Terms

C Gauthier Photography, LLC Terms of Service

The following terms of service (â??Terms of Serviceâ?) apply to and are a part of all Agreements (as hereinafter defined) between Client and C Gauthier Photography, LLC (â??CGPâ?) entered into on or after January 1, 2022. Agreements shall include, by way of example and not limitation, all orders placed online, through email, or by phone with CGP, and any change orders (each, an â??Agreementâ?). Each of CGP and Client shall be referred to individually as a â??Partyâ? and, collectively, as the â??Partiesâ?.

1. Agreement to Terms of Service: By executing an Agreement that references the Terms of Service (including, but not limited to, placing an order online with CGP), Client agrees that the Terms and Conditions will apply to any services and/or products to be delivered by CGP under such Agreement.

2. Scheduling: Clients can use the online scheduling tool through constancegauthier.com to request an appointment and, or contact Constance directly via email to schedule an appointment. Once an Agreement is signed and an appointment is placed on the schedule, Client will receive a confirmation email with the date and time of the appointment. CGP uses a first come, first served process when scheduling and we will do our best to fulfill scheduling requests at the preferred time, but cannot guarantee exact timing or photographer availability.

3. Cancellations: CGP reserves the right to assess a 50% cancellation/rescheduling fee for all appointments canceled by Client or Clientâ??s agents within 24 hours of the shoot time.

4. Payment and Invoicing:

a. Payment: Payment is due at time of scheduling services through the online portal, or upon receipt of invoice accompanying image delivery. The entire balance is deemed earned and owed upon performance of the photography shoot, floor plan drafting, video capture, 3D capture, or any other service provided by CGP, regardless of whether the final product is needed at the time of delivery (for example, if the subject property goes off market, goes under contract, or is sold prior to image delivery).

b. Invoicing: For Clients who are not required to pay when scheduling an appointment, an invoice for services will be sent electronically upon media delivery. The invoice may be paid online using any credit card or bank transfer through Stripe or Square. Media is unavailable for download while the invoice is unpaid, and media will not be released until the invoice is paid in full.

c. Refunds: CGP does not provide refunds for services completed. CGP will use reasonable efforts to resolve any product shortfalls and may, in its sole discretion, issue a credit for future work.

d. Additional Fees: Any work requested outside of the planned service may incur an additional fee. This includes, without limitation, additional edits to videos, additional time at the Site, and alteration to photos beyond the true scene.

5. Matters Governing the Work:

a. Site Condition: Client is solely responsible for the preparation and condition of the site to be photographed (the â??Siteâ?). If CGP determines that the Site is not properly prepared or that preparation of the Site will delay the photographer, CGP reserves the right to cancel the appointment and charge a cancelation fee. CGP and photographers are not required to help stage rooms or move furniture. In the event that a CGP photographer chooses to help stage or move household items/furniture, neither CGP nor the photographer will be held liable or responsible for any delay, injury or property damage that results from these actions.

b. Arrival Time: CGP will notify Client of a late arrival. Although CGPâ??s photographers aim to be on time to every appointment traffic, weather, or other factors may cause a delay. CGP will make every effort to keep within the allotted time slot and to arrive as scheduled.

c. Delivery: Photography will be delivered as .jpg files using a digital delivery method with a download link for direct access to files.

d. 3D Scan (Matterport): The 3D scan of Clientâ??s Site will be available within Clientâ??s virtual tour within 2 Business Days from the time the scanner leaves the Site. All scans will be hosted for a period of 6 months online. Afterwards, Client will be notified that Client will need to pay an additional $10 per additional month of hosting, or the scan will be deleted. 3D Scans will be delivered to Client digitally through shareable URL.

e. Floor Plans: The initial draft of all floor plan services will be available 2 business days from the time the drafter leaves the Site. Measurements are approximate and for marketing purposes only. Floor Plans will be delivered to Client digitally as .png files for easy uploading to MLS servers and printing.

f. Aerial: Aerial photography and video services can only be completed within the available airspace, with good weather and visibility conditions. Photographers will not fly aircraft within restricted airspaces, even if the property falls a few yards from the edge of the restriction lines. In the event of inclement weather, aerial photography and videography will be rescheduled for the next available fair weather day. Aerial photographs will be delivered as .jpg files through a digital delivery system with a link to download the files. Aerial video will be edited together into a short film with music and the link to the video on the Vimeo hosting site will be provided. Video can be downloaded from Vimeo in multiple sizes and playback qualities.

g. Media Turn-around: CGP guarantees a 24 hour turn-around on listing photography from the time the photographer uploads media to our editing teams. While uncommon, the editing process can be delayed. CGP has plans in place to keep editing delays to a minimum, should they arise. Rush services are available to keep delivery within 12 hours of image upload for an additional fee. Delivery times on products other than listing photos varies and is not guaranteed within 24 hours.

h. Web Site Visibility: CGP uses reasonable efforts to build a search-friendly web site and virtual tour, but CGP does not guarantee and is not liable for the visibility of Clientâ??s online product within search engines.

i. Client Cooperation: CGP strives to produce a finished product as soon as possible for Client. At times this requires cooperation and information from Client in a timely manner. CGP assumes no responsibility or liability for delay of deliverables, or incomplete/incorrect projects due to Client delays.

j. Weather and Reshoots: CGP will plan to shoot rain or shine, and will deliver images that reflect documented weather conditions. Any requested retakes due to these weather conditions, Site condition or other matters beyond the control of CGP will incur an additional fee. CGP will not cancel or reschedule appointments unless requested by Client more than 24 hours prior to the shoot time, or due to a threat of photographer safety (i.e., severe weather). See also, Section 3 â??Cancellationsâ?.

k. Copyright infringement: CGP is not responsible or liable for the distribution of media provided or any violations that may occur due to the distribution of the media.

l. MLS Policies: It is the responsibility of the listing agent to ensure compliance with any/all MLS regulations and requirements when uploading our photos to their system.

m. Social media: When sharing media captured by CGP, please tag CGP (@cgauthierphotography, IG) in the comments, along with the individual photographer, if applicable.

6. Warranties: CGP will provide Client with the highest quality of service, images, and video possible based upon the condition of the subject being filmed or photographed. For example: a messy, dirty house will produce a high quality photo of a messy, dirty house. EXCEPT AS MAY OTHERWISE BE EXPLICITLY PROVIDED BY AN AGREEMENT (INCLUDING THESE TERMS OF SERVICE), CGP MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING ITS PROVISION OF SERVICES OR THE PRODUCTS WHICH ARE THE SUBJECT OF THE AGREEMENT, AND CGP SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.


7. Media Ownership and Licensing Terms:
Ownership: CGP retains ownership and copyright of all photographs, videos, and other media and images provided to Client (the â??Workâ?) and all rights to use and sell the Work indefinitely, in all forms including, without limitation, for its own use, for any personal or commercial portfolio, advertising, marketing, display, use on its website and other social media, presentations and for resale in both print and digital media.

Limited License: Provided Client fulfills its obligations under the Agreement, including full and timely payment of all fees, CGP will grant to Client a revocable, non-exclusive, non-transferable limited license and right to use the digital copies of the original photos for the sole purpose of marketing the subject property in the MLS, subject to the other provisions set forth herein.

Restrictions: Photographic, or any other Work produced by CGP may not be given or transferred to another real estate agent, brokerage, or any other party, including instances where a listing is lost or transferred between agents or brokerages. In such event, Clientâ??s license and right to use will be revoked and may be transferred only by CGP to the new user, for an additional fee payable by the new user. In short, neither photos, nor any other Work created by CGP â??comes withâ? a listing.

Remedies: CGP has the right to pursue legal action and compensation if it determines, in its sole discretion, that the Work has been used in violation of the agreed licensing. Damages as a result of this pursuit could be severe, including but not limited to a percentage of any profits if CGPâ??s photographic, or other Work was used to sell a home or represent anything without its permission and grant of usage rights. CPG understands the intended usage for real estate photos includes marketing in the MLS, which propagates to other websites.

Homeowner Use: CGP allows a copy of the photos to be provided to the homeowner for their personal use only. Use for commercial purposes or profit and publication by the homeowner in any form are strictly prohibited.

Homeowner Consent: For Real Estate, the owner of the property, by agreeing to have the property imaged, grants permission and gives consent to CGP to take, refer to and otherwise make use of photographs, videos and other images of the Site and releases all rights with respect to images of the location.

Attribution: CGP requires all published images in commercial publications to be credited to CGP and the individual photographer.

8. Special Provisions Related to Volume Discounts:

9. Miscellaneous:
a. Governing Law; Jurisdiction and Venue: The formation, validity, interpretation and performance of these Terms of Service and the other provisions of an Agreement shall be governed by, construed, performed and enforced exclusively in accordance with the laws of the Commonwealth of Virginia without regard to conflicts of law or choice of law principles that would result in the application of the laws of any other jurisdiction. Any action or proceeding by either of the Parties to enforce these Terms of Service or an Agreement shall be brought and maintained only in the local courts of Fairfax County, Virginia. The Parties hereby irrevocably waive any objection and submit to the exclusive jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue.

b. Entire Agreement: These Terms of Service and the other provisions of the Agreement contain all the understandings and representations between the Parties pertaining to the subject matter hereof and supersede all prior and contemporaneous understandings, negotiations, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

c. Waiver and Modification: No provision of these Terms of Service or the Agreement may be amended or modified unless such amendment or modification is agreed to in writing and signed by both Parties. Any attempt to modify these Terms of Service or the Agreement by an oral understanding is void and shall have no effect. No waiver by either Party of any breach by the other Party of any condition or provision of these Terms of Service orthe Agreement to be performed by the other Party shall be deemed a waiver of the breach of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by either of the Parties in exercising any right, power, or privilege hereunder or thereunder or to insist upon strict compliance by the other Party with its obligations hereunder or thereunder operate as a waiver thereof or preclude any other or further exercise thereof, the exercise of any other such right, power, or privilege or a waiver of such Partyâ??s right to demand strict compliance with these Terms of Service or the other terms of the Agreement. Any waiver must be in a writing signed by the Party waiving its right in order to be effective.

d. Severability: If any one or more provisions contained in these Terms of Service or elsewhere in the Agreement are held by a court or arbitral authority of competent jurisdiction to be invalid, illegal or unenforceable in any respect, then such provision or provisions shall be ineffective to the extent of such invalidity, illegality or unenforceability and shall not affect any other provisions contained in these Terms of Service or elsewhere in the Agreement, all of which provisions shall remain in full force and effect. It is the intention of the Parties that if any provision contained in these Terms of Service or elsewhere in the Agreement is susceptible to two or more constructions, at least one of which would render it enforceable, then the provision shall have the meaning which renders it enforceable.

e. Events Beyond CGPâ??s Control: CGP reserves the right to cancel/reschedule a photoshoot and will not be responsible for costs or other damages caused by resulting delays or interruptions of the work required by the Agreement due to causes beyond the its control including, but not limited to: acts or omissions of Client or homeowner, Clientâ??s or homeownerâ??s agents or others; changes in the scope of the work requested by, or on behalf of Client; Site condition, acts of God; fire; flood; epidemic; pandemic; quarantine restrictions; war; riot; terrorism; traffic conditions; severe weather (ice, snow, etc.); government action or inaction; and Clientâ??s failure to make payments when due.

f. LIMITED LIABILITY: CGP WILL NOT UNDER ANY CIRCUMSTANCES, TO THE EXTENT CONSISTENT WITH APPLICABLE LAW, HAVE ANY LIABILITY TO CLIENT OR ANY OTHER PERSON FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION, LOST PROFITS, AND FAILURE OF INCOME) IN ANY WAY RELATED TO THESE TERMS OF SERVICE OR OTHER PROVISIONS OF AN AGREEMENT OR THE SERVICES PROVIDED, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH DAMAGES ARE SOUGHT OR WHETHER CGP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.

g. Attorneysâ?? Fees: In the event that either Party brings a claim, suit or other action against the other Party under or in relation to these Terms of Service or other provisions of an Agreement, including without limitation to interpret or enforce any provision herein or therein, the prevailing party in such dispute shall be entitled to recover from the non-prevailing party all fees, costs and expenses incurred by the prevailing party in connection with the prosecution or defense of such claim, suit or action , including without limitation, the reasonable fees and expenses of attorneys and accountants, and, all court fees, costs and expenses, including those related to appeals.

h. Binding Effect: These Terms of Service and the other provisions of an Agreement are binding upon, and inure to the benefit of the Parties hereto.

i. No Assignment: Neither these Terms of Service or the other provisions of an Agreement nor any of the rights granted hereunder or thereunder may be assigned, whether in whole or in apart, to any person, including any affiliate of Client, by Client without the prior written consent of CGP, and any such attempted assignment, whether by operation of law or otherwise, shall be void and of no effect.

j. No Third-Party Beneficiaries: These Terms of Service and the other provisions of an Agreement are for the sole benefit of the Parties, and nothing herein or therein expressed or implied shall give or be construed to give any other person or entity any legal or equitable rights, remedies or claims hereunder or thereunder.

k. Captions: The captions provided in these Terms of Service and the other provisions of an Agreement are included for convenience of reference only and will be ignored in the construction or interpretation hereof or thereof.

l. No Presumption: Each Party acknowledges and agrees that it has had the opportunity to review and negotiate these Terms of Service and the other provisions of the Agreement and that no presumption, inference or conclusion of any kind shall be made or drawn against a party by reason of such party having been deemed to have drafted these Terms of Service, the Agreement or any provision hereof or thereof. Rather, these Terms of Service and the other terms of an Agreement shall be construed fairly as to all parties and not in favor or against any party.

m. Counterparts: Agreements may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.

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