Terms of Service
Please read this Agreement carefully before accessing or using our Services in any way. By accessing or using any part of our Services, you agree to become bound by the terms and conditions of this Agreement. If you do not agree to all the terms and conditions of this Agreement, then you may not access or use any of our Services. If these terms and conditions are considered an offer by HiFly Photography, acceptance is expressly limited to these terms.
Access and use of our Services is only offered to users 18 years of age or older. If you are under 18 years’ old, please do not register to use our Services. Any person who registers as a user or provides their personal information to our Services represents that they are 18 years of age or older. Anyone age 13 years’ old to 17 years’ old may view the HiFlyPhotography.com website for educational purposes only, but may not register to use our services.
You agree to provide us with complete and accurate information when you submit a job request. You will be solely responsible and liable for any activities you perform on our website.
1. HiFly Photography.com.
HiFly Photography provides aerial photography services to those who submit a job request (collectively, whether singular or plural, “Clients”), through our proprietary network of independent skilled drone photographers who agree to conduct jobs for HiFly Photography (whether singular or plural, “Operators” or “Drone Operators”), as well as our proprietary network of editors (“Editors”). All jobs involve the creation of drone photography and/or videography footage (whether capitalized or not, “footage”). All job requests are submitted and accepted through the HiFlyPhotography.com website, subject to all terms and conditions of this Agreement. HiFly Photography has the right (but not the obligation) to refuse any job that, in HiFly Photography’s sole discretion, violates any of part of this Agreement or cannot be completed legally. HiFly Photography will have no obligation to provide a refund of any amounts previously paid.
2. Payments and Cancellations.
A. General Terms.
HiFly Photography offers paid aerial photography packages for multiple uses. By completing a form on http://HiFlyPhotography.com/hire-a-drone/, Clients agree to pay HiFly Photography for the package selected and we agree to deliver to you the footage for the package you selected, subject to receipt of payment and subject to all other terms of this Agreement. Payments will be charged immediately before job footage is delivered to Clients. Once payment clears, job footage will be delivered to the Client, generally by an emailed link unless other arrangements are requested, which we will use best efforts to accommodate while retaining the sole discretion to decline the request. Jobs can be cancelled in writing for free any time prior to 48hrs before the day of the shoot. A cancellation fee will be charged to all users who cancel a job within 48hrs of the shoot date. There are no refunds for jobs cancelled on the day of, or any day after,the shoot has taken place. To cancel your job, email firstname.lastname@example.org and specify the project address for which you booked the photography.
B. Recurring Services.
HiFly Photography offers aerial photography packages for recurring services such as ‘construction progression’ and ‘property management’ projects. Once the minimum number of jobs has been completed for a recurring services package, the Client may cancel the service at any time following the rules outlined for cancellations in the paragraph above. Unless Client notifies HiFly Photography that you want to cancel a recurring package, you authorize us to schedule, conduct, and charge the cost of additional shoots for your project using any credit card or other payment mechanism we have on record for you.
C. Operator Payment.
For any job accepted by Drone Operators through HiFly Photography, payment at the agreed rate is guaranteed within 30 days after the Operator delivers to us the footage that was requested from the Operator, subject to all other terms and conditions of this Agreement.
3. Permission to Fly
A. Clients ensure permission for property and people.
All Clients agree that HiFly Photography and its Drone Operators are invitees of Client for the location of any requested job. All Clients represent and warrant that as of the date of any scheduled job, the Client has, or has obtained from all necessary third parties, and Client gives to HiFly Photography and its Drone Operators, all rights and permissions needed for all ground, internal (if Client has purchased a package including interior footage), and aerial access needed to complete the requested job, including without limitation permission to enter upon and in, and fly above and capture footage of, the property at the submitted address, but excluding any governmental permissions needed to fly, which it will be the sole responsibility of Operators to obtain. Client also represents and warrants that as of the date of any scheduled job, the Client has the ability to grant full permission to HiFly Photography and its Drone Operators to include in the footage to be created all persons and property that might be captured in such footage, including the Client having obtained all executed releases needed from any third parties, and Client hereby grants to HiFly Photography and its Drone Operators all such necessary permissions, including granting to HiFly Photography and its Drone Operators (or agreeing to obtain for HiFly Photography and its Drone Operators, at Client’s expense) a royalty-free, perpetual, irrevocable, worldwide, and nonexclusive license to make, have made, sell, use, disclose, reproduce, modify, prepare derivative works from, distribute, publicly perform, and publicly display all persons and property that are depicted in any footage, with full rights for HiFly Photography to authorize others to do so, without the obligation of HiFly Photography to identify, or to seek the consent of, any such persons or property as to whom or which releases may be needed.
B. Operators ensure compliance with drone operation laws and rules.
All Operators warrant and represent to HiFly Photography and all Clients that as of the date of any scheduled job, the Operator has, or has obtained from all necessary third parties, including all governmental or quasi-governmental agencies, all necessary rights, licenses, permits, permissions, and other clearances to fly a drone to complete the requested job. All Operators also represent and warrant to HiFly Photography and all Clients that the Operator will comply with all applicable laws, regulations, rules, or other legal requirements or industry standards or codes of conduct applicable to Operator flying a drone to complete the requested job.
4. Copyright Infringement and DMCA Policy.
As HiFly Photography asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by HiFlyPhotography.com violates your copyright, you are encouraged to notify HiFly Photography in accordance with HiFly Photography’s Digital Millennium Copyright Act (“DMCA”) Policy, including providing all documents and other evidence necessary for HiFly Photography to reasonably evaluate your claim. HiFly Photography will respond to all such notices, including as required or appropriate by removing any infringing material or disabling links to any infringing material.
5. Intellectual Property.
Footage is created for every job that HiFly Photography takes on. The footage is an original work in a fixed medium and is subject to all United States and international copyright laws. This section will detail the ownership and licensing of copyrights in the footage.
B. Operator Terms.
Each Operator agrees, represents, and warrants that all footage created under a job order accepted by the Operator from HiFly Photography will be and/or has been created solely by the Operator as “work made for hire” for HiFly Photography under this Agreement pursuant to Section 101 of the Copyright Act (Title 17 of the U.S. Code), with all copyrights worldwide in all such footage vesting solely in HiFly Photography. In the event the preceding sentence is for any reason deemed ineffective to fully vest all copyrights worldwide in all footage solely in HiFly Photography, each Operator hereby sells, conveys, transfers, and assigns to HiFly Photography, LLC, all rights, title, and interests in and to all copyrights for all footage created under a job order accepted by the Operator from HiFly Photography. Each operator agrees, represents, and warrants that the Operator further assigns to HiFly Photography, LLC, dba HiFly Photography any and all claims against third parties (known or unknown) for violation of any of the rights of Operator in the footage prior to any vesting of all copyrights in the footage in HiFly Photography, including any and all claims of copyright infringement, trade secret violations, and all other claims involving Operator’s intellectual property rights in the footage. Further, upon request by HiFly Photography at any time, Operator will execute and deliver to HiFly Photography all documents, instruments, and copies of the footage, and do all other things deemed reasonably necessary, desirable, or useful by HiFly Photography in establishing, perfecting, protecting, prosecuting, defending, and enforcing HiFly Photography’s proprietary right, title, and interest in the footage, including ensuring that all footage is fully and effectively conveyed, transferred, and assigned to HiFly Photography. To the extent that any third party retains any intellectual property rights in any footage, whether by contract or under any applicable laws, and such rights are not otherwise granted to HiFly Photography under this Agreement (“Retained Rights”), Operator grants to HiFly Photography (or agrees to obtain for HiFly Photography, at Operator’s expense) a royalty-free, perpetual, irrevocable, worldwide, and nonexclusive license to make, have made,
sell, use, disclose, reproduce, modify, prepare derivative works from, distribute, publicly perform, and publicly display the materials that are the subject of the Retained Rights, with full rights of HiFly Photography to authorize others to do so, without the obligation of HiFly Photography to identify, or to seek the consent of, such third parties. HiFly Photography grants to each Operator a limited, non-exclusive, royalty-free, worldwide license to use footage created by the particular Operator, and to use the HiFly Photography name and then-current logo, solely for the purpose of the Operator advertising their services, with credit given on, next to, or under each work that it was made “for HiFlyPhotography.com,” with an active link to such website, unless impossible or otherwise agreed by HiFly Photography in writing. HiFly Photography may revoke the foregoing license in its sole discretion at any time if Operator and HiFly Photography cease working together, or for any other reasonable cause.
C. Client Terms.
Each Client agrees that they are not purchasing ownership of footage received from HiFly Photography, but rather a license. Specifically, upon receipt of payment from Client for footage, HiFly Photography grants to the particular Client a limited, non-exclusive, royalty-free, worldwide license to use the particular footage for which the Client paid for the purpose for which Client ordered the footage, and for any other non-commercial purpose. Clients may not distribute footage received from HiFly Photography to any third parties except as expressly authorized in writing by HiFly Photography.
D. Additional Terms.
HiFly Photography is the copyright owner for all footage created by any Operator and the copyright licensor of all footage delivered to any Client. HiFly Photography retains all copyrights in the footage, subject only to the licenses granted in this Agreement. HiFly Photography shall not be deemed to have abandoned any copyrights by any action or omission, and instead expressly states its intent that it shall not abandon any copyrights unless otherwise expressly stated in writing duly executed before a notary by a majority-in-interest of the voting Members of HiFly Photography. Except as otherwise expressly set forth in this Agreement, this Agreement does not transfer from HiFly Photography to anyone any copyrights, trademarks, service marks, patents, or other intellectual property belonging to HiFly Photography, which retains all right, title, and interest in and to all such intellectual property subject only to this Agreement. HiFly Photography, HiFlyPhotography.com, the HiFlyPhotography logo, and all other trademarks, service marks, graphics, logos, trade names, trade dress, domain names, and other intellectual property used in connection with HiFlyPhotography.com or our Services belong solely to HiFly Photogrpahy, unless they are licensed to HiFly Photography from a third party. Use of our Services grants you no right or license to reproduce or otherwise use any HiFly Photography or third-party trademarks, service marks, graphics, logos, trade names, trade dress, domain names, or other intellectual property, except as otherwise expressly set forth in this Agreement.
6. Changes to Services or this Agreement.
We are constantly updating our Services, and that means sometimes we have to change the legal terms under which our Services are offered. If we make changes that are material, we will let you know by posting on one of our blogs, or by sending you an email or other communication before the changes take effect. The notice will designate a reasonable period of time after which the new terms will take effect. If you disagree with our changes, then you should stop using our Services within the designated notice period. Your continued use of our Services will be subject to the new terms. However, any dispute that arose before the changes shall be governed by the version of this Agreement in place when the dispute arose.
7. Party Relationships
Notwithstanding anything to the contrary in this Agreement, this Agreement does not create any employment relationship between or among HiFly Photography, Operators, or Clients. Rather, the relationship created by a Client submitting a job request is that of business and customer. The relationship created by an Operator accepting a job order from HiFly Photography is solely that of an independent contractor, not an employee. To be clear, Operator shall be an independent contractor of HiFly Photography only, and Operator shall not be treated as an employee of HiFly Photography, nor an independent contractor nor employee of Client, for any purposes, including without limitation for purposes of any federal or state income or other withholding taxes, social security taxes, payroll taxes, or unemployment contributions, or within the meaning of the Worker’s Compensation Act of Texas. Operators shall be solely responsible for providing at their own expense all of their own tools of the trade, knowledge, education, skill, training, know-how, insurance, licenses, permits, and other resources needed to complete a job order. The only direction given by HiFly Photography to Operators is to complete the work requested by the Client at the address provided by the Client on the date requested by the Client, and to timely provide the footage to HiFly Photography in a medium usable by HiFly Photography. Operators represent and warrant that all work shall be completed in a good and workmanlike manner to at least the minimum “high resolution” standard generally accepted in the aerial photography industry at the time of the job, or such lesser minimum quality standard as HiFly Photography may require or accept in its sole discretion.
8. Your Additional Representations and Warranties.
9. DISCLAIMER OF WARRANTIES.
OUR SERVICES ARE PROVIDED “AS IS, WHERE IS.” HIFLY PHOTOGRAPHY HEREBY DISCLAIMS AS TO ALL CLIENTS, DRONE OPERATORS, OR OTHER USERS OF THE HIFLYPHOTOGRAPHY.COM WEBSITE ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER HIFLY PHOTOGRAPHY NOR ITS SUPPLIERS AND LICENSORS, INCLUDING DRONE OPERATORS, MAKE ANY WARRANTY THAT OUR SERVICES WILL BE ERROR FREE OR THAT ACCESS THERETO WILL BE CONTINUOUS OR UNINTERRUPTED. YOU UNDERSTAND THAT YOU DOWNLOAD FROM, OR OTHERWISE OBTAIN CONTENT OR SERVICES THROUGH, OUR SERVICES AT YOUR OWN DISCRETION AND RISK.
10. LIMITATION OF LIABILITY / INDEMNITY
A. BROAD RELEASE, INDEMNITY, AND LIMITATION OF LIABILITY.
YOU AGREE THAT THERE IS NO RELATIONSHIP BETWEEN YOU AND HIFLY PHOTOGRAPHY OTHER THAN AS EXPRESSLY CREATED BY THIS AGREEMENT, AND HIFLY PHOTOGRAPHY SHALL HAVE NO LIABILITY TO YOU WHATSOEVER OUTSIDE THE SCOPE OF THIS AGREEMENT. AS A RESULT, AND IN CONSIDERATION OF THE MUTUAL PROMISES IN THIS AGREEMENT, ALL CLIENTS, DRONE OPERATORS, AND ALL OTHER USERS OF THE SERVICES (COLLECTIVELY, AND WHETHER USED IN THE SINGULAR OR PLURAL, THE “RELEASING PARTIES”), HEREBY AGREE, JOINTLY AND SEVERALLY, TO HOLD HARMLESS, FOREVER DEFEND, AND FULLY INDEMNIFY HIFLY PHOTOGRAPHY, LLC, DBA HIFLY PHOTOGRAPHY, ITS SUCCESSORS AND ASSIGNS, AND EACH OF THEIR PAST AND PRESENT MEMBERS, MANAGERS, OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS, SERVANTS, ATTORNEYS, OTHER LEGAL REPRESENTATIVES, INSURERS, REINSURERS, AND EMPLOYEES (COLLECTIVELY, AND WHETHER USED IN THE SINGULAR OR PLURAL, THE “RELEASED PARTIES”) OF AND FROM ANY AND ALL LOSSES, CLAIMS, DEBTS, DEMANDS, ACTIONS, CAUSES OF ACTION, LAWSUITS, SUMS OF MONEY, AGREEMENTS (OTHER THAN THIS AGREEMENT), DAMAGES, FINES, PENALTIES, JUDGMENTS, OR LIABILITIES, INCLUDING WITHOUT LIMITATION ALL CLAIMS FOR ACTUAL DAMAGES, CONSEQUENTIAL DAMAGES, INCIDENTAL DAMAGES, PROPERTY DAMAGES, PERSONAL INJURIES, PERSONAL INJURY DAMAGES, MENTAL ANGUISH, INTEREST, PENALTIES, FINES, REASONABLE AND NECESSARY EXPERT WITNESS FEES, REASONABLE AND NECESSARY LEGAL FEES, AND OTHER DAMAGES OR EXPENSES INCURRED IN CONNECTION WITH IN INVESTIGATING AND/OR DEFENDING AGAINST, AND ANY AMOUNTS EXPENDED IN SETTLEMENT OR PAYMENT OF ANY SUCH LOSSES, CLAIMS, DEBTS, DEMANDS, ACTIONS, CAUSES OF ACTION, LAWSUITS, SUMS OF MONEY, AGREEMENTS (OTHER THAN THIS AGREEMENT), DAMAGES, FINES, PENALTIES, JUDGMENTS, OR LIABILITIES (COLLECTIVELY, AND WHETHER USED IN THE SINGULAR OR PLURAL, THE “RELEASED CLAIMS”), SAVE AND EXCEPT ONLY CLAIMS FOR BREACH OF CONTRACT OR BREACH OF WARRANTY FOR ANY BREACH BY HIFLY PHOTOGRAPHY OF ANY TERM, CONDITION, OR EXPRESS REPRESENTATION OR WARRANTY OF THIS AGREEMENT, AS TO WHICH YOU AGREE THAT HIFLY PHOTOGRAPHY’S LIABILITY, IF ANY, SHALL BE LIMITED BY THE ECONOMIC LOSS DOCTRINE SOLELY TO ANY ACTUAL DAMAGES FOR YOUR ECONOMIC EXPECTATION INTEREST UNDER THE EXPRESS TERMS OF THIS AGREEMENT, AND EXPRESSLY EXCLUDING ANY RECOVERY FOR ATTORNEY’S FEES, COSTS, ANY OTHER EXPENSES, OR ANY OTHER DAMAGES OF ANY SORT, INCLUDING CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, MENTAL ANGUISH, AND OTHER PERSONAL INJURY DAMAGES. RELEASING PARTIES INTEND THAT THIS INDEMNITY INCLUDES AND EXTENDS TO ATTORNEYS’ FEES AND EXPENSES INCURRED BY ANY RELEASED PARTY IN THE DEFENSE OF ANY RELEASED CLAIMS AND EXPENSES INCURRED BY AN RELEASED PARTY TO ESTABLISH A RIGHT TO INDEMNITY HEREUNDER. RELEASING PARTIES AGREE AND INTEND THAT THIS INDEMNITY SHALL BE APPLICABLE REGARDLESS OF WHETHER ANY OF THE RELEASED CLAIMS FOR WHICH INDEMNITY IS SOUGHT IS FOUNDED IN WHOLE OR IN PART UPON ANY ALLEGED NEGLIGENCE, GROSS NEGLIGENCE, STRICT TORT OR PRODUCT LIABILITY, TOXIC TORT, FIDUCIARY OR OTHER DUTY OR BREACH THEREOF (SAVE AND EXCEPT ONLY ANY CLAIM FOR BREACH OF A DUTY UNDER THIS AGREEMENT), BREACH OF CONTRACT (SAVE AND EXCEPT ONLY ANY CLAIM FOR BREACH OF THIS AGREEMENT), ULTRA HAZARDOUS ACTIVITY, BREACH OF WARRANTY (SAVE AND EXCEPT ONLY ANY CLAIM FOR BREACH OF AN EXPRESS WARRANTY GIVEN BY A RELEASED PARTY UNDER THIS AGREEMENT), BREACH OF STATUTE (INCLUDING THE TEXAS DECEPTIVE TRADE PRACTICES ACT AND OTHER SIMILAR CONSUMER STATUTES), FAULT, COMPARATIVE OR PROPORTIONATE RESPONSIBILITY, FRAUD, REPRESENTATION, MISREPRESENTATION, OR ANY OTHER WRONGFUL ACT OR OMISSION OF, OR ATTRIBUTABLE TO, HIFLY PHOTOGRAPHY OR ANY OTHER OF THE RELEASED PARTIES. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, YOU SPECIFICALLY AGREE THAT IN NO EVENT WILL HIFLY PHOTOGRAPHY, ITS SUPPLIERS, LICENSORS, OR ANY OTHER OF THE RELEASED PARTIES, BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR: (A) ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (B) THE COST OF PROCUREMENT FOR SUBSTITUTE PRODUCTS OR SERVICES; (C) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (D) FOR ANY AMOUNTS THAT EXCEED THE FEES PAID BY YOU TO HIFLY PHOTOGRAPHY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE CAUSE OF ACTION. HIFLY PHOTOGRAPHY SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND THEIR REASONABLE CONTROL.
B. OPERATOR-SPECIFIC RELEASE AND INDEMNITY.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING BROAD RELEASE, INDEMNITY, AND LIMITATION OF LIABILITY, EACH DRONE OPERATOR AGREES THAT THEY SHALL BE SOLELY AND EXCLUSIVELY LIABLE FOR ANY AND ALL LOSSES, CLAIMS, DEBTS, DEMANDS, ACTIONS, CAUSES OF ACTION, LAWSUITS, SUMS OF MONEY, AGREEMENTS (OTHER THAN THIS AGREEMENT), DAMAGES, FINES, PENALTIES, JUDGMENTS, OR LIABILITIES, INCLUDING WITHOUT LIMITATION ALL CLAIMS FOR ACTUAL DAMAGES, CONSEQUENTIAL DAMAGES, INCIDENTAL DAMAGES, PROPERTY DAMAGES, PERSONAL INJURIES, PERSONAL INJURY DAMAGES, MENTAL ANGUISH, INTEREST, PENALTIES, FINES, REASONABLE AND NECESSARY EXPERT WITNESS FEES, REASONABLE AND NECESSARY LEGAL FEES, AND OTHER DAMAGES OR EXPENSES INCURRED IN CONNECTION WITH IN INVESTIGATING AND/OR DEFENDING AGAINST, AND ANY AMOUNTS EXPENDED IN SETTLEMENT OR PAYMENT OF ANY SUCH LOSSES, CLAIMS, DEBTS, DEMANDS, ACTIONS, CAUSES OF ACTION, LAWSUITS, SUMS OF MONEY, AGREEMENTS (OTHER THAN THIS AGREEMENT), DAMAGES, FINES, PENALTIES, JUDGMENTS, OR LIABILITIES, ARISING OUT OF OR RELATED TO (A) ANY ACT OR OMISSION OF THE PARTICULAR DRONE OPERATOR IN COMPLETING ANY WORK ORDER ACCEPTED FROM HIFLY PHOTOGRAPHY, AND/OR (B) ANY BREACH BY THE PARTICULAR DRONE OPERATOR OF ANY TERM, CONDITION, REPRESENTATION, OR WARRANTY UNDER THIS AGREEMENT. EACH DRONE OPERATOR AGREES THAT THE DEFINED TERM “RELEASED CLAIMS” IN THE FOREGOING INDEMNITY SHALL SPECIFICALLY INCLUDE ANY RELEASED CLAIMS ARISING FROM OR RELATED TO (A) ANY ACT OR OMISSION OF THE PARTICULAR DRONE OPERATOR IN COMPLETING ANY WORK ORDER ACCEPTED FROM HIFLY PHOTOGRAPHY, AND/OR (B) ANY BREACH BY THE PARTICULAR DRONE OPERATOR OF ANY TERM, CONDITION, REPRESENTATION, OR WARRANTY UNDER THIS AGREEMENT.
C. CLIENT-SPECIFIC RELEASE AND INDEMNITY.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING BROAD RELEASE, INDEMNITY, AND LIMITATION OF LIABILITY, EACH CLIENT AGREES THAT THEY SHALL BE SOLELY AND EXCLUSIVELY LIABLE FOR ANY AND ALL LOSSES, CLAIMS, DEBTS, DEMANDS, ACTIONS, CAUSES OF ACTION, LAWSUITS, SUMS OF MONEY, AGREEMENTS (OTHER THAN THIS AGREEMENT), DAMAGES, FINES, PENALTIES, JUDGMENTS, OR LIABILITIES, INCLUDING WITHOUT LIMITATION ALL CLAIMS FOR ACTUAL DAMAGES, CONSEQUENTIAL DAMAGES, INCIDENTAL DAMAGES, PROPERTY DAMAGES, PERSONAL INJURIES, PERSONAL INJURY DAMAGES, MENTAL ANGUISH, INTEREST, PENALTIES, FINES, REASONABLE AND NECESSARY EXPERT WITNESS FEES, REASONABLE AND NECESSARY LEGAL FEES, AND OTHER DAMAGES OR EXPENSES INCURRED IN CONNECTION WITH IN INVESTIGATING AND/OR DEFENDING AGAINST, AND ANY AMOUNTS EXPENDED IN SETTLEMENT OR PAYMENT OF ANY SUCH LOSSES, CLAIMS, DEBTS, DEMANDS, ACTIONS, CAUSES OF ACTION, LAWSUITS, SUMS OF MONEY, AGREEMENTS (OTHER THAN THIS AGREEMENT), DAMAGES, FINES, PENALTIES, JUDGMENTS, OR LIABILITIES, ARISING OUT OF OR RELATED TO (A) ANY ACT OR OMISSION OF THE PARTICULAR CLIENT RELATED TO A JOB REQUESTED SUBMITTED TO HIFLY PHOTOGRAPHY, AND/OR (B) ANY BREACH BY THE PARTICULAR CLIENT OF ANY TERM, CONDITION, REPRESENTATION, OR WARRANTY UNDER THIS AGREEMENT. EACH CLIENT AGREES THAT THE DEFINED TERM “RELEASED CLAIMS” IN THE FOREGOING INDEMNITY SHALL SPECIFICALLY INCLUDE ANY RELEASED CLAIMS ARISING FROM OR RELATED TO (A) ANY ACT OR OMISSION OF THE PARTICULAR CLIENT RELATED TO A JOB REQUESTED SUBMITTED TO HIFLY PHOTOGRAPHY, AND/OR (B) ANY BREACH BY THE PARTICULAR CLIENT OF ANY TERM, CONDITION, REPRESENTATION, OR WARRANTY UNDER THIS AGREEMENT.
D. Indemnity Procedures.
The Released Parties will give Releasing Parties written notice of any Released Claim of which defense is sought, but failure to provide notice will not relieve the Releasing Parties from their liability or obligations under this Agreement. The Released Parties will cooperate with Releasing Parties at Releasing Parties’ expense in the defense and settlement of the Released Claim. Releasing Parties may not settle any indemnified Released Claim in a manner that adversely affects Released Parties without Released Parties’ prior written consent, which will not be unreasonably withheld or delayed. Further, Released Parties may participate in the defense of the Released Claim through counsel of its/their own choosing at its/their own cost and expense. If Releasing Parties fail promptly to assume the defense and employ counsel reasonably satisfactory to Released Parties, or Released Parties have been advised by counsel that there exist actual or potential conflicting interests between Releasing Parties or Releasing Parties’ counsel and Released Parties, Released Parties may employ separate counsel, in addition to local counsel, to represent or defend Released Parties in such action or proceeding, and Releasing Parties agrees to pay the fees and disbursements of such separate counsel as incurred. To the extent indemnification requires the payment of monies owed, such indemnification will occur as reasonably possible after the determination of monies owed, and payment to Released Parties will be made within 30 calendar days of a final determination of monies owed. Releasing Parties’ obligations under these indemnity provisions are in addition to any rights that Released Parties may have at common law or otherwise.
If any portion of the foregoing paragraphs in this Limitation of Liability / Indemnity section is held legally unenforceable, that portion shall be reformed by a court of competent jurisdiction to achieve to the greatest extent legally possible the intent of the parties as set forth in the foregoing paragraphs, such that the foregoing paragraphs, with any legally-required revisions, may and shall be enforced as a whole to limit the liability of the Released Parties and maximize the scope of the foregoing indemnities to the greatest extent legally permissible and supported by the intent demonstrated by the terms of this Agreement.
This Agreement was originally written in English (US). We may translate this Agreement into other languages. In the event of a conflict between a translated version of this Agreement and the English version, the English version will control.
12. Entire Agreement, Modification, Interpretation, Enforcement.
A. JURISDICTION AND VENUE.
This Agreement is entered into and is performable in Dallas County, Texas, U.S.A., irrespective of the location of any job requested. A substantial portion of the entry into and performance of this Agreement occurs in Dallas County, Texas, at the offices of HiFly Photography. FOR ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT, ALL CLIENTS, OPERATORS, AND OTHER USERS OF OUR SERVICES IRREVOCABLY CONSENT AND SUBMIT TO THE EXCLUSIVE JURISDICTION AND MANDATORY VENUE OF ALL FEDERAL AND STATE COURTS OF COMPETENT JURISDICTION LOCATED IN DALLAS, TEXAS, U.S.A., INCLUDING ALL CLIENTS AND OPERATORS HEREBY ADMITTING THE SPECIFIC PERSONAL JURISDICTION AND SUBJECT MATTER JURISDICTION OF SAID COURTS. ALL PARTIES EXPRESSLY WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
In any suit or action for breach of any portion of this Agreement, the breaching party will pay the non-breaching party’s reasonable attorneys’ fees and all other reasonable costs and expenses, including without limitation expert witness expenses, that may be incurred by the non-breaching party if it is the substantially prevailing or successful party in any suit, action, or in any reviews or appeals, including any bankruptcy fees and costs.