This Listing Production Agreement (the "Agreement") is made and entered for each individual project upon booking and signing by Aerial Canvas, LLC, and the Client(s) submitting the booking request, collectively the "Parties."
WHEREAS Company is a marketing content production agency and Client(s) desires to contract Company for the fulfillment and production of but not limited to real estate photography, videography, aerial drone photography or videography, 3D virtual tours, dedicated listing website(s), and other marketing services (the "Services").
WHEREAS Company wishes to provide such Services described herein for the production of final deliverables associated with the booked project (the "Project" or "Production").
PROJECT. Company is hereby engaged to perform the Services necessary to fulfill the production requirements along with its duties and responsibilities described and listed in the invoice. It is the essence of this Agreement that all completed media production and Services provided by Company shall be of applicable production and industry standards. Company agrees that the Project shall be of quality and produced with artistic and creative integrity, direction, strategy, and stewardship.
INDEPENDENT CONTRACTOR. Parties acknowledge that Company operates its own independent business and is providing Services for or in connection with Client as an independent contractor. This Agreement is between two co-equal, independent business entities that are separately owned and operated. The Parties intend this Agreement to create the relationship of independent contractor and company and not that of employer and employee. The Parties are not employees, agents, joint ventures, or partners of each other for any purpose. Parties acknowledge that neither Party is an employee of the other Party, and the Services rendered by Company for or in connection with Client do not establish any right arising from an employment relationship. Company and Client are responsible for their own respective tax liabilities associated with any and all payments received or made between the two Parties. The Parties are responsible for obtaining and maintaining any required registrations, licenses, insurances, or other authorizations necessary for the Services rendered. Parties further acknowledge as follows:
Neither party is insured by the other.
Client does not restrict Company's ability to perform Services for or through other parties. and Company is authorized to accept work from and perform work for other businesses and individuals besides Client
Company has the right to accept or decline requests for Services
Client expects that Company will provide Services for other businesses and individuals besides Client
Client will not dictate the performance, methods, or processes Company uses to perform the Services.
Company will determine the method, details, and means of performing the Services
Client has the right to impose quality standards, style guides, or request deadlines for completion of Services performed. Company is authorized to determine the days worked and time periods of work at the point at which Company begins to provide Services to Client, which may not be altered without Company’s expressed authorization thereafter
Client will pay Company based on the payment schedule set forth in Section 5
Company is responsible for providing and maintaining all tools and equipment required to perform the Services. Company must maintain their insurance policies to cover their equipment. Theft or damage to Company’s property, due to negligence of Company, will not be covered by Client’s insurance or reimbursed by Client and will be the sole responsibility of Company. Neither Client nor its insurance agent covers or pays for personal items lost, stolen, or damaged
NO AUTHORITY. Parties acknowledge and agree that neither Party has the right or authority to enter into any agreements on behalf of the other Party whereby the other Party may be required to perform obligations, observe agreements, pay any remunerations or other consideration (including, without limitation, any agreement for the employment of any person or the purchase or rental of any article or material) without the prior written consent of the other Party.
JOB SITE REQUIREMENTS. Client understands its obligations and responsibilities to prepare the job site for production prior to the scheduled time of arrival. Client agrees that Company is only responsible for documenting the property in as-is condition and further understands the following:
The property must be ready by the appointment start time. Company may use its discretion to cancel, postpone, or reschedule the appointment if delays are caused by other vendors, contractors, or parties on site including but not limited to other photographers or videographers, stagers, builders, landscapers, cleaners, inspectors, home sellers, homebuyers, and other real estate agents or brokers.
Company does not provide Services beyond what is outlined in this Agreement. For general safety and liability purposes, Company contractors, employees, or representatives may not help with extensive cleaning, dusting, or the moving of furniture, decor, fixtures, or signage.
Client shall ensure there are no safety hazards on site. Company and its employees, contractors, or representatives reserve the right to cancel, postpone, or reschedule production should there be safety concerns. Company may use its discretion to determine if an environment is deemed unsafe.
Pets should be removed from the job site prior to the appointment start time in the event that Company employees, contractors, or representatives may be allergic.
Company will be photographing and filming throughout the entire property. However, smaller utility rooms and/or closets are typically not captured. If Client wishes to include smaller utility rooms and/or closets, Client may request for Company to do so by informing a Company employee, contractor, or representative prior to the appointment.
Additional fees may incur should a cancelation, postponement, or reschedule occur as outlined in Sections 7-11.
COMPENSATION. In consideration for all Services rendered by Company under this Agreement, Company shall be entitled to receive a sum of the invoice balance with 100% due upon signing of this Agreement. Deliverables shall be withheld until payment is received in full unless prior payment arrangements have been established at the time of scheduling.
LATE FEES. Invoices with outstanding balances shall incur a fee of 10% of its compounded total for every 30 days delinquent. By proceeding with a booking and/or allowing Company to provide the Services described herein, Client agrees with and understands the payment schedule associated with this Agreement. Client grants Company permission to contact their broker, controller, manager, or company of employment for open balance inquiries associated with this Project. Client agrees that all licenses granted herein may be revoked at Company’s discretion should an outstanding balance be opened for more than 3 months.
TRAVEL. In the event that travel is needed outside our standard service area or production radius, there will be an additional fee of $100 USD per person per hour accumulated. The fee(s) covers the additional time needed for production crew members. Company may use its discretion to accept or decline projects that are outside of its standard service area or production radius. Company agrees that Client will be notified if such a charge is necessary. Client reserves the right to terminate this Agreement should Client choose not to move forward with Production.
SCHEDULE. Company and its employees, contractors, or representatives shall commit to the production schedule as necessary to complete the Project in a timely and reasonable manner. The production schedule shall be coordinated and confirmed by Company through a digital calendar invitation. Productions are scheduled during Company’s operational hours between Monday and Friday. Weekend scheduling may be requested and are subject to an additional fee of up to $300 per production crew member. The fee(s) covers associated overtime costs for production crew members.
CANCELATION AND POSTPONEMENT POLICY. Client shall notify Company at least 24-hours in advance from the scheduled date(s) of production if a scheduling adjustment is needed. Appointments modified within a 24-hour period will result in an additional fee of 25% of the total invoice to cover the costs associated with scheduling and retaining the production crew members. In the event where the weather or other uncontrollable circumstances may prohibit or delay Production, Company may cancel, postpone, or reschedule Production. Reschedules are subject to Company availability.
WEATHER POLICY. If there is predictable bad weather, it is the responsibility of the Client to reschedule with at least 24-hours notice before the arranged start time. In the event of unpredictable bad weather, Client may request to proceed with Production. However, Company may use its discretion to cancel, postpone, or reschedule as needed. In the event of bad weather, if Client requests to proceed with Production and Company agrees, Company may fulfill a partial Production to the best of its ability as allowable by the weather.
RESHOOT POLICY. Reshoot and/or additional shoot date requests based on Client preferences are subject to a fixed hourly rate of one hundred and fifty dollars ($150 USD) per person per hour. Fees may be waived for reshoot requests based on technical error(s). Company reserves the right to determine if requests are based on Client preferences or technical error(s). Reshoots are subject to Company availability based on a first come, first served basis.
PRODUCTION TIMELINE. Client understands and agrees that creating quality content takes time. Company requires 1-4 hours on the job site for production depending on the Services requested. Rush Photo Editing and Rush Video Editing services are subject to additional fees. Unpredictable and uncontrollable delays that may arise could affect or jeopardize the production schedule and delivery turnaround times. Should production proceed as normal without significant delays or postponement, our expected turnaround times for delivery are as follows:
One (1) business day:
Twilight and/or Virtual Twilight Photographs
3D Virtual Tours
Dedicated Listing Websites
Two (2) business days:
Highlight Videos (30-45 seconds)
Photo Revision Requests
Video Revision Requests
Three (3) business days:
Virtual Staging and/or Virtual Cleaning Photos
Illustrated Drone Photos
2D Floor Plans
Cinematic Videos (1-2 minutes)
Luxury Videos (1-3 minutes)
Five (5) business days:
Illustrated 2D Floor Plans
Variable turnaround times:
Rush Photo Editing
Rush Video Editing
Computer Generated Imagery Renderings (CGI)
3D VIRTUAL TOURS. All 3D Virtual Tours include complimentary hosting for 3 months. After the hosting expires, 3D Virtual Tours are archived and the branded and unbranded links will be inactive. Extended hosting may be available for a $60 annual renewal fee per scan. Renewals are only available to the original licensee.
DEDICATED LISTING WEBSITE. Dedicated listing websites (single property websites) include a custom domain name (“domain”) hosted for up to one-year. Extended hosting may be available for a $25 annual renewal fee per domain. The requested domain must be communicated at the time of booking. Company cannot guarantee that the requested domain will be available. In the event that the requested domain is unavailable, Company may require Client to provide additional requests. Complimentary lifetime hosting is available via the web address: listings.aerialcanvas.com.
POST-PRODUCTION. Company edits its Highlight, Cinematic, and Luxury Videos (collectively “Video Tours”) to follow a sequence flow starting with aerial drone footage followed by a property walkthrough. Client may request an alternative editing sequence prior to Production based on their preference. Company delivers branded and unbranded versions of the video to be distributed by the Client. It is the Client’s responsibility to ensure that Company has the most up-to-date branding assets and information prior to the scheduled Production date.
ROYALTY FREE MUSIC. Company uses royalty-free music licensed to Company for the use and distribution with Company’s own works of authorship such as but not limited to listing video tours or commercial production videos. Company may license, reproduce, distribute, perform, or display its own works of authorship with the music incorporated but Company does not have the right or authority to sublicense or assign the use of music for standalone distribution. Company and Client are not permitted to use the music as a standalone asset in any way. Company agrees to indemnify and hold Client harmless in the use of any music provided by Company to Client in the course of providing the Services under this Agreement.
SONG SELECTION. To ensure a timely turnaround, Client must select a song for their video(s) at the time of booking. Client may also proxy its ability to select a song to Company. Company may select a song based on a mood, genre, or preference provided by Client. If Client does not select a song at the time of booking, Company may select one for them to begin the Post-Production process. Changing the song after a video is completed will be subject to a fee of $100 per hour.
VIDEO REVISIONS. Company will consider the Project completed and all Revision Cycles closed if Client does not provide substantial communication within 2-days from initial delivery. All Video Tours come with one complimentary Revision Cycle. Client may be as comprehensive as they wish in their revision request and understands that revision requests must be made within 2-days from each delivery. Once a revision begins and an updated version of the Video Tour is delivered, the Revision Cycle is considered closed. Additional revision cycles are subject to a fee of $100 per hour.
PHOTO REVISIONS. Company will consider the Project completed and all Revision Cycles closed if Client does not provide substantial communication within 2-days from initial delivery. Photo revisions are subject to a fee of $20 per photo for special requests.
TERM. This Agreement shall commence as of the effective date hereof. Company’s engagement under this Agreement shall terminate after all deliverables are successfully received by Client and all Revision Cycles are completed and closed as outlined in Sections 18 and 19.
INTELLECTUAL PROPERTY. Any copyrightable works, and the associated Intellectual Property rights, conceived, produced, or developed in the course of fulfilling the Services including but not limited to any and all drafts and/or versions of works, ideas, photographs, audio or video recordings, screenplays, production raw materials such as files or other electronic media, or other information made in whole or in part for Client (collectively, the “Intellectual Property”) shall be the exclusive property of Company. Company reserves the right to use the Intellectual Property for advertising, marketing, display, publication, general archive, relicensing, or other purposes. All photographs, video footage, audio recordings, samples, and proofs remain the exclusive property of Company unless waived by a written amendment to this agreement. The unauthorized use of the Intellectual Property is a copyright violation and breach of contract. Nothing in this Agreement shall be deemed to grant to Client any ownership or rights to the Intellectual Property other than the rights granted herein. Client may request the removal of Intellectual Property used by Company if its use includes Client’s name, logo, likeness, or any person or pet directly associated with Client that is readily identifiable.
LICENSE. Company hereby grants to the Client a non-exclusive, limited, non-sublicensable, and nontransferable license for the final deliverable(s) associated with the Services rendered, upon the terms and conditions and subject to the limitations set forth, to use the Project to perform the obligations (the “Agreement Obligations”) under the Agreement, which Agreement Obligations have now been assumed by the Client. The grant of this license includes, without limitations, the right of Client to use the final deliverable(s) associated with the Services rendered, owned and/or licensed by Company, that comprise the Intellectual Property and/or the products and services thereunder in connection with its performance of the Agreement Obligations. Company hereby represents and warrants that it has authority to enter into this Agreement.
ASSIGNMENT OF RIGHTS. This limited License and the rights granted under this Agreement may not be sublicensed or assigned without written permission from Company, except that they may be sublicensed by the Client wholly or in part to a third party solely for the purpose of performing the Agreement Obligations on behalf of the Client. Any and all third parties would be subjected to the same Agreement Obligations and Use Limitations as the Client. Third-parties such as but not limited to stagers, builders, home sellers, or homebuyers must license the Project from Company should third-parties desire to use the Project for purposes other than what is described in this Agreement.
RESERVATION OF RIGHTS. All rights, not expressly granted hereunder, are reserved to Company, including but not limited to all rights in preliminary materials and all electronic rights. For purposes of this Agreement, electronic rights are defined as rights in the digitized form of works that can be encoded, stored, and retrieved from such media as computer hard drives, external hard drives, USB storage, CD-ROM, cloud storage, computer databases, intranet servers, and network servers.
AGREEMENT OBLIGATIONS AND USE LIMITATIONS. The rights granted in this Agreement are subject to the following limitations:
Client may use the Project to market and advertise the subject matter depicted in the Intellectual Property for lead generation or soliciting new or reoccurring business.
Client and Client’s broker, manager, or company of employment may share the Project to promote its brand.
Client may not alter the final deliverable without written approval from Company.
Client may use the Project to promote or grow the Client’s business interests in advertising or marketing across any and all platforms including but not limited to Facebook, Instagram, YouTube, Vimeo, Twitter, LinkedIn, Snapchat, personal website(s), dedicated listing website(s), blogs, or third-party multimedia publications.
Client may freely advertise, market, perform, exhibit, broadcast, display, or publish the Project so long as its performance is not for direct, commercial use where profit is made directly from the sale or distribution of the Project.
Project may be uploaded by the Client to MLS when applicable. However, regardless of any terms and conditions of this Agreement or the MLS, at no time does this Agreement provide the right to transfer copyright, licenses, or any other exclusive rights as provided by the Copyright Act 17 U.S.C § 106.
Client understands that the Project does not include the rights of or access to the raw materials or original digital files used to create the final deliverable(s).
ADDITIONAL USAGE. If Client wishes to make any additional use(s) of the Project, Client agrees to seek permission from Company and make such payment(s) as agreed between the Parties.
MEDIA RELEASE. Client hereby waives any right to inspect or approve future use of the Intellectual Property not associated with the Services that may be used in conjunction with them now or in the future, whether that use is known or unknown so long as its use does not contain Client’s name, logo, likeness, or any person or pet directly associated with Client that is readily identifiable pursuant to Section 21. Client waives any right to royalties or other compensation arising from or related to the approved use of Client’s image and/or likeness.
LOCATION RELEASE. It is the Client’s responsibility to obtain permission for Production from the property owner, tenant, occupants, or neighbors associated with the job site. Company may request Client to obtain a Location Release from the lawful Grantor on behalf of Company for the purposes of photographing, filming, and recording. Company makes every effort to maintain the privacy of the property owner, tenant, occupants or neighbors thereof. Company may request Client to inform neighbors of production should it be deemed necessary by Company to proceed with Production.
NOTICE. Any notices to be given hereunder shall be made either by electronic delivery or by mail, registered or certified, postage prepaid with return receipt requested. Mailed notices shall be addressed to Company at the following address: Aerial Canvas 934 Laurel St, #102 San Carlos, CA 94070. Company may change the above address by written notice in accordance with this paragraph, or at such other address, and to the attention of such other person or office, as any part may be designated in writing by notice duly given pursuant to this subsection. Notices delivered electronically shall be deemed communicated as of the date of actual delivery and receipt. Mailed notices shall be deemed received as of 3 business days after the date mailing.
DISPUTE RESOLUTION. Each Party agrees that all controversies, claims, or disputes with any other Party (including any Party’s employees, agents, officers, directors, managers, trustees, stakeholders, or representatives in their capacity as such or otherwise), arising out of or relating to this Agreement, including any actual or alleged breach, or the termination, validity, interpretation and performance thereof (“Dispute”) shall be resolved with the following procedures:
NEGOTIATION. Upon written notice of any Dispute, the Parties shall attempt to resolve it promptly by negotiation between representatives who have authority to settle the Dispute and this process should be completed within 30 days (the “Negotiation”).
MEDIATION. If the dispute has not been resolved by Negotiation in accordance with Section 30.a then the Parties shall proceed to mediation unless the Parties at the time of dispute agree to a different time frame. A “Notice of Mediation” shall be served, signifying that the Negotiation was not successful and to commence the mediation process to be held and conducted in a city agreed upon by the Parties. The Parties shall agree on a mediator; however, if they cannot agree within fourteen (14) days then a local mediation service provider shall appoint a mediator. The mediation session shall be held within forty-five (45) days of the retention of the mediator, and last for at least one (1) full mediation day, before any party has the option to withdraw from the process. The Parties may agree to continue the mediation process beyond one (1) day, until there is a settlement agreement, or a Party or the mediator states that there is no reason to continue because of an impasse that cannot be overcome and sends a “Notice of Impasse.” All reasonable efforts will be made to complete the mediation within thirty (30) days of the first mediation session. During the course of the mediation, no Party shall assert the failure to fully comply with Section 03.a as a reason not to proceed or to delay the mediation. The service of the Notice of Mediation shall stay the running of any applicable statute of limitations regarding the Dispute until thirty (30) days after the Parties agree that the mediation is concluded or the mediator issues a Notice of Impasse. The process shall be confidential based on terms acceptable to the mediator and/or mediation service provider. All communications, both written and oral, during Negotiation or Mediation are confidential and shall be treated as settlement negotiations for purposes of applicable rules of evidence; however, documents generated in the ordinary course of business prior to the Dispute, that would otherwise be discoverable, do not become confidential simply because they are used in the negotiation and/or mediation process. Each side shall bear an equal share of the mediation costs, unless the Parties agree otherwise. If a Party refuses to mediate the Dispute prior to bringing an action in court, that Party shall not be entitled to recover attorney fees and costs in the event that Party prevails in subsequent action.
ARBITRATION. Any Dispute not resolved through negotiation or mediation in accordance with Section 30.a and/or Section 30.b shall be resolved by final and binding arbitration in accordance with the rules of the American Arbitration Association (“AAA”), unless otherwise agreed by the Parties. The Parties agree that discovery shall be limited to one (1) set each of written Interrogatories and Request for Production of Documents, and no depositions may be conducted. The arbitration shall be held in a city agreed upon by the Parties using one (1) arbitrator, unless the Dispute exceeds one million dollars (USD) in which case there shall be three (3), neutral arbitrators, as a panel. Any and all arbitrators shall be mutually selected by the Parties. The arbitrator(s) shall have the power to decide any motions brought by any Party for the arbitration, including motions for summary judgment and/or adjudication, motions to dismiss, or any other motion, prior to any arbitration hearing. The arbitrator(s) shall have the power to award any remedies or monetary damages under applicable law and consistent with this Agreement, and that the arbitrator(s) shall award attorney’s fees and costs to the prevailing Party. Notwithstanding, the decision of the arbitrator(s) shall be in writing and shall be binding on both Parties. The arbitrator(s) shall not order or require Company to adopt a policy not otherwise required by law. Arbitration shall be the sole, exclusive, and final remedy for any dispute between Client and Company. The Parties understand that they are waiving their rights to other resolution processes (such as court action or administrative proceeding).
ASSUMPTION OF RISK. The California Executive Order N-33-20 stipulates certain inherent risks that cannot be eliminated regardless of the care taken to avoid injuries, accidents, or illnesses. Client and Company understand and appreciate these and other risks inherent in the activity that Client and Company are participating in and hereby asserts that their participation and position is voluntary and that Client and Company knowingly assumes their own risks associated.
MUTUAL LIABILITY AND INDEMNIFICATION. Neither Party shall be liable to the other for any special, indirect, incidental, punitive, or consequential damages arising from or related to this agreement, including obligations, costs, claims, judgements, attorney’s fees, bodily injury, death, loss or revenue, property loss, or profits or other benefits, and claims by any third party, and all other damages and expenses arising from this Agreement and its Agreement Obligations even if the Parties have been advised of the possibility of such damages. The foregoing limitation applies to all causes of action in the aggregate, including without limitation to breach of contract, breach of warranty, negligence, strict liability, and other torts.
GOVERNING LAW. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of California. Any action to enforce all or any part of this Agreement shall be brought within the State of California.
AMENDMENT. This Agreement may be amended only by a written agreement duly executed by an authorized representative of each party. Its terms can be modified only by an instrument in writing signed by both parties, except that the Client may authorize expenses or revisions orally.
MISCELLANY. This Agreement shall be binding upon the Parties hereto, their heirs, successors, assigns, and personal representatives. This Agreement constitutes the entire understanding between the Parties. A waiver of a breach of any of the provisions of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions hereof.
ENTIRE AGREEMENT. This Agreement, and any accompanying appendices, duplicates, or copies, constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior negotiations, agreements, representations, and understandings of any kind, whether written or oral, between the Parties, preceding the date of this Agreement.
SEVERABILITY. If any provision or provisions of this Agreement shall be held unenforceable for any reason, then such provision shall be modified to reflect the Parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect for the duration of this Agreement.