Terms of service.
323 MEDIA GROUP, LLC SERVICES AGREEMENT
This Services Agreement (the “Agreement”) is by and between 323 Media Group, LLC (herein, “Service Provider”) and the party who clicks "I accept" when using Service Provider's online booking system (herein, “Client”). The “Effective Date” shall be the date the Client clicks "I accept."
1. Services. Service Provider shall provide to Client the Media services as selected by Client on Service Provider's online booking system (the “Services”) at www.323media.io (the "Website") in accordance with the criteria set forth therein. As part of the Services, Service Provider will deliver to Client the media works (the “Media”) as described in the Client’s order on the Website. The terms and conditions of this Agreement apply to all Services and Media delivered to the Client during the Term (defined below) and described in the Client’s Website order.
1.1 Assistants. Service Provider reserves the right to bring a number of assistants to Client’s premises to help provide the Services.
1.2 Media Format and Delivery. Unless otherwise specified, Media shall be delivered in .jpeg format for all photos via Box.com or Digital Pigeon and video will be delivered in mp4 format along with a Vimeo.com URL. Media will be available for download for one month, after which a file retrieval fee of $40 will apply.
2. Client Responsibilities.
2.1 Site Access. The Client shall provide Service Provider and any assistants with access to its premises to the extent necessary for the performance of the Services.
2.2 Client Representative. The Client is responsible for the presence of an authorized representative at the shoot to approve the Service Provider’s interpretation of the assignment. If a Client representative is not present, the Service Provider’s interpretation shall be deemed acceptable.
2.3 Waivers, Releases, and Permission. The Client shall provide Service Provider with any necessary licenses, permissions, waivers, releases, or consents, including those relating to publicity and privacy, to photograph and/or videograph the property. Client hereby waives any rights to privacy, and grants permission to photograph and/or videograph the property.
3. Term. This Agreement is effective as of the Effective Date and will continue until the Services are completed and Final Payment is provided, unless earlier terminated in accordance with this Agreement (the “Term”). Sections 4 through 7 as well as any other representations, warranties, indemnification obligations, and dispute resolution provisions contained herein will survive termination of this Agreement, and obligations included therein shall continue indefinitely.
4. Copyright. All Media shall be the sole and exclusive property of the Service Provider, including but not limited to all copyrights and other intellectual property rights therein, in perpetuity, throughout the universe. All rights not expressly granted herein shall be reserved by the Service Provider. Modification of Media and/or incorporation of Media in any layout, concept, reproduction, or publication shall not constitute a Joint Work. Service Provider shall have the sole power to enforce its copyrights and any other intellectual property, including without limitation all registration, renewal, and reversion rights, and the right to register and sue to enforce such rights against infringers.
5. Limited License. Service Provider, on the condition of full compliance with this Agreement, including receipt of the Final Payment (as defined in Section 12 below) and Attribution duties (Section 7 below), hereby grants to Client a non-exclusive, fully paid-up, and royalty-free right and license to use the Media, subject to the following conditions (the “Limited License”).
5.1 Client Publications. Client may use the Media in Client Publications for twelve (12) months from the Effective Date.
The term “Client Publications” shall be restricted to mean only reproduction and publication of the Media done solely by the Client, whether in print or electronic form, such as use of the Media in the Client’s websites, social media pages, emails, annual reports, brochures, pamphlets, or posters, and whose audience is employees, customers, shareholders, or the general public.
5.2 Outside Publications. Client may use the Media in Outside Publications, except to the extent agreed to in Subsection 5.4 below.
The Term “Outside Publications” shall include all reproductions of the Media other than Client Publications. Outside Publications include, but are not limited to, advertising or editorial use of the Media in third-party websites, newspapers, billboards, books, or magazines, whether in print or electronic media, regardless of whether the Client pays or instructs the Outside Publication or any other person to engage in such use.
5.3 Proof Images. Media designated as “Proofs” shall be kept confidential. Proofs shall not be made public, or otherwise released outside of Client’s business, for any reason. Only final versions of the Media may be made public or shared with anyone other than Client, Client’s members, or Client’s employees.
5.4 License Special Terms. Service Provider and Client agree as follows:
5.5 Transfer of Rights and Duties. Client’s rights to use the Media shall be assignable and transferable to persons or entities providing Outside Publications (if any) limited to the use stated in Subsection 5.4 above, and subject to the terms of, and duties contained in, this Agreement.
5.6 Extension and Additional Fee. If Client desires at a later date to reproduce, or cause to be reproduced, Media beyond the scope of this Limited License, then Client must request it from the Service Provider in writing. Such an extension of the Limited License will be subject to an additional fee, which will be set at a reasonable price in good faith at the Service Provider’s sole discretion. Service Provider reserves the right to decline use of the Media beyond that described in this Limited License at Service Provider’s sole discretion. Any license extension granted by the Service Provider must be in writing to be effective and will be subject to the terms of this Agreement.
5.7 Infringement. Any use of the Media beyond the terms of this Limited License, without permission of the Service Provider, by any person or entity shall constitute copyright infringement.
6. Client’s Edits to Media. The terms of this Agreement shall apply to any edits, changes, modifications, or revisions made to the Media, and any duplicated work created in the future regardless of the extent or amount of edits, changes, modifications, or revisions, whether made by the Client or any other person or entity.
7. Attribution. Client agrees, for any and all use of the Media, including Client Publications and Outside Publications, to conspicuously indicate Service Provider as the source of the Media. Failure to properly credit or tag Service Provider will constitute copyright infringement.
The following notations, or similar, on or near the Media in legible text are acceptable:
7.1 “Service Provider Name”
7.2 “Media by Service Provider Name”
8. Use of Service Provider’s Name. Service Provider hereby grants to Client and its affiliates, and each of their respective direct and indirect successors, licensees, and assigns, the right to use Service Provider’s name, in connection with the Media.
9. Additional Usage. If Client, or any other person or entity, wishes to make any additional uses of the Media not covered in this Agreement, Client or other person or entity shall obtain permission from the Service Provider and pay an additional fee to be agreed upon if necessary.
10. Improper Use Prohibited. Service Provider reserves the right to halt the use of Media in any publication that could reasonably be deemed offensive or improper, including but not limited to use of the Media in virtual backgrounds, political advertisements, propaganda, or pornography works. Similarly, Service Provider reserves the right to revoke Client’s right to use Service Provider’s name, in connection with the Media. The determination of whether a publication is improper shall be at the sole discretion of Service Provider, provided it is reasonable and in a good faith attempt to avoid negative publicity.
11. Estimates and Requests for Additional Work. The fees quoted by the Service Provider on the Website are for the original job description as presented by the Client. Any subsequent changes, whether made orally or in writing, may result in additional charges. Requests for additional work, such as additional images or subject matter, will be invoiced.
12. Payment.
12.1 Due Date. Client shall make payment in full for the cost of all Services and Media provided (“Final Payment”) to Service Provider within one (1) days of receiving a Final Invoice (as defined below) from Service Provider. Payment will be effective upon Service Provider’s receipt of Final Payment and once any checks have cleared. Service Provider will release Media to Client once Final Payment has been received.
12.2 Acceptable Forms. Acceptable forms of payment include:
▪ Electronic payment by Service Provider’s Website;
▪ Electronic payment by Quickbooks or Stripe Invoice;
12.3 Final Invoice. If Client has not paid online by Service Provider’s Website, Service Provider will email a final invoice containing all monies owed to the Service Provider for the Services and Media (the “Final Invoice”) to Client’s email address. The Final Invoice will be deemed received as of the day the email is sent, which may be before or after completion of Services and delivery of the Media.
12.4 Late Penalty. Interest shall accrue on any overdue payments at a rate of 10% annual percentage rate, compounded monthly.
13. Time of the Essence. Time shall be of the essence in this Agreement.
14. Cancellation and Postponements. In the event of a cancellation or postponement of a shoot by the Client, or its affiliates or agents, Client shall pay all expenses incurred by the Service Provider up to the time of cancellation, plus a fee equal to 25% of the total price listed in the Services ordered on Service Provider’s Website (the “Cancellation Fee”). If a shoot is canceled or postponed within 24 hours of Service Provider’s departure for the shoot, the Cancellation Fee shall be increased by an amount equal to 50% of the of the total price listed in the Services ordered on Service Provider’s Website. Any Deposit or payments made will be deducted from any such Cancellation Fee and will become non-refundable to Client upon cancellation. If the amount of the Deposit or payments made exceeds the Cancellation Fee, the excess shall be refunded to Client. Any Cancellation Fee owed to Service Provider must be paid within 14 days from cancellation or the late penalty described above in Subsection 12.5 will apply.
15. Delay. Failure by the Client, or its affiliates or agents, to provide Service Provider with site access shall constitute a cancellation, and Service Provider shall be entitled to the Cancellation Fee.
16. Termination. Either party may terminate this Agreement on written notice to the other party if such other party materially breaches this Agreement and fails to cure such breach within fifteen (15) days after receiving notice of such breach. Any rights or obligations of the parties in this Agreement which, by their nature, should survive termination or expiration of this Agreement, including Sections 4 through 7 of this agreement as well as any other representations, warranties, indemnification obligations, and dispute resolution provisions, will survive any such termination or expiration.
17. Notice. Any Notice required under, or related to, this Agreement shall be effective if sent by email to the email addresses listed in Client’s Service order via the Website for the Client and Service Provider. Notice shall be deemed received as of the day the email is sent.
18. Aesthetic Disclaimer. Client is aware of Service Provider’s personal style and portfolio and waives any right to refuse payment on the basis of dissatisfaction with the end result. No refunds will be provided unless for a material breach of this Agreement.
19. Representation and Warranties. To the best of its knowledge, Service Provider hereby represents and warrants that the Media to be provided is Service Provider’s sole and original creation and will not infringe or otherwise violate any right of any third party.
20. Embargoes. If Client wishes to temporarily prevent publication by Service Provider of the Media, Client shall make an embargo request. Service Provider will offer a 30-day courtesy embargo for publication at no cost if Client requests an embargo before the date of the media shoot. Service Provider may use Media for portfolio and social media uses, and reserves the right to license the Media to other parties, after the 30-day embargo has passed.
21. Indemnification. To the extent allowed by the Laws of Florida, the Client hereby agrees to indemnify, defend, save, and hold harmless the Service Provider from all claims, demands, liabilities, and suits of any nature arising out of, because of or due to any intentional or negligent act or occurrence, omission, or commission of the Client, its agents, or employees. It is specifically understood and agreed that this indemnification clause does not cover or indemnify the Service Provider for its own negligence. These terms shall not be construed to waive any statutory or constitutional sovereign immunity rights provided to the Client.
22. Limitation of Liability. Service Provider’s aggregate liability arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, shall not exceed the amount of payment received for the Services.
23. Severability. If any of the provisions of this agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions will not be affected.
24. Survivorship. This Agreement survives the individuals who signed it and applies to their successors and executors.
25. Assignment. Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
26. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
27. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy.
28. Capacity and Counsel. Client understands the entirety of this Agreement and the obligations herein. Client has had the opportunity to seek legal counsel to further understand and gain advice regarding this Agreement.
29. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, including tort and statutory claims, are governed by the laws of Florida.
30. Dispute Resolution. Either party shall institute any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or state courts in each case located in Tallahassee, FL, and each party irrevocably submits to the jurisdiction of such courts in any legal suit, action, or proceeding.
As a condition precedent to filing such suit, action, or proceeding, the parties agree to attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between Client and Service Provider. If such negotiation is unsuccessful, the parties agree to attend mediation. A request for mediation shall be made in writing, delivered to the other party to this Agreement, and filed with the person or entity administering the mediation. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.
31. Attorneys’ Fees. In the event that any party institutes any legal suit, action, or proceeding, including arbitration, against the other party arising out of or relating to this Agreement, the prevailing party in the suit, action or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including reasonable attorneys’ fees and expenses and court costs.
32. Force Majeure. Neither Party will be liable for any failure or delay in performing an obligation under this Agreement that is due to any of the following causes, to the extent beyond its reasonable control: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, governmental acts or omissions, changes in laws or regulations, national strikes, fire, explosion, or generalized lack of availability of raw materials or energy.
▪ For the avoidance of doubt, Force Majeure shall not include (a) financial distress nor the inability of either party to make a profit or avoid a financial loss, (b) changes in market prices or conditions, or (c) a party's financial inability to perform its obligations hereunder.
32.1 Covid-19. Client and Service Provider acknowledge that the current Covid-19 crisis has been factored into the risks assumed by the parties and will not constitute grounds to excuse performance unless there is a mandatory Quarantine, Stay-At-Home, or Do-Not-Travel order in effect within the geographical location of Services or travel for Service Provider to provide the Services. Client and Service Provider shall endeavor to execute the Agreement in good faith.
32.2 Bad Weather. Service Provider reserves the right to postpone Services due to bad weather including but not limited to rain, forecast of rain, clouds, or high wind. Client and Service Provider may agree to postpone shoot to a reasonable date in the future in case of inclement weather at no additional charge beyond any expenses already incurred.
33. Hazardous Conditions. Service Provider reserves the right to postpone or cancel Services due to reasonably dangerous conditions, as determined by the Service Provider in good faith, including but not limited to working from height or on unstable platforms without adequate protection or safeguards, dangerous pets or other animals, and unsafe construction sites. Client shall be responsible for providing a safe location to take the Media at the Property as described in the Client’s Service order by Service Provider’s Website and any necessary personal protective equipment if required by site rules.
34. Non-Disclosure Agreement. Client and Service Provider agree to keep the terms of this Agreement, including but not limited to payment terms, confidential. Client and Service Provider agree to keep any communications or documents containing Service Provider’s rates or pricing information, confidential.
35. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement. Digital or scanned signatures are acceptable.
36. Modification. No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by Service Provider of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Service Provider. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
37. Contractual Authority. By clicking "I accept," Client confirms that Client has read and accepts the terms and conditions contained in this Agreement and agrees to be legally bound by them. If the Client is a business or other organization, the person signing on behalf of the Client warrants that he or she has the authority to legally bind Client to the terms of this Agreement.
38. Merger. This Agreement, constitutes the entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, whether written or oral, with respect to such subject matter.