P H O T O G R A P H Y
TERMS AND CONDITIONS
(Terms and Conditions)
1. Services. ANDHO will provide the services to Client as identified and described in the Order Confirmation (the “Services”) in accordance with this Agreement. ANDHO may engage sub-agents, independent contractors or other persons (“Sub-Agents”) to act on ANDHO’s behalf or to otherwise perform any of ANDHO’s obligations under this Agreement; provided that any compensation to such Sub-Agents shall be solely ANDHO’s responsibility.
2. Performance Dates. ANDHO will use reasonable efforts to meet any performance dates specified in the Order Confirmation, and any such dates will be estimates only.
3. Client Obligations: Client agrees (a) to cooperate with ANDHO in all matters relating to the Services and provide such access to Client’s premises and other facilities as may reasonably be requested by ANDHO, for purposes of performing the Services; (b) respond promptly to any requests by ANDHO to provide direction, information, approval, authorizations or decisions that are reasonably necessary for ANDHO to perform Services in accordance with the requirements of this Agreement; and (c) provide such Client materials or information as ANDHO may request to carry out the Services in a timely manner and ensure that such Client materials or information are sufficient and accurate in all material respects.
4. Client Act’s or Omissions. If ANDHO’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Client, its agents, other contractors, or employees, then ANDHO will not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Client, in each case, to the extent arising directly or indirectly from such prevention or delay.
5. Change Orders.
a. Procedures. If either Party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other Party in writing. ANDHO will, within a reasonable time after such request, provide a written estimate to Client of: (i) the likely time required to implement the change; (ii) any necessary variations to the fees and other charges for the Services arising from the change; (iii) the likely effect of the change to the Services; and (iv) any other impact the change might have on the performance of this Agreement.
b. Form. Promptly after receipt of the written estimate, the Parties will negotiate and agree in writing on the terms of such change (a “Change Order”). Neither Party will be bound by any Change Order unless mutually agreed upon in writing.
c. Notwithstanding Sections 5a and 5b, ANDHO may, from time to time change the Services without the consent of Client provided that such changes do not materially affect the nature or scope of the Services, of the fees or any performance dates set forth in the Order Confirmation.
6. Payment Terms.
a. Fee. Client agrees to pay ANDHO the fee(s) set forth in the Order Confirmation (the “Fee”). Additional fees will be required for any services requested outside the Order Confirmation.
b. Time and Materials. Where Services are provided on a time and materials basis: (a) the fees payable for the Services will be calculated in accordance with ANDHO’s hourly fee rates set forth in the Order Confirmation; and (ii) ANDHO will issue invoices to Client monthly in arrears for its fees for time for the immediately preceding month, together with a detailed breakdown of any expenses for such month incurred in accordance with Section 6d.
c. Fixed Price Basis. Where Services are provided for a fixed price, the total fees for the Services will be the amount set out in the Order Confirmation. The total price will be paid to ANDHO based on monthly invoices.
d. Expenses. Client will be responsible for payment of all reasonable and customary expenses arising directly out of ANDHO’s efforts under this Agreement. These costs may include such items as parking, travel time, and other similar items. If ANDHO anticipates that substantial expenses will be incurred, then ANDHO may
request a deposit by Client before incurring such expenses or ANDHO may request that Client pay the vender directly. For Services provided on a time and materials basis, this includes the actual costs of materials and supplies used in furtherance of performing the Services.
e. Invoicing. Client must pay all invoiced amounts due to ANDHO on receipt of ANDHO’s invoice. Client will make all payments hereunder in US dollars by cash, check or bank transfer.
f. Unpaid Fees and Expenses. In the event that any one of ANDHO’s invoices remain unpaid for fifteen (15) days or more after becoming due, then ANDHO may (i) charge interest on such unpaid amounts at a rate of one and half percent (1.5%) per month or, if lower, the maximum amount permitted by applicable law, from the date such payment was due until the date paid; and (ii) suspend performance for all Services until payment has been made in full. Furthermore, Client agrees to pay all collection costs, including reasonable attorneys’ fees and litigation costs, for collection of any unpaid fees or expenses. Client further agrees to notify ANDHO in writing or by email within then (10) days of receiving an invoice if Client disputes any expense or fee entry on that invoice. In the absence of any such written objections within ten (10) days, Client will be deemed to have accepted and acknowledged the invoice as correct.
7. Taxes. Client will be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Client hereunder.
8. Intellectual Property. ANDHO and Client acknowledge and agree that ANDHO shall be the sole and exclusive owner of all right, title, and interest in and to the Deliverables and Final Deliverables. Use of the Deliverables and/or Final Deliverables by Client shall be limited to, and as described, in the Order Confirmation. Additionally, all intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), graphic designs, know-how and other confidential information, trade dress, trade names, logos, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all work product shall be owned by ANDHO. “Deliverables” means the documents, work product and other materials that ANDHO is required to deliver to Client hereunder in connection with the Services. “Final Deliverables” means the final and Client approved version of the Deliverables.
9. Publicity. The Client hereby irrevocably consents to any and all uses and displays, by ANDHO and its agents, representatives and licensees, of the Final Deliverables in connection with any pictures, photographs, audio and video recordings, digital images, websites, television programs and advertising, other advertising and publicity, sales and marketing brochures, books, magazines, other publications, CDs, DVDs, tapes and all other printed and electronic forms and media throughout the world, at any time during or after the term of this Agreement, for all legitimate commercial and business purposes of ANDHO (“Permitted Uses”) without further consent from or royalty, payment or other compensation to the Client. The Client hereby forever waives and releases ANDHO and its directors, officers, employees and agents from any and all claims, actions, damages, losses, costs, expenses and liability of any kind, arising under any legal or equitable theory whatsoever at any time during or after the term of this Agreement by ANDHO, arising directly or indirectly from ANDHO’s and its agents’, representatives’ and licensees’ exercise of their rights in connection with any Permitted Uses.
10. Confidential Information.
a. Non-Disclosure. All non-public, confidential or proprietary information of ANDHO, including, but not limited to, its trade secrets, information pertaining to business operations, and information pertaining to its customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by ANDHO to Client, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the Services and this Agreement is confidential, and shall not be disclosed or copied by Client without the prior written consent of ANDHO. Confidential Information does not include information: (i) which has been voluntarily disclosed to the public by ANDHO or by another person with ANDHO’s consent; (ii) which has been independently developed and disclosed by others; or (iii) which has otherwise entered the public domain through lawful means.
b. Use Restrictions. Client agrees to use the Confidential Information only to make use of the Services.
c. Remedies. ANDHO will be entitled to injunctive relief for any violation of this Section and its reasonable attorneys’ fees and expenses in obtaining such relief.
11. Representations and Warranties.
a. ANDHO hereby represents and warrants to Client that it will perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with
generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
b. ANDHO shall not be liable for a breach of the warranty set forth in Section 11a unless Client gives written notice of the defective Services, reasonably described, to ANDHO within five (5) days of the time when Client discovers or ought to have discovered that the Services were defective.
c. Subject to Section 11b, ANDHO shall, in its sole discretion either: (i) repair or re-perform such Services (or the defective part); or (ii) credit or refund the price of such Services at the pro rata contract rate.
d. THE REMEDIES SET FORTH IN SECTION 11c SHALL BE THE CLIENT’S SOLE AND EXCLUSIVE REMEDIES AND ANDHO’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11a.
12. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(a) ABOVE, ANDHO MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE OR OTHERWISE.
13. Limitation of Liability. ANDHO SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD-PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, PUNITIVE OR THIRD-PARTY DAMAGES OR CLAIMS, INCLUDING LOST PROFITS, AND REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL ANDHO’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, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO ANDHO PURSUANT TO THIS AGREEMENT AND THE APPLICABLE ORDER CONFIRMATION.
14. Indemnification. Client shall indemnify, defend and hold harmless ANDHO against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorney’s fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (“Losses”) arising out of or resulting from any third party claim, suit, action or proceeding (each, an “Action”), related to or arising out of: (a) the breach of any of the representations, warranties, covenants, or conditions contained within this Agreement by Client, (b) any violation of applicable laws or regulations, and (c) Client’s exercise of its rights granted under this Agreement or engagement in its business or commercial activities or any other claim arising out of or related to Client’s use of the Deliverables or Final Deliverables.
15. Term and Termination. This Agreement will commence on the Effective Date identified in the Order Confirmation and in addition to any other remedies that may be available under this Agreement, ANDHO may terminate this Agreement with immediate effect upon written notice to Client, if Client (a) fails to pay any amount when due under this Agreement; or (b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part. Otherwise, this Agreement will terminate on ANDHO’s sending of a final statement for services rendered.
a. Entire Agreement. This Agreement and the Order Confirmation constitute the sole agreement of the Parties with respect to its subject matter. It supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between this Agreement and the Order Confirmation, this Agreement shall govern, unless the Order Confirmation expressly states that the terms and conditions of the Order Confirmation will control. This Agreement may not be modified except in a writing signed by the Parties.
b. Relationship of Parties. The relationship of the Parties is that of an independent contractor and shall not be deemed to create any joint venture, association, or partnership.
c. Waiver. No waiver by ANDHO of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by ANDHO. No failure to exercise, or delay in exercising, any rights, 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.
d. Force Majeure. ANDHO shall not be liable or responsible to Client, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when
and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of ANDHO including, without limitation, acts of God, flood, fire, snowstorm, earthquake, explosion, governmental actions, civil unrest, national emergency, or restraints.
e. Successors; Assignment. This Agreement binds and inures to the benefit of the Parties and their respective heirs, personal representatives, and successors. This Agreement or any rights or obligations under this Agreement shall not be assigned without the other Party’s prior written consent.
f. Survival. Provisions of this Agreement, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Confidential Information, Publicity, Indemnification, Limitation of Liability, Governing Law, Submission to Jurisdiction and Survival.
g. Including. Unless the context requires otherwise, the term “including” means “including but not limited to.”
h. Severability. If any part of this Agreement is for any reason held to be unenforceable, the rest of it remains fully enforceable.
i. Notices. All notices and other communications required or permitted under this Agreement must be in writing and must be sent to the Party at that Party’s address set forth below and or at whatever other address the Party specifies in writing: To ANDHO: 3232 Waldwick Way SE, Marietta, GA, 30067; and to Client, as set forth in the Order Confirmation. All notices shall be delivered by personal delivery, e-mail (if such e-mail is identified in this Agreement) or by certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (a) upon receipt of the receiving Party, and (b) if the party giving the notice has complied with the requirements of this Section.
j. Governing Law; Submission to Jurisdiction. Georgia law applies to this Agreement without regard to any choice-of-law rules that might direct the application of the laws of any other jurisdiction. ALL DISPUTES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL BE BROUGHT IN THE COURTS OF COBB COUNTY, GEORGIA OR THE U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA AND THE PARTIES CONSENT TO THE JURISDICTION OF SUCH COURTS.
k. Counterparts. This Agreement may be signed in counterparts, each one of which is considered an original, but all of which constitute one and the same instrument.
l. Acknowledgment. The parties acknowledge that they have read this Agreement and that they agree to the terms and conditions of this Agreement voluntarily and knowingly