We will always do our best to fulfill and hopefully even exceed your Beauty/Design/ Photography needs. But it’s often best for everyone to have a few things written down so that we both know who, what, where, when and how.
As is the industry standard, all our photography is conditioned upon the Terms and Conditions of our business. These terms may vary with each assignment. You will always receive exact details in advance of your proposed assignment. A Terms and Conditions Agreement, which is not as ominous as it may sound, will be included with every estimate and invoice.
This Agreement is between Rick Miron otherwise known as Rick Ikon Beauty/ Personified hereafter referred to as “Photographer/Makeup Artist” and [You] Amber Emery hereafter referred to as “Client” which includes Client’s principals, employees, affiliates and representatives. Client agrees that it has the legal authority to enter into this Agreement on behalf of its employer, company or organization. Photographer’s relationship with Client is that of an independent contractor.
“Image(s)” means the photographic material, whether still or moving, created by Photographer pursuant to this Agreement and includes, but is not limited to, transparencies, negatives, prints, or digital files, that were captured, recorded, stored, or delivered, in any type of analogue, photographic, optical, electronic, magnetic, digital, or any other, media.
USAGE RIGHTS & OWNERSHIP
Client acknowledges that Photographer is the author of the Image(s) and also the first and sole owner of all copyrights of the Image(s) as per Bill C-11 sec 2 subsection 2 of the Canadian Federal Copyright Act. The Image(s) and all copyrights remain the exclusive property of Photographer without limitation. No electronic publishing, or Internet use, of any kind is permitted unless specifically stated. Client will not use image(s) for advertisement or marketing purposes which constitutes in generating revenue for the client or any third party affiliated with the client unless an Image License has been purchased for the specific usage. Unless specified in legally binding agreement the client is at no point permitted to distribute any images to any third party business for any reason.
IMAGES ARE LICENSED FOR SPECIFIC USE(S) AND ARE NOT SOLD. Client understands and agrees that it is not buying the Image(s) but is being issued for trade or paying only for a licence to use the Image(s) as specified. The term of licence begins from the date Photographer receives full payment of invoice. Unless otherwise agreed, any rights granted are always non-exclusive, non-sub-licensable and non- transferable. Any Image(s) may not be used in a logo, corporate identity, trademark or other service mark. The use of any Image(s) will not constitute a work of joint authorship. This agreement will supersede any and all conversations regarding usage of image(s).
Unless otherwise agreed, Photographer retains the right to use the Image(s) for his self- promotion. In the case that the client is permitted to use the images for self promotion purposes on social media platforms credit will be given to the photographer and makeup artist as follows:
Photographer: Rick Ikon (If Applicable)
Makeup Artist: Chrissy Marie (If Applicable)
In the event that the photos are used by third parties on social media it is the clients responsibility to immediately inform the photographer & ensure credit has been given as listed above. Photographer retains the right to have the photos removed if needed.
At times the images may be required by photographers clientele for use of marketing, product sales & advertisements. In the event that the client wishes to use the copyright images for purposes of generating revenue for themselves or any third party affiliated with the client, permission must be granted and an image licence must be purchased.
EXAMPLE 1: Jennifer commissions me for a photoshoot by means of monetary compensation or trading for services of equal value. Once the photos have been delivered to Jennifer, her friend who owns a small business wishes to use the images for a flyer for her business in order to generate revenue. At this time Jennifer must be granted permission to use the photos and an image licence must be purchased.
EXAMPLE 2: Mike runs a business and commissions me to do photos for his business, Mike is granted permission to use the photos and is billed for the appropriate image licences to use the photos in his business. Six months later, a referral from Mike asks to use the same images for pamphlets to be included with his products, is granted permission and is billed an image licence for each photo used.
EXAMPLE 3: I am commissioned by a company to take photos for in store posters for her business, six months later it is brought to my attention that the photos I took for Christine’s business have been modified from their original copyright format & are being used by two separate businesses other than her own. Upon investigating how the businesses came into possession of my photos it is clear that Christine did not use the photos for their intended purposes (in store poster) and has distributed the photographs to two separate businesses for personal gain instead. Christine will now be billed image licences for the three businesses now using the photographs as a result of her distribution, how Christine chooses to offset these costs with the other businesses is entirely up to her.
“A flat rate fee of $1,000 CAD for image licence(s) for each image used in the event that they are used for the purpose of generating revenue for the client (some exceptions are made based on product to keep costs reasonable for the clients). The image licence covers my time creating the piece / image, from conceptualization to finished product. Charging this flat rate keeps things fair for all of my clients as well as makes it easier for myself in the long run as opposed to charging a percentage commission of all sales that would be a result of my photographs which would take far too much time and be very hard to keep track of.”
“Charging for image licences serves me two purposes, first, it allows me the opportunity to generate residual income for myself rather than only gaining revenue to take the photographs, much like a painter would sell each painting for X amount of dollars, rather than charging X amount of dollars for the initial and simply handing duplicates out for free. Secondly, the image licence allows me to know who will be using my photographs at all times and allows me the opportunity to deny certain companies or establishments that would inherently hurt my brand from using my images. For example a company with a reputation for scamming their customers would not be a company I would be comfortable allowing my images to be used by and thus would not grant permissions or accept compensation for an image licence.”
Copyright infringement is the use of works protected by copyright law without permission, infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works. Infringement can occur when the client acts outside of the scope of this agreement therefore it is imperative that the client and photographer are clear as to what the photos will be used for.
The maximum amount claimable in Canada for copyright infringement is $25,000 per photograph. In the event that copyright infringement occurs the client will be granted a seven day grace period to either correct the infringement by means of removing the photos or purchase the appropriate image license(s) that the photographer has deemed reasonable. Failure to correct the infringement or purchase a license within 7 days from date of notice will result in photographer bringing fourth action for damages, all legal fees associated with the litigation as well as the licensing fees initially requested. If judgement is granted photographer retains the right to garnish wages, bank accounts & place liens on properties of the guilty parties.
“Stealing isn’t cool & doing this will cost you a lot of money, so save yourself the headache & ask in detail before you decide to just use intellectual property.”
Time is of the essence for receipt of full payment under this Agreement.
NO LICENSES ARE GRANTED UNLESS AND UNTIL PHOTOGRAPHER HAS RECEIVED FULL PAYMENT.
UNLESS OTHERWISE AGREED, THE TOTAL AMOUNT OWING SHALL BE PAID IN FULL PRIOR TO THE DATE OF BOOKING. SHOULD THE CLIENT FAIL TO RECTIFY THE BALANCE OWING BY THE BOOKING DATE, ONE RESCHEDULE WILL BE GRANTED & A $100 NON SUFFICIENT FUNDS (NSF) FEE WILL BE ADDED TO THE TOTAL AMOUNT OWING. FAILURE TO RECTIFY THE TOTAL AMOUNT OWING BY THE SECOND BOOKING DATE WILL BE DEEMED AS THE CLIENT ABANDONING THE PROJECT & NO REFUND WILL BE GRANTED.
All invoices are due upon receipt. Adjustments of amounts or terms must be requested within ten days of invoice receipt. Photographer/Makeup Artist do not provide any receipts to Client. The invoice will serve as Client’s receipt for work performed and services rendered. Bank transfer fees are the responsibility of the Client.
50% (of the total amount owing) non-refundable deposit is required for all assignment bookings that are not paid upfront and in full. The remaining 50% is to be paid in full prior to services being rendered. The client agrees to pay any and all outstanding amounts prior to the booking date or prior to the services being rendered.
Photographer / Makeup Artist offer NO REFUNDS for any of the provided services. Deposits are NON REFUNDABLE. In extreme circumstances if the client is unable to pay the remaining total due to acts of God, Beauty/Personified will adjust services rendered to match payments already received by the Client.
CANCELLATIONS & POSTPONEMENTS
To do our best work, we focus (no pun intended) on only one client per day. Once Client and Photographer have agreed to time(s) and date(s) for a photography assignment, Photographer will not accept work from any other client for the same time(s) and date(s).
Where Client postpones or cancels an assignment, Photographer / Makeup Artist will offer a 14 Day window for rescheduling, should the client fail to reschedule within the 14 days, the assignment will be deemed as a cancelation and no refund will be issued.
A 35% penalty fee applies in addition to total amount owing for postponement, or cancellation, less than twenty-four hours from the scheduled time. Example: Mary purchased $100 worth of services and canceled less than 24 hours prior to the assignment date, therefore Mary’s new total is $135 which is to be paid in full prior to the assignment taking place.
A 50% penalty fee applies in addition to total amount owing for postponement, or cancellation, after Photographer has departed for location. Example: John purchased $100 worth of services and canceled after the photographer departed for the location, therefore John’s new total is $150 which is to be paid in full prior to the assignment taking place.
Unless previously agreed upon clients who arrive more than 120 minutes (4 Hours) late for their scheduled booking will be considered to have abandoned the booking, the booking will be deemed as default and no refund will be issued.
If the same assignment is rescheduled for a later date, full fee and any additional expenses will be charged for the actual assignment.
Fees for cancellation or postponement will apply irrespective of the reasons for the cancellation or postponement. However, Photographer understands that life doesn’t always happen as planned and consideration will be given in any such circumstance.
Client is responsible for sending an authorized representative to the shoot. If no representative is present, Client must accept Photographer’s judgment as to the creation of the Image(s).
If Client requires a reshoot, Client will pay Photographer an additional fee of one hundred percent of the fee stated in the quote or invoice for the original shoot, plus all expenses for the reshoot.
If a reshoot is required due to factors beyond the control of Photographer, including but not limited to, weather conditions, acts of God, or the fault of a third party, Photographer will not charge any additional fees outside from the additional quote.
FAILURE TO PERFORM
If Photographer/Makeup Artist are unable to preform services due to illness, mechanical breakdown, accident, acts of God, or any other cause beyond his control, then Photographer/Makeup Artist will attempt to procure the services of another professional to fulfill any obligations. If that does not succeed, Photographer/Makeup Artist will offer a reschedule free of charge with added services at no cost, Photographer/Makeup Artist will have no further liability with respect to this Agreement, and Photographer/Makeup Artist will not be responsible or liable for any other damages beyond the amount of this Agreement. This limitation of liability will also apply in the event that any Image is lost or damaged through equipment malfunction, or otherwise, without the fault of Photographer.
ARCHIVING DIGITAL FILES
While Photographer may choose to archive the Image(s), it is Client’s responsibility to properly store and archive the Image(s) for the duration of the term of licence. Photographer cannot guarantee the availability of any Image(s) beyond the date of first delivery to Client.
Client is aware that optical, magnetic, electronic, and any other, media for storing digital data are inherently unstable. Client hereby releases Photographer and his contractors, and representatives, from any liability for any claims, damages, or costs, arising from any media supplied by Photographer becoming unusable.
All digital files created by, or on behalf of, Client that contain any Image(s) will be deleted or destroyed within one year after the expiration date of licence.
PHOTOGRAPHIC INTEGRITY & ALTERATIONS
Client will not make or permit any alterations, including, but not limited to, additions, subtractions, or adaptations, with respect of the Image(s), alone or with any other material, without the prior express permission of Photographer. Any alteration or modification of any Image(s) will not constitute a work of joint authorship. Copyright metadata contained within any digital file may not be altered, or removed, without the express consent of Photographer.
GENERAL LIABILITY & RELEASES
Client will indemnify, defend, and hold harmless, Photographer, his contractors, and his representatives, against any and all claims, liabilities, damages, costs, and expenses, including reasonable legal fees and expenses, arising from Client’s use of any Image(s). Photographer is not responsible for obtaining model, property, trademark, or other releases in connection with the Image(s) unless specifically stated in this Agreement. It is Client’s responsibility to obtain the necessary permissions for any Image use that requires a release. It is Client’s responsibility to determine whether any releases delivered by Photographer are suitable for Client’s purposes.
DIGITAL FILE QUALITY
Photographer is committed to providing high quality services. Unless otherwise specified on the reverse side of this Agreement, Photographer may deliver, and Client agrees to accept, the Image(s) encoded in an industry-standard data format that Photographer may select, at a resolution that Photographer determines will be suitable to the reproduction technology and use(s) for which the Image(s) is licensed.
Photographer uses cameras and monitors that are colour calibrated to industry standards. But due to variances in other monitors, software and computer platforms, the Image(s) may display differently on other monitors. Therefore, neutrals will be set for mathematical neutrality and colour will be adjusted for pleasing tonalities. It is Client’s responsibility to verify that the digital data, including colour profile, if provided, are suitable for reproduction of the expected quality and colour accuracy, and that all necessary steps are taken to ensure correct reproduction. If the data are not deemed suitable, Photographer’s sole obligation will be to replace or repair the data, but in no event will Photographer be liable for poor reproduction quality, delays, losses, expenses, or consequential damages, resulting directly, or indirectly, from defects or errors in digital files or their use.
ACCEPTANCE OF TERMS
Client may not assign or transfer this Agreement or any of the rights granted hereunder. This Agreement is binding upon, and inures to the benefit of, Client and Beauty/ Personified, as well as their respective principals, employees, representatives, and successors. Client and its principals, and employees, are jointly and severally liable for the performance of all payments and other obligations hereunder.
No amendment or waiver of any items is binding unless set forth in writing and signed by the parties. E- mail and electronic signatures will be considered legal and binding. However, the invoice may reflect, and Client is bound by, Client’s oral authorizations for any additional Image(s), fees, and expenses, that could not be confirmed in writing due to the immediate proximity of completing the photography assignment.
This Agreement will be deemed to be a contract made under the laws of Canada and the Province of Ontario, and for all purposes will be interpreted in its entirety in accordance with these laws. Client specifically and irrevocably confers personal jurisdiction over it by the courts of the district of Toronto, Ontario, Canada. Client will pay all arbitration and court costs, reasonable legal fees, expenses, and legal interest, on any award or judgment in favour of Photographer.
If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
In addition to oral and written agreements, use of any Image(s) by Client will constitute acceptance of all the above terms and conditions. The Client agrees by default to the terms and conditions of this contract upon receiving any services provided by the photographer.
THIS CONTRACT ONCE DELIVERED SUPERSEDES ALL SOCIAL MEDIA CORRESPONDENCE AS WELL AS VERBAL AGREEMENTS BETWEEN PHOTOGRAPHER / MAKEUP ARTIST & CLIENT.