LSPMedia Inc TERMS AND CONDITIONS
1. Interpretation and definitions
1.1 When using the services and/or purchasing content from LSPMedia you agree to be bound by the following terms and conditions, whether instructing us by telephone, email, letter, online or in a face to face meeting.
1.2 In these conditions (“these Conditions”) unless the context requires otherwise: ‘LSPMedia’: LSPMedia Inc, a company registered in Canada;‘the Client’: the person, firm or company accepting a quotation/estimate from LSPMedia for the sale/supply of Content or whose order for Content is accepted by LSPMedia; ‘Content’: the products and services which LSPMedia, whether acting directly or through its subcontractors, is to supply in accordance with these Conditions and which are specified in any Instructions, including but not limited to floor plans, lease plans, any architectural services, photography; ‘Instructions’: an order for the supply of Content placed by the Client which is accepted by LSPMedia and includes an order completed in person, via telephone, email, letter or online; ‘Contract’: the Instructions and these Conditions taken together.
2. Supply of services
2.1 LSPMedia shall supply and the Client shall purchase the Content in accordance with the Instructions, subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions. In the event of inconsistency between these Conditions and any special conditions contained in the Instructions, such special conditions shall prevail. No conduct by LSPMedia shall constitute acceptance of any terms put forward by the Client.
2.2 No instructions submitted by the Client shall be deemed to have been accepted by LSPMedia unless and until it has been expressly confirmed by email to the Client specifically indicating acceptance (as opposed to receipt) of the Client’s instructions. On this date the Contract shall come into existence. Cancellations of instructions shall be dealt with in accordance with clause 4.5 below.
2.3 All requests for amendments or changes to a floor plan or any other content must be communicated in writing to and carried out by LSPMedia and not by any third party. LSPMedia does not accept any responsibility or liability where amendments or changes to floor plans are made by a third party. Floor plans, photographs, and any other service LSPMedia provide shall not be sold or transferred to any third party without prior written permission from LSPMedia.
2.4 LSPMedia warrants to the Client that; (a) the Content will, at the time of delivery to the Client, correspond with the Instructions and be of satisfactory quality; (b) it shall provide the Content using all reasonable care and skill and as far as reasonably practicable, in accordance with the Instructions; provided that, in respect of all Content LSPMedia shall not be liable to the Client for any loss, damage, costs, expenses or other claims for compensation arising out of or in connection with any breach by the Client of its obligations under the Contract.
2.5 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
2.6 All copyright, trademarks, design rights and other intellectual property rights of any kind whatsoever whether registered or capable of registration or not in any part of the world and the right to apply for any of the foregoing rights subsisting in relation to or created or developed by LSPMedia or its subcontractors in the course of creating and providing the Content shall remain (as between LSPMedia and the Client) the absolute property of LSPMedia. LSPMedia reserves the right to use the content provided in LSPMedia's marketing materials after the Client has received the content, except where expressly agreed with the Client in advance. No rights in such property are granted to the Client save for a non-exclusive non transferable one time licence for the client to use the Content for the purposes of marketing the asset. RIGHTS AND USAGE All images produced for an Agent or Broker [Client] may be used by the Client for any and all marketing materials and campaigns associated with the property and for the Client’s self promotion. The photos may also be used by the Client’s parent company for the sole purpose of marketing the specific property photographed. Ownership of the images remains with the Photographer, and license is granted only to the Client and Client’s parent company, and not to any third party. Any usage of the images by a third party, including but not limited to, architects, builders, stagers, designers, sellers or buyers, is strictly prohibited unless approved in writing by the photographer.
2.7 The Content may not be given to or sold on to a third party without explicit written permission from LSPMedia.
2.8 Further Rights clarification: All Content and rights relating to them, including copyright and ownership rights in the media in which the Content are stored, remain the sole and exclusive property of LSPMedia. This license provides the Client with the limited right to reproduce, publicly display, and distribute the Content only for promotional or advertising purposes directly related to the sale or marketing of the Property. Content used for any purpose not directly related to the sale or marketing of the Property such as editorial use or competition entry must be with the express permission of LSPMedia and the payment of additional fees, unless otherwise agreed to in writing. Clients are bound by these terms as a condition of use of the content supplied by LSPMedia. Content may be uploaded to any MLS listing service solely for promotion of the Property during the pendency of this Agreement. However, regardless of any terms and conditions of the MLS, at no time does this Agreement provide the Client with the right to transfer copyright, or any other exclusive rights as provided by the Copyright Act 17 U.S.C § 106. Content may contain copyright management information (CMI) at the discretion of LSPMedia in the form of either 1) a copyright notice © and/or 2) other copyright and ownership information embedded in the metadata or elsewhere, unless otherwise agreed to by the Parties. Removing and/or altering such information is prohibited and constitutes violation of the Digital Millennium Copyright Act (DMCA) and the Client will be responsible to LSPMedia for any penalties and awards available under the statute. The Client is responsible for ensuring that the Content is removed from MLS databases at the expiration of this Agreement.
2.9 Unless otherwise specifically provided elsewhere in other signed agreement between the parties, any grant of licence is limited to a term of either one (1) year from the date of this Agreement, or (2) at the termination of Client’s representation of the Property, whichever occurs first. Further use of images beyond one (1) year or transfer of licence requires LSPMedia’s permission and additional fees.
2.10 Use of content produced by LSPMedia for the Client for the purpose of renting a property directly or through agencies such as VRBO, Airbnb or other such rental agencies is permitted under a long term image rights licence. This enhanced licence permits long term marketing use of the images for the purpose of renting the property while the property is owned by the Client, and then for the use of marketing the property for 1 sale of that property. The images are not transferable to any other parties after the property is sold without the prior consent of LSPMedia. This licence is provided at a different rate to the standard published rates and will be confirmed to the Client before any work commences.
3. Client’s obligations
3.1 All floor plans are drawn in accordance with the RICS guidelines (where stated on the specific floor plan) but it is the Client’s responsibility to confirm that the plan is a reasonably accurate representation of the property and LSPMedia shall not be responsible in the event that floor plans are not a reasonable representation of the property. Unless otherwise agreed in writing, all floor plans are intended to be used for marketing and layout purposes only and should not be used for valuations or structural alterations. LSPMedia cannot be held liable for any costs incurred by clients or other parties when those parties use content supplied by LSPMedia for any purpose.
3.2 It is the Client’s responsibility to inform LSPMedia, at the time the Client places the order, of the size and scope of the survey, video shoot or photo shoot, which is the subject of the order and to specify any outbuildings and other structures that are to be included.
3.3 When re-ordering copy plans from the LSPMedia archive it is the Client’s responsibility to confirm that the floor plan remains accurate and, if it does not remain accurate, to inform LSPMedia of any alterations to the property.
3.4 Where floor plans are produced from Client sketches (Redraw) or re-drawn from other representations of the property, LSPMedia accepts no responsibility or liability for the accuracy of the floor plans or any areas calculated from them.
3.5 LSPMedia (and its subcontractors) will use reasonable skill and care in shooting, taking, editing and providing photographs in accordance with the Client’s instructions. Notwithstanding this, it remains the Client’s responsibility to ensure that any photographs supplied by LSPMedia meet the Client’s requirements.
3.6 LSPMedia (and its subcontractors) will use reasonable skill and care in producing content to the Client’s instructions. In approving, by email, a proof in PDF (or other electronic format) the Client takes full responsibility for the content of any floor plans and will be deemed by LSPMedia to have checked and be satisfied with all aspects of the floor plans.
3.7 In respect of all Content provided by LSPMedia it is the Client’s responsibility to obtain, in advance of publication, any necessary clearances in respect of models, third party copyright works, trademarks, designs or other intellectual property except where such clearances have already been obtained by LSPMedia’ subcontractor. The Client agrees to indemnify LSPMedia against any damages, losses, costs, claims or expenses incurred by LSPMedia as a result of any failure by the Client to obtain such clearances.
3.8 Where the Client supplies LSPMedia with an extract from an Ordnance Survey Map or similar for use in Content, it is the Client’s responsibility to ensure it has obtained the appropriate License.
3.9 The Client shall be responsible for providing access to the property at the time agreed in the Instructions and for ensuring that the property is both easily accessible and, in the case of photographs in a suitably presentable condition. LSPMedia shall not be held responsible if the photographs taken are not considered suitable due to the condition of the property or the weather at the time the photographs were taken.
3.10 The Client warrants that it has all necessary authorities and permissions to commission any services LSPMedia supplies in relation to the property in question including allowing representatives of LSPMedia access to the property. The Client agrees to indemnify LSPMedia against all expenses, damages, claims and legal costs where such clearances have not been obtained.
3.11 The Client shall not be entitled to assign or sub-contract or otherwise dispose of any of its rights or obligations under the Contract without the prior written consent of LSPMedia. In particular, the Client shall not be entitled to transfer or assign any Content to a third party, including to other property agents, without the prior written consent of LSPMedia.
3.12 Image Usage, Social Media, Credit. When submitting work to publications please credit “LSPMedia” when photos are used editorially. Please do not replace the “LSPMedia” credit with alternative name (such as architecture firm, brokerage, etc) when supplying images for editorial/advertorial use. Doing so will constitute copyright infringement and fees will be assessed after multiple incidents. On all social media posts, a clickable credit - e.g. @lsp_media1 on instagram is required. If you own or are affiliated with a company that provides photography services you do not have permission to post our work. If you are a publisher or aggregator that posts photography then you must write ‘Image by @lsp_media1’ in the FIRST line. If you are an Instagram aggregator that posts photography then you must write ‘image by @lsp_media1’ immediately after the Architect/Designer credit. The above should not be considered irrevocable permission to post LSPMEDIA IP. For all other usages outside of Instagram contact [email protected]
4. Charges and payment
4.1 The prices for the Content shall be the prices stated in LSPMedia online rates list or as supplied to the individual Client or as agreed in digital communication or in writing at the time when the Contract is made and are exclusive of GST. LSPMedia reserves the right to vary its prices from time to time without notice.
4.2 Unless otherwise agreed in writing LSPMedia shall be entitled to invoice the Client by email or post for the price of the Content on submission to the Client of the final job listed in the Instructions. The Client shall pay LSPMedia’ the price of the Content on receipt and at the latest within 14 days of the date of the invoice. All invoices shall include GST where applicable.
4.3 If the Client fails to make payment of LSPMedia’ invoice on the due date then, without prejudice to any other right or remedy available to LSPMedia, LSPMedia shall be entitled to: (a) terminate the Contract or suspend any further deliveries of Content to the Client; and/or (b) charge the Client daily interest at base rate plus 7%, on the amount unpaid from the due date until the date of actual payment, together with the costs of recovering such unpaid amounts through legal action.
4.4 Where necessary, three simple post proof amendments will be made to the draft floor plan, video or photo free of charge. LSPMedia reserves the right to charge the Client for any further amendments. Where the Client supplies photographs additional charges may be levied by LSPMedia should the Client instruct LSPMedia to carry out any digital re-touching.
4.5 It is LSPMedia policy to accept cancellations up to 5.00pm on the working day before an appointment without charge unless otherwise stated. Where cancellations are received after 5.00pm on the working day before an appointment LSPMedia shall be entitled to charge the Client a late cancellation charge of up to 50% of the scheduled services. In the event that Instructions are cancelled after the Contract has been made and after an appointment and/or further work has been carried out by LSPMedia but prior to delivery of the Content the Client will be responsible for all costs and expenses incurred by LSPMedia up to the point of cancellation which could be the full contract price. Clients arriving late beyond 30 minutes to an appointment will be considered a cancellation, and will be billed at the full rate of the shoot.
4.6 All subcontractors should submit invoices to LSPMedia via email within 30 days of the completed work being supplied. Payment terms are 30 days unless otherwise agreed.
5. Limitation of Liability: the Client’s attention is particularly drawn to this clause
5.1 Nothing in these Conditions shall limit or exclude LSPMedia liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees; (b) fraud or fraudulent misrepresentation; or (c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); (d) breach of the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 (description, satisfactory quality, fitness for purpose and samples).
5.2 For other situations outside clause 5.1 (a) LSPMedia shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any unforeseeable loss arising under or in connection with the Contract; and (b) LSPMedia total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed (i) any insurance policy which LSPMedia has in place to cover the liability (for example: damage to the client or property) or (ii) the total price payable under the Contract.
5.3 LSPMedia shall under no circumstances whatever be liable to the Customer for the actions of its subcontractors when that subcontractor takes any action outside of legal parameters set down by any relevant governing authority.
5.4 This clause 5 shall survive termination of the Contract.
6. Force Majeure
6.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of LSPMedia including but not limited to failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
6.2 LSPMedia shall not be liable to the Client as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
7. General
7.1 The Contract constitutes the entire agreement and understanding between the parties with respect to its subject matter and the terms of the Contract shall supersede any previous agreements. Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on, and shall have no remedy and waives all rights in respect of, any statement, representation, warranty or undertaking (whether negligently or innocently made) of any person (whether a party to the Contract or not) other than as expressly set out in the Contract as a warranty or a representation.
7.2 LSPMedia may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Client may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of LSPMedia.
7.3 When the Client enquires about LSPMedia’ services and/or becomes a client of LSPMedia the Client’s name and contact details may be entered onto LSPMedia’ database and client relationship management system. From time to time LSPMedia and its IT and marketing consultants, may use this information for direct marketing purposes in connection with the business interests of LSPMedia but the Client’s information will never be transferred to other third parties unless prior permission has been obtained. The Client shall have the power to remove its details from the database and client relationship management system at any time by emailing [email protected].
7.4 No variation to the Contract shall be effective unless made in writing and signed by or on behalf of the parties. LSPMedia reserves the right to amend these terms and conditions from time to time and will post the current version on its website at www.LSPMedia.net
7.5 A person who is not a party to the Contract shall not have any rights to enforce its terms.
7.6 LSPMedia shall not be liable to the Client or be deemed to be in breach of contract by reason of any delay in performing or any failure to perform any of LSPMedia’ obligations under the Contract if the delay or failure was due to any circumstances beyond LSPMedia’ reasonable control.
7.7 If any provision of the Contract is declared void or unenforceable by any court or is otherwise rendered so by any applicable law, such provision shall to the extent of such invalidity or unenforceability be deemed severable and all other provisions of the Contract not affected by such invalidity or unenforceability shall remain in full force and effect.
7.8 The construction, validity and performance of the Contract shall be governed by the law of Canada and the parties agree to submit to the exclusive jurisdiction of the courts of Canada.