KA Mimms Photographix - Terms of Sale

Effective July 2014

General Terms and Conditions of Sale

The Client (you, yours) agree that acceptance of any order or contract by KA Mimms Photographix (us, we, ours), carries with it purchaser’s assent to the Terms and Conditions of Sale below even though no reference may be made thereto at time of acceptance. Unless otherwise modified in writing, the terms and conditions below and the information in the Contract for service apply and supersede any and all prior representations, discussions, correspondence or agreements between the parties. You further agree to allow us access to areas and services necessary to complete the work in this agreement.

Copying/Duplication

By accepting the products and services produced/distributed by KA Mimms Photographix, you agree not to duplicate, in any manner, any product unless expressly permitted. You may request or buy additional product by contacting KA Mimms Photographix using contact information found on our website and printed matter. The Client will provide copyright protection on all uses. A credit to KA Mimms Photographix/ Year of Production and the credit line Kevin A. Mimms must accompany each use of the work product unless otherwise agreed in writing. Example: Image by - Kevin A. Mimms, KA Mimms Photographix 2014.

Copyright/Usage/Assignment

All images captured by, or under the auspices of, KA Mimms Photographix are Copyright KA Mimms Photographix.
KA Mimms Photographix owns the perpetual, irrevocable, non-exclusive, transferrable copyrights and may use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display provided services, in whole or in part, worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed, all subject to the terms of any applicable license. KA Mimms Photographix agrees to provide limited copyright license to the Client for the photographs produced under this agreement and agrees to transfer limited rights of images as described in the agreement to the Client. You may not assign or transfer this agreement or any rights hereunder without express written agreement by KA Mimms Photographix. The Client also agrees to use the work product only for the project agreed upon and will not use these images in subsequent projects without written permission/payment of fees. In the event the material is delivered in a digital format, you agree to delete and destroy data files at the completion of the project unless otherwise agreed.

Exclusivity

Client gives the KA Mimms Photographix the exclusive right to photograph for the time stated in the agreement. During this time, the Client will not directly or indirectly, through any employee, agent, or otherwise, and will not permit any of its agents to solicit, initiate or encourage, any offers or proposals relating to the purchases of the above mentioned service. The Client agrees that during the Exclusivity Period the Client shall purchase service exclusively from the Photographer and not from another photographer or photography service.

Force Majeure (Acts of Nature)

In the event either party is unable to complete obligations stated in the agreement because of natural acts, neither you nor KA Mimms Photographix shall be in breach of obligations stated in this agreement (other than payment obligations). Force Majeure/ Acts of Nature include but are not limited to: fire, flood, earthquake, and storms. The parties will not incur any liability to each other for any losses or damages. However, this does not mean that any party is excused from performance before the Force Majeure/Natural Act event.

Indemnity

You agree to indemnify and hold harmless KA Mimms Photographix and its associates against loss or threatened loss or expense by reason of the liability or potential liability of the photographer for or arising out of any claims for damages.

Quality

You agree that you have reviewed KA Mimms Photographix past work and have retained our services based on that review. Where services provided are not of acceptable technical quality, making it unfit for the purpose of its specified use, then no fee or job-related costs are due KA Mimms Photographix. However, KA Mimms Photographix retains the right to rectify any quality rejection within a reasonable time, having regard to the urgency of the work. Once rectified, KA Mimms Photographix is entitled to their fee and service related expenses but may not charge the Client an extra fee or cost for rectifying the defect. Further, if KA Mimms Photographix produces services that are in the same style and structure as past work, by reference of the Photographer’s portfolio, you are deemed to have accepted the Photographer’s artistic interpretation.

Forms of Payment/Delivery

In the event this is sale involves a credit card you agree to pay according to your agreement with the card issuer and your signature constitutes acceptance of the product. Bank Draft Payments: when you purchase product with a bank draft and payment fails you agree to pay the State allowed maximum fee, plus all costs and costs of collection. See our web site at: www.kamphotographix.com/payments.html for more information. In the event of contested delivery/receipt, you agree the original sale document (i.e.: Sales Order, Invoice, Consignment Order, etc) is proof of delivery and a copy will be provided to all parties as such. When product is held for processing or other additional preparation, the face of the Original Sale document will show an approximate delivery date, and that form and the shipping receipt shall serve as proof of delivery. We ship all products via Common Carrier FOB Shipping Point. You agree to file ALL claims after shipment with the carrier.

Scheduling & Refunds

1. Scheduling, Rescheduling & Cancellations KA Mimms schedules all photo sessions on receipt of payment for the session, or the sitting fee. In the event we do not collect fees in advance and you are not present for the session, we will bill you for the shoot as if it actually occurred. Additionally, because this time is reserved for you, there are no refunds of the sitting fee (or other fees) once your session is scheduled. To cancel/reschedule your session please call or e-mail us no less than 48 Business Hours (Monday-Friday) before your scheduled date. We will charge a rescheduling fee, however; often much of your payment remains available to use. Cancelling/Rescheduling less than 48 Business Hours before your session will result in a Cancellation/Rescheduling Fee of up to 100% (One Hundred Percent of your payment).

Cancellations more than 48 hours before scheduled shoot: Studio Sessions will incur a minimum Fee of 25% (Twenty Five Percent) . Location Sessions will incur a minimum Fee of 50% (Fifty Percent). Note: The above are minimum fees. The actual Cancellation Fee is based on the type and location of your session, and can rise to 100% of your session fee. A portion remaining balance may be used as a credit for a new session or used to purchase a Gift Certificate for future use (Note: Please review the Gift Certificate before acceptance. Once issued there are no refunds and the terms cannot be changed.)
We don’t like to charge our clients for canceled sessions. Please let us know as soon as possible so we can work with you to determine the best solution for all parties.

2. Returns
All sales are final. No refunds. Please see the Scheduling, Rescheduling & Cancellations section above. In the event of damaged product KA Mimms Photographix, at its sole discretion, will repair or replace the product or service. In no event shall KA Mimms Photographix be liable for any loss of use, revenue or profit, direct or indirect damages arising from, or connected with the resulting sale or installation of product. Our liabilities are limited to product repair and/or replacement only, at our sole option.

Liability

You agree to limit, to the fullest extent permitted by law, KA Mimms Photographix (and associates) liability for any and all claims, losses, costs, damages of any nature whatsoever or claims expenses from any cause or causes, including attorney’s fees and costs and expert witness fees and costs to the total fee charged for all services and products listed in this agreement. This limitation applies to any and all liability or cause of action however alleged or arising unless otherwise prohibited by law.

Safety

Everyone's safety is paramount. If, after one safety warning--the photographer; photographer's assistant; equipment; or other involved party is placed in an unsafe environment; the photographer will immediately cease services and exit the session. Under these circumstances, client assumes all liability for service cessation. One Hundred Percent (100%) of all service fees and costs are due and payable as photographer was available and providing services.

Arbitration

All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration under the laws of the State of California, in the San Diego County Courts, (United States of America). Please see Severability/Jurisdiction below. An award of arbitration may be confirmed in a court of competent jurisdiction.

Attorney’s Fees

In any litigation, arbitration, or other proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing party shall be awarded its reasonable attorney fees, costs and expenses incurred.

Severability/Jurisdiction

If any provision of these terms and conditions is held by a court, government agency or other legal authority of competent jurisdiction to be invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not invalidate, void or render unenforceable any other portion of these terms and conditions but rather these terms and conditions shall be construed without the particular invalid, illegal or unenforceable provision or provisions, and the rights and obligations of the parties shall be construed and enforced accordingly. The Client agrees that San Diego County, United States of America is the sole jurisdiction for this and all other transactions and any legal action will be brought there, and that KA Mimms Photographix has the exclusive right to select other jurisdiction with 10 days written notice.