Terms and Conditions of Service
We will always do our best to fulfill and hopefully exceed your photography needs. But it’s safest for all involved to have the who, what, where, when and how set down in writing. Clever Upgrade Real Estate Photography services are conditioned upon the Terms and Conditions below.
This Agreement is between Clever Upgrade (“Photographer”) and [You] (“Agent”) which includes Agent’s principals, employees, affiliates and representatives. Agent agrees that it has the legal authority to enter into this Agreement on behalf of its employer, company or organization. Photographer’s relationship with Agent is that of an independent contractor.
“Images” means the photographic material, whether still or moving, created by Photographer pursuant to this Agreement and includes, but is not limited to, digital files, transparencies, negatives, or prints, that were captured, recorded, stored, or delivered, in any type of analogue, photographic, optical, electronic, magnetic, digital, or any other, media.
All appointments must be scheduled via Photographer’s online booking application, email address, or telephone number no less than 24 hours before Agent’s preferred shoot time. Shoots are expected to last no longer than 30-45 minutes.
3. Locations Served and Travel Charges:
Photographer specializes in serving Hampton Roads area cities including Chesapeake, Norfolk, Virginia Beach, Portsmouth, Suffolk, Moyock, Newport News, Yorktown, Hampton, and Williamsburg.
Any address within 30 miles of Photographer’s mailing address (1225 Kempsville Rd, Suite 64682, Virginia Beach, VA 23464) will be served at no additional charge. Any address 31 miles or further from Photographer’s mailing address will be served according to Photographer’s discretion and Photographer will add a $1.50/mile travel charge to the final invoice for each mile traveled beyond the 30 miles. The total number of miles is calculated using the shortest distance in miles of the primary recommended driving routes as determined by Google Maps.
Payment is due in full at time of Image delivery via credit card submitted online. When Agent's Images are ready, they will receive an email directing them to a page on Photographer's website where Agent can preview Images and securely submit payment. Agent may also pre-pay via cash or check on location at the photo shoot. Images will not be released until payment is successfully submitted. Agent will not be able to schedule another shoot if they have an outstanding balance.
If after the photo shoot Agent decides they no longer need photos, and they notify Photographer before time and resources are expended editing Images, Photographer may reduce balance owed at their discretion. Payment is always due in full if the photo shoot is complete and Images are ready for delivery.
5. Home Preparation:
Photos will be taken of the property as is. Photographer is not responsible for moving or removing any items or furniture inside or outside of subject properties. Photographer is also not responsible for containing pets during the photo shoot. Pets are never included in photos and need to be out of the way during the shoot. If the property is not ready to be photographed at the scheduled time of the shoot, including any unconfined pets that may be a nuisance to Photographer during the shoot, the shoot will be canceled or postponed at the Photographer's discretion.
6. Cancellations and Postponements:
All appointments can be cancelled, rescheduled, postponed, and transferred without penalty so long as Photographer is notified at least 2 hours before the scheduled appointment time. If the property is not ready to be photographed, there is no one on-site authorized to provide access to the property within five (5) minutes of Photographer’s arrival, or Photographer is turned away from the property for any other reason, the appointment will be canceled and Agent will be charged a $35 Return to Property Fee if they choose to reschedule.
7. Photo Shoots
The homeowner or someone authorized by the homeowner (Agent) should be present at the shoot to give access to the home and to discuss any special considerations such as what should be included or excluded in images. If the property has a REIN/VPAR lockbox or combo/contractor's lockbox attached Photographer can enter unaccompanied so long as the homeowner has given their consent to the Agent. Agent will need to provide Photographer with the combination code or CBS code for the lockbox in advance.
Photographer’s goal at the shoot is to provide the ordered number of quality images that include multiple angles of the front exterior, back exterior and all the major rooms such as living room, dining room, family room, kitchen, master bedroom, master bath, and bedrooms. Photographer will not photograph garages, crawl spaces, attics, storage rooms, closets, and neighborhood/building amenities unless specifically asked for by seller or Agent.
8. Neighborhood and Building Amenities
Photographer agrees to provide up to three (3) neighborhood and/or building amenity Images at the request of Agent for no additional charge. These images are included in the total number of images ordered and are not additional photos. Neighborhood amenities include features like neighborhood pools, parks, playgrounds, community centers and the like. Neighborhood amenities can also include attractions or conveniences located within 5 miles of the subject property such as beaches, shopping centers, libraries, or schools. Building amenities include features found in condominium or apartment complexes such as lobbies, gyms, pools, party/meeting rooms and the like. THESE IMAGES WILL NOT BE PROVIDED BY DEFAULT. Agent must specifically request neighborhood and/or building amenity photos and must provide instructions on what such images should include.
9. Failure to Perform
If Photographer is unable to supply photographic services due to illness, mechanical breakdown, accident, acts of God, or any other cause beyond their control, then Photographer will return any fees paid by Agent and will have no further liability with respect to this Agreement, and Photographer will not be responsible or liable for any other damages beyond the amount of this Agreement. This limitation of liability will also apply in the event that any Image is lost or damaged through equipment malfunction, or otherwise, without the fault of Photographer.
10. Image Delivery and Digital File Quality
Photographer is committed to providing high quality services. Once the Images are shot, they will be edited and optimized for quality and delivered to Agent via Photographer’s website. Photos from shoots scheduled Monday-Friday are delivered by 5:00 PM the next day after the shoot. Photos from shoots scheduled on Saturday are delivered by 5:00 PM on Monday. Agent may upgrade to a rushed delivery timeframe for a fee. Agent will receive an e-mail with a link and instructions on how to submit payment and download Images.
Photographer may deliver, and Agent agrees to accept, the Images encoded in an industry-standard data format that Photographer may select, at a resolution that Photographer determines will be suitable to the reproduction technology and uses for which the Images are licensed.
Photographer uses cameras and monitors that are color calibrated to industry standards. But due to variances in other monitors, software and computer platforms, the Images may display differently on other monitors. Therefore, neutrals will be set for mathematical neutrality and color will be adjusted for pleasing tonalities.
It is Agent’s responsibility to verify that the digital data, including color profile, if provided, are suitable for reproduction of the expected quality and color accuracy, and that all necessary steps are taken to ensure correct reproduction. If the data are not deemed suitable, Photographer’s sole obligation will be to replace or repair the data, but in no event will Photographer be liable for poor reproduction quality, delays, losses, expenses, or consequential damages, resulting directly, or indirectly, from defects or errors in digital files or their use.
11. Usage Rights and Ownership
Agent acknowledges that Photographer is the author of the Images and also the first and sole owner of all copyrights of the Images. The use of any Images by Agent will not constitute a work of joint authorship. The Images and all copyrights remain the exclusive property of Photographer without limitation. IMAGES ARE LICENSED FOR SPECIFIC USE(S) AND ARE NOT SOLD.
Agent understands and agrees that they are not buying the Images, but is only paying for a license to use the Images for all marketing associated with the current sale of the subject property in accordance with local MLS rules. The term of license begins from the date Photographer receives full payment for services. This license is granted only to the Agent and NOT to any third party. Any usage of the Images by a third party, including but not limited to architects, builders, stagers, designers, sellers or buyers is prohibited unless approved in writing by Photographer.
Copyright metadata contained within any digital file may not be altered, or removed, without the express consent of Photographer.
Unless otherwise agreed, Photographer retains the right to use the Images for their self-promotion.
If unpleasant weather such as excessive rain or fog does not permit exterior Images, Photographer guarantees a reshoot of the exterior on the next available booking at no additional charge.
Severe weather conditions such as hurricanes, snow storms, etc., will cause the appointment to be cancelled or rescheduled to the next available booking.
13. Service Disputes
Photographer’s goal is Agent’s complete satisfaction. If for any reason Agent is unsatisfied, Photographer will work with Agent on a solution and correct and/or reshoot the desired Images. However, this does not apply to events that are outside of Photographer’s control such as the home not being ready at the time of shoot or non-ideal weather conditions (i.e. bare branches, brown grass, cars in driveway etc.).
Special requests and concerns should be discussed with Photographer on the day of the appointment or specified in the special requests field when Agent schedules their appointment online. Agent can also call or email Photographer before the appointment if they need to communicate important details of the home, building, or neighborhood. If no special instructions are provided, Agent must accept Photographer’s judgement as to the creation of the Images.
When Agent receives the Images from Photographer, they must check them to be sure they are acceptable. To avoid misunderstandings Agent agrees to notify Photographer in writing within five (5) business days of receipt of the Images if they believe they are not acceptable, in which case Photographer’s sole obligation will be to replace the Images. In no event will Photographer be liable for incidental or consequential damages of any kind.
Due to the nature of digital photography and the fact that Images, once sent, cannot be returned, Photographer has a strict NO REFUNDS POLICY once a transaction has been completed (i.e. the photo shoot is complete and the Images have been delivered to the Agent). Refunds will NOT be given due to “not liking a photo.” Agent agrees to notify Photographer in writing within five (5) business days of receipt of the Images if they believe some are not acceptable, in which case Photographer’s sole obligation will be to correct and/or replace the Images.
15. Acceptance of Terms
Agent may not assign or transfer this Agreement or any of the rights granted hereunder. This Agreement is binding upon, and inures to the benefit of, Agent and Photographer, as well as their respective principals, employees, representatives, and successors. Agent and its principals, and employees, are jointly and severally liable for the performance of all payments and other obligations hereunder.
No amendment or waiver of any items is binding unless set forth in writing and signed by the parties. E-mail and electronic signatures will be considered legal and binding. However, any invoice may reflect, and Agent is bound by, Agent’s oral authorizations for any additional Images, fees, and expenses, that could not be confirmed in writing due to the immediate proximity of completing the photography assignment.
This Agreement will be deemed to be a contract made under the laws of the United States of America, and for all purposes will be interpreted in its entirety in accordance with these laws. Agent specifically and irrevocably confers personal jurisdiction over it by the courts of the state of Virginia. Agent will pay all arbitration and court costs, reasonable legal fees, expenses, and legal interest, on any award or judgment in favor of Photographer.
If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
In addition to oral and written agreements, use of any Images by Agent will constitute acceptance of all the above terms and conditions.
This Agreement constitutes the entire and only agreement between Photographer and Agent with respect to its subject matter and supersedes all previous agreements, understandings, and communications, whether oral or written, between the two parties with respect to the subject matter hereof.
Last updated: 04/24/18