Listing Production Agreement
The following is a copy of our Terms of Service, namely the Listing Production Agreement, which is administered for each booking and is considered intellectual property. The unauthorized use or distribution of the following agreement is prohibited. Sky Realty Media, LLC at any time may reserve the terms outlined herein by updating this document. By booking with Sky Realty Media, LLC you agree to be bound by the version of the document as administered and signed during the time of booking.
1. CANCELATION AND POSTPONEMENT POLICY. Client shall notify Sky Realty Media, LLC 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 $50 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, Sky Realty Media, LLC may cancel, postpone, or reschedule Production. Reschedules are subject to Company availability.
2. 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, Sky Realty Media, LLC 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, Sky Realty Media, LLC may fulfill a partial Production to the best of its ability as allowable by the weather.
3. 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). Sky Realty Media, LLC 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.
4. VIDEO REVISIONS. Sky Realty Media, LLC 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 services 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.
5. PHOTO REVISIONS. Sky Realty Media, LLC 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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).
11. 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.
12. 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.
13. 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.
14. 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:
15. 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”).
16. 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.
17. 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).
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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