TERMS & CONDITIONS
TERMS AND CONDITIONS
This NOLA Real Estate Marketing, LLC Licensing Agreement (the “AGREEMENT”) is entered upon the date the services are rendered between NOLA Real Estate Marketing, LLC (“NREM”) and the person or company to whom the services are rendered (“CLIENT”). All references to the Client in this Agreement shall include Client’s parent companies, affiliates, and subsidiaries.
Scope of this Agreement. This AGREEMENT applies to any photograph, graphics, 3D renderings, videos, motion graphics, audio recordings, or digital images, otherwise known as Digital Assets (“DIGITAL ASSETS”), created or taken by NREM and delivered to the Client for the subject property (“PROPERTY”). This Agreement governs the relationship between the parties and in no event shall any e-mail communication or other exchange, amend or otherwise modify the terms of this Agreement unless agreed to in writing.
Rights: All photos, videos and graphics and rights relating to them, including copyright and ownership rights in the media in which the Digital Assets are stored, remain the sole and exclusive property of NOLA Real Estate Marketing, LLC. This license provides the Client with the limited right to reproduce, publicly display, and distribute the Digital Assets only for promotional or advertising purposes directly related to the sale of the Property. Digital Assets used for any purpose not directly related to the sale of the Property must be with the express permission of NREM and the payment of additional fees, unless otherwise agreed to in writing.
Photos may be uploaded to any MLS listing service solely for promotion of the Property during the pendency of this Agreement. However, regardless of any terms and conditions of the MLS, at no time does this Agreement provide Client with the right to transfer copyright, or any other exclusive rights as provided by the Copyright Act 17 U.S.C § 106. Photos may contain copyright management information (CMI) at the discretion of NREM in the form of either 1) a copyright notice © and/or 2) other copyright and ownership information embedded in the metadata or elsewhere, unless otherwise agreed to by the Parties. Removing and/or altering such information is prohibited and constitutes violation of the Digital Millennium Copyright Act (DMCA) and Client will be responsible to NRM for any penalties and awards available under the statute. Client is responsible for ensuring that the Photos are removed from MLS databases at the expiration of this Agreement.
Unless otherwise specifically provided elsewhere in this document or other signed agreement between the parties, any grant of rights is limited to a term of either two (2) years from the date of this Agreement, or (2) at the termination of Client’s representation of the Property, whichever occurs first. Further use of images beyond two (2) years requires NREM's permission and additional fees. Rights are assigned to the Client immediately upon delivery of the Photos.
Relationship of the Parties: The parties agree that NREM is an independent contractor, and that neither NREM, nor NREM employees or contract personnel are, or shall be deemed to be, employees of Client. No agency, partnership, joint venture, or employee-employer relationship is intended or created by this Agreement. Neither party is authorized to act as agent or bind the other party except as expressly stated in this Agreement. NREM and the Digital Assets or any other deliverables prepared by NREM shall not be deemed a work for hire as defined under Copyright Law. All rights granted to Client are contractual in nature and are expressly defined by this Agreement.
Creation: The manner and method of creating any of the Digital Assets is solely at the discretion of NREM and the Client has no right to control NREM’s manner and method of performance under this Agreement. NREM will use his/her best efforts to: (a) ensure that the Digital Assets conform to Client’s specifications; and (b) submit all Digital Assets to Client in adequate quality, on or before the applicable deadlines.
Delivery: NREM may select delivery of Digital Assets in a standard format, at a resolution that NREM determines will be suitable for the Digital Assets as licensed. It is the Client's responsibility to verify that the Digital Assets are suitable for reproduction and that if the Digital Assets are not deemed suitable, to notify NREM within five (5) business days. NREM’s sole obligation will be to replace the Photos at a suitable resolution but in no event will NREM be liable for poor reproduction quality, delays, or consequential damages.
Unless otherwise specifically provided, NREM is not responsible to provide images 1) larger than 8”x10” at 300 dpi or 2) in a format higher than 8-bit or in RAW format. NREM has no obligation to retain or archive any Digital Assets delivered to Client.
Disclosure of Virtual Marketing Elements: Any virtual staging, virtual renderings, virtual renovations, or edited photographs used in the marketing of the property shall be the sole responsibility of the agent and/or homeowner to disclose. The agent and/or owner shall be responsible for ensuring that any such virtual elements accurately represent the property and are clearly labeled as such to avoid any misunderstandings or misrepresentations of the property being marketed.
Measurement Accuracy Disclaimer: It is hereby noted that the floor plan measurements, MLS room measurements, or total square footage and living square footage provided are approximate and not guaranteed. The Client acknowledges the responsibility to verify these measurements for any valuation purposes. NREM reserves the right to make necessary revisions, but is not obligated to do so unless notified within 10 days of delivery.
Fees: All fees and expenses payable under this agreement are required no later than thirty (30) calendar days from the delivery of the DIGITAL ASSETS and payable irrespective of whether Client makes actual use of the Digital Assets. A late fee will be assessed to invoices over 30 days old. Clients who have a history of delayed payments or outstanding balances, as well as new clients, may be required to make payment prior to the delivery of the Digital Assets. NREM reserves the right to decide if they will continue the license without full payment. If full payment has not been received within thirty (30) days, all rights are revoked at NREM's discretion. In the event rights are revoked, all Digital Assets in the possession of Client will be removed from all forms of media and permanently destroyed within ten (10) days. Client shall provide NREM with a written statement that all images have been removed and destroyed. NREM reserves the right to seek legal action to recoup the costs of the shoot and any legal fees associated with the collection of payment.
Cancellation Policy: In the event that the Client cancels the photography appointment less than 12 hours prior to the Property shoot, the Client will incur a cancellation fee ($50 for a standard photo shoot and $30 per person per appointment for head shots).
No Exclusivity: This Agreement does not create an exclusive relationship between the parties. Client is free to engage others to perform services of the same or similar nature to those provided by NREM, and NREM shall be entitled to offer and provide design services to others, solicit other clients and otherwise advertise the services offered by NREM.
Transfer and Assignment: Client may not assign or transfer this agreement or any rights granted under it. No amendment or waiver of any terms is binding unless in writing and signed by the parties. However, the invoice may reflect, and Client is bound by authorizations that could not be confirmed in writing because of insufficient time or other practical considerations.
Indemnification and Hold Harmless: Client shall indemnify and defend NREM against any and all claims, liabilities, damages, costs, and expenses, including reasonable legal fees and expenses, arising from the creation or use of the Digital Assets or materials furnished by Client. The Client assumes the responsibility to obtain all necessary model or property releases and guarantee their full effect and enforceability.
General Law/Arbitration: This AGREEMENT sets forth the entire understanding and agreement of the parties, and supersedes any and all prior agreements between the parties.This AGREEMENT shall be deemed to have been made in the State of Louisiana and the validity of the same, its construction, interpretation, enforcement and the rights of the parties hereunder, shall be determined under, governed by and construed in accordance with the substantive laws of the State of Louisiana, without giving effect to any choice of law provisions arising thereunder. Any suit filed by a party to this Agreement to resolve a dispute or controversy regarding the matters which are the subject of this Agreement shall be filed in the 22nd Judicial District Court for the Parish of St. Tammany which shall have exclusive venue and jurisdiction for any such action. In the event of litigation, the prevailing party shall be entitled to the recovery of all reasonable attorneys fees and costs from the defaulting party.
Severability: If one or more of the provisions contained in the AGREEMENT is found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not be affected. Such provisions shall be revised only to the extent necessary to make them enforceable.
Waiver: No action of either party, other than express written waiver, may be construed to waive any provision of this AGREEMENT and a single or partial exercise by either party of any such rights or remedies will not preclude further exercise of other rights or remedy.