OPEN HOMES PHOTOGRAPHY INC. – TERMS OF SERVICE AGREEMENT
This Open Homes Photography Inc. (“OHP”) Terms of Service Agreement (“Agreement”) is a legal contract that governs all work performed on your behalf and sets forth the rights and obligations of both parties. By ordering services from OHP, you agree to these terms. Please read this carefully.
ARTICLE 1 OPEN HOMES PHOTOGRAPHY INC. SERVICES
1.1 Pursuant to the terms of this Agreement, including all of the specifications for the project that you provide through our website, we will provide the photography, 3D Matterport, videography, drafting, web services you specify (collectively “Services”) to you (“Customer”); if applicable, your clients (“Homeowners”); and certain third parties as follows:
1.1.2 We will perform the Services you order within the time frame we specify. Services will be performed at our then-current rates, as posted on our website and as may be updated from time to time. Requests from you online order will all be considered a formal Service Request and we will confirm these requests via email to the email address assigned to your account.
1.1.3 We will host the final version of the 3D Matterport for one year at no additional cost from the date the 3D Matterport service was conducted. If Customer wishes to have the 3D Matterport hosted longer, Customer must request continued hosting one week from the email notification and must pay our then-current hosting fees.
1.1.4 We will host the website for one year at no additional cost. If Customer wishes to have the website hosted longer, Customer must request continued hosting prior to the first anniversary of the domain registration and must pay our then-current hosting fees.
1.2 Subject to the terms of this Agreement, OHP will use commercially reasonable efforts to provide the Services and to comply with all applicable laws and regulations in fulfilling its obligations and providing Services under this Agreement and any additional orders.
ARTICLE 2 CUSTOMER AND HOMEOWNER OBLIGATIONS
2.1 In order to get the best results from OHP Services, and to protect our personnel, Homeowner privacy and safety, Customer and Homeowner(s) agree to the following:
2.1.1 Customer and/or Homeowner will have pets, especially dogs, put away or removed from the Premises for the duration of the Services.
2.1.2 Customer and/or Homeowner will prepare the Premises by making it clean and tidy. Customer and Homeowner acknowledge that OHP personnel are not responsible for putting away or moving Homeowner’s belongings, and the Premises will be captured in “as-is” condition.
2.1.3 Customer and/or Homeowner will remove from view personally identifiable information or extremely valuable objects (such as diplomas, certificates, visible lists of passwords or phone numbers, credit cards, checkbooks, gift cards with visible barcodes or numbers, employee or personnel data, trade secret information or any other personal or confidential material). Customer and Homeowner understand and acknowledge that OHP photos are high definition and failure to remove these items could lead to identity theft, burglary, or other harm to Customer or Homeowner.
2.1.4 Customer and/or Homeowner must give us written instructions to take the OHP imagery off the internet. Unless we are instructed to take down photograph or 3D Matterport, we will leave them active indefinitely, however we have discretion to remove them if we are notified that the Premises has been sold.
ARTICLE 3 LICENSE & INTELLECTUAL PROPERTY
3.1 Ownership. OHP owns and retains the copyright to all of the images and any multimedia content it produces and has the right to resell it. Customer, Homeowners or appropriate third parties own the copyright to any materials at the Premises which are subject to copyright. Nothing in this Agreement constitutes a transfer of any ownership interest in any intellectual property or other proprietary rights owned by either Party, including but not limited to ownership of OHP Trademarks, copyrights, software, patents or patentable technologies, or know-how. All rights not explicitly granted shall be retained exclusively by the respective owner Party hereunder.
3.2.1 During the term of this Agreement, we grant you a limited, non-exclusive, royalty-free license to use, display, republish and edit the OHP imaging that we produce and provide to you. This license is transferable only to Homeowners.
126.96.36.199 Third parties such as contractors, stagers, designers, architects must purchase license rights before using the photos for their own commercial purposes.
3.2.2 Subject to the terms and conditions herein, during the term of this Agreement, we grant you a limited, non-exclusive, nontransferable, royalty-free license to reproduce in printed marketing material, display on corporate web sites one or more OHP trademarks present on the final version of the Services we provide to you (“Trademarks”) for the exclusive purposes of (1) identifying our Services using our Trademarks, and, for real estate brokerages, (2) advertising that you work with us to provide OHP Services.
3.2.3 You must not use our Trademarks in connection with the offering or identification of any competitor’s services or wares. Customer must not use any trademark or brand name other than Trademarks on or in connection with any promotion of your use of OHP products and services.
3.3 You will not, and will not authorize others to, reverse compile, reverse assemble, reverse engineer or otherwise attempt to create or obtain the source code or algorithms of any OHP software or Services. You will not, and will not authorize others to, remove or modify any copyright, trademark patent or other proprietary labels of marketing from any OHP product or imaging.
ARTICLE 4 PAYMENT & CANCELLATION
4.1 You must pay for our services at the current rates at the time the order was placed. Our rates and cancellation fees are listed in our fee schedule, available here.
4.2 We reserve the right to require you to pay in advance in full or to have enough prepaid OHP credit to cover the contracted Services for each project. If you cancel the Services, we have the right to charge you for all or a portion of the the Service price as follows.
4.3 In order to cancel Services without being charged, you must provide us with written notice of cancellation at [email protected] (for NorCal) or [email protected] (SoCal) no later than 24 hours prior to the scheduled on-site portion of the Services. Otherwise, our cancellation policy applies.
4.4 If there are loose dogs or other animals on-site who appear to present any kind of danger to OHP personnel, OHP may cancel the Services and Customer will be responsible for a cancellation charge.
4.5 Same day cancellations incur a $150 cancellation fee. Our photographers cannot wait longer than 25 minutes after the scheduled appointment time without prior notification. A cancellation fee will apply. If the Premises is not ready for on-site Services at the scheduled appointment time, we may charge for a Same-Day Cancellation.
ARTICLE 5 INDEMNITIES
5.1 Customer shall indemnify, defend and hold harmless OHP from any and all third party (including Homeowner) claims, damages, losses or expenses (including court costs, arbitration fees, penalties, fines, amounts paid in settlement of claims, legal fees and disbursements, and dispute resolution related costs and expenses) which OHP may incur arising out of or related to (i) theft, break-in, damage or any other type of loss incurred by Homeowner or the Premises; and (ii) Customer’s breach of its obligations of confidentiality set forth herein.
ARTICLE 6 LIMITATION OF LIABILITY
THE AGGREGATE LIABILITY OF OHP AND ITS SUPPLIERS AND LICENSORS FOR CLAIMS RELATED TO THIS AGREEMENT, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY CUSTOMER FOR THE SERVICES GIVING RISE TO SUCH CLAIMS. IN NO EVENT WILL OHP OR ITS SUBCONTRACTORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT (INCLUDING LOSS OF PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE), EVEN IF OHP HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT WILL OHP OR SUPPLIERS OR LICENSORS BE LIABLE FOR THE BREAKAGE OR DAMAGE OF ANY ITEMS AT THE PREMISES, FOR ANY LOST PETS OR OTHER LOSSES RESULTING FROM CUSTOMER OR HOMEOWNER’S FAILURE TO PROPERLY PREPARE THE PREMISES FOR THE ON-SITE SERVICES, FOR ANY BURGLARY, PREMISES BREAK-IN, IDENTITY THEFT, DIGITAL THEFT OR ANY OTHER HARM RESULTING FROM PROVISION OF THE ON-SITE SERVICES, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
ARTICLE 7 WARRANTY DISCLAIMER
TO THE EXTENT PERMITTED BY LAW, THE SERVICES, SOFTWARE, FINAL PRODUCT, AND ALL SUPPORT PROVIDED UNDER THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS EXCEPT WHERE EXPRESSLY WARRANTED IN THIS AGREEMENT OR A WORK ORDER, AND OHP AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE 8 GENERAL
8.1 Governing Law and Venue. This Agreement shall be governed by the law of the State of California. The Parties agree that any dispute arising out of or relating to this Agreement shall be brought before the state or federal courts in the County of Alameda, State of California, and both Parties agree that such courts have personal jurisdiction over them.
8.2 Assignment. This Agreement may not be assigned or transferred (by operation of law or otherwise) by Customer without the express prior written consent of OHP, which consent shall not be unreasonably withheld. OHP may freely assign and transfer this Agreement. Any attempted assignment by Customer without the required consent of OHP shall be void. This Agreement shall inure to the benefit of each Party and its successors and permitted assigns.
8.3 Notices. Any notices required or permitted to be given to either Party hereunder shall be deemed properly given when delivered by certified mail (return receipt requested), hand delivery, confirmed email or certified overnight delivery such as Federal Express, and directed to such Party at the address appearing in the first paragraph of this Agreement. Either Party may change its address for purposes of this Section 8.3 upon delivery of written notice of such change to the other Party.
8.4 Severability. If any provision of this Agreement is held by a court to be illegal, invalid, or unenforceable, the rest of this Agreement will be legal, valid, and enforceable to the fullest extent possible. Headings used in this Agreement are provided for convenience only, and shall not in any way affect the meaning or interpretation hereof.
8.5 Waiver. No waiver of any right by either Party under this Agreement shall be of any effect unless such waiver is express, in writing and signed by the waiving Party.
8.6 Conflict Between Terms and Conditions and Work Orders. The Parties agree that in the event of a conflict between the provisions contained in this Agreement and any concurrently or subsequently executed work order, the terms contained in this Agreement shall govern.
8.7 Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war or terrorism, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, product recalls, governmental acts, provided that the affected party: (a) gives the other party prompt notice of such cause, and (b) uses its best reasonable efforts to correct promptly such failure or delay in performance. Although Customer’s obligation to pay for Services provided shall not be excused, the delay or failure to pay due to Force Majeure shall be excused. The parties agree that in the event of heavy rain, OHP may postpone providing on-site Services with Customer’s oral approval.
8.8 Survival. If this Agreement expires or is terminated, the provisions of Sections 3.1, 3.3, 4.2, 4.3, and Articles 5 – 8 shall survive.
8.9 Attorneys Fees. In the event of any dispute between the Parties, the prevailing Party in any action based upon the dispute shall be entitled to its reasonable attorneys’ fees and costs associated with such action.
8.10 Amendment. This Agreement may be amended only in writing, signed by both Parties. Any purported oral modification hereof shall be void.
8.11 Entire Agreement. This Agreement, including all exhibits and attachments, and all subsequently executed Work Orders which reference and incorporate this Agreement, is the entire agreement between the Parties with respect to this subject matter, and supersedes all prior and contemporaneous discussions, communications and agreements with respect thereto.
- $50 per hour for properties over 40 miles outside service area
- $150 Cancellation Fee will apply to cancellations within 24 hours
Additional Matterport Model fee
- $30 per model for the first year.
All service appointments must be done via [email protected]
Our Turnaround time:
Photos, website, 3D Matterport, Aerial photos, floor plans at 10am/11am, 1pm, and 3pm (properties under 5000sqft) are guaranteed the morning following the appointment.
Photos, website, 3D Matterport, Aerial photos, floor plans after 5pm are available the afternoon following the photoshoot. Evening appointments on Friday are guaranteed on Monday morning.
Video and Aerial Video turnaround are available within 48 hours of service date/time. Appointments on Friday are guaranteed on Monday morning.
If OHP experiences issues with images, processing or turnaround time, OHP will contact you via email to notify you of expected delays or rescheduling prior to guaranteed time