Agreement for Services

Terms and conditions for all Services performed by usrbingeek LLC/VT Drone:

IMPORTANT NOTICE

THESE TERMS AND CONDITIONS ARE A LEGALLY BINDING CONTRACT, WHETHER OR NOT SIGNED BY CLIENT. IT IS ISSUED BY USRBINGEEK LCC BASED ON THE CLIENT’S ACCEPTANCE, INDIVIDUALLY OR THROUGH CLIENT’S REPRESENTATIVE, ALWAYS SUBJECT TO THE TERMS AND CONDITIONS SET OUT THEREIN.

THE CLIENT SHOULD PAY SPECIAL ATTENTION TO CLAUSES 18 THROUGH 24 AND 28 AND 29 INCLUSIVE WHICH MAY LIMIT THE RIGHTS OF CLIENT AND EXCULPATE FROM LIABILITY USRBINGEEK LCC/VT DRONE, STEVEN MERMELSTEIN, AND ANY OF THEIR AGENTS, EMPLOYEES OR CONTRACTORS.

1. DEFINITIONS.

   1. “Photographer” means usrbingeek LCC/VT Drone/Steven Mermelstein, the Licensor; the sUAS Pilot, sUAS Operator and/or Photographer and any staff, flight crew, assistants, and/or freelance staff engaged by usrbingeek LCC and its representatives.

   2. “Client” means the Licensee; the entity or company and persons appearing on Invoice and any staff engaged by Client and its representatives.

   3. “Image(s)” means all visual representations furnished to Client by Photographer, whether captured, delivered, printed, or stored in photographic, magnetic, optical, electronic, or any other media.

   4. “Video(s) ” means all moving visual representations furnished to Client by Photographer, whether captured, delivered, saved, or stored in magnetic, optical, electronic, or any other media.

   5. Assignment(s) means the date(s)/time(s) and/or subject(s)/property/properties/location(s) the Photographer is being contracted by Client to photograph/film.

2. DURATION.

   The effective term of this agreement will begin upon signing by both the Client and Photographer. This agreement shall conclude upon the Photographer’s completion of duties under the agreement.

3. DELIVERABLES.

   Photographer may deliver, and Client agrees to accept, Images and/or Video encoded in an industry-standard data format that Photographer may select, at a resolution that Photographer determines will be suitable to the subject matter of each Image and/or Video and the reproduction technology and uses for which the Image and/or Video is licensed. It is Client’s responsibility to verify that the digital data (including sharpening and/or color profile, if provided) are suitable for Client’s intended usage and/or reproduction and that all necessary steps are taken to ensure correct reproduction. If the data is 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, or consequential damages. Unless otherwise specifically provided elsewhere in this document, Photographer has no obligation to retain or archive any of the Images and/or Video sixty (60) days after they have been delivered to Client.

4. ACCESS TO LOCATIONS.

   Client must arrange access to any specific Assignment property or location in which free access may be restricted or challenged. Additionally, Client must also provide notice to all occupants, tenants, and/or employees at any specific property the Photographer is assigned to film or photograph. For buildings or properties which may be open to the public, Client must also post signs at all property entrance points stating at minimum, “Filming in progress – Your presence within this area constitutes consent to be recorded”. Photographer will provide templates for signs and/or written notices to Client upon request. For any properties with security guards or watchmen/watchwomen, Client must provide notice to the managers of these persons and confirm the personnel will not hinder or slow the performance of the Assignment. Client will be charged a 100 percent fee and expenses for any delays, reschedules, or reshoots caused by persons delaying access, denying access, or stopping Photographer from performing Assignment. Client will be charged an additional $150 per hour in addition to all of the Photographer’s hourly fees and expenses for any delay caused by any Law Enforcement Officer and/or the FAA.

5. ON-LOCATION DIRECTION BY CLIENT.

   If Client desires to direct Photographer to obtain specific shots/angles, the Client is encouraged to be on-location during the Assignment. Client will be provided a monitor or tablet to view all footage. It’s Client’s responsibility to ensure the shots/angles desired are captured and that they meet their expectations and needs. If the Client is not satisfied with any Images and/or Video it should be brought to the Photographer’s attention immediately so the Photographer can reshoot before leaving the Assignment’s location. If it’s brought to the Photographer’s attention afterward, the Client is responsible for all reshoot fees, travel fees, and all other expenses incurred for any reshooting.

6. EXCLUSIVITY.

   It is understood this Photographer is the exclusive photographer retained to perform the photographic and/or video services requested in this Agreement. Client will not hire or permit any other Photographer(s) or Drone Operator(s) at the Assignment.

7. CONDITIONS FOR OPERATION.

   Client is not in the business of providing aviation services. As a result, Client is relying on the specialized knowledge and expertise of Photographer. If Photographer determines missions cannot be so performed, Photographer must notify Client as soon as practicable to inform them of any such concerns. Photographer shall always determine the ability to operate and may cancel, postpone, suspend, stop, or reschedule an Assignment at Photographer’s discretion. Photographer may opt to take a break, suspending operations at Photographer’s discretion. When applicable: electronics, radios, mobile devices, A/C, heat, fans, air circulation, air exchangers, vents, air filters, or any other air movers might need to be temporarily turned off at the Photographer’s discretion. If Photographer determines observer(s), flagger(s), traffic control, private security, sheriff, police, private security, rental equipment, safety barriers, and/or warning signs are needed to safely complete any Assignment, the Photographer shall notify Client so they may hire/contract/rent this personnel, services, and/or goods. Client agrees to be fully responsible for engaging these and 100% of their payment.

8. POWER, TRANSPORTATION, AND/OR STORAGE.

   Client agrees to provide at least two 110v 15AMP electric power outlets if the total flight time is expected to exceed ninety (90) minutes. If suitable power is unavailable at the take-off location, Client agrees to rent or supply use of a two (or more) outlet 600-watt (or greater) electric generator. All of the Photographer’s gear must be fully protected from water, waves, snow, rain, and elements at all times. If Client provides or engages in transportation or storage, all of the Photographer’s gear must be transported/stowed/deployed in a manner that will not endanger it, other property, or any persons. Transportation or operation from watercraft requires at least fourteen (14) days of written notice, inspection, and approval of watercraft by Photographer, prior written agreement, additional fees, and a damage deposit.

9. OVERTIME.

   Quoted fees are for work performed during normal working hours, Monday through Friday, 9am-5pm EST or EDT. For emergencies, high-priority jobs, or any time work is scheduled by Client outside of our normal working hours, on a Weekend, on a State or Federal Holiday, or should extend beyond eight (8) consecutive hours, any excess time will be 1.5 times the respective rate.

10. RESHOOTS.

    Client will be charged a 100 percent fee and expenses for any reshoot required by Client. At no time shall Photographer be responsible for, including but not limited to, issues, problems, omissions, or errors caused by: Studio, Actors, Audio, Client, Director, Security, stunts, pyrotechnics, lighting, weather, wildlife, tides, etc.

11. ASSIGNMENT CANCELLATIONS AND POSTPONEMENTS.

    1. Cancellations. If Client cancels Assignment, Client is responsible for payment of all expenses incurred up to the time of cancellation of the Assignment, plus 50 percent of Photographer’s total fee; however, if notice of cancellation is given less than fourteen (14) business days before the shoot date, Client will be charged 100 percent of Photographer’s fee.

    2. Postponements. Unless otherwise agreed in writing, if Client postpones Assignment, Client will be charged a 100 percent fee if postponement of the Assignment occurs less than fourteen (14) business days before the shoot date. and a 50 percent fee if postponement occurs more than fourteen (14) business days before the shoot date. Fees for cancellations and postponements will apply irrespective of the reasons for them, except in cases of acts of God, nature, war, terrorism, and civil disturbance.

12. RIGHTS.

    All Images and/or Videos and rights relating to them, including copyright and ownership rights in the media in which the Images and/or Videos are stored, remain the sole and exclusive property of Photographer. No rights are transferred to Client unless and until Photographer has received payment in full, Client has supplied executed originals of the attached Model Release(s) for each person(s) appearing in Images and/or Videos, and Client has supplied executed originals of the attached Property Release(s) for each property appearing in Images and/or Videos. Client may not assign or transfer any of the Images and/or Videos to any person or other entity without the Photographer’s permission. This prohibition includes any rights or privileges that may be claimed under §201(c) of the Copyright Act of 1976 or any similar provision of any applicable law. Digital files may contain copyright and other information embedded in the header of the image file or elsewhere; removing and/or altering such information is strictly prohibited and constitutes a violation of the Copyright Act. All fees and expenses payable under this agreement are required irrespective of whether Client makes actual use of the Images and/or Video or the Copyright Licenses to use them.

13. REQUIRED CREDITS.

    For media published on MLS, Client may omit Required Credits specified in Copyright License Agreement. Client agrees Required Credits specified in the Copyright License Agreement will accompany all other usages of Media, Images, and/or Videos. If Credit is not provided, Client agrees that the amount of the invoiced fee will be subject to a three-times multiple as reasonable compensation to Photographer for the lost value of the Credit(s).

14. REFERRAL.

    Client agrees to provide the Photographer’s contact information to all persons requesting prints, reprints, downloads, or copies of Media created for the Client. Photographer may opt to provide or sell requested prints, reprints, downloads, or copies or license media.

15. ALTERATIONS.

    Other than cropping or resizing, Client may not make or permit any alterations, including but not limited to additions, subtractions, or adaptations in respect of the Images, alone or with any other material, including making digital scans.

16. BOOKING FEE.

    Client may be required to pay a Booking Fee to book and reserve Photographer to perform the services specified herein. The Booking Fee is a non-refundable payment for the service of reserving the date for Client and Photographer ceasing to offer the specified date and time as available. The Booking Fee is non-refundable but will be credited toward the Total Cost.

17. PAYMENT.

    No part of any order, including previews/proofs, will be delivered until the balance is paid in full. All payments shall be in United States Dollars (USD). Client agrees to promptly pay all billed fees/expenses for services ordered by Client and any additional photographs or services ordered by Client. Acceptable forms of payment are American Express, MasterCard, Visa credit cards, or local checks. Out-of-state checks are not accepted. Client is responsible for all associated credit card fees (typically 3 percent for each swiped transaction or 3.75 percent for each telephone transaction). A $65.00 returned check fee will be assessed for each check returned by the bank. Once the bank has returned a Client’s check, only credit cards or cash will be accepted for subsequent payments.

18. INDEMNIFICATION.

    Client will indemnify and defend Photographer against all claims, liability, damages, costs, and expenses, including reasonable legal fees and expenses, arising out of the creation or any use of any Images and/or Video or arising out of the use of or relating to any materials furnished by Client. It is Client’s sole responsibility to determine whether any model or property releases delivered by Photographer are suitable for Client’s purposes. Photographer’s liability for all claims shall not exceed in any event the total amount paid under this invoice.

19. CONSULTING AND WITNESS SERVICE FEES.

    Photographer may be able to provide consulting services and act as a witness for legal cases to Client, plaintiff or defendant positions, and others. Client agrees to the Consulting and Witness fee schedule and Consulting and Witness Agreement for any of these services, costs, and/or expenses.

20. LIMITATION OF LIABILITY; WAIVER OF CONSEQUENTIAL DAMAGES.

    In no event shall either party have any liability to Photographer for any lost profits, loss of use, costs of procurement of substitute equipment or services, or delays, or for any indirect, special, incidental, exemplary, consequential, or punitive damages or penalties, however, caused, and whether in contract, tort, or under any other theory or combined theories of liability. If Photographer cannot perform this Agreement due to fire or other casualty, strike, act of God, or other cause beyond the control of the parties, or due to Photographer’s illness or emergency, then the Photographer shall return the deposit to the Client but shall have no further liability with respect to the Agreement. This limitation on liability shall also apply in the event that photographic materials or files are damaged in processing, lost through equipment malfunction, lost in the mail, or otherwise lost or damaged without fault on the part of the Photographer. In the event Photographer fails to perform for any other reason, Photographer shall not be liable for any amount in excess of the retail value of the Client’s order.

21. ASSUMPTION OF RISK.

    Client assumes full risk of loss or damage to or arising from property and materials furnished by Client and warrants that said property and materials are adequately insured against such loss, damage, or liability. Photographer’s propellers and other consumable parts may crack or break under normal or adverse conditions (e.g. low or high temperatures, high winds, or inclement weather). Client will be charged the full, actual cost of their replacement. Client is responsible for any other damage incurred to Photographer’s property during Assignment.

    Client agrees that Images, Videos, live feeds, and/or other assets/data provided by Photographer are sold “AS-IS” – “WHERE-IS”, with no guarantee or warranty, either written or implied. Images, Videos, live feeds, and/or other assets/data provided by Photographer are not a replacement, or substitute, for any type of inspection which could be performed by an Engineer, any type of inspector, and/or any other professional. Client assumes all risk if any Images, Videos, live feeds, and/or other assets/data provided by Photographer are partially or fully utilized for any type of inspection, assessment, evaluation, analysis, research, reference, or certification.

22. TRANSFER AND ASSIGNMENT.

    Client may assign or transfer this agreement and any rights granted under it with the written permission of Photographer. This agreement binds Client and inures to the benefit of Photographer, as well as their respective principals, employees, agents, affiliates, heirs, legal representatives, successors, and assigns. Client and its principals, employees, agents, and affiliates are jointly and severally liable for the performance of all payments and other obligations hereunder. No amendment or waiver of any terms is binding unless set forth in writing and signed by the parties. However, the invoice may reflect, and Client is bound by, Client’s oral authorizations for additional Images and/or Video, fees, and expenses that could not be confirmed in writing because of insufficient time or other practical considerations. This agreement incorporates by reference the Copyright Act of 1976, as amended. It also incorporates by reference those provisions of Article 2 of the Uniform Commercial Code that do not conflict with any specific provisions of this agreement; to the extent that any provision of this agreement may be in direct, indirect, or partial conflict with any provision of the Uniform Commercial Code, the terms of this agreement shall prevail. To the maximum extent permitted by law, the parties intend that this agreement shall not be governed by or subject to the UCITA of any state. Photographer is an independent contractor and not an employee. If photographer is deemed under any law to be an employee of Client, and if the Images and/or Video are therefore considered works made for hire under the U.S. Copyright Act, Client hereby transfers the copyright to all such Images and/or Video to Photographer. Client agrees to execute any documents reasonably requested by Photographer to accomplish, expedite or implement such transfer.

23. TERMINATION FOR CAUSE.

    This Agreement may be terminated by notice in writing by Client to Photographer if Photographer commits any material breach of the terms of this Agreement and does not take steps to cure within fourteen (14) days of written notice of such breach; or immediately if any of the following occur: (a) the Photographer or its parent company seeks relief, or its creditors bring action against it or its direct or indirect parent, under any bankruptcy or insolvency law; (b) the Photographer or its parent company makes an assignment for the benefit of creditors or other arrangement or composition under a law which prevents enforcement or collection of debts in full; (c) the Photographer or its parent company becomes insolvent or is otherwise unable to pay its debts as they come due in the ordinary course of business; (d) the Photographer or its parent company ceases or suspends operation of or sells a substantial portion of its business or any portion of its business relating to the performance of the Services; or (e) a trustee, liquidator or receiver is appointed over some or all of the assets of the Photographer (or its direct or indirect parent) used in the performance of this Agreement.

24. TERMINATION WITHOUT CAUSE.

    This Agreement may be terminated by either Party giving thirty (30) days advance notice, in writing, of its intent to terminate to the other Party. Within thirty (30) days Photographer shall provide an invoice for all work performed, expenses incurred, other fees, and applicable taxes. Client will make full payment within thirty (30) days from the date of the invoice is received.

25. SURVIVAL.

    Despite completion of the Services or termination of this Agreement for any reason, all provisions in this Agreement containing representations, warranties, releases, defense obligations, and indemnities, and all provisions relating to confidentiality, insurance, disclaimer of certain remedies, limitations of liability, dispute resolution, and governing law, and all causes of action which arose prior to completion or termination, survive indefinitely until, by their respective terms, they are no longer operative or are otherwise limited by an applicable statute of limitations.

26. INDEPENDENT RELATIONSHIP.

    This Agreement does not create, and Photographer and Client stipulate and agree that the said Agreement shall not be construed to create any agency relationship, employer/employee relationship, or master/servant relationship by or between any of the agents and/or employees of Client and the agents and/or employees of Photographer. To the contrary, Client in the course and scope of activities in furnishing Assignments under this Agreement is contemplated to be and stipulated to be independent of Photographer for any and all purposes. Each Party has the respective full power and authority to select the means, methods, and manner for performance under this Agreement.

27. AUTHORIZATION.

    Photographer has full corporate or company power and authority to enter into and perform this Agreement and has taken all actions necessary to authorize its execution and performance its performance under this Agreement. Client has full corporate power and authority to enter into and perform this Agreement and has taken all actions necessary to authorize its execution and performance of Services under this Agreement.

28. NOTICES.

    All notices required or permitted under this Agreement shall be in writing and shall be deemed delivered when delivered in person or deposited in the mail, postage prepaid, to the addresses indicated on the Invoice and/or Signature page.

29. DISPUTES.

    Except as provided in Federal Jurisdiction, any dispute regarding this agreement shall, at Photographer’s sole discretion, either:

    1. the responsible business persons representing each Party will negotiate in good faith to attempt to resolve such dispute;

    2. be arbitrated in Chittenden County, Vermont, under rules of the American Arbitration Association and the laws of Photographer’s State; provided, however, that irrespective of any specific provision in the rules of the American Arbitration Association, the parties are not required to use the services of arbitrators participating in the American Arbitration Association or to pay the arbitrators in accordance with the fee schedules specified in those rules; Judgment on the arbitration award may be entered in any court having jurisdiction. Any dispute involving $5,000 or less may be submitted without arbitration to any court having jurisdiction thereof;

    3. OR be adjudicated in Chittenden County, Vermont under the laws of the United States and/or of Photographer’s County and State of residence.

    In the event of a dispute, Client shall pay all court costs, Photographer’s reasonable legal fees, and expenses, and legal interest on any award or judgment in favor of Photographer.

30. FEDERAL JURISDICTION.

    Client hereby expressly consents to the jurisdiction of the Federal courts with respect to claims by Photographer under the Copyright Act of 1976, as amended, including subsidiary and related claims.

31. MISCELLANEOUS.

    1. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party.

    2. Except as otherwise set forth herein, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof. Waiver by either Party of any default of the other will not operate to excuse the defaulting party from further compliance with this Agreement, nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

    3. This Agreement may be modified or amended if the amendment is made in writing and is signed by both Parties.

    4. If any term, provision, or covenant of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall remain in full force and effect and shall in no way be affected, and such invalid or unenforceable term, provision, or covenant shall be deemed modified to the minimum extent necessary to make it consistent with applicable law.

    5. This Agreement may be executed in any number of counterparts, each of which will be deemed an original of this Agreement, and which together will constitute one and the same instrument.

    6. This Agreement, including Invoices and/or Schedules linking to it, represents the complete and exclusive agreement between the Parties regarding the subject matter of this Agreement and supersedes all oral and written communications, negotiations, representations, or agreements in relation to that subject matter made or entered into before acceptance of it.