prime. No discounts can be given for third-party services.
Online Availability of Product: Prime utilizes third-party services to host our virtual tours, photo and video delivery, and web sites. Although Prime has chosen vendors with high availability, routine maintenance and server outages are beyond Prime’s control. Prime assumes no responsibility for any such outages, but will work within its power to resolve such issues as quickly as possible.
Square Footage: All Properties are charged based on the square footage of the Property. The square footage of the property will be calculated using the provided floor plans. These floor plans are deemed accurate within a 3% margin of error. While we strive to match the tax records as close as possible, please note that the tax records themselves are not 100% accurate. This is due to miscalculations, unreported adjustments on site during the building process, renovations/additions, etc. In other words, there is nobody in the building department that checks every calculation of square footage that is submitted to them. The pricing tier may change due to inconsistencies between the building department and the actual measurements. We will refer to the actual measurements when issuing the invoice unless otherwise asked by the Client to use a higher square footage number.
Product Turn-around: Prime guarantees a next day turnaround time (no later than 9:00 p.m. the next day) on listing photos. Delivery times on products other than listing photos varies and is not guaranteed by next day.
Floor Plans: Our Essentials Floor Plan comes with every photo shoot. These include the basic layout and room names for each Property. You can purchase our Floor Plan Plus or Floor Plan Prime upgrades for an additional cost. The upgrades must be purchased at the same time of the original photo shoot in order to risk delays or extra costs of returning to Property. All floor plans have a next business day turnaround policy (no later than 9:00 p.m. the next business day)
3D Tours: All 3D Scans have a two (2) business day turnaround time. All scans will be hosted for a 180 day period. Afterwards the Client will need to pay an additional $25 fee to host for another 180 days, otherwise the scans will be deleted.
Alterations of Photos: No alteration of photos or videos produced by Prime is permitted by anyone other than Prime, apart from resolution changes. No use of image and video altering software (such as Photoshop) is permitted on any product by the Client or associates.
Web Site Visibility: Prime does its best to build marketable products for the Client. Prime does not guarantee nor is it liable for the visibility of Client’s online product within search engines.
Client Cooperation: Prime does its best to produce for Client a finished product as soon as possible. At times this requires cooperation and information from the Client in a timely manner. Prime assumes no responsibility for delay of deliverables due to Client delays.
Retakes and Rainy Day Policy: Prime does not control the weather or the condition of the Property. Any requested retakes of scenes that is not due to the fault of Prime shall incur an additional fee. Prime will not cancel or otherwise reschedule appointments unless prompted by the Client, or due to a threat of severe tropical/winter weather. Prime’s photographers can and will shoot rain or shine. If severe tropical/winter weather requires Prime to cancel/reschedule the appointment, then the cancellation fee will be waived.
Copyright infringement: Prime takes no responsibility for the distribution of media provided and any violations that may occur due to the distribution of the media.
MLS Policies: It is the responsibility of the listing agent to ensure compliance with any/all MLS regulations when uploading our media to their system
Warranties and Third-Party Services:
Warranties. Prime will provide the Client with the highest quality of service, images, and video possible. However, the quality is limited to the subject being filmed or photographed. For example: a messy house, dirty house, will produce a high quality photo of a messy house, dirty house. EXCEPT AS MAY OTHERWISE BE EXPLICITLY PROVIDED BY THE AGREEMENT (INCLUDING THESE TERMS OF SERVICE), PRIME MAKES NO OTHER REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING ITS PROVISION OF SERVICES OR PRODUCTS WHICH ARE THE SUBJECT OF THE AGREEMENT, AND PRIME SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Third Party Services. Prime utilizes several third-party vendors such as printing, hosting services, and delivery. Prime assumes no responsibility for the quality and timeliness of the work of such vendors. Prime does not require Client to use these vendors and if the Client has any issues with such a vendor, the Client should address such with the vendor directly. All third-party services will be billed and charged with the Client’s credit card on file at the time of ordering.
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 Prime, and Prime shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Prime.
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 Prime 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 to 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 Maryland. Any claim or litigation arising out of this Agreement or its performance may be maintained only in courts physically located in Montgomery County, Maryland, 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.
Liability: Prime is not liable for any failure of income arising from any property for which Prime has provided marketing material.
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.
Attorneys’ Fees: In the event that any suit or action is instituted under or in relation to this Agreement, including without limitation to enforce any provision in this Agreement, the prevailing party in such dispute shall be entitled to recover from the losing party all fees, costs and expenses of enforcing any right of such prevailing party under or with respect to this Agreement, including without limitation, such reasonable fees and expenses of attorneys and accountants, which shall include, without limitation, all fees, costs and expenses of appeals.
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.