Each image produced by Tonik (“Tonik Media & Architectural Imaging”) is a valuable asset. By utilizing Tonik’s services, you are entering into a binding contract with Tonik. You recognize that Tonik is the sole owner of the images it produces, and you accept the terms and conditions of use and agree to be bound by the terms and conditions below.
Your privilege to use and access Tonik’s services is contingent on your compliance with the terms and conditions of this Agreement. Tonik may revoke your privilege to use its services and take any other appropriate measures required to enforce this Agreement if violations are brought to Tonik’s attention.
DEFINITIONS:
1.1. This Terms & Conditions Agreement (this “Agreement”) is between you (the “Client”) and Tonik. For this Agreement, the definition of Client includes the Client’s principals, employees, affiliates and representatives.
1.2. The term “Images” refers to the photographic material created by Tonik under this
Agreement, whether still or moving. The term Images includes but is not limited to
transparencies, negatives, prints or digital files captured, recorded, stored or delivered in
analogue, photographic, optical, electronic, digital or other media.
OWNERSHIP:
2.1. The Client acknowledges and agrees that by entering into this Agreement, the Client is not buying the Images but licensing the right to use them for a specific purpose only. Accordingly, the Images remain the property of Tonik in perpetuity.
2.2. The Client acknowledges and agrees that Tonik is the creator of the Images, that Tonik is the sole owner of the Images and the owner of all copyrights associated with such Images, and that Tonik retains the right to re-license or re-sell the rights to the Images, without prior consultation or notification to the Client.
USE:
(A) USE
GENERAL:
3.1. Subject to the restrictions outlined below, the Client must use the Images in their as-provided format.
3.2. Unless otherwise agreed to in advance in writing by Tonik, any rights granted to the Client to utilize the Images are non-exclusive, non-sub-licensable and non-transferable.
(B) USE
THE CLIENT MUST:
3.3. Always include an attribution to Tonik for the creation and ownership of the Images when the Images will be featured in publications, press releases, advertising or websites for any purpose outside of the promotion and sale of a subject property. Attribution to Tonik is not required for Images used to advertise a subject property in the real estate section(s) of a newspaper, in a real estate publication, listing the subject property with the multiple listing service (MLS) or promoting the subject property on social media. The Client should always err on the side of caution when attributing the creation and ownership of an image to Tonik, and if the Client is uncertain whether an Image should or should not be attributed to Tonik, contact Tonik directly for guidance and direction regarding attribution.
(C) USE
THE CLIENT MAY NOT:
3.4. Alter, modify, adapt, crop, retouch, animate or embellish the Images in any way. However, regular reproduction adjustments for colour, contrast, brightness, sharpness or cropping are permitted. The Client acknowledges that any such adjustment of any Images does not constitute a work of joint ownership between the Client and Tonik.
3.5. Without first receiving the prior written consent of Tonik, make, manufacture, promote or display
any items or materials that use the Images in any way.
3.6. Without first receiving the prior written consent of Tonik, directly link to Images hosted on
Tonik’s websites (www.toniknet.com) or use any Images on the Client’s website without appropriate attribution of Tonik’s ownership or copyright of the Images.
3.7. Remove or crop out the copyright notice from any Images.
3.8. Insert the Client’s copyright or ownership notice on any Images or otherwise imply that the Images are the Client’s work or property.
3.9. Claim any proprietary right of any sort to the Images.
3.10. Use or authorize the use, sale, share or give away of any Images to any third parties without obtaining prior written authorization from Tonik.
3.11. Without Tonik’s prior written consent, the Client will not use, reproduce, display, transmit,
distribute or otherwise exploit the Images to advertise or promote the Client’s products or services. Tonik alone retains the right to use the Images for self-promotion.
CONSENTS/PERMISSIONS/AUTHORIZATIONS:
4.1. Tonik is not responsible for obtaining the required consents, permissions or authorizations from the legally recognized property owner(s) or their authorized representative(s) in connection with photographing a subject property and/or creating the Images. The Client is responsible for obtaining all necessary consents, permissions and/or authorizations. By entering into this Agreement, the Clientacknowledges, represents and warrants that they have obtained all necessary consents and indemnifies
Tonik for any failure or omission on the part of the Client to do so.
FEES & CANCELLATIONS/RESCHEDULING:
5.1. The Client agrees to pay Tonik all fees and expenses incurred in connection with the assignment undertaken by Tonik for the Client, whether or not the Client uses any of the Images created.
5.2. Where the Client cancels or reschedules an appointment with Tonik, the following fees will apply:
(a) Cancellations/requests for rescheduling made less than 24 hours from the scheduled appointment time will be subject to 100% of the fee (deposit) as a penalty;
(b) Cancellations/requests for rescheduling made 25-48 hours from the scheduled appointment time will be subject to 50% of the fee (deposit) as a penalty;
and
(c) Cancellations/requests for rescheduling made more than 48 hours from the scheduled appointment time will not incur any penalty fee.
5.3. If the same assignment/appointment is rescheduled for a later date, the full fee will be charged to the Client, and the penalty fee will be payable upon cancellation/rescheduling, as outlined in Paragraph 5.2 above.
5.4. Additional Fees for occupied properties. An additional $100 fee applies if home sellers and/or tenants are present during the scheduled photography appointment. These additional fees apply because when people are present, efficency is reduced significantly. In order to maintain low fees during a time of rapidly rising inflation, we need to maintain an efficient schedule.
5.5. Package discounts and Split appoinments. In a situation where a package is scheduled (iGUIDE + aerial photography/videography) and the weather will not permit the aerial portion, which then requires a second trip to the listing property to complete the package, the package discount will not apply, and standard fees for each portion of said package plus any applicable travel fees, will apply.
GENERAL LIABILITY & RELEASE:
6.1. While Tonik will take reasonable care in the production of the Images and its duties of performance under this Agreement, it will not be held liable for any losses, damages or costs suffered by the Client or by any third party as a result of the Client’s use of any Images.
6.2. The Client will indemnify, defend and hold harmless Tonik, its principals, employees, contractors and/or representatives against any and all claims, liabilities, damages, costs and expenses, including reasonable legal fees and expenses, that may arise as a result of the Client’s use of the Images.
6.3. This Agreement shall be governed by and construed in accordance with the laws of Canada and the Province of Prince Edward Island, and each party to this Agreement agrees to submit to the exclusive jurisdiction of the Court of Prince Edward Island to resolve any disputes.
6.4. If any provision of this Agreement is held by a competent authority to be invalid or unenforceable (in whole or in part), the validity of the remaining terms and conditions and the remainder of any such provision shall remain unaffected.
6.5. Except for the limited rights expressly permitted under this Agreement, no other rights are granted hereunder, by implication or otherwise.