terms of service
The following is a copy of the terms of service applicable to every booking. By booking with Jen Rubin Photography, you acknowledge and agree to abide by these terms.
YOUR APPOINTMENT
In order to service all of my clients in a professional manner, it is important that your property be photo-ready upon my arrival. Your home will be shot AS-IS. Jen Rubin Photography does not provide any cleaning, moving, or home staging services. Please review my tips on how to best prepare the home. Thanks for understanding! ✨
SERVICES
This Photography Services Agreement (the "Agreement"), is established and applied for each project upon booking (the "Effective Date"), by and between JENNIFER RUBIN/JEN RUBIN PHOTOGRAPHY (herein, "Photographer") and the Client(s) submitting the booking request (herein, "Client").
Photographer and Client agree as follows:
1. Services. Photographer shall provide to Client the photography services described within the booking form (the "Services"). As part of the Services, Photographer will deliver to Client the photographic works, and any other media ( including but not limited to video) as described on booking form. The terms and conditions of this Agreement apply to all Services and Photographs delivered to the Client during the Term (defined below) and described on booking form.
COST, FEES, PAYMENT, AND DELIVERABLES
2. Payment. Services will not commence until Photographer receives full payment for agreed-upon services.
2.1 Final Invoice. Photographer will email a final invoice containing all monies owed to the Photographer for any extra Services or fees acquired (the “Final Invoice”) to Client’s email address listed in Services. The Final Invoice will be deemed received as of the day the email is sent, which may be before or after completion of Services and delivery of the Photographs.
2.2 Late Penalty. Interest shall accrue on any overdue payments at a rate of 10% annual percentage rate, compounded monthly.
2.3 Photographs, Video Format, and Delivery. Unless otherwise specified, Photographs will be delivered as .jpeg in both HI-RES + WEB format via DROPBOX or ONLINE GALLERY. within 48 hours of photoshoot. Friday shoots will receive their deliverables on the proceeding Monday. A delay in payment will delay the processing and delivery of your images and/or other media. All videos will be exported in HD as an mp4 and are typically delivered within 48 hours for basic video editing. Delivery times for premium photography and premium video are on a case by case basis and can extend beyond the 48 hour delivery mark. Both photographs and video will be available for 2 months, after which a file retrieval fee of $100 will apply.
2.4 Travel Fees. The local service area includes all properties that are located less than 30 miles from Ocean Beach, CA - most of San Diego proper. Properties located outside the local service area will incur a travel fee.
CLIENT RESPONSIBILITIES
3. Site Acess. The Client shall provide Photographer and any assistants with access to its premises to the extent necessary for the performance of the Services.
3.1 Client Representative. The Client is responsible for the presence of an authorized representative at the shoot to approve the Photographer’s interpretation of the assignment. If a Client representative is not present, the Photographer’s interpretation shall be deemed acceptable. Any return trip to the property for reshoots will incur a fee starting at $150.
In order to avoid a reshoot:
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Please be sure the property is "photo-ready" and is cleaned and styled to your specifications.
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Make sure weather conditions are to your liking
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Communicate any specific shot requests via email prior to your appointment.
3.2 Waivers, Releases, and Permission. The Client shall provide Photographer with any necessary licenses, permissions, waivers, releases, or consents, including those relating to publicity and privacy, to photograph the property, persons, and/or items described in Services. Client hereby waives any rights to privacy, and grants permission to photograph the property, persons, and/or items described in Services.
3.3 Term. This Agreement is effective as of the Effective Date and will continue until the Services are completed and Final Payment is provided, unless earlier terminated in accordance with this Agreement (the “Term”). Sections 4 through 7 as well as any other representations, warranties, indemnification obligations, and dispute resolution provisions contained herein will survive termination of this Agreement, and obligations included therein shall continue indefinitely.
COPYRIGHT
4. All Photographs shall be the sole and exclusive property of the Photographer, including but not limited to all copyrights and other intellectual property rights therein, in perpetuity, throughout the universe. All rights not expressly granted herein shall be reserved by the Photographer. Modification of Photographs and/or incorporation of Photographs in any layout, concept, reproduction, or publication shall not constitute a Joint Work. Photographer shall have the sole power to enforce its copyrights and any other intellectual property, including without limitation all registration, renewal, and reversion rights, and the right to register and sue to enforce such rights against infringers.
LICENSE AGREEMENT
5. License Type - Non-Transferable/Non-Exclusive. You may use the images for all marketing, advertising, and promotion of the home in both digital and print mediums up until the property is sold, and after the property is sold (after the closing), the license expires. The client may use any photo on their website or social media posts in perpetuity for self-promotion only.
5.1 Non-Transferable. means it is only issued to the Client and the Client may not sell or give those images to a third party for their own use. Please forward all third-party requests to Photographer.
5.2 Non-Exclusive. means similar licensing for the same photos MAY be issued to others should they wish to purchase a license. A rarity, but on occasion others associated with the home (interior designers, home stagers, contractors, etc) may wish to have photos for their use.
5.3 Vacation Rentals. (Airbnb, Vrbo, etc..): require a different Licensing Agreement and specific contracts will need to be signed.
5.4 Third Parties. Please forward all third-party requests to Jennifer Rubin.
5.5 Proof Images. Photographs designated as “Proofs” shall be kept confidential. Proofs shall not be made public, or otherwise released outside of Client’s business, for any reason. Only final versions of the Photographs may be made public or shared with anyone other than Client, Client’s members, or Client’s employees.
5.6 Extension and Additonal Fee. If Client desires at a later date to reproduce, or cause to be reproduced, Photographs beyond the scope of this Limited License, then Client must request it from the Photographer in writing. Such an extension of the Limited License will be subject to an additional fee, which will be set at a reasonable price in good faith at the Photographer’s sole discretion. Photographer reserves the right to decline use of the Photographs beyond that described in this Limited License. Any license extension granted by the Photographer must be in writing to be effective and will be subject to the terms of this Agreement.
5.7 Infringement. Any use of the Photographs beyond the terms of this License, without permission of the Photographer, by any person or entity shall constitute copyright infringement.
CLIENT'S EDITS TO PHOTOGRAPHS
6. Not Allowed. The terms of this Agreement shall apply to any edits, changes, modifications, or revisions made to the Photographs, and any duplicated work created in the future regardless of the extent or amount of edits, changes, modifications, or revisions, whether made by the Client or any other person or entity.
ATTRIBUTION
7. Client agrees, for any and all use of the Photographs, including Client Publications and Outside Publications, to conspicuously indicate Photographer as the source of the Photographs.
The following notions, or similar, on or near the photo in legible text are acceptable:
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"Jennifer Rubin" | "Jen Rubin"
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"Photo by Jennifer Rubin"
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On Instagram, a credit tagging "@jenrubinphotography"
USE OF PHOTOGRAPHER'S NAME
8. Photographer hereby grants to Client and its affiliates, and each of their respective direct and indirect successors, licensees, and assigns the right to use Photographer’s name, in connection with the Photographs.
ADDITIONAL USAGE
9. If Client, or any other person or entity, wishes to make any additional uses of the photographs not covered in this Agreement, Client or other person or entity shall obtain permission from the Photographer and pay an additional fee to be agreed upon if necessary.
IMPROPER USE PROHIBITED
10. Photographer reserves the right to halt the use of Photographs in any publication that could reasonably be deemed offensive or improper, including but not limited to use of the Photographs in virtual backgrounds, political advertisements, propaganda, or pornography works. Similarly, Photographer reserves the right to revoke Client’s right to use Photographer’s name, in connection with the Photographs. The determination of whether a publication is improper shall be at the sole discretion of Photographer, provided it is reasonable and in a good faith attempt to avoid negative publicity.
ESTIMATES AND REQUESTS FOR ADDITIONAL WORK
11. The fees quoted by the Photographer in Services are for the original job description as presented by the Client. Any subsequent changes, whether made orally or in writing, may result in additional charges. The expenses are estimated in good faith. Actual expenses, which may be greater or less than estimated, will be invoiced. Requests for additional work, such as additional images or subject matter, will be added to the estimated cost and invoiced.
TIME OF THE ESSENCE
12. Time shall be of the essence in this Agreement.
CANCELLATIONS AND POSTPONEMENTS
13. Client shall give Photographer at least 24-Hour advance notice from the scheduled shoot date(s) if a cancellation or postponement is needed. Cancellations or Postponements of a shoot by the Client, or its affiliates or agents, made within a 24-Hour period, the Client shall pay a ("Cancellation Fee") equal to 25% of the total estimated cost of goods. If a shoot is canceled after the Photographer's departure for the shoot, including on-site cancellations, the Cancellation Fee shall be increased by an amount equal to 50% of the estimated COG, as defined in Services. Any Deposit or payments made will be deducted from any such Cancellation Fee and will become non-refundable to Client upon cancellation. If the amount of the Deposit or payments made exceeds the Cancellation Fee, the excess shall be refunded to Client. Any Cancellation Fee owed to Photographer must be paid within 30 days from cancellation or a late penalty described above in section 2.2 will apply. If a reschedule is needed, a 24-hour notice is requested to avoid any fees. Any rescheduling requests made within 24 hours of the Photographer's departure will be charged a fee of $150.
WEATHER POLICY
14. Client and Photographer may agree to postpone a shoot to a reasonable date in the future in case of inclement weather at no additional charge beyond any expenses already incurred, as long as the call is made 24 hours in advance, with a maximum of 3 reschedules allotted. The Photographer also reserves the right to postpone Services including but not limited to rain, forecast of rain, clouds, or high wind.
DELAYS AND NO-SHOWS
15. Failure by the Client, or its affiliates or agents, to provide Photographer with site access including but not limited to missing lock box codes, missing keys, etc...) shall constitute a cancellation, and Photographer shall be entitled to the Cancellation Fee. No-Shows will be charged the full amount as stated in Services. Properties that are not ready will be charged an on-site reschedule fee. On-site delays (anything that extends the shoot by 15 minutes or more) including but not limited to agents or owners actively moving things during a shoot may be subject to additional fees. The cost of delays caused by the Client, or its affiliates or agents, to the extent they cause additional cost to the Photographer beyond the estimated COG, shall be added to Photographer’s Final Invoice.
TERMINATION
16. Either party may terminate this Agreement on written notice to the other party if such other party materially breaches this Agreement and fails to cure such breach within fifteen (15) days after receiving notice of such breach. Any rights or obligations of the parties in this Agreement which, by their nature, should survive termination or expiration of this Agreement, including Sections 4 through 7 of this agreement as well as any other representations, warranties, indemnification obligations, and dispute resolution provisions, will survive any such termination or expiration.
FORCE MAJEURE
17. Neither Party will be liable for any failure or delay in performing an obligation under this Agreement that is due to any of the following causes, to the extent beyond its reasonable control: acts of God, accident, riots, war, terrorist act, epidemic, pandemic, quarantine, civil commotion, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, governmental acts or omissions, changes in laws or regulations, national strikes, fire, explosion, or generalized lack of availability of raw materials or energy.
▪ For the avoidance of doubt, Force Majeure shall not include (a) financial distress nor the inability of either party to make a profit or avoid a financial loss, (b) changes in market prices or conditions, or (c) a party's financial inability to perform its obligations hereunder.
Covid-19. Client and Photographer acknowledge that the current Covid-19 crisis has been factored into the risks assumed by the parties and will not constitute grounds to excuse performance unless there is a mandatory Quarantine, Stay-At-Home, or Do-Not-Travel order in effect within the geographical location of Services or travel for Photographer to provide the Services. Client and Photographer shall endeavor to execute the Agreement in good faith.
NOTICE
18. Any Notice required under, or related to, this Agreement shall be effective if sent by email to the email addresses listed in Services for the Client and Photographer. Notice shall be deemed received as of the day the email is sent.
AESTHETIC DISCLAIMER
19. Client is aware of Photographer’s personal style and portfolio and waives any right to refuse payment on the basis of dissatisfaction with the end result. No refunds will be provided unless for a material breach of this Agreement.
EMBARGOES
20. If Client wishes to temporarily prevent publication by Photographer of the Photographs, Client shall make an embargo request. Photographer will offer a 180-day courtesy embargo for publication at no cost if Client requests an embargo before the date of photography. Photographer may use Photographs for portfolio and social media uses, and reserves the right to license the Photographs to other parties, after the 180-day embargo has
passed.
INDEMNIFICATION
21. Client hereby agrees to indemnify, defend, and hold harmless the Photographer and its affiliates, agents, successors, and assigns, from and against any claims, judgments, damages, liabilities, settlements, losses, costs, and expenses, including attorneys’ fees and disbursements, arising from or relating to: (a) bodily injury, death of any person, or damage to real or personal property resulting from Client’s acts or omissions, or Client’s affiliates, agents, successors, and assigns acts or omissions; (b) any breach of this Agreement by Client, or Client’s affiliates, agents, successors, and assigns, of its representations, warranties, or other obligations hereunder; or (c) Client’s, or Client’s affiliates, agents, successors, and assigns, use of
the Photographs.
▪ Photographer agrees to indemnify and hold harmless Client against claims
arising from Photographer’s negligence or material breach of this Agreement.
LIMITATION OF LIABILITY
22. Photographer’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, shall not exceed the amount of payment received for the Services.
SEVERABILITY
23. If any of the provisions of this agreement are found to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions will not be affected.
SURVIVORSHIP
24. This Agreement survives the individuals who signed it and applies to their successors and executors.
ASSIGNMENT
25. Client shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Photographer. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Client of any of its obligations under this Agreement.
RELATIONSHIP OF THE PARTIES
26. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
NO THIRD-PARTY BENEFICIARIES
27. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy.
CAPACITY AND COUNSEL
28. Client understands the entirety of this Agreement and the obligations herein. Client has had the opportunity to seek legal counsel to further understand and gain advice regarding this Agreement.
GOVERNING LAW
29. This Agreement and all matters arising out of or relating to this Agreement, including tort and statutory claims, are governed by the laws of California.
DISPUTE RESOLUTION
30. Either party shall institute any legal suit, action, or proceeding arising out of or relating to this Agreement in the federal or state courts in each case located in San Diego, California, and each party irrevocably submits to the jurisdiction of such courts in any legal suit, action, or proceeding.
As a condition precedent to filing such suit, action, or proceeding, the parties agree to attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between Client and Photographer. If such negotiation is unsuccessful, the parties agree to attend mediation that, unless the parties mutually agree otherwise, shall be administered by JAMS (Judicial Arbitration and Mediation Services, Inc.) or the American Arbitration Association in San Diego, California. A request for mediation shall be made in writing, delivered to the other party to this Agreement, and filed with the person or entity administering the mediation. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.
ATTORNEY'S FEES
31. In the event that any party institutes any legal suit, action, or proceeding, including arbitration, against the other party arising out of or relating to this Agreement, the prevailing party in the suit, action or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including reasonable attorneys’ fees and expenses and court costs.
HAZARDOUS CONDITIONS
32. Photographer reserves the right to postpone or cancel Services due to reasonably dangerous conditions, as determined by the Photographer in good faith, including but not limited to working from height or on unstable platforms without adequate protection or safeguards, dangerous pets or other animals, and unsafe construction sites. Client shall be responsible for providing a safe location to take the photographs at the Property, and any necessary personal protective equipment if required by site rules.
NON-DISCLOSURE AGREEMENT
33. Client and Photographer agree to keep the terms of this Agreement, including but not limited to payment terms, confidential. Client and Photographer agree to keep cost of goods, and any communications or documents containing Photographer’s rates or pricing information, confidential.
COUNTERPARTS
34. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement. Digital or scanned signatures are acceptable.
REPRESENTATION AND WARRANTIES
35. To the best of its knowledge, Photographer hereby represents and warrants that each Photograph to be provided is Photographer’s sole and original creation and will not infringe or otherwise violate any right of any third party.
MODIFICATION
36. No amendment to this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by Photographer of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Photographer. No failure to exercise, or delay in exercising, any right, 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.
LOSS OF PRODUCT
37. In the event that any or all product(s) are lost, such as damage to or loss of a component of the product necessary for final delivery, Vendor shall refund Client a pro-rated portion of the Total Cost based on the amount of Services that were completed/provided against the amount of Services that were agreed to be completed/provided.
CONTRACTUAL AUTHORITY
38. If the Client is a business or other organization, the person signing below on behalf of the Client warrants that he or she has the authority to legally bind Client to the terms of this Agreement.
