CONTRACT FOR PERSONAL/PROFESSIONAL SERVICES
On this ____ day of ______, 2011, Desert Ridge Photography, LLC (hereinafter “DRP”), and ______(hereinafter "Contractor"), hereby enter into the following Contract For Personal/Professional Services (hereinafter “Agreement”).
WITNESSETH
WHEREAS, DRP has entered into a contract to provide wedding photography services to ______(hereinafter “Client”), providing certain photographic coverage and portrait services for the Clients’wedding (hereinafter "The Project"); and
WHEREAS, DRP desires to retain Contractor and Contractor desires to work as an independent photographer to assist DRP with fulfilling certain portions of The Project, primarily consisting of photographing the groom getting ready, the bride getting ready, the various religious and civil services performed, attendee’s of the wedding, cocktail hour, reception, spontaneous events taking place at the wedding, details of the wedding and any other items/events/moments that Contractor in their professional opinion should be photographed at a specific location and on a given date(s) (hereinafter “Shoot Date”); and
WHEREAS, Contractor represents that they have the requisite skill and equipment to professionally photograph Client’s wedding as the primary photographer and will be prepared to do so on a moment’s notice if requested to do so;
NOW THEREFORE, in consideration of the mutual promises and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, DRP and Contractor agree as follows:
- CONTRACT WORK
Contractor is being retained as an independent contractor and shall provide and furnish all labor, materials, tools, supplies, equipment, services, supervision, and administration necessary to photograph a wedding as required by DRP for The Project (hereinafter the "Contract Work"), at the following location: ______, on the following dates: Shoot Date(s): ______, ___, ___, 2011
2.SUBMISSION OF WORK PRODUCT, CONTRACT PRICE & PAYMENT
2.1.Upon completion of the Project, Contractor shall submit to DRP all checks, invoices, files, disks, compact flash cards, CDs, DVDs, memory cards, photos and/or other Work Product resulting from or related to the Contract Work performed by Contractor under this Agreement. If for any reason Contractor is unable to deliver the aforementioned items at the end of Shoot Date, then Contractor shall deliver all the items to the address specified below in Section 8.0, via Federal Express or other DRP-approved overnight carrier with a tracking number. The term “Work Product” shall include and not be limited to:
2.1.1.Any forms or documents necessary for the completion of the Contract Work, or otherwise required by DRP (i.e., photographer pay form, W-9, etc.);
2.1.2.any disks, film, compact flash, or other medium used for the storage of data or photographs or digital images; and,
2.1.3.any other meaning which may be attached to the term via ordinary or legal definition or usage. All payments for compensation to Contractor shall be conditioned upon Contractor's prompt and timely submission of such properly completed materials. Approval of all compensation claims shall be conditioned upon Contractor's performance of responsibilities under this Agreement to the reasonable satisfaction of DRP; such approval shall not be unreasonably withheld.
2.2. Subject to Contractor performing the Contract Work in a professional and workmanlike manner, and subject to Contractor’s fulfillment of all terms and conditions under this Agreement within the times hereinafter set forth, DRP shall compensate Contractor the total sum of $350 (hereinafter "Contract Price"). DRP shall mail Contractor a check for the Contract Price within fourteen (14) days of receiving all Work Product from Contractor in accordance with section 2.1 above. Said Contract Price is subject to modification by DRP in accordance with the terms set forth in Section 2.7 below.
2.3.Intentionally Omitted.
2.4.All expenses necessary for Contractor to satisfactorily perform this Agreement shall be borne in full by Contractor.
2.5.Total compensation of Contractor for the Contract Work shall not exceed the totals stated in Section 2.2.
2.6.In the event that Contractor fails to show up to a Shoot Date or Viewing Date without sufficient advance notice pursuant to this Agreement or as otherwise approved by DRP, then Contractor shall be liable for any and all damages, costs and/or expenses suffered by DRP as a result of Contractor’s failure, and Contractor shall compensate and reimburse DRP for any such damages, costs and/or expenses.
2.6.1.Notwithstanding anything to the contrary in Section 2.6, no party to this Agreement shall be liable for any failure to perform its obligations where such failure is as a result of acts of nature (including fire, flood, earthquake, storm, hurricane or other natural disaster), serious illness, accidents, terrorist activities, strike, lockout or interruption or failure of electricity (hereinafter “Force Majeure”), and the other party shall not have a right to terminate this Agreement in such circumstances.
2.6.2.Any party asserting Force Majeure as an excuse for non-performance shall have the burden of proving that reasonable steps were taken (under the circumstances) to minimize delay or damages caused by foreseeable events, that all non-excused obligations were substantially fulfilled, and that the other party was timely notified of the likelihood or actual occurrence which would justify such an assertion, so that other prudent precautions could be contemplated.
2.6.3.In the event of a Force Majeure situation, the parties shall work cooperatively to the greatest extent possible to mitigate the effects of the situation, including, but not limited to, rescheduling affected customers.
2.7.In the event that Contractor fails to timely and/or properly submit all Work Product to DRP as required under Section 2.1, then DRP may, in its sole discretion, reduce Contractor’s Contract Price by $75.00 per day that such Work Product is not timely and/or properly submitted.
3.PROHIBITION AGAINST ASSIGNMENT
3.1.This Agreement is personal for the services of Contractor as a professional photographer, and neither this Agreement nor any interest therein may be assigned by Contractor without first obtaining the written consent of DRP.
4.INDEPENDENT CONTRACTOR STATUS OF CONTRACTOR
4.1.Contractor shall perform all duties pursuant to this Agreement as an independent contractor. Nothing herein is intended or shall be deemed to create an employee/employer relationship, a partnership or joint venture between the parties. DRP shall not control or supervise the manner in which this Agreement is performed nor withhold or pay any taxes on behalf of Contractor. Personal liability and property insurance is the responsibility of Contractor and shall not be provided by DRP.
4.2.Contractor certifies that he/she is customarily engaged in the business of professional photography, that he/she is responsible for filing a schedule of expenses with the Internal Revenue Service on the next applicable filing date and that he/she is maintaining a set of books and records reflecting items of income and expense for his/her business.
5.INDEMNIFICATION
5.1.Any and all demands and/or claims, whether for defense, offset, counterclaim, damages, reimbursement, indemnity or any other cause of action, asserted, instituted or threatened against DRP by any customer, the Venue, governmental authority or third party, arising out of Contractor’s acts, omissions, performance or failure to perform duties in connection with this Agreement, whether legal and/or equitable (under any civil, criminal, or administrative theory), shall be Contractor's sole obligation, and Contractor shall defend, pay costs of defense, indemnify and hold DRP harmless in full from and against any and all such acts or failures to act on the part of Contractor. Claims shall include, but not be limited to, assertions that the use or transfer of any software, book, document, report, film, tape or sound reproduction or material of any kind, delivered hereunder, constitutes an infringement of any copyright, patent, trademark, trade name, or otherwise results in an unfair trade practice or in unlawful restraint of competition.
5.2.Nothing herein shall require Contractor to indemnify DRP against negligence for which DRP is solely responsible. Any and all claims which hereafter arise on the part of any and all persons as a direct or indirect result of DRP’s acts, omissions, performance or failure to perform duties pursuant to this Agreement shall be DRP’s sole obligation, and DRP shall defend, pay costs of defense, indemnify and hold harmless Contractor in full from and against any and all such acts or failures to act on the part of DRP. Claims shall include, but not be limited to, assertions that the use or transfer of any software, book, document, report, film, tape or sound reproduction or material of any kind, delivered hereunder, constitutes an infringement of any copyright, patent, trademark, trade name, or otherwise results in an unfair trade practice or in unlawful restraint of competition.
6.OWNERSHIP OF WORK PRODUCT
6.1.All Work Product that originates from this Agreement shall be "works for hire" as defined by the U.S. Copyright Act of 1976, and shall be owned by and remain the sole and exclusive property of DRP, including, without limitation, all copyrights, trademarks, patents, trade secrets, and all other proprietary rights. Nothing in this Agreement shall be construed to grant Contractor any ownership rights in, or license to, the Work Product. Ownership of DRP includes ownership of all intellectual concepts and properties embodied in the Work Product, the right to copyright, patent or register the Work Product, and the right to transfer ownership of the Work Product.
6.2.This section shall not be construed to grant ownership to DRP for materials that were not originated under this Agreement or that were in the public domain.
6.3.Contractor retains the right to use the Work Product to portray printed examples of his/her work as part of his/her print portfolio. This includes, but is not limited to, use on a blog, website, as displays in a studio, for photography certification image reviews, or on studio informational or marketing materials. Contractor assumes the responsibility of acquiring the necessary release to display these images.
7.THEFT/CONVERSION
7.1.The Contractor is hereby prohibited from performing any activity that might impact the current or future sales of DRP including, but not limited to, advertising, promoting, discussing, distributing information, his/her own business, soliciting work for him or herself, leaving business cards or contact information other than the promotional material of DRP. The Contractor may pursue other photographic work for him/herself or other studios so long as it shall not directly compete with DRP, or infringe upon DRP’s client base.
7.2.DRP and Contractor agree and acknowledge that DRP will be substantially damaged in the event that Contractor steals from DRP or commits conversion by selling photographs or other Work Product resulting from the Contract Work. The precise damages resulting from such theft and/or conversion are difficult to calculate. Accordingly, in the event Contractor steals or commits conversion from DRP, Contractor agrees to pay to DRP the sum of Five Thousand Dollars ($5,000.00) as liquidated damages, which sum is a reasonable approximation of the damages likely to be suffered by DRP as a result of such theft and/or conversion. Contractor agrees that proof of such theft and/or conversion by DRP shall only have to be made using the standard “more likely than not,” rather than the “beyond a reasonable doubt” standard.
7.3.Contractor acknowledges that the terms and conditions contained in the restrictive covenant set forth above are no broader than is reasonably necessary for the protection of the business and goodwill of DRP and that such restrictive covenant is not intended to prohibit Contractor from rendering all photographic related services following the termination of this Agreement. Rather, it has been designed to justly compensate DRP for revenues it may lose as a result of theft and/or conversion by Contractor.
7.4.The parties specifically acknowledge and agree that DRP may offset any liquidated damages arising under the terms of this restrictive covenant against any amount owed by DRP toContractor.
8.NOTICES
8.1.All notices provided for hereunder shall be in writing and shall be deemed given (1) when delivered on a business day if delivered personally or by confirmed facsimile transmission during normal business hours at the place of receipt; (2) on the next business day after deposit with any overnight courier for next business day delivery, if such date is a business day at the offices of the addressee; or (3) the date of receipt if delivered by certified mail, return receipt requested, postage prepaid; all of which shall be addressed as follows or to such other address as a Party may specify in accordance with the provisions of this subparagraph 8.1. Until further notice, any notice provided for hereunder shall be addressed as follows:
If to DRP:
4701 E Grandview Road
Phoenix, AZ 85032
If to Contractor:
______
______
______
9.MISCELLANEOUS
9.1.The validity, interpretation, and performance of this Agreement shall be governed by the laws of the State of Arizona. Venue for any action arising hereunder shall be in Arizona District Court, Ninth Judicial District, or such other court of competent jurisdiction, located in the city of Phoenix, Arizona.
9.2.Time is of the essence for the completion of the Contract Work described in this Agreement. It is anticipated by the parties that all Contract Work will be completed within the time frame prescribed above in Section 2.0, and that any delay in the completion and submission of the Contract Work shall constitute a material breach of this Agreement.
9.3.Headings used in this Agreement are for reference only and in no way define, limit, construe or describe the scope or extent of any paragraph or in any way affect this Agreement. This Agreement will be construed in accordance with its fair meaning, and no inference will be drawn against the drafting party in interpreting this Agreement.
9.4.If any term or provision of this Agreement is determined to be invalid, it shall not affect the validity and enforcement of the remaining terms and provisions of this Agreement.
9.5.This Agreement shall be binding upon and inure to the benefit of the respective successors, and authorized assigns, representatives, and heirs of the parties herein.
10.AMENDMENT
10.1.This Agreement shall only be amended or modified by written document executed by authorized representatives of DRP and Contractor. This Agreement supersedes all prior representations or agreements made by DRP, whether oral or in writing.
11.TERMINATION
11.1.This Agreement may be terminated by DRP immediately, upon notice, if Contractor fails to adhere or comply with any terms of this Agreement.
11.2.This Agreement may be terminated by Contractor upon written notice given up to forty-five (45) calendar days prior to the first day of the Shoot Date.
11.3.This Agreement may be terminated by either Party (a) immediately, upon notice, in the event of fraud by the other Party on the terminating Party; the bankruptcy, insolvency, or liquidation of the other Party; or gross negligence or willful misconduct by the other Party concerning its obligations under this Agreement; or (b) upon fourteen (14) days notice to the other Party in the event of any material breach by the other Party which is not cured within such fourteen (14) day period (unless such breach is both material and not susceptible of cure, in which case there shall be no cure period and this Agreement may be terminated immediately, upon notice).
11.4.In the event that a party seeks termination of this Agreement in violation of this Section 11.0, in either the time required for notice, the form of the notice, or otherwise, said party will be in material breach of this Agreement, and shall be liable for all actual and consequential damages suffered by the other party as a proximate result of such breach.
THIS AGREEMENT IS ACKNOWLEDGED AND EFFECTIVE AS OF THE DATE FIRST SET FORTH ABOVE:
CONTRACTOR
By: ______/ /Desert Ridge Photography, LLC
By: ______Corey Schwartz, Manager