This Licensing Agreement (the “AGREEMENT”) is entered into effective the date services are requested by the client between, BirdMad Media, LLC (“AGENCY”) and you, the client. (“CLIENT”). All references to the Client in this Agreement shall include Client’s parent companies, affiliates, and subsidiaries.
Scope of this Agreement. This Agreement applies to any photograph, video, graphics, digital assets, or digital images created or taken by Agency and delivered to the Client (collectively known as “MEDIA”) for the property the client hired Agency to render services for, (“PROPERTY”). Should legal matters arise. The property address in question should be able to be found on the client invoice and/or request form. 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 Media and rights relating to them, including copyright and ownership rights in the media in which the Media are stored, remain the sole and exclusive property of the Agency. This license provides the Client with the right to reproduce, publicly display, and distribute the Media as needed, however, only after payment for Media has been made. Once payment has been received by Agency, Client may use them. If Client uses Media in any form or fashion before payment has been made, legal action may be taken by the Agency to cease the use of Media by Client and to collect payment. Client agrees to pay for all debts, legal or otherwise, accrued by Agency in the attempt to collect payment and cease the use of Agency Media. No Media owned by Agency is allowed to be used in or for any crude, lewd, explicit, defamatory, slanderous or libelous acts or actions of any kind in any way, shape, form or fashion. Any persons, Clients, agencies, businesses, companies, etc.. caught using such content owned by Agency in said fashion will be legally held accountable.
Media may be uploaded to any MLS listing service. 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. Media may contain copyright management information (CMI) at the discretion of the Agency 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 Agency for any penalties and awards available under the statute. Client is responsible for ensuring that the Media is removed from MLS databases at the expiration of this Agreement.
Relationship of the Parties: The parties agree that Agency is an independent contractor, and that neither Agency, nor Agency'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. Agency and the Media or any other deliverables prepared by Agency 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 Media is solely at the discretion of Agency and the Client has no right to control Agency’s manner and method of performance under this Agreement. Photographer will use his/her best efforts to: (a) ensure that the Media conform to Client’s specifications; and (b) submit all Media to Client in publishable quality, on or before the applicable deadlines.
Delivery: Agency may select delivery of aerial photographs in JPEG, PNG, or other standard formats, or a format suitable for the MLS system, at a resolution that Agency determines will be suitable for the Media as licensed. It is the Client's responsibility to verify that the Media is suitable for reproduction and that if the Media is not deemed suitable, to notify the Agency within five (5) business days. Agency’s sole obligation will be to replace the Media at a suitable resolution but in no event will Agency be liable for poor reproduction quality, delays, or consequential damages.
Unless otherwise specifically provided, Agency 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 Media delivered to Client.
Fees: All fees and expenses payable under this agreement are required by the date of service and payable irrespective of whether Client makes actual use of the Media or not. If full payment has not been received within (2) days all rights are revoked at Agency’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 (7) days. Client shall provide Agency with written statement that all images have been removed and destroyed.
Cancellation: If Client cancels this Agreement within (2) days of Property shoot, Client will pay any expenses incurred and a twenty-five (25)% cancellation fee. For Client cancellation within (1) day of the Property shoot, Client is responsible for 100% of the fee and any expenses incurred.
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 Agency, and Agency shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Agency.
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 [[VIRGINIA]]. Any claim or litigation arising out of this Agreement or its performance may be maintained only in courts physically located in [[VIRGINIA BEACH]] [[VIRGINIA]], 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.
This Licensing Agreement is to be duly executed as of the date(s) services are requested.