Terms and Conditions Policy
Website owner, the offering, and binding of Terms
This website is owned and operated by Kelly Marsocci and K. Owens Photography. These Terms set forth the terms and conditions under which you may use our website and services as offered by us. This website offers visitors photography, design, and marketing services. By accessing or using the website of our service, you approve that you have read, understood, and agree to be bound by these Terms.
Definitions
“Image(s)” means all visual representations furnished to Client by Photographer, whether captured, delivered, or stored in photographic, magnetic, optical, electronic, or any other media. Unless otherwise specified on the front of this document, Photographer may deliver, and Client agrees to accept, Images 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 the reproduction technology and uses for which the Image is licensed. It is the Client’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, or consequential damages. Unless otherwise specifically provided elsewhere in this document, Photographer has no obligation to retain or archive any of the Images after they have been delivered to Client. Client is responsible for sending an authorized representative to the assignment or for having an authorized representative review the images remotely during the assignment. If no review is made during the assignment, Client is obligated to accept Photographer’s judgment as to the acceptability of the Images.
Who can use your website; what are the requirements to create an account
In order to use our website and/or receive our services, you must be at least 18 years of age, or of the legal age of majority in your jurisdiction, and possess the legal authority, right, and freedom to enter into these Terms as a binding agreement. If the Client is not 18 years or older, it is understood that a parent or legal guardian is required to agree to these Terms as well. You are not allowed to use this website and/or receive services if doing so is prohibited in your country or under any law or regulation applicable to you.
Key commercial Terms offered to customers
When booking a service, you agree that: (i) you are responsible for reading the full listing before making a commitment to buy it: (ii) you enter into a legally binding contract to purchase the service when you commit to booking a session and complete the deposit or check-out payment process.
The prices we charge for using our services / for our products are listed on the website. We reserve the right to change our prices for products displayed at any time and to correct pricing errors that may inadvertently occur. Additional information about pricing and sales tax is available on the payments page.
The fee for the services and any other charges you may incur in connection with your use of the service, such as taxes and possible transaction fees, will be charged on a monthly basis to your payment method.
Deposits
This signed contract and 50% of the total package cost are required to book any session or package. The remainder of the package amount is due the day of the scheduled session, prior to the start of shooting. In the event of a canceled session, this deposit is non-refundable. We reserve the right to refuse services/products if the payment arrangements have not been met unless prior arrangements have been made.
Payment Stipulations
There is a $25 fee for any returned checks. In the event of a previous returned check by the Client, we reserve the right to refuse payment of checks in the future. Sessions, design progress, and printed orders will not be commenced until payment has been received and processed in full.
Schedule arrangements
All sessions will start at the scheduled time even if the Client is tardy or unprepared. The session end time will remain the same. If additional time is needed, the Client will have the option to pay for additional time at an hourly rate. If more than one location is used in a single session, the travel time does count towards the total session time. The same applies to outfit changes. The client is responsible for providing any props or outfits that are to be used within the session. The Photographer will not be held responsible for additional sessions needed due to forgotten items. If the Client is late or more than fifteen minutes late without a phone call, we reserve the right to reschedule.
Additional fees
In the event that the Client specifies a certain shoot location, the Client is responsible for all location fees involved such as access fees, parking, etc. The Client is also responsible for arranging the location access and any permits/passes related to doing so. There are additional fees for the following: added time, additional outfit changes, or any products/prints/services not specified in the package purchased.
There may be an additional charge of $50 per session for large parties (6 or more). Minor retouching (fix major blemishes, tighter crops, and white balance correction) is included in the session package with no additional cost, and final images will be presented fully edited. More involved requests are billed at $50/hr. You will be asked to confirm the additional rate before work is begun.
Cooperation
It is the Client’s understanding that it is their choice to participate in a booked session or service, and that the Client will not hold Kelly Marsocci or K. Owens Photography responsible for any negative actions or feelings that may commence due to the outcome of this shoot.
If the desired outcome of your session is jeopardized by the behaviors of the parties involved, Kelly Marsocci and K. Owens Photography cannot be held responsible. We understand children aged newborn-one year can be particularly difficult. We reserve the right to suggest session rescheduling if progress is not achieved within the first 15-20 minutes of the session.
Reshoot and refund policy
In the event that it is required to reshoot the session without 5 days prior notice, the client will be responsible for an additional retainer deposit to secure that date. In the event that the weather conditions are not desirable for the shoot based on the photographer's recommendations, the session will need to be rescheduled and the fee will be waived. Due to liability and equipment damages, this decision will be at the photographer's discretion.
Limited sessions are available—the client reserves the right to opt for indoor photography in the event that rescheduling is not an option. In the event that a reshoot has been scheduled due to the nature of the client's appearance in the previous session, the client is held responsible for purchasing an additional package. In the event the client must cancel the contracted services, and the balance is paid prior to the session, the photographer agrees to refund all money paid, excluding the deposit fee.
The Client will be charged 100 percent fee and expenses for any reshoot required by the Client. For any reshoot required because of any reason outside the control of Client, specifically including but not limited to acts of God, nature, war, terrorism, civil disturbance, or the fault of a third party, Photographer will charge no additional fee, and Client will pay all expenses. If the Photographer charges for special contingency insurance and is paid in full for the shoot, the Client will not be charged for any expenses covered by insurance. A list of exclusions from such insurance will be provided on request.
Overtime
In the event a shoot extends beyond eight (8) consecutive hours, Photographer may charge for such excess time of assistants and freelance staff at the rate of 11/2 times their hourly rates.
Limit of Liability
In the unlikely event that the photographer is injured or becomes too ill to photograph the session, a reshoot will be scheduled for the next available time slot. Although care will be taken with digital files, the Photographer limits any liability for loss, damage, or failure to deliver photographs for any reason of photographer’s non-performance caused by any force or similar circumstances, illness, accident, or any cause beyond their control.
All images will be backed up and archived for a reasonable length of time. After one year, it is understood that images will continuously be kept in archives but the Photographer cannot be held liable for unexpected loss, damage or quality loss of session images.
To the maximum extent permitted by applicable law, in no event shall Kelly Marsocci or K. Owens Photography, be liable for any indirect, punitive, incidental, special, consequential, or exemplary damages, including without limitation, damages for loss of profits, goodwill, use, data or other intangible losses, arising out of or relating to the use of, or inability to use, the service.
To the maximum extent permitted by applicable law, Kelly Marsocci and K. Owens Photography assume no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content; (ii) personal injury or property damage, of any nature whatsoever, resulting from your access to or use of our service; and (iii) any unauthorized access to or use of our secure servers and/or any and all personal information stored therein.
Retention of right to change offering
We may, without prior notice, change the Services; stop providing the services or any features of the services we offer; or create limits for the services. We may permanently or temporarily terminate or suspend access to the services without notice and liability for any reason, or for no reason.
Ownership of intellectual property, copyrights and logos
The Service and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and all Intellectual Property Rights related thereto, are the exclusive property of Kelly Marsocci and K. Owens Photography. Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works thereof.
All Images and rights relating to them, including copyright and ownership rights in the media in which the Images are stored, remain the sole and exclusive property of the Photographer. Unless otherwise specifically provided elsewhere in this document, any grant of rights is limited to a term of one (1) year from the date hereof and to usage in print (conventional non-electronic and non-digital) media in North America. Unless otherwise specifically provided elsewhere in this document, no image licensed for use on a cover of a publication may be used for promotional or advertising purposes without the express permission of the Photographer and the payment of additional fees. No rights are transferred to the Client unless and until Photographer has received payment in full. The parties agree that any usage of any Image without the prior permission of the Photographer will be invoiced at three times Photographer’s customary fee for such usage. 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 the Client makes actual use of the Images or the licenses to use them.
Client Usage Rights/Copyrights
The photographs produced by Kelly Marsocci and K. Owens Photography are protected by Federal Copyright Law (all rights reserved) and may not be reproduced in any manner without explicit written permission. It is a breach of these Terms to reproduce the images in any form unless rights were purchased within the package for those images. The client reserves the right to share images previously posted by the photographer on social networking sites such as Facebook, Twitter, and Instagram. It is a breach of this contract to crop/hide the studio logo and/or watermark(s).
To obtain copyright or ownership of session images, you must purchase or otherwise obtain a Copyright Release signed by Kelly Marsocci and K. Owens Photography. Images captured by Kelly Marsocci and K. Owens Photography cannot be published, sold for profit, or used within outside marketing materials without written permission from and compensation is provided before use.
Photographer Usage Rights/Copyrights
The client grants Kelly Marsocci and K. Owens Photography unrestricted usage rights and copyrights to use and publish photographs in any manner or medium. The client grants Kelly Marsocci and K. Owens Photography permission to use images taken within this session in samples, marketing materials, editorial, & online web presences, including but not limited to, website, social networks, blog, etc. Images may also be used in photographic competitions and for publication in which case the client will release all profits from images.
Photo credit
All published usages of Images will be accompanied by written credit to the Photographer or copyright notice. If a credit is not actually provided, the Client agrees that the amount of the invoiced fee will be subject to a three-times multiple as reasonable compensation to the Photographer for the lost value of the credit line.
Right to suspend or cancel user account
We may permanently or temporarily terminate or suspend your access to the service without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms or any applicable law or regulations. You may discontinue use and request to cancel your account and/or any services at any time. Notwithstanding anything to the contrary in the foregoing, with respect to automatically-renewed subscriptions to paid services, such subscriptions will be discontinued only upon the expiration of the respective period for which you have already made payment.
Indemnification
You agree to indemnify and hold Kelly Marsocci and K. Owens Photography harmless from any demands, loss, liability, claims, or expenses (including attorneys’ fees), made against them by any third party due to or arising out of, or in connection with your use of the website or any of the services offered on the website.
Right to change and modify Terms
We reserve the right to modify these terms from time to time at our sole discretion. Therefore, you should review these pages periodically. When we change the Terms in a material manner, we will notify you that material changes have been made to the Terms. Your continued use of the Website or our service after any such change constitutes your acceptance of the new Terms. If you do not agree to any of these terms or any future version of the Terms, do not use or access (or continue to access) the website or the service.
Promotional emails and content
You agree to receive from time to time promotional messages and materials from us, by mail, email, or any other contact form you may provide us with (including your phone number for calls or text messages). If you don't want to receive such promotional materials or notices – please just notify us at any time.
Preference of law and dispute resolution
These Terms, the rights and remedies provided hereunder, and any and all claims and disputes related hereto and/or to the services, shall be governed by, construed under, and enforced in all respects solely and exclusively in accordance with the internal substantive laws of the United States of America / Massachusetts, without respect to its conflict of laws principles. Any and all such claims and disputes shall be brought in, and you hereby consent to them being decided exclusively by a court of competent jurisdiction. The application of the United Nations Convention of Contracts for the International Sale of Goods is hereby expressly excluded.
Disputes
Except as provided in the below section, any dispute regarding this agreement shall, at Photographer’s sole discretion, either:
(1) be arbitrated in Photographer’s City, Photographer’s State, 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.
OR
(2) be adjudicated in Photographer’s City, Photographer’s State under the laws of the United States and/or of Photographer’s State.
(3) 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.
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.