ERICA JOAN PRODUCTIONS
Erica Joan Productions, LLC, a California limited liability company, (“Erica”) provides services to you (“Client”) on www.ericajoan.com subject to the terms set forth herein. Photographer and Client are referred to herein individually as a Party and collectively as the Parties. When you use any of the services on www.ericajoan.com you are subject to the policies, terms, and conditions listed below. We reserve the right to change any of the information on www.ericajoan.com and these terms and conditions at any time. By accessing or otherwise using www.ericajoan.com you are indicating your agreement to the Terms and Conditions contained herein.
NOW, THEREFORE, the Parties agree as follows:
1. SERVICES: Erica shall provide Client with the services outlined in the service item description (the “Services”).
2. PAYMENT: For Services rendered under this Agreement, Client shall pay Erica the fees detailed in the services description of the item being purchased (“Payment”).
a. Payment Method. Erica has partnered with Wix Payments, Ayden B.V. and Stripe to process orders on www.ericajoan.com. By placing your order, you agree to Wix Payments, Ayden B.V. and Stripe’s terms and conditions. Erica will issue invoices for all amounts due pursuant to this Agreement. The Client shall pay all invoiced amounts due to Erica within 10 business days from the Client’s receipt of such invoice (“Payment Period”). Client shall remit such payment to Erica by electronic transfer, or by such other method as mutually agreed upon by the Parties. Client consents and authorizes Erica for the processing of any credit or debit card information to satisfy payment.
b. Late Payment. If Client fails to make payment on an invoice within the Payment Period, the total payment due on said invoice shall accrue interest in the amount of five percent (5%) of the total outstanding balance per week (7 days) that the invoice is overdue. If any amounts due to Erica become past due for any reason, at its option and without further notice, Erica may withhold further Services until all invoices have been paid in full, and such withholding of Services shall not be considered a breach or default of any of Erica’s obligations under this Agreement.
c. Expenses. Client shall reimburse Erica for all actual, reasonable, and necessary expenditures which are directly related to the performance of the Services (“Expenses”), provided that such Expenses are approved in advance by Client, and as further set forth in Exhibit A.
d. Non-Refundable Deposit. Any deposits made before performance of the Services are non-refundable due to the nature of Erica’s work, which requires adequate preparation, research, planning, and scheduling.
3. INTELLECTUAL PROPERTY OWNERSHIP: In providing the Services, Erica as a creative media professional may provide work or materials necessary or incidental to, including but not limited to designs, artwork, writings, content, presentations, multimedia, videos, drawings, scripts, sketches, schematics, samples, concept art, illustrations, data, specifications, tools, resources, work product and other creative expressions (“Work”). Client understands and expressly agrees that the rights and ownership of any Work granted are hereby withheld from Client until Client makes full payment of the outstanding invoice. Upon full payment for a Project, the following shall take effect:
Erica agrees to provide an exclusive, irrevocable license, permitting Client to use all branding, media, content, photography, videography, film, and Work provided to Client to copy, distribute, and display for commercial purposes. Client may not register the copyright, patent, trademark, or otherwise formalize an interest in the rights licensed herein in its own name without express, written approval from Erica in advance. Work must be attributed to Erica when used publicly, unless Erica specifies otherwise in writing.
All rights not expressly granted are reserved to Erica, including but not limited to all rights in preliminary materials such as RAW files and compositions. Client understands and expressly agrees to a non-exclusive, irrevocable license, permitting Erica to use the Work and other proceeds of Erica’s Services under this Agreement for Erica’s professional portfolio (both physical and digital) and use on Erica’s website and social media accounts.
4. RESCHEDULING/CLIENT NO-SHOW: Client shall keep Erica updated on their ability to show up to the scheduled shoot day and time. If Client is unable to make it to the scheduled time, they shall notify Erica with at least 24 hour notice to reschedule the shoot date. If Client does not show up and fails to reschedule a shoot within 3 days after the original scheduled date, Client will be forfeiting their deposits made to Erica.
5. PROMOTION & ATTRIBUTION: Both Parties retain the joint right to promote and advertise the relationship between Erica and Client. Accordingly, both Parties are hereby authorized to use the other’s name, photograph, video, trademarks and social media handle for such promotional purposes. Client thus releases Erica from the use of their name, image, and likeness for promotion purposes.
Client and third parties shall provide Photographer with the following source attribution with the Client’s discretion. Client does not have any obligation to provide such attribution. When Client is uploading photographs or videos provided by Erica under this Agreement to social media channels or to the internet, Client shall tag Erica (using the tagging feature) or credit Erica either directly or in the caption of such post, upload, or story post at their discretion. Erica’s social media handles are as follows:
General Web: www.ericajoan.com
6. ESTIMATED DELIVERY DATES: Delivery of the Services shall mean delivery by Erica of the final artwork, assets, media, and/or Services as described in services description. Client understands and acknowledges that any delivery dates listed in the services description are mere estimates and are not guaranteed. Additionally, Client understands that any changes to the Services or renditions after execution of this Agreement may result in delays to those estimated delivery dates at no penalty to Erica.
7. CLIENT ACTIONS & OMISSIONS: Client agrees to comply with all reasonable requests of Erica and shall provide access to all information as may be reasonably necessary for the performance of the Services under this Agreement. If Erica’s performance of Services is prevented or delayed by any act or omission of Client, its agents, subcontractors, consultants or employees, Erica shall not be deemed in breach of its obligations under this Agreement, or otherwise liable for any costs, charges, or losses sustained or incurred by Client as a result.
8. PERFORMANCE & SATISFACTION: Erica shall make best efforts to provide tailored Services for Client, but it makes no representations, guarantees, or warranties as to the effectiveness of Services delivered. The obligation of Client to make payment to Erica according to the terms of this Agreement is not conditioned on Client’s aesthetic satisfaction with the proceeds of any Services under this Agreement. Client understands and expressly agrees that performance of the Services under this Agreement shall obligate Client to make payment and payment shall not be withheld due to Client’s subjective dissatisfaction.
9. NON-EXCLUSIVE: This Agreement is non-exclusive. Erica is free to provide services to other parties during the Term of this Agreement, provided that such provision of services to others does not materially interfere with the terms and obligations of this Agreement.
10. THIRD PARTY LICENSES: Client is responsible for obtaining all necessary licenses for third party products showcased in the intended photographs. Client shall indemnify and hold Erica harmless from any and all claims, liabilities, costs, losses, damages, or expenses (including attorney fees) arising from any third party claim directly relating to Client’s failure to obtain applicable licenses for a copyrighted work or display of any third party trademarks.
11. MODEL AND CLIENT CONDUCT: Client warrants that models and/or Client will be present at the photoshoot and agrees that the models and/or Client shall conduct themselves in a professional and appropriate manner at all times. Models and Clients are expected to arrive on time and in a sober state of mind, and to refrain from engaging in any behavior that could compromise their safety or the safety of others. In the event that a model or Client arrives at the shoot under the influence of drugs or alcohol, or in a state that could be considered inappropriate or unsafe, Erica reserves the right to reschedule the shoot for a later date. A $150 rescheduling fee will be assessed in such cases, and the client will be responsible for any additional costs incurred as a result of the rescheduling. Both Parties will make every effort to accommodate a new shoot date that is convenient for all involved.
12. PRODUCT RETURN POLICY: If Client ships or requests that Erica return any products provided by Client for the performance of the Services, Client acknowledges such costs constitute as Expenses and pursuant to Section 2(b) of this Agreement, Client agrees to pay all shipping charges, including any customs fees or duties, or provide a prepaid return shipping label. If Client does not request that Erica return a Product or fail to provide payment or a prepaid shipping label for return shipping within two (2) weeks following notice of the completion of the Services relating to such Product, Erica may dispose of the products in its sole discretion. Client acknowledges and agrees that Erica will have no liability for any delay, damage, or loss of such items in transit. Client agrees to indemnify and hold harmless Erica from and against any damage, expense (including reasonable attorney's fees), penalty, judgment, liability, settlement cost, and any other loss suffered by Erica in connection with Erica’s receipt, use, storage, return, or disposal, of the products.
13. CONFIDENTIALITY AND SAFEGUARD OF PROPERTY: Client and Erica acknowledge that in connection with this Agreement they may have occasion to receive or review certain confidential or proprietary technical and business information and materials of the other party. Both Parties, as well as their agents and employees, respectively agree to keep in confidence, and not to disclose or use for its own respective benefit or for the benefit of any third party (except as may be required for the performance of services under this Agreement or as may be required by law), any information, documents, or materials that are reasonably considered confidential regarding each other’s products, business, customers, clients, suppliers, or methods of operation; provided, however, that such obligation of confidentiality will not extend to anything in the public domain or that was in the possession of either Party prior to disclosure. The Parties will take reasonable precautions to safeguard property of the other entrusted to it, but in the absence of negligence or willful disregard, neither Erica nor Client will be responsible for any loss or damage.
14. INDEPENDENT CONTRACTOR: It is understood that Erica’s relationship with Client is, and shall remain, that of an independent contractor. Nothing contained in this Agreement shall be construed to imply or create a partnership, joint venture, agency, fiduciary, employer-employee relationship, or any other relationship between the Parties. Accordingly, Erica shall be responsible for payment of all taxes including Federal, State, and local taxes arising out of Erica’s activities in accordance with this Agreement.
15. WARRANTIES: Erica represents and warrants that Erica has full right and authority to enter into this Agreement and to perform its obligations hereunder and will comply with all applicable federal, state, and local laws, ordinances, and regulations. Erica further represents and warrants that to the best of its knowledge, the final Services and Work provided by Erica does not infringe the rights of any party and use of the same in connection with the Services will not violate the rights of any third parties. Client represents and warrants that Client has full right and authority to enter into this Agreement and to perform its obligations hereunder and will comply with all applicable federal, state, and local laws, ordinances and regulations. Client additionally represents and warrants that any materials supplied to Erica for purposes of completion of any Services shall not subject Erica to any liability whatsoever for infringement or otherwise.
16. INDEMNIFICATION: Client agrees to indemnify, defend, and hold harmless Erica and their officers, employees, agents and licensees from and against any and all claims, actions, damages, liabilities and expenses, arising out of the breach of any obligation, warranty, or representation by Client in this Agreement. This includes any claims against Erica by employees, agents, contractors, and officers of Client while photographing their likeness during the scheduled shoots.
17. ASSIGNMENT: Neither Party may assign its rights, or delegate its performance, under this Agreement, except with the prior written consent of the other Party, which consent shall not be unreasonably withheld.
18. ENTIRE AGREEMENT: This Agreement constitutes the entire understanding and agreement of the Parties with regard to the subject matter hereof, and supersedes all prior understandings, representations, alleged warranties, statements, negotiations or agreements, whether verbal or written, with respect to the subject matter of this Agreement.
19. COUNTERPARTS: This Agreement may be executed in any number of counterparts. All such counterparts shall be deemed an original, shall be construed together and shall constitute one and the same instrument.
20. MODIFICATION & NOTICES: Any modification to this Agreement must be in writing and signed by both Parties. Any notices required by this Agreement shall be in writing and delivered via electronic mail.
21. SEVERABILITY AND NON-WAIVER: If any provision of this Agreement is held to be invalid or unenforceable for any reason, such provision shall be deemed severable, and shall not affect the remaining provisions, which shall continue in full force and effect. The waiver of any provision of this Agreement by Erica will not operate or be interpreted as a waiver of any other provision, or waiver of the same provision on a subsequent date.
22. TERMINATION: This Agreement shall be effective as of the Effective Date and shall be ongoing unless terminated in accordance with the procedures of this section. This Agreement may be terminated by either Party upon 10 days written notice. Termination must be in writing via email and shall be deemed effective upon the date such notice is successfully sent. Upon termination of this Agreement, for any reason: (a) Erica shall provide no further Services to Client; (b) Client shall pay Erica for all Services rendered, and fees or expenses incurred, up to and including the date of termination; (c) The Parties shall return or destroy all Confidential Information received from the other Party.
23. FORCE MAJEURE: Erica shall not be deemed in breach of this Agreement if it is unable to complete the Services or any portion thereof by reason of fire, flood, earthquake, labor dispute, act of a public enemy, pandemic, epidemic, quarantine, government shutdown, death, illness, or the incapacity of its primary agents, or any local, state, federal, national or international law, governmental order or regulation, or any other event beyond Erica’s control (collectively “Force Majeure Events”).
Upon occurrence of any Force Majeure Event, Erica shall give notice to Client of its inability to perform or of delay in completing any Services and shall propose revisions to the schedule for completion of the Services. The Client may opt to pause all Services until Erica can resume work or may choose to begin Termination proceedings explained herein.
24. GOVERNING LAW, FORUM & ATTORNEY FEES: This Agreement will be governed by the laws of the State of California. Client and Erica agree that any claims, legal proceedings, or litigation arising in connection with this Agreement will be brought solely in the courts of San Diego County, California and the Parties consent to the jurisdiction of such courts. If any claim of dispute arising out of, or relating to, this Agreement is not settled promptly in the ordinary course of business, the Parties shall seek to resolve such dispute between them, first, by negotiating promptly in good faith. If the Parties are unable to resolve the dispute within 20 business days (or such period as the Parties otherwise agree), then any such dispute shall be resolved by a binding arbitration conducted by a single arbitrator under the rules of the American Arbitration Association at a mutually agreed upon location. The arbitrator must base his or her decision upon this Agreement and applicable law. If any legal action is necessary to enforce this Agreement, the prevailing Party shall be entitled to reasonable attorney fees, costs, and expenses.
By using www.ericajoan.com and its services, the Parties acknowledge that they have read, fully understand, agree to and accept, all terms and conditions set forth in this Agreement.