Client Service Agreement
Hereinafter the “Agreement” Entered into on the date the last of the parties executed this Agreement.
This Agreement is made between the parties:
Hereinafter referred to as the “Contractor”
Jack Recht
jack@jackrecht.com
1180 Jackson St Oakland, CA 94612
(510) 985-4009
and
Hereinafter referred to as “Client”
Full Legal Name Title
Company
Address
Telephone
Collectively, all the above people or businesses entering the Agreement are hereinafter referred to as the “Parties.”
Purpose of Agreement
Client wishes to hire Contractor to provide services as set forth in and subject to this Agreement, and to license usage rights for work created by Contractor under this Agreement hereinafter “Work Products.” Contractor wishes to provide such services and licenses subject to this Agreement. Collectively, these services, Work Products and the effort required by all Parties to complete them are hereinafter referred to as the “Project.”
Terms
Services
Photographer agrees to perform services described either on the associated Project proposal, attached hereto as Exhibit A, and incorporated herein by reference.
Materials
Contractor will furnish all materials, tools and equipment used to provide the services furnished under this agreement.
Intellectual Property Ownership
Contractor retains the ownership of its copyright in any and all designs pursuant to federal copyright law (Chapter 17, Section 201-02, of the United States Code.) Any and all work produced in connection with, or in the process of fulfilling this Agreement, are expressly and solely owned by Contractor. Contractor grants to Client a nontransferable, non-exclusive, royalty-free license of Work Products produced with and for Client for the specific purposes described on the associated Project proposal.
Any unauthorized use of the design, such as using the design for other purposes than those specified herein, will result in additional fees and/or royalty payments to Contractor. Parties own their respective trademarks and intellectual property used in the normal and separate course of their business and agree not to infringe upon or otherwise use each other’s respective intellectual property except for in the course of providing Client with its Services. Client agrees to indemnify Contractor for any and all liabilities arising from it’s unauthorized use of the Work Products.
Any grand of licenses or usage rights under this agreement is contingent upon full payment by Client of all fees and expenses for the Project to Contractor.
Releases
Contractor shall obtain all necessary copyright permissions and privacy releases for materials included in the Images at Client’s request. Contractor shall indemnify Client against all claims and expenses, including reasonable attorney fees, due to Contractor‘s failure to obtain such permissions or releases.
If Work Products include any likeness of Client or its staff, Client agrees as follows: Contractor may reproduce, use and distribute the photos and images for any personal, business, marketing or studio purpose. Client expressly agrees to release to Contractor any personal or proprietary interest in the photographic materials that result from the Project, and agrees that Contractor may showcase, sell, or otherwise distribute photographic materials from the Project, including those depicting Client and its staff.
Style Release
Client has spent a satisfactory amount of time reviewing Contractor’s work and has a reasonable expectation that Contractor’s Services will produce a reasonably similar outcome and result for Client. Contractor will use reasonable efforts to ensure Client’s services are carried out in a style and manner consistent with Contractor’s current portfolio and services, and Contractor will try to incorporate any suggestions Client makes. However, Client understands and agrees that:
- Every client and final delivery is different, with different tastes, budgets, and needs;
- The services provided aresubjective and Contractor is a Contractor with a unique vision, with an ever-evolving style and technique;
- Contractor will use its personal judgment to create favorable results for Client, which may not include strict adherence to Client’s suggestions;
- Dissatisfaction with Contractor’s independent judgment or individual management style are not valid reasons for termination of this Agreement or request of any monies returned.
Payment
In consideration for the services to be performed by Contractor, Client agrees to pay Contractor as set forth in the associated client booking form or scope of work.
Payment Terms
Contractor will be paid 50% of estimated fees upon the signing of this Agreement and the balance of fees before providing Client with access to any digital assets. Hourly assignments are billed on a time and expenses basis. Fixed fee projects are billed within a normal trade variance of plus or minus 15% based on actual time and expenses. Cost overruns of greater than 15% require Client’s written authorization.
Late Fees
Client agrees to pay late fees equal to 1.5% per month of the outstanding balance owed to contractor calculated daily.
Expenses
Client agrees to reimburse Contractor for reasonable expenses that are directly attributable to work performed under this Agreement including but not limited to the following types of expenses:
- All third-party services, talent, and deliverables.
- Expenses for transportation of personnel, equipment, and other relevant materials to and from the shoot location. Expenses for travel, transportation, meals, and lodging when required to travel.
- Studio rental and usage.
- Equipment rental and usage.
- Prop rental and usage,
- Location rental and fees.
- Permits Special.
- Additional insurance required specifically for Contractor to meet its obligations under this agreement.
An administrative fee of 20% will be added to all expenses. Estimated expenses have been provided as part of Project estimate.
Cancellations Rescheduling
Client desires to cancel or reschedule
Client may cancel or reschedule the services prior to 72 hours before the scheduled shoot. For cancellations made 72 hours before the scheduled shoot, Contractor will refund any deposit already paid by client less fees and expenses for any portion of the work already performed. Within 72 hours of the scheduled shoot all client deposits become non-refundable.
Contractor desires to cancel or reschedule
In the event Contractor cannot or will not perform its obligations in any or all parts of this Agreement, it (or a responsible party) will immediately give Notice to Client, and at the Contractor’s discretion, either attempt to find a reasonable substitute to fulfill the terms of this Agreement or issue a refund or credit based on a reasonably accurate percentage of Services rendered. In the case of a refund where, at the discretion of the Contractor, no reasonable substitute is found, Contractor shall excuse Client of further performance obligations in this Agreement.
No Shows
If it becomes impossible for Contractor to render Services due to the fault of the Client or parties related to Client, such as failure to provide necessary elements of the Services or failure of one or more essential parties to the Services to complete tasks in a timely manner, it is within the Contractor’s sole discretion to allow for any additional time or dates to render Services. In such an event, any outstanding amount will immediately become due and payable to Contractor.
Independent Contractor Status
Contractor is an independent contractor, and neither Contractor nor Contractor’s employees or contract personnel are, or shall be deemed, Client’s employees. In its capacity as an independent contractor, Contractor agrees and represents, and Client agrees, as follows:
- Contractor has the right to perform services for others during the term of this Agreement.
- Contractor has the sole right to control and direct the means, manner, and method by which the services required by this Agreement will be performed.
- Contractor has the right to perform the services required by this Agreement at any place or location and at such times as Contractor may determine.
- Contractor has the right to hire assistants as subcontractors or to use employees to provide the services required by this Agreement.
- The services required by this Agreement shall be performed by Contractor, Contractor’s employees, or contract personnel, and Client shall not hire, supervise, or pay any assistants to help Contractor.
- Neither Contractor nor Contractor’s employees or contract personnel shall receive any training from Client in the professional skills necessary to perform the services required by this Agreement.
- Neither Contractor nor Contractor’s employees or contract personnel shall be required by Client to devote full time to the performance of the services required by this Agreement.
Business Permits, Certificates and Licenses
Contractor has complied with all federal, state, and local laws requiring business permits, certificates, and licenses required to carry out the services to be performed under this Agreement.
State and Federal Taxes
Client will not:
- withhold FICA (Social Security and Medicare taxes) from Contractor’s payments or make FICA payments on Contractor’s behalf
- make state or federal unemployment compensation contributions on Contractor’s behalf, or
- withhold state or federal income tax from Contractor’s payments.
Contractor shall pay all taxes incurred while performing services under this Agreement–including all applicable income taxes and, if Contractor is not a corporation, self-employment (Social Security) taxes. Upon demand, Contractor shall provide Client with proof that such payments have been made.
Fringe Benefits
Contractor understands that neither Contractor nor Contractor’s employees or contract personnel are eligible to participate in any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of Client.
Workers’ Compensation
Client shall not obtain workers’ compensation insurance on behalf of Contractor or Contractor’s employees. If Contractor hires employees to perform any work under this Agreement, Contractor will cover them with workers’ compensation insurance to the extent required by law and will provide Client with a certificate of workers’ compensation insurance before the employees begin the work.
Unemployment Compensation
Client shall make no state or federal unemployment compensation payments on behalf of Contractor or Contractor’s employees or contract personnel. Contractor will not be entitled to these benefits in connection with work performed under this Agreement.
Exclusive Agreement
This is the entire Agreement between Contractor and Client.
Appropriate Conduct/ Safe Working Environment:
Client agrees to take best efforts to provide Contractor and its staff with a safe and appropriate professional relationship. In the event of circumstances deemed to present a threat or implied threat of injury or unprofessional, harassing language or behavior to Contractor staff, Contractor will make reasonable efforts to notify the Client. If the Client is able to respond to the threatening situation in a reasonable amount of time, Contractor shall resume work in accordance with the original terms of this Agreement. If the inappropriate behavior continues, the Client will agree to relieve and hold Contractor harmless as a result of incomplete services under this Agreement, or for a lapse in the quality of the Contractor’s work. The Clients shall be responsible for payment in full, regardless of whether the situation is resolved or whether Contractor resumes work detailed in this Agreement.
Health & Safety.
Client understands that Contractor complies with all health and safety laws, directives, and rules and regulations and therefore, will not provide services in any location or area deemed to be unsafe in its sole discretion, including, but not limited to, areas affected by communicable diseases, quarantined areas, or other similar occurrences. Under any of these circumstances, Contractor reserves the right to end service coverage immediately. Contractor shall be entitled to retain all monies paid and Client agrees to relieve and hold Contractor harmless as a result of incomplete event coverage, or for a lapse in the quality of the [Contractor’s] work and to pay any additional fees due for any work completed to date.
Confidentiality
Parties will treat and hold all information of or relating to this Agreement, the Services provided and the Parties’ businesses in strict confidence and will not use any of this information except in connection with fulfilling the terms of this Agreement, and, if this Agreement is terminated for whatever reason, Parties will return all such information, including account access information, and any and all copies to the original Party and will remain bound to the Confidentiality provision of this Agreement. Confidential information (hereinafter “Confidential Information”) means information that is of value to its owner and is treated as proprietary or confidential including, but not limited to, intellectual property, inventions, trade secrets or information, financial data or information, speculation, knowledge, general Company data or reports, future business plans, strategies, customer lists and information, client acquisition strategies, advertising campaigns, information regarding executives and employees, and the terms and provisions of this Agreement.
Further, at all times neither Party shall use or disclose any Confidential Information relating in any way to the past, present, or future business affairs, conditions, clients, customers, efforts, employees, financial data, operations, practices, products, processes, properties, sales, or services of or relating in any way to the Company in whatever form to any parties outside of this Agreement.
This Agreement imposes no obligation upon the Parties with respect to any Confidential Information that was possessed before initial business interactions commenced between the Parties; is or becomes a matter of public knowledge through no fault of receiving Party; is rightfully received from a third party not owing a duty of confidentiality; is disclosed without a duty of confidentiality to a third party by, or with the authorization of the disclosing Party; or is independently developed by either Party without prior knowledge of privileged or confidential information.
Liability
Limit of liability
Client agrees that the maximum amount of damages it is entitled to in any claim of or relating to this Agreement or Services provided herein are not to exceed Contractor’s total cost as set forth in this Agreement, less any costs for licensing fees.
Indemnification
Client agrees to indemnify and hold harmless Contractor and its employees, agents and independent contractors for any injury, property damage, liability, claim or other cause of action arising out of or related to Services provided herein.
Assumption of Risk
Client and related parties/participants expressly assume any risk of the services provided and related activities as described herein.
Client’s Liability
Client shall exercise the same care regarding any materials or work product belonging to Contractor that are in Client’s possession as it would for its own property. However, if any property received from Contractor is lost or damaged, Client’s liability shall be limited to the coverage available under its liability insurance policy in force at the time this Agreement is signed.
Warranties and Representations
Contractor warrants and represents that:
- Contractor is free to enter into this Agreement
- The work created or developed by Contractor under this Agreement (“Work Product”] shall be original or all necessary permissions and releases obtained and paid for, and
- Contractor’s Work Product shall not infringe upon any copyright or other proprietary right of any other person or entity.
Contractor agrees to indemnify Client for loss, liability, or expense resulting from actual breach of these Warranties.
General Provisions
Term of Agreement
This agreement will become effective when signed by both parties and will terminate on the earlier of:
- the date Contractor completes the services required by this Agreement
- the date a party terminates the Agreement as provided below.
Terminating the Agreement
With reasonable cause, either Client or Contractor may terminate this Agreement, effective immediately upon giving written notice. Reasonable cause includes:
- a material violation of this Agreement, or
- any act exposing the other party to liability to others for personal injury or property damage.
Force Majeure.
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) control, including, but not limited to, the following force majeure events (“Force Majeure Events”): (a) acts of God; (b) a natural disaster (fires, explosions, earthquakes, hurricane, flooding, storms, explosions, infestations), epidemic, or pandemic; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order or law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of adequate power or transportation facilities. The Impacted Party shall give Notice within [number] days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of [number] days following Notice given by it, the other party may thereafter terminate this Agreement upon Notice.
Failure to Perform Services.
In the event Contractor cannot or will not perform its obligations in any or all parts of this Agreement, it (or a responsible party) will:
- Immediately give Notice to Client via the Notice provisions detailed in this Agreement; and
- Attempt to find another competent professional to take its place with the mutual agreement of Client(s);
- If another competent professional is not available or Client(s) do not agree to transfer of obligations to said alternate professional, Company will issue a refund or credit based on a reasonably accurate percentage of services rendered; and
- Excuse Client(s) of any further performance and/or payment obligations in this Agreement.
Resolving Disputes
If a dispute arises under this Agreement, any party may take the matter to court. If any court action is necessary to enforce this Agreement, the prevailing party shall be entitled to reasonable attorney fees, costs, and expenses in addition to any other relief to which the party may be entitled.
Applicable Law
This Agreement will be governed by the laws of the state of California.
Notices
All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows:
- when delivered personally to the recipient’s address as stated on this Agreement
- three days after being deposited in the United States mail, with postage prepaid to the recipient’s address as stated on this Agreement, or
- when sent by fax or electronic mail, such notice is effective upon receipt provided that a duplicate copy of the notice is promptly given by first class mail, or the recipient delivers a written confirmation of receipt.
No Partnership
This Agreement does not create a partnership relationship. Contractor does not have authority to enter into contracts on Client’s behalf.
Assignment and Delegation
Contractor may not assign or subcontract any rights or obligations under this Agreement without Client’s prior written approval.
Signatures
Client
Company
By:
Name: Title:
Date
Contractor
Company: Jack Recht
By:
Signature
Name: Jack Recht Title: GM
Date: