XO Kelley Raye LLC Terms and Conditions
This agreement between the undersigned company (hereafter “COMPANY”) and the undersigned client, (hereafter “CLIENT(S)”) governs the assignment (hereafter “SERVICES(S)” or “EVENT(S)”) described in the accompanying event contract, and along with these Terms and Conditions, constitutes the entire agreement between the parties concerning that assignment.
ENTIRE AGREEMENT: This agreement contains the entire understanding between the COMPANY and the CLIENT. It supersedes all prior and simultaneous agreements between the parties. The only way to add or change this agreement is to do so in writing, signed by all parties. In the event that any part of this agreement is found to be invalid or unenforceable, the remainder of this agreement shall remain valid and enforceable. Any agreement to waive one or more provisions of this agreement or any failure by one or both parties to enforce a provision of this agreement shall not constitute a waiver of any other portion or provision of this agreement. All correspondence in regards to this agreement will be done by the COMPANY with the CLIENT(S) via one or both of the aforementioned CLIENT email addresses only. The COMPANY declines any request to discuss this agreement via text message.
CANCELLATION OF EVENT/SERVICE or CHANGE OF HEART (FORCE MAJEURE): Once received, retainer fees and subsequent payments made by the CLIENT to the COMPANY are non-refundable. The COMPANY is under no obligation to refund any monies received, balance payment included, due to the aforementioned EVENT/SERVICE being postponed due to reasons including but not limited to injury, illness, death in the family, act of God, act of terrorism, Government mandated orders, venue cancellation, or any other cause beyond the control of either the CLIENT or COMPANY. To terminate this agreement due to the EVENT and/or SERVICE being rescheduled for any reason, the CLIENT will be required to sign a ‘Notice of Event/Services Cancellation’ document provided by the COMPANY. The CLIENT is responsible for any and all cancellation fees associated with items purchased by the COMPANY in preparation for the original EVENT and/or SERVICE date (including but not limited to plane tickets and hotel deposits). Should the CLIENT fail to reimburse the COMPANY within 10 days of receipt of invoice, the COMPANY reserves the right to retain any monies already paid, not attend the EVENT(S), not complete SERVICES and take legal action to retrieve monies owed. Once a ‘Notice of Event Cancellation’ document has been signed by the CLIENT, the CLIENT has settled their reimbursement invoice with the COMPANY (if applicable), and the CLIENT is deemed to be in good standing with the COMPANY, only then may this agreement be terminated by the COMPANY due to an EVENT and/or SERVICE cancellation.
Photography Events/Services
POSTPONEMENT OF EVENT/SERVICE (FORCE MAJEURE): Once received, retainer fees and subsequent payments made by the CLIENT to the COMPANY are non-refundable. The COMPANY is under no obligation to refund any monies received, balance payment included, due to the aforementioned EVENT being postponed due to reasons including but not limited to injury, illness, death in the family, act of God, act of terrorism, Government mandated orders, venue cancellation, or any other cause beyond the control of either the CLIENT or COMPANY. To terminate this agreement due to the EVENT and/or SERVICE being rescheduled for any reason, the CLIENT will be required to sign a ‘Notice of Event/Services Cancellation’ document provided by the COMPANY. The COMPANY does not guarantee availability for any rescheduled EVENT and/or SERVICE date(s). A rescheduled EVENT/SERVICE must be completed within the same calendar year of the original EVENT/SERVICE date or CLIENT agrees to forfeit all retainer payments made to COMPANY.
The CLIENT agrees to pay a re-scheduling fee to select a new EVENT/SERVICE date for their existing EVENT/SERVICE reservation.A rescheduled EVENT/SERVICE must be completed within the same calendar year of the original EVENT/SERVICE date or CLIENT agrees to forfeit all retainer payments and re-scheduling fees made to COMPANY. Failure to submit the required re-scheduling fee shall result in an immediate termination of the original agreement, cancellation of the original and/or new EVENT/SERVICE reservation with no further obligation to the COMPANY and the COMPANY shall retain any monies already paid.
The COMPANY does not guarantee that they will extend the original contracted rate to the CLIENT for any postponed/rescheduled EVENT/SERVICE. The COMPANY reserves the right to quote EVENTS/SERVICES at the current base rate(s), a-la-carte rate(s), travel fee(s) and/or taxes. The CLIENT is responsible for any and all fees associated with the rescheduling of items purchased by the COMPANY in preparation for the original EVENT/SERVICE date (including but not limited to plane tickets and hotel deposits). The CLIENT will be required to settle their reimbursement invoice before contracting the new EVENT and/or SERVICE date with the COMPANY. Should the CLIENT fail to reimburse the COMPANY within 10 days of receipt of invoice, the COMPANY reserves the right to immediately terminate this agreement with no further obligation, retain any monies already paid, not attend the EVENT(S), not complete SERVICES and take legal action to retrieve monies owed. Once a ‘Notice of Event/Service Cancellation’ document has been signed by the CLIENT, the CLIENT has settled their reimbursement invoice with the COMPANY (if applicable), and the CLIENT is deemed to be in good standing with the COMPANY, only then may this agreement be terminated by the COMPANY due to an EVENT and/or SERVICE postponement.
PAYMENT PLANS: Once received, retainer fees and subsequent payments made by the CLIENT to the COMPANY are non-refundable. In the event the COMPANY is unable to obtain a recurring payment from the CLIENT on the scheduled due date, the CLIENT will have 48 hours to remit payment due. After 48 hours, the COMPANY reserves the right to immediately cancel any upcoming EVENT/SERVICE reservations until the CLIENT has settled their outstanding invoice. The COMPANY does not guarantee that they will extend the original contracted rate to the CLIENT for any re-scheduled EVENTS/SERVICES. The COMPANY reserves the right to quote EVENTS/SERVICES at the current base rate(s), a-la-carte rate(s), travel fee(s) and/or taxes. The CLIENT is responsible for any and all fees associated with the rescheduling of items purchased by the COMPANY in preparation for the original EVENT/SERVICE date (including but not limited to plane tickets and hotel deposits). The CLIENT will be required to settle their reimbursement invoice before contracting the new EVENT and/or SERVICE date with the COMPANY. Should the CLIENT fail to reimburse the COMPANY within 10 days of receipt of invoice, the COMPANY reserves the right to immediately terminate this agreement with no further obligation, retain any monies already paid, not attend the EVENT(S), not complete SERVICES and take legal action to retrieve monies owed
SAFETY: The COMPANY reserves the right to terminate coverage and leave the location of the EVENT(S) if the COMPANY experiences inappropriate, threatening, hostile or offensive behavior from any person(s) at the EVENT(S); or in the event that the safety of the COMPANY is in question.
EXPENSES INCURRED: When applicable, the CLIENT is responsible for all travel, accommodation, meal and transport costs. All travel, accommodation, meal and transport costs and fees associated are non-refundable once incurred and will be invoiced to the CLIENT accordingly.
TRAVEL EXPENSES: A travel fee may be required for your EVENT/SERVICE. All travel fees, once paid to the COMPANY, are non-refundable. CLIENT will be responsible for flight, lodging, ground transportation and/or meal expenses for the COMPANY when applicable. All travel fees must be paid upfront and prior to the EVENT and/or SERVICE date(s). The COMPANY will make their own travel arrangements. The CLIENT is strictly prohibited from making travel arrangements on behalf of the COMPANY.
VENUE AND LOCATION LIMITATIONS: The COMPANY is limited by the rules and guidelines of the location(s) and site management. The CLIENT agrees to accept the technical results of their imposition on the COMPANY. Negotiation with the officials for moderation of guidelines is the CLIENT's responsibility; the COMPANY will offer technical recommendations only.
PERMITS: The CLIENT is responsible for researching and acquiring all permits and necessary permission for all locations on which the COMPANY will be performing services prior to the EVENT(S). The CLIENT is also responsible for parking fees associated with all locations on which the COMPANY will be performing services.
FILM AND COPYRIGHTS: The photographs produced by the COMPANY are protected by Federal Copyright Law (all rights reserved) and may not be reproduced in any manner without the COMPANY’s explicit written permission. Original files also known as .RAW files are not available for purchase by the CLIENT. Un-edited high-resolution .JPG files (equal to the same edited high-resolution .JPG files received in the original photo gallery) may be purchased at an additional fee of $1,000 for the full gallery or $100 per single image. The COMPANY grants the CLIENT permission to download images from their online gallery and/or Image USB and reproduce the images for the CLIENT’s personal and company use, including but not limited to sharing the images on social networking websites/platforms. The CLIENT must obtain written permission from the COMPANY prior to print in any publication. The CLIENT is strictly prohibited from selling any image.
An exclusive usage license for image use including large scale marketing materials (billboards, printed flyers), third-party media, news outlets (print and tv), printed materials that will be distributed for payment (books, notebooks, product labels) is available for purchase at an additional fee of $2,500.
The CLIENT is strictly prohibited from allowing third-party companies to use images produced by the COMPANY without the COMPANY’s written approval. All requests by third-party companies for images produced by the COMPANY should be directed to the COMPANY at hello@kelleyraye.com for approval and subsequent license fee if applicable. The CLIENT is strictly prohibited from approving third-party usage of images produced by the COMPANY without the COMPANY’s knowledge or written approval.
CAPTURE AND DELIVERY: The COMPANY will not be held liable for delivering every image taken at the EVENT(S). The COMPANY will not be held liable to capture every action that occurs at the EVENT(S). The CLIENT understands the COMPANY will do its best to capture images the CLIENT has communicated are ‘must-have’ images, however the COMPANY will not be held liable for failure to capture and/or deliver these images. The determination of images delivered to the CLIENT is left to the discretion of the COMPANY. The COMPANY agrees to deliver “Image USB or Photo Gallery” to CLIENT no later than 6 weeks after the EVENT(S) has taken place. The final total of images delivered will be left to the discretion of the COMPANY. In the event the CLIENT is not satisfied with one or more of the images captured and delivered (as well as not captured and/or not delivered) by the COMPANY, the COMPANY will be under no obligation to return any monies paid.
POST-PRODUCTION AND EDITING: The final post-production and editing styles, effects, and overall look of the images are left to the discretion of the COMPANY. The COMPANY will not be held accountable for failure to deliver images of CLIENT and/or EVENT(S) in any specific or assumed editing style. The COMPANY reserves the right to change the COMPANY’s editing style at will and without prior notice to the CLIENT. In the event the CLIENT is not satisfied with one or more of the images edited and delivered (as well as not edited and/or not delivered) by the COMPANY, the COMPANY will be under no obligation to return any monies paid.
IMAGE GALLERY DELIVERY AND DOWNLOADING: Image galleries will be available for free download for up to 4 weeks after the delivery date. After 4 weeks, CLIENT may access their gallery via purchase only: individual images may be purchased for $2 and full galleries may be purchased for $50. All 2022 image galleries will be available for free download until January 15, 2023. Galleries from 2019-2021 are no longer available for free download however CLIENT may still access gallery via purchase only. Galleries from 2018 and earlier will expire permanently on December 16, 2022 and will not be available for download or purchase after this date.
Galleries will be delivered via the following timeframes: 1 hour or less sessions or events - 5-7 business days; 2 hour sessions or events - 10-14 business days; 4+ hour sessions or events - 15-20 business days. Retouched images will be delivered via the following timeframes: 1-5 images will be delivered in 5-7 business days; 6-20 images will be delivered in 10-14 business days; 21+ images will be delivered in 15-20 business days. Business days exclude national holidays, the day before and after Thanksgiving, the day before and after Christmas, and New Years Eve. CLIENT may purchase rush delivery up to 24 hours prior to the EVENT to receive image gallery sooner than the aforementioned estimated timeframe.
IMAGE RETOUCHING: The final post-production and editing styles, effects, and overall look of the images are left to the discretion of the COMPANY. Images will be delivered un-retouched. Clients must email all retouch requests within 7 days of gallery delivery to avoid additional fees. Retouching requests received after 7 days from gallery delivery will incur a fee of $25 per image and must be paid in full before the retouching process begins. Total balance must be paid in full to COMPANY prior to delivery of final retouched images.
USER-GENERATED CONTENT: COMPANY will deliver videos to CLIENT as 9:16 video, H264. Standard video length is up to (1) minute. Edited videos longer than 1 minutea will incur an additional fee of XX per additional minute. Base rates include (1) round of feedback; additional rounds of feedback are charged at $150 per round. 1-6-month asset usage will incur an additional fee of XX. 6-12-month asset usage will incur an additional fee of XX. 2-year image usage license will incur an additional fee of XX. An exclusivity agreement will incur an additional fee of $4500 per month.
GIFT CARDS, GIFT CERTIFICATES AND PRE-PURCHASED CREDITS: Gift certificates and pre-purchased credits expire 6 months from purchase date. Session base rates are subject to change without notice and pre-purchased credits may or may not cover the total by the time it is redeemed. Gift certificates and pre-purchased credits must be used at one time; gift certificates and pre-purchased credits may not be split over multiple purchases or session dates. Gift certificates and pre-purchased credits cannot be applied to travel fees.
LIMITATION OF LIABILITIES: In the unlikely event that any photographer from the COMPANY is unable to perform to the guidelines of this agreement due to an injury, illness, death in the family, act of God, act of terrorism, or other cause beyond the control of the COMPANY, the COMPANY will make every effort to secure a replacement. If the situation should occur and a suitable replacement is not found, responsibility and liability is limited to the return of all payments received for the SERVICES(S).
In the unlikely event that digital files have been lost, stolen, or destroyed for reasons beyond the COMPANY's control, including but not limited to theft, and camera/hard drive/equipment malfunction, the COMPANY liability is limited to the return of all payments received for the SERVICES(S). The limit of liability for a partial loss of originals shall be a prorated amount of the exposures lost based on the percentage of total number of originals. The COMPANY is not liable for the loss of images beyond the lesser of the final delivery of all products included in the package or the total paid.
FEE: A non-refundable retainer fee shall be required upon signing of this agreement. The fees and expenses bid or estimated by the COMPANY are for the original job description as presented by the CLIENT. Subsequent changes or actual job conditions may result in additional charges. COMPANY shall seek approval of additional expenses whenever reasonable and appropriate. The COMPANY agrees to minimize any and all unexpected expenses. Nevertheless, unexpected expenses shall be added on as an addition to the originally estimated total and shall be invoiced accordingly.
PAYMENT & LATE FEES: The aforementioned non-refundable retainer fee is to begin services and at the time of signing of this agreement. The remaining balance payment schedule is listed above. In the event the COMPANY is not able to obtain retainer payment by the due date, the COMPANY shall have the right to immediately terminate this agreement with no further obligation. In the event the COMPANY is not able to obtain balance payment by the due date, the CLIENT will be billed by the COMPANY a daily late fee until a successful payment is received by the COMPANY. In the event the CLIENT fails to remit balance payment as specified within 7 days of the due date, the COMPANY shall have the right to immediately terminate this agreement with no further obligation, retain any monies already paid, and not attend the EVENT(S).
RETAINER FEE GUARANTEE: Services are not considered contracted or definite until a retainer fee has been successfully received by credit, debit, or electronic check along with this signed EVENT agreement.
DIGITAL PRODUCT COPYRIGHT & LICENSING: All DIGITAL PRODUCT(S) or DIGITAL FILE(S), including but not limited to tutorials, guides, worksheets, templates, presets intended for use with Adobe Lightroom, graphic designs and images have been produced by the COMPANY and are protected by Federal Copyright Law (all rights reserved). The CLIENT is strictly prohibited from reproducing any DIGITAL PRODUCT(S) or DIGITAL FILE(S) purchased or obtained from the COMPANY for the purpose of re-distribution or re-sale under any other name. The COMPANY does not grant the CLIENT rights or ownership to any DIGITAL PRODUCT(S) or DIGITAL FILE(S) obtained via the COMPANY, regardless of use.
DIGITAL PRODUCT REFUNDS: The COMPANY shall not refund the CLIENT for any DIGITAL PRODUCT(S) or DIGITAL FILE(S) after purchase. DIGITAL PRODUCT(S) or DIGITAL FILE(S) sales are final.
Consultation Events/Services
CONSULTATION SERVICES: The CLIENT hereby employs the COMPANY to perform the following services in accordance with the terms and conditions set forth in this agreement: The COMPANY will consult with the CLIENT concerning matters of branding and content strategy. It is anticipated the COMPANY will spend approximately 1-5 months in fulfilling its obligations under this contract. Services will not exceed 6 months past the contract signature date. The particular amount of time may vary from day to day or week to week. However, the COMPANY shall devote a minimum of 4 hours per month to its duties in accordance with this agreement.
PAYMENTS: In consideration for the EVENTS and/or SERVICES, the CLIENT will pay the COMPANY a non-refundable retainer fee that is due at the time this agreement is signed. Subsequent monthly payments are due and will be automatically charged to the credit card on file every 30 days or until the balance has been settled, whichever comes first. Payments received by the COMPANY are non-refundable once cleared.
PAYMENT PLANS: Once received, retainer fees and subsequent payments made by the CLIENT to the COMPANY are non-refundable. In the event the COMPANY is unable to obtain a recurring payment from the CLIENT on the scheduled due date, the COMPANY reserves the right to immediately cancel any upcoming EVENT/SERVICE reservations until the CLIENT has settled their outstanding invoice. The COMPANY does not guarantee that they will extend the original contracted rate to the CLIENT for any re-scheduled EVENTS/SERVICES. The COMPANY reserves the right to quote EVENTS/SERVICES at the current base rate(s), a-la-carte rate(s), travel fee(s) and/or taxes. The CLIENT is responsible for any and all fees associated with the rescheduling of items purchased by the COMPANY in preparation for the original EVENT/SERVICE date (including but not limited to plane tickets and hotel deposits). The CLIENT will be required to settle their reimbursement invoice before contracting the new EVENT and/or SERVICE date with the COMPANY. Should the CLIENT fail to reimburse the COMPANY within 10 days of receipt of invoice, the COMPANY reserves the right to immediately terminate this agreement with no further obligation, retain any monies already paid, not attend the EVENT(S), not complete SERVICES and take legal action to retrieve monies owed
INDEPENDENT CONTRACTOR: Both the CLIENT and the COMPANY agree that the COMPANY will act as an independent contractor in the performance of its duties under this contract. Accordingly, the COMPANY shall be responsible for payment of all taxes including Federal, State and local taxes arising out of the COMPANYs activities in accordance with this contract, including by way of illustration but not limitation, Federal and State income tax, Social Security tax, Unemployment Insurance taxes, and any other taxes or business license fee as required.
CONFIDENTIAL INFORMATION: The COMPANY agrees that any information received by the COMPANY during any furtherance of the COMPANY's obligations in accordance with this contract, which concerns the personal, financial or other affairs of the CLIENT will be treated by the COMPANY in full confidence and will not be revealed to any other persons, firms or organizations.
EMPLOYMENT TO OTHERS: The CLIENT may from time to time request that the COMPANY arrange for the services of others. All costs to the COMPANY for those services will be paid by the CLIENT but in no event shall the COMPANY employ others without the prior authorization of the CLIENT.
SAFETY: The COMPANY reserves the right to terminate coverage and leave the location of the EVENT(S) if the COMPANY experiences inappropriate, threatening, hostile or offensive behavior from any person(s) at the EVENT(S); or in the event that the safety of the COMPANY is in question.
EXPENSES INCURRED: When applicable, the CLIENT is responsible for all travel, accommodation, meal and transport costs. All travel, accommodation, meal and transport costs and fees associated are non-refundable once incurred and will be invoiced to the CLIENT accordingly.
TRAVEL EXPENSES: A travel fee is required for EVENTS and/or SERVICES locations outside of Atlanta, GA. All travel fees, once paid to the COMPANY, are non-refundable. CLIENT will be responsible for flight, lodging, ground transportation and/or meal expenses for the COMPANY when applicable. All travel fees must be paid upfront and prior to the EVENT and/or SERVICE date(s). The COMPANY will make their own travel arrangements. The CLIENT is strictly prohibited from making travel arrangements on behalf of the COMPANY.
VENUE AND LOCATION LIMITATIONS: The COMPANY is limited by the rules and guidelines of the location(s) and site management. The CLIENT agrees to accept the technical results of their imposition on the COMPANY. Negotiation with the officials for moderation of guidelines is the CLIENT's responsibility; the COMPANY will offer technical recommendations only.
PERMITS: The CLIENT is responsible for researching and acquiring all permits and necessary permission for all locations on which the COMPANY will be performing services prior to the EVENT(S). The CLIENT is also responsible for parking fees associated with all locations on which the COMPANY will be performing services.
FILM AND COPYRIGHTS: The photographs produced by the COMPANY are protected by Federal Copyright Law (all rights reserved) and may not be reproduced in any manner without the COMPANY’s explicit written permission. Original files also known as .RAW files are not available for purchase by the CLIENT. Un-edited high-resolution .JPG files (equal to the same edited high-resolution .JPG files received in the original photo gallery) may be purchased at an additional fee of $1,000 for the full gallery or $100 per single image. The COMPANY grants the CLIENT permission to download images from their online gallery and/or Image USB and reproduce the images for the CLIENT’s personal and company use, including but not limited to sharing the images on social networking websites/platforms. The CLIENT must obtain written permission from the COMPANY prior to print in any publication. The CLIENT is strictly prohibited from selling any image.
The CLIENT is strictly prohibited from allowing third-party companies to use images produced by the COMPANY without the COMPANY’s written approval. All requests by third-party companies for images produced by the COMPANY should be directed to the COMPANY at hello@kelleyraye.com for approval and subsequent license fee if applicable. The CLIENT is strictly prohibited from approving third-party usage of images produced by the COMPANY without the COMPANY’s knowledge or written approval.
CAPTURE AND DELIVERY: The COMPANY will not be held liable for delivering every image taken at the EVENT(S). The COMPANY will not be held liable to capture every action that occurs at the EVENT(S). The CLIENT understands the COMPANY will do its best to capture images the CLIENT has communicated are ‘must-have’ images, however the COMPANY will not be held liable for failure to capture and/or deliver these images. The determination of images delivered to the CLIENT is left to the discretion of the COMPANY. The COMPANY agrees to deliver “Image USB or Photo Gallery” to CLIENT no later than 5 weeks after the EVENT(S) has taken place. The final total of images delivered will be left to the discretion of the COMPANY. In the event the CLIENT is not satisfied with one or more of the images captured and delivered (as well as not captured and/or not delivered) by the COMPANY, the COMPANY will be under no obligation to return any monies paid.
POST-PRODUCTION AND EDITING: The final post-production and editing styles, effects, and overall look of the images are left to the discretion of the COMPANY. The COMPANY will not be held accountable for failure to deliver images of CLIENT and/or EVENT(S) in any specific or assumed editing style. The COMPANY reserves the right to change the COMPANY’s editing style at will and without prior notice to the CLIENT. In the event the CLIENT is not satisfied with one or more of the images edited and delivered (as well as not edited and/or not delivered) by the COMPANY, the COMPANY will be under no obligation to return any monies paid.
LIMITATION OF LIABILITIES: In the unlikely event that any photographer from the COMPANY is unable to perform to the guidelines of this agreement due to an injury, illness, death in the family, act of God, act of terrorism, or other cause beyond the control of the COMPANY, the COMPANY will make every effort to secure a replacement. If the situation should occur and a suitable replacement is not found, responsibility and liability is limited to the return of all payments received for the SERVICES(S).
In the unlikely event that digital files have been lost, stolen, or destroyed for reasons beyond the COMPANY's control, including but not limited to theft, and camera/hard drive/equipment malfunction, the COMPANY liability is limited to the return of all payments received for the SERVICES(S). The limit of liability for a partial loss of originals shall be a prorated amount of the exposures lost based on the percentage of total number of originals. The COMPANY is not liable for the loss of images beyond the lesser of the final delivery of all products included in the package or the total paid.
ASSIGNMENT: This Agreement is not assignable, in whole or in part, by either party without the prior written consent of the other party. Any attempt to make such assignment shall be void.
ATTORNEY’S FEES: In any legal action between the parties concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs.
TERMINATION: Either party may terminate this Agreement at any time by providing 10 days advance written notice. In the event of such termination, the CLIENT shall be obligated to pay only for actual EVENT(S) and/or SERVICE(S) provided by the COMPANY and for expenditures incurred with the CLIENT's approval. Unless otherwise terminated, this Agreement will terminate upon completion of the EVENT(S) and/or SERVICE(S).
TERMINATION ON DEFAULT: If a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate this Agreement by providing written notice to the defaulting party. The notice shall describe with sufficient detail the nature of the default. The party in default shall have 14 days from the effective date of such notice to cure the default(s). Unless waived by the party providing the notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.
TAXES: The CLIENT shall pay the amount of any sales, use, excise or similar taxes applicable to the performance of the SERVICES, if any, or, in lieu of such payment, the CLIENT shall provide the COMPANY with a certificate acceptable to the taxing authorities exempting the CLIENT from payment of such taxes.
SEVERABILITY: If any provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and construed so as to best effectuate the original intent and purpose of this Agreement.
FEE: A non-refundable retainer fee shall be required upon signing of this agreement. The fees and expenses bid or estimated by the COMPANY are for the original job description as presented by the CLIENT. Subsequent changes or actual job conditions may result in additional charges. COMPANY shall seek approval of additional expenses whenever reasonable and appropriate. The COMPANY agrees to minimize any and all unexpected expenses. Nevertheless, unexpected expenses shall be added on as an addition to the originally estimated total and shall be invoiced accordingly.
PAYMENT & LATE FEES: The aforementioned non-refundable retainer fee is due to begin services and at the time of signing of this agreement. The remaining balance payment schedule is listed above. In the event the COMPANY is not able to obtain retainer payment by the due date, the COMPANY shall have the right to immediately terminate this agreement with no further obligation. In the event the COMPANY is not able to obtain balance payment by the due date, the CLIENT will be billed by the COMPANY a daily late fee of $25.00 per day until a successful payment is received by the COMPANY. In the event the CLIENT fails to remit balance payment as specified within 7 days of the due date, the COMPANY shall have the right to immediately terminate this agreement with no further obligation, retain any monies already paid, and not attend the EVENT(S).
RETAINER FEE GUARANTEE: Services are not considered contracted or definite until a retainer fee has been successfully received by credit, debit, or electronic check along with this signed EVENT agreement.
Website Design Services
DESCRIPTION OF SERVICES: The COMPANY will design a website (the "Website") for the CLIENT by providing the design and programming SERVICES listed on Schedule A (the "SERVICES") in a professional and timely manner. All programming and documentation shall comply with standards currently employed by the CLIENT. The parties may at any time modify the scope of the SERVICES by including desired changes in a written "change order" that explains the changes and the adjustment to the payment for the SERVICES that will result from such changes. Such change order shall become effective when signed and dated by both parties.
DESIGN TEAM: The COMPANY will use only qualified personnel to provide the SERVICES (the "Design Team"). The COMPANY reserves the right to make changes to the Design Team in its sole discretion. Orientation of replacement personnel shall be at the COMPANY's expense.
TERM/SCHEDULING: The COMPANY estimates reaching satisfactory completion of the SERVICES within six weeks of the Effective Date. The term "satisfactory completion" of the SERVICES means when the software and documentation developed for the Website performs to the specifications set forth on Schedule A, pending the approval of the CLIENT. This estimation does not include time during which the COMPANY must wait for the CLIENT to provide materials or information necessary for the completion of the SERVICES. The COMPANY agrees to notify the CLIENT of any anticipated delays in completing the SERVICES.
PAYMENTS: A non-refundable retainer fee is due at the time this agreement is signed. Final payment is due upon the COMPANY completing the website and obtaining the CLIENT's approval that the SERVICES have been fulfilled as per the Agreement.
PAYMENT PLANS: Once received, retainer fees and subsequent payments made by the CLIENT to the COMPANY are non-refundable. In the event the COMPANY is unable to obtain a recurring payment from the CLIENT on the scheduled due date, the COMPANY reserves the right to immediately cancel any upcoming EVENT/SERVICE reservations until the CLIENT has settled their outstanding invoice. The COMPANY does not guarantee that they will extend the original contracted rate to the CLIENT for any re-scheduled EVENTS/SERVICES. The COMPANY reserves the right to quote EVENTS/SERVICES at the current base rate(s), a-la-carte rate(s), travel fee(s) and/or taxes. The CLIENT is responsible for any and all fees associated with the rescheduling of items purchased by the COMPANY in preparation for the original EVENT/SERVICE date (including but not limited to plane tickets and hotel deposits). The CLIENT will be required to settle their reimbursement invoice before contracting the new EVENT and/or SERVICE date with the COMPANY. Should the CLIENT fail to reimburse the COMPANY within 10 days of receipt of invoice, the COMPANY reserves the right to immediately terminate this agreement with no further obligation, retain any monies already paid, not attend the EVENT(S), not complete SERVICES and take legal action to retrieve monies owed
OWNERSHIP RIGHTS: The CLIENT will own all of its proprietary information as included in the SERVICES, as well as all source code, object code, screens, documentation, digital programming, operating instructions, design concepts, content, graphics, domain names, hosting, characters, stored data, and reports and notes prepared by the COMPANY.
COMPANY THE OWNERSHIP RIGHTS AND GRANT OF LICENSE: Notwithstanding any other provision of this Agreement, the SERVICES will/may include some programming code that the COMPANY has previously developed for its own use (the "COMPANY's Prior Code"). The COMPANY expressly retains full ownership of such code, including all associated rights to use such code.
COPYRIGHT NOTICE: The COMPANY shall include the following copyright notice (or any other notices requested by the CLIENT) to be displayed on each page of the Website that can be viewed by a user: "© [Year], [Client's Name and/or Company]"
CONFIDENTIALITY: The COMPANY will not at any time or in any manner, either directly or indirectly, use for the personal benefit of the COMPANY, or divulge, disclose, or communicate in any manner any information that is proprietary to the CLIENT (e.g., trade secrets, know-how and confidential information). The COMPANY will protect such information and treat it as strictly confidential. This provision shall continue to be effective after the termination of this Agreement. The CLIENT may seek and obtain injunctive relief against the release or threatened release of such information in addition to any other legal remedies which may be available.
INDEPENDENT CONTRACTOR: The COMPANY is an independent contractor with respect to its relationship to the CLIENT. Neither the COMPANY nor the COMPANY's employees are or shall be deemed for any purpose to be employees of the CLIENT. The CLIENT shall not be responsible to the COMPANY, the COMPANY's employees, or any governing body for any payroll taxes related to the performance of the SERVICES. Upon request, the COMPANY will provide evidence of appropriate insurance coverage for workers compensation and general liability insurance.
PROMOTION: The COMPANY will not use the names, trademarks, service marks, symbols or any abbreviations of the CLIENT, without the prior written consent of the CLIENT.
WARRANTY - COMPANY. The COMPANY warrants to the CLIENT that all software programming, web pages, and materials delivered to the CLIENT in connection with the SERVICES are free from defects in materials and faulty workmanship under normal use, and that the Website will operate properly with standards-compliant web browsers. For a period of one year from the Effective Date, the COMPANY will correct any software anomalies ("bugs") that occur because of defects in the source code included in the software, or because of errors related to the hosting service. After such time, the CLIENT may contact the hosting service to address technical support issues using the contact information included in Appendix A. While no website design process is able to guarantee bug-free results, the SERVICES will be provided in a workmanlike manner, within local industry standards and tolerances for commercial applications.
WARRANTY – INTELLECTUAL PROPERTY RIGHTS: The COMPANY represents and warrants that it has the unencumbered right and power to enter into and perform this Agreement and that the COMPANY is not aware of any claims or basis for claims of infringement of any patent, trademark, copyright, trade secret, or contractual or other proprietary rights of third parties in or to any programming or materials included by the COMPANY in the SERVICES or trade names related to the SERVICES. In the event of any claim, charge, suit or proceeding by any third party against the CLIENT alleging such infringement, the COMPANY shall defend such claim, charge, suit or proceeding. The COMPANY shall indemnify and hold the CLIENT harmless from and against any loss, cost, damage or expense (including attorney fees and legal expenses) incurred by the CLIENT that may result by reason of any such claim, charge, suit or proceeding. The CLIENT shall have the right, if it so desires, to be represented in any such claim, charge, suit or proceeding by counsel. This indemnity shall not apply to materials provided by the CLIENT as contemplated by the following paragraph.
WARRANTY – CLIENT: The CLIENT represents and warrants to the COMPANY that the CLIENT owns (or has a legal license to use) all photos, text, artwork, graphics, designs, trademarks, and other materials provided by the CLIENT for inclusion in the Website, and that the CLIENT has obtained all waivers, authorizations, and other documentation that may be appropriate to evidence such ownership. The CLIENT shall indemnify and hold the COMPANY harmless from all losses and claims, including attorney fees and legal expenses, that may result by reason of claims by third parties related to such materials
DISCLAIMER OF WARRANTIES: Except as expressly set forth in this agreement, the parties hereby specifically disclaim any representations or warranties, express or implied, regarding the services, including any implied warranty of merchantability or fitness for a particular purpose or implied warranties arising from course of dealing of course of performance.
FILM AND COPYRIGHTS: The photographs produced by the COMPANY are protected by Federal Copyright Law (all rights reserved) and may not be reproduced in any manner without the COMPANY’s explicit written permission. Original files also known as .RAW files are not available for purchase by the CLIENT. Un-edited high-resolution .JPG files (equal to the same edited high-resolution .JPG files received in the original photo gallery) may be purchased at an additional fee of $1,000 for the full gallery or $100 per single image. The COMPANY grants the CLIENT permission to download images from their online gallery and/or Image USB and reproduce the images for the CLIENT’s personal and company use, including but not limited to sharing the images on social networking websites/platforms. The CLIENT must obtain written permission from the COMPANY prior to print in any publication. The CLIENT is strictly prohibited from selling any image.
The CLIENT is strictly prohibited from allowing third-party companies to use images produced by the COMPANY without the COMPANY’s written approval. All requests by third-party companies for images produced by the COMPANY should be directed to the COMPANY at hello@kelleyraye.com for approval and subsequent license fee if applicable. The CLIENT is strictly prohibited from approving third-party usage of images produced by the COMPANY without the COMPANY’s knowledge or written approval.
CAPTURE AND DELIVERY: The COMPANY will not be held liable for delivering every image taken at the EVENT(S). The COMPANY will not be held liable to capture every action that occurs at the EVENT(S). The CLIENT understands the COMPANY will do its best to capture images the CLIENT has communicated are ‘must-have’ images, however the COMPANY will not be held liable for failure to capture and/or deliver these images. The determination of images delivered to the CLIENT is left to the discretion of the COMPANY. The COMPANY agrees to deliver “Image USB or Photo Gallery” to CLIENT no later than 5 weeks after the EVENT(S) has taken place. The final total of images delivered will be left to the discretion of the COMPANY. In the event the CLIENT is not satisfied with one or more of the images captured and delivered (as well as not captured and/or not delivered) by the COMPANY, the COMPANY will be under no obligation to return any monies paid.
POST-PRODUCTION AND EDITING: The final post-production and editing styles, effects, and overall look of the images are left to the discretion of the COMPANY. The COMPANY will not be held accountable for failure to deliver images of CLIENT and/or EVENT(S) in any specific or assumed editing style. The COMPANY reserves the right to change the COMPANY’s editing style at will and without prior notice to the CLIENT. In the event the CLIENT is not satisfied with one or more of the images edited and delivered (as well as not edited and/or not delivered) by the COMPANY, the COMPANY will be under no obligation to return any monies paid.
LIMITATION OF LIABILITIES: In the unlikely event that any photographer from the COMPANY is unable to perform to the guidelines of this agreement due to an injury, illness, death in the family, act of God, act of terrorism, or other cause beyond the control of the COMPANY, the COMPANY will make every effort to secure a replacement. If the situation should occur and a suitable replacement is not found, responsibility and liability is limited to the return of all payments received for the EVENT(S).
In the unlikely event that digital files have been lost, stolen, or destroyed for reasons beyond the COMPANY's control, including but not limited to theft, and camera/hard drive/equipment malfunction, the COMPANY liability is limited to the return of all payments received for the EVENT(S). The limit of liability for a partial loss of originals shall be a prorated amount of the exposures lost based on the percentage of total number of originals. The COMPANY is not liable for the loss of images beyond the lesser of the final delivery of all products included in the package or the total paid.
INDEMNITY: Each party agrees to defend, indemnify, and hold harmless the other party and its officers, directors, agents, affiliates, distributors, representatives, and employees from any and all third party claims, demands, liabilities, costs and expenses, including reasonable attorney’s fees, costs and expenses resulting from the indemnifying party's material breach of any duty, representation, or warranty under this Agreement.
ASSIGNMENT: This Agreement is not assignable, in whole or in part, by either party without the prior written consent of the other party. Any attempt to make such assignment shall be void.
ATTORNEYS FEES: In any legal action between the parties concerning this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs.
TERMINATION: Either party may terminate this Agreement at any time by providing 10 days advance written notice. In the event of such termination, the CLIENT shall be obligated to pay only for actual SERVICES provided by the COMPANY and for expenditures incurred with the CLIENT's approval. Unless otherwise terminated, this Agreement will terminate upon completion of the SERVICES.
TERMINATION ON DEFAULT: If a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate this Agreement by providing written notice to the defaulting party. The notice shall describe with sufficient detail the nature of the default. The party in default shall have 14 days from the effective date of such notice to cure the default(s). Unless waived by the party providing the notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.
TAXES: The CLIENT shall pay the amount of any sales, use, excise or similar taxes applicable to the performance of the SERVICES, if any, or, in lieu of such payment, the CLIENT shall provide the COMPANY with a certificate acceptable to the taxing authorities exempting the CLIENT from payment of such taxes.
SEVERABILITY: If any provision of this Agreement is held to be invalid, illegal or unenforceable, the remaining portions of this Agreement shall remain in full force and effect and construed so as to best effectuate the original intent and purpose of this Agreement.
GOVERNING LAW/FORUM: This Agreement shall be construed in accordance with the internal laws of the State of Georgia without regard to conflict of laws rules. Venue shall be in a court of competent jurisdiction in the State of Georgia and both parties expressly consent to jurisdiction in such courts.
COMPLETE CONTRACT/ADDENDUM: This Agreement supersedes all prior agreements and understandings between the parties for performance of the SERVICES and constitutes the complete agreement and understanding between the parties. The parties may amend this Agreement in a written document signed by both parties.
FEE: A non-refundable retainer fee shall be required upon signing of this agreement. The remainder will be paid to the COMPANY no later than 30 days prior to the scheduled EVENT(S) date. No final deliverables will be released to the CLIENT until payment has been received in full. The fees and expenses bid or estimated by the COMPANY are for the original job description as presented by the CLIENT. Subsequent changes or actual job conditions may result in additional charges. COMPANY shall seek approval of additional expenses whenever reasonable and appropriate. The COMPANY agrees to minimize any and all unexpected expenses. Nevertheless, unexpected expenses shall be added on as an addition to the originally estimated total and shall be invoiced accordingly.
PAYMENT & LATE FEES: The aforementioned non-refundable retainer fee is due to being services. The remaining balance is due in full no later than 1 day after SERVICE(S) has been completed. In the event the COMPANY is not able to obtain retainer payment by the due date, the COMPANY shall have the right to immediately terminate this agreement with no further obligation. In the event the COMPANY is not able to obtain balance payment by the due date, the CLIENT will be billed by the COMPANY a daily late fee of $25.00 per day until a successful payment is received by the COMPANY. In the event the CLIENT fails to remit balance payment as specified within 7 days of the due date, the COMPANY shall have the right to immediately terminate this agreement with no further obligation, retain any monies already paid, and not attend the EVENT(S).
RETAINER FEE GUARANTEE: Services are not considered contracted or definite until a retainer fee has been successfully received by credit, debit, or electronic check along with this signed EVENT agreement.
Digital Products
DIGITAL PRODUCT COPYRIGHT & LICENSING: All DIGITAL PRODUCT(S) or DIGITAL FILE(S), including but not limited to tutorials, guides, worksheets, templates, presets intended for use with Adobe Lightroom, graphic designs and images have been produced by the COMPANY and are protected by Federal Copyright Law (all rights reserved). The CLIENT is strictly prohibited from reproducing any DIGITAL PRODUCT(S) or DIGITAL FILE(S) purchased or obtained from the COMPANY, http://kelleyraye.com or XO Kelley Raye LLC for the purpose of re-distribution or re-sale under any other name. The COMPANY does not grant the CLIENT rights or ownership to any DIGITAL PRODUCT(S) or DIGITAL FILE(S) obtained via the COMPANY, regardless of use.
DIGITAL PRODUCT REFUNDS: The COMPANY shall not refund the CLIENT for any DIGITAL PRODUCT(S) or DIGITAL FILE(S) after purchase. DIGITAL PRODUCT(S) or DIGITAL FILE(S) sales are final.
Upon purchase of any service or product provided by XO Kelley Raye LLC, you agree to the Terms & Conditions stated.