This Denver Lens Licensing Agreement (the “Agreement”) is effective immediately between Denver Lens LLC (“Service Provider”) and customer (“Customer”). All references to the Customer in this Agreement shall include Customer’s parent companies, affiliates, and subsidiaries. This Agreement is in effect for all current and future bookings unless specified otherwise.
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS BETWEEN YOU AND DENVER LENS CAN BE BROUGHT. THESE PROVISIONS REQUIRE THAT YOU SUBMIT YOUR CLAIMS AGAINST DENVER LENS TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING.
Scope of this Agreement. This Agreement applies to any and all photographs, graphics, digital assets, or digital images created or taken by Service Provider and delivered to the Customer (collectively known as “Deliverables”). This Agreement governs the relationship between the parties to this Agreement, and in no event shall any other exchange, amend or otherwise modify the terms of this Agreement unless agreed to in writing.
Ownership Rights of Deliverables and Limited Licensing Rights of Customer: All Deliverables and rights relating to them, including copyright and ownership rights in the media in which the Deliverables are stored, remain the sole and exclusive property of Service Provider. This Agreement provides the Customer with a limited license to reproduce, publicly display, and distribute the Deliverables only for promotional or advertising purposes directly related to the sale of the Property. Deliverables used for any purpose not directly related to the sale of the property is prohibited without the expressed written permission of Service Provider and the payment of additional fees. Promotional and advertising material includes business cards, website banners, brochures marketing the property, etc. Use of material by builder, architects, designers, stagers, homeowners, or others is prohibited without the expressed written permission of Service Provider.
Deliverables 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 Customer with the right to transfer copyright, or any other exclusive rights as provided by the Copyright Act 17 U.S.C 106. Deliverables may contain copyright management information (CMI) at the discretion of Service Provider 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 Customer will be responsible to Service Provider for any penalties and awards available under the statute.
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 Customer’s representation of the Property, whichever occurs first. Further use of images beyond one (1) year requires Service Provider written permission and potential additional fees.
The images issued under this agreement may NOT be transferred to subsequent listing agents or the property owner, including in the event that the property does not sell under the terms of the current exclusive listing agreement. It is ILLEGAL to copy or reproduce the photographs, videos, website content, etc. issued under this agreement without Service Provider permission, and violators of this Federal Law will be subject to its civil and criminal penalties.
Relationship of the Parties: The parties agree that Service Provider is an independent contractor, and that neither Service Provider, nor Service Provider employees or independent contractors are, or shall be deemed to be, employees of Customer. 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. Service Provider and the Deliverables or any other deliverables prepared by Service Provider shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Customer are contractual in nature and are expressly defined by this Agreement.
Creation: The manner and method of creating any Deliverables is solely at the discretion of Service Provider and the Customer has no right to control Service Provider manner and method of performance under this Agreement. Service Provider employees or contract personnel will: (a) ensure that the Deliverables conform to Customer’s specifications; and (b) submit all Deliverables to Customer in publishable quality.
Delivery: Service Provider may select delivery of Deliverables in JPEG, TIFF, PNG, or other standard format, at a resolution that Service Provider determines will be suitable for the Deliverables as licensed. It is the Customer’s responsibility to verify that the Deliverables are suitable for reproduction and that if the Deliverables are not deemed suitable, to notify Service Provider within five (5) business days. Service Provider sole obligation will be to replace the Deliverables at a suitable resolution but in no event will Service Provider be liable for poor reproduction quality, delays, or consequential damages. Unless otherwise specifically provided, Service Provider 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. Service Provider has no obligation to retain or archive any Deliverables delivered to Customer after 90 days.
Fees: All fees and expenses payable under this agreement are required no later than ten (10) business days from the delivery of the Deliverables and payable irrespective of whether Customer makes actual use of the Deliverables. If full payment has not been received within thirty (30) days, all rights are revoked at Service Provider discretion. Any amounts that are not paid when due shall bear interest at the rate of 15% per annum or the maximum rate allowed by law until such past due amounts are paid in full.
In the event Service Provider revokes Customer’ rights under the Agreement, all images in the possession of Customer must be removed from all forms of media and permanently destroyed within ten (10) days. Customer shall provide Service Provider with a written statement that all images have been removed and destroyed.
Cancellation: If the Customer cancels within 24 hours of property shoot, or the house is deemed unsafe and/or unworthy to shoot by Service Provider employees or contract personnel, Customer will be responsible for a $100 cancellation fee.
No Exclusivity: This Agreement does not create an exclusive relationship between the parties. Customer is free to engage others to perform services of the same or similar nature to those provided by Service Provider, and Service Provider shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by Service Provider.
Transfer and Assignment: Customer 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 Customer is bound by authorizations that could not be confirmed in writing because of insufficient time or other practical considerations.
General Law: 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 Colorado.
Arbitration: Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any arbitration must be initiated and maintained in Denver County, Colorado, and must be completed within 120 days of the event giving rise to the arbitration. Each party shall be responsible for their own attorney’s fees in the event of a controversy or claim arising out of or relating to this contract, or the breach thereof.
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.
RELEASE OF LIABILITY
SERVICE PROVIDER PHOTOGRAPHERS ARE INDEPENDENT CONTRACTS AND SERVICE PROVIDER HAS NO CONTROL OVER THE CONDUCT OF PHOTOGRAPHERS, SUBJECTS, OR ANY OTHER USERS OF THE SITE OR PHOTOGRAPHY SERVICES, AND DISCLAIMS ALL LIABILITY IN THIS REGARD.
I (Customer) hereby expressly waive and release any and all claims, now known or hereafter known, against Service Provider and its independent contractors, employees, agents, affiliates, successors, and assigns (collectively, “Releasees”) on account of personal or psychological injury, illness, pain, suffering, temporary or permanent disability, death, property damage, or financial loss arising out of or attributable to my being on the Premises or participating in the Activity, whether arising out of the ordinary negligence of Service Provider or any Releasees or otherwise. I covenant not to make or bring any such claim against Service Provider or any other Releasee, and forever release and discharge the Service Provider and all other Releasees from liability under such claims.
BY AGREEING, I ACKNOWLEDGE THAT I HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS RELEASE AND THAT I AM VOLUNTARILY GIVING UP SUBSTANTIAL LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE THE COMPANY.
Denver Lens LLC.