Customer Agreement

Kapturly's Customer Agreement

I, (sometimes referred to herein as the “Customer”), am entering into an agreement with Kapturly, LLC, a Utah corporation, its subsidiaries, affiliates, predecessors, successors or assigns (together the “Company”) to help facilitate photography and videography services (the “Services”) for an event I have scheduled or will schedule (the “Event”).  For the price to be negotiated separately and for other consideration, the receipt and sufficiency of which are hereby acknowledged, I agree to the following terms and conditions under this agreement (the “Agreement”):

1. Payment.  I hereby acknowledge and agree that, prior to booking and reservation of Services for my Event, I shall pay a non-refundable deposit of at least one-half of the Event package cost, payable by bank card or other payment services which the Company accepts (i.e. Venmo, etc.). I acknowledge and understand that my Event shall not be reserved until clearance of my payment. 

I further agree that final payment of my balance with the Company, if any remains after my Event, shall be paid on or before the day of my Event. If I fail to timely make my final payment, I acknowledge that a penalty of $50 shall be added to the balance owing to the Company and that my balance shall begin to accrue interest at a rate of 1.5% per month (18% per annum) until paid.  

2. Services, Photographers and Videographers.  I acknowledge and agree that the terms of my purchased Services package are and may be customized for me and my Event, and that those terms will be memorialized by the Company.  Such memorialized terms—including without limitation package details and pricing, travel fees, specific change and cancellation policies, and refunds—are expressly incorporated into and enforceable by this Agreement. I also understand and agree that the Company has contracted with and will assign the photographers and videographers (the “Contractor” or “Contractors”) to provide Services for my Event.  

    I further acknowledge that the following conditions apply with regard to the Services and Contractors:

        (a)    Independent Contractors.  Contractor(s) are not employees of the Company.  Any special requests, accommodations, style, and other issues must be communicated to the Contractors and agreed upon prior to the Event.  The Company shall not be liable for any negligent or intentional acts committed by the Contractors at or in connection with the Event. 

        (b)    Reassignment of Contractors. Contractor(s) for my event may be reassigned or changed at any time.  The Company and the Contractor(s) will take reasonable measures to contact me within two-three weeks of my booking to confirm and coordinate the Services, including dates, packages, and final prices, and that they will continue to be in contact with me throughout the leadup to the Event.  

        (c)    Responsibility to Contact Contractors.  It is my sole responsibility to timely contact the Contractor(s) and/or the Company in the event that (i) I am not contacted by my Contractor(s) within two-three weeks of my booking, (ii) I want to make any changes to my package or Services, or (iii) I am dissatisfied in any way with the Company, the Contractors, or the Services generally.

        (d)    Requests for Contractors.  Requests for specific Contractors will be accommodated to the extent reasonable and practicable. 

        (e)    Accommodations and Meals for Contractors.  All Contractors performing Services at my Event(s) shall be entitled to at least one meal break per four (4) hour period that they are providing Services, to be taken at a mutually convenient time (e.g., the period between a wedding ceremony and reception). 

        (f)    Style.  It is between the Customer and the Contractor(s) to work through preferred style, posing, lighting, locations, and other features of the Services and the Media (defined below) that is produced in connection with my Event.  Although the Company and the Contractors will take reasonable measures to accommodate style preferences, some requests may not be possible or reasonably practicable and the Contractors and the Company may refuse any such requests.

        (g)    Additional Fees.  Travel fees, overtime, and other additional fees may be charged as a part of the Services Package or as additional work and Services are contracted or requested at or before the Event.  Terms of these additional fees will be clearly communicated by either the Company or the Contractor.  

If I request or otherwise add additional Contractor team members to my Event within 30 days of the Event, I understand and acknowledge that Kapturly will charge a $100 convenience fee for each additional team member. If I request or otherwise add additional Contractor time within 10 days of my Event, I understand and acknowledge that those additional hours shall be billed at twice the original hourly rate. 

If there are periods of time during my Event in which a Contractor cannot or will not be providing Services--such as a break, travel time to a different location, etc.--Contractor time during these periods will be billed at no less than $50 per hour. 

        (h)    Editing.  The Company shall be responsible for editing all Media produced by way of Contractor Services. Editing services, including without limitation pre-event photography and production of Materials for use at the Event, are detailed in the Customer’s specific Services package purchased through the Company, and the terms of those Services are expressly incorporated herein.  Additional editing services beyond those purchased in the Services package may be performed at a rate set by the Company and communicated to the Customer. 

        (i)    Delivery of Media and Materials.  All Media and Materials (as defined below) purchased and paid for by the Customer (the “Deliverables”) will be delivered to the Customer via email at the address indicated and preferred by the Customer and may be stored in electronic databases (e.g., Google Drive, Dropbox, etc.). The Deliverables shall be in electronic, native format, in full resolution, and shall be hosted by the Company for up to 45 days after their delivery to the Customer.  After the 45-day period, however, the Deliverables shall be deleted by the Company.            

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3. Assignment, Ownership, and Release of Media Rights.  In exchange for the services provided by the Company, and other good and valuable consideration, the receipt and sufficiency of which I hereby acknowledge, I give Company my permission for the use and publicity of any and all media—including without limitation photographs, videos, visual representations, sound recordings, and written documents and information—that is captured or produced of and for me and my guests, whether at my scheduled Event(s) or otherwise, in furtherance of this Agreement (the “Media”).  ​

(a)    Consent to Use Media.  I hereby irrevocably permit, authorize, grant, and license Company and its affiliates, successors, and assigns, and their respective licensees, advertising agencies, promotion agencies, and fulfillment agencies, and the employees, officers, directors, and agents of each and all of them (the “Authorized Persons”), the rights to display, publicly perform, exhibit, transmit, broadcast, reproduce, record, photograph, digitize, modify, alter, edit, adapt, create derivative works, exploit, sell, rent, license, otherwise use, and permit others to use the Media and all materials created by or on behalf of Company that incorporate any of the foregoing (collectively, the “Materials”) in perpetuity throughout the universe in any medium or format whatsoever now existing or hereafter created, on any platform, and for advertising, public relations, publicity, packaging, and promotion of Company and its affiliates and their businesses, products, and services, without further consent from or royalty, payment, or other compensation to me except as otherwise expressly provided in this Agreement.

(b)    Ownership of Materials. I understand that I shall own all rights, including copyright, in the Deliverables, and may reproduce the Deliverables in print and electronic formats, post the Deliverables on social media and elsewhere, and otherwise display and share the Deliverables without offending this Agreement. In light of the license granted to the Company above—part 4.(a)—I acknowledge and agree that I have no right to review or approve Materials before they are used by Company, and that Company has no liability to me for any editing or alteration of the Materials or for any distortion or other effects resulting from Company’s editing, alteration, or use of the Materials, or Company’s presentation of me. Any credit or other acknowledgment of me, if any, shall be determined by Company in Company’s sole discretion. Company has no obligation to create or use the Materials or to exercise any rights given by this Agreement.  

(c)    Release of Claims.  To the fullest extent permitted by applicable law, I hereby irrevocably waive all legal and equitable rights relating to all liabilities, claims, demands, actions, suits, damages, and expenses, including but not limited to claims for copyright or trademark infringement, infringement of moral rights, libel, defamation, invasion of any rights of privacy (including intrusion, false light, public disclosure of private facts, and misappropriation of name or likeness), violation of rights of publicity, physical or emotional injury or distress, or any similar claim or cause of action in tort, contract, or any other legal theory, now known or hereafter known in any jurisdiction throughout the world (collectively, the “Claims”), arising directly or indirectly from the Authorized Persons’ exercise of their rights under this Agreement or the production, exhibition, exploitation, advertising, promotion, or other use of the Materials, and whether resulting in whole or in part from the negligence of Company or any other person, and I hereby covenant not to make or bring any such Claim against any Authorized Persons and forever release and discharge the Authorized Persons from liability under such Claims. I understand that the Company is relying on this Agreement and will incur significant expense in reliance on this Agreement, and I agree that this Agreement cannot be terminated, rescinded, or modified, in whole or in part.

(d)    Contractor Delivery of Media. I herein acknowledge and agree that I will not solicit or accept unedited Media or Materials from my Contractor(s) without the prior written consent of the Company.  I understand that my Contractor(s) is required to deliver all Media to the Company within 48 hours of the end of my Event for editing prior to delivery to me. 

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4. Liability Waiver.  To the furthest extent provided by law, I acknowledge and agree that I will be solely responsible for my own welfare and safety, as well as the welfare and safety in connection with the Event(s).  I acknowledge and understand that, unless actually caused by the Company, any damages I or Event attendees incur in connection with the Event(s) are not the fault or liability of the Company. I further agree that in no circumstances shall the Company or the Contractors be liable for any damages caused or incurred by me or Event attendees at or in connection with the Event(s) and herein agree to indemnify and hold harmless the Company and the Contractors in all such circumstances.  In no event will the Company or Contractors be liable for Media or Materials which are or may have been ruined due to actions of third parties, including without limitation flash photography, photo bombing, or streakers. 

5. Force Majeure.  I agree and acknowledge that the Company will not be liable for non-performance or failures occurring as a result of any events that are beyond the reasonable control of the Company, including without limitation fire, telecommunications or internet failure, pandemic, power failure, equipment failure, employment strife, riot, war, terrorist attack, non-performance of third party suppliers or affiliates, acts of God such as storm or lightning damage, or other causes over which the Company has no reasonable control.

6. General Provisions.

(a) Governing Law; Consent to Personal Jurisdiction.  This Agreement will be governed by the laws of the state of Delaware without regard for conflicts of laws principles.  I hereby expressly consent to the exclusive personal jurisdiction of the state and federal courts located in Delaware for any lawsuit filed there against me by the Company arising from or relating to this Agreement.

7. Entire Agreement.  This Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject matter herein and supersedes all prior discussions between us.  No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by the party to be charged.  Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.

8. Other Agreements.  In the event of any direct conflict between any term of this Agreement and any term of any other agreement executed by me, the terms of this Agreement shall control.  If I signed or sign any other agreement(s) relating to or arising from my relationship with the company, all provisions of such agreement(s) that do not directly conflict with a provision of this Agreement shall not be affected, modified or superseded by this Agreement, but rather shall remain fully enforceable according to their terms..

9. Severability.  If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full force and effect, and, with respect to the covenant not to compete in Section 8, the court is hereby authorized to reduce the duration or geographic scope of such covenant as may be required so that in its reduced form the provision is enforceable to the fullest extent of the law.

10. Survival.  My obligations under this Agreement shall survive the termination of my relationship relationship with the Company and shall thereafter be enforceable whether or not such termination is claimed or found to be wrongful or to constitute or result in a breach of any contract or of any other duty owed or claimed to be owed to me by the Company or any Company employee, agent or contractor.

11. Successors and Assigns.  This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be for the benefit of the Company, its successors, and its assigns.

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12. Construction.  The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent and no rules of strict construction will be applied against either party.

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13. Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be enforceable, and all of which together shall constitute one agreement.

14. Acknowledgment.  I acknowledge and agree to each of the following items:

(a) I am executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone else; and

(b) I have carefully read this Agreement.  I have asked any questions needed for me to understand the terms, consequences and binding effect of this Agreement and fully understand them; and 

(c) I sought the advice of an attorney of my choice if I wanted to before signing this Agreement.