This Photographer License Agreement (“Agreement”) is made and entered into by RealPhoto, at P.O. Box 397 Pflugerville, Texas 78691; and
(“Photographer”), with offices at
1. Definitions. For purposes of this Agreement, the following
terms shall have the meanings set forth below.
Firm Participant: The brokerage or appraisal company to which
Photographer provides photographic, video or other multi-media services
that maintains an active membership in RealPhoto Services.
Other Participants and Subscribers: All Participants and Subscribers of
RealPhoto, including Firm Participants’ employees, contractors,
salespeople, and assistants (whether licensed or unlicensed as real
estate agents or appraisers) that are not party to this Agreement.
Photographer Contribution: All data that the Photographer submits,
contributes, or provides to a Firm Participant, Other Participants and
Subscribers which is input in the RealPhoto Database, including text,
photographs, images, videos, and other materials, in any form now
known or hereafter discovered.
RealPhoto Affiliates: RealPhoto Affiliates means RealPhoto and its member,
officers, employees, agents, representatives, and licensors.
RealPhoto Database: All data available to Photographer on the RealPhoto
System, including the Photographer Contribution, and all other text,
binary, and photographic image data, in any form now known or hereafter
RealPhoto Policies: RealPhoto’s bylaws, rules and regulations, and policies
and procedures adopted by RealPhoto, as RealPhoto amends them from time
RealPhoto Service: The services RealPhoto provides to Firm Participants,
Other Participants and Subscribers.
RealPhoto Software: RealPhoto’s proprietary web browser interface(s) to the
RealPhoto System: The aggregate of all hardware and data connection
systems that RealPhoto maintains in order to make access to the RealPhoto
Database available to a Firm Participant, Other Participants and
Schedule of Fees: RealPhoto’s document that establishes the fees for
2. Usage. The following usages apply to any interpretation or
construction of this Agreement, unless the context clearly indicates
(a) Wherever the term “including” is used, it means,
“including, but not limited to.”
(b) The singular and plural numbers and masculine,
feminine, and neuter genders of words are interchangeable.
(c) Wherever the term “law” is used, it means all statutes,
regulations, and common law, both state and federal, as they
are amended. Without limiting the generality of the foregoing,
“law” expressly includes all state and federal fair housing
statutes and regulations.
3. Subject to the terms and conditions of this Agreement and the
RealPhoto Policies, RealPhoto shall make available to Photographer a list published
on RealPhoto.io and Photographer shall be identified as a photographer
whose work product is subject to an agreement which RealPhoto will
recognize as providing RealPhoto, Firm Participants, Other Participants and
Subscribers with rights in compliance with RealPhoto Policies for use of
Photographer Contributions in the RealPhoto Database. Photographer
shall be permitted to promote this relationship in their marketing efforts,
subject to approval by RealPhoto.
4. Modifications to service. RealPhoto may, but is not required to,
modify the RealPhoto Service.
5. Editorial control. RealPhoto may take any steps necessary in its
judgment, including deleting the Photographer Contribution or portions
thereof, to avoid or remedy any violation of law, breach of the RealPhoto
Policies or infringement of any intellectual property right. Additionally,
RealPhoto shall have the right to alter and/or remove metadata and
copyright management information contained in the Photographer
6. Third Party Beneficiary. Firm Participants, Other Participants
and Subscribers to whom Photographer provides any Photographer
Contribution are intended third party beneficiaries of the licenses granted
hereunder and are permitted to publish and republish the Photographer
Contribution subject to the terms of this Agreement, the RealPhoto
Participant and Subscriber Agreement, and the RealPhoto Policies, and the
limitations on use of the RealPhoto Database contained therein. For
clarification, use of photographs hereunder by Firm Participants, Other
Participants and Subscribers is limited to the uses permitted by RealPhoto
and does not authorize purposes unrelated to the marketing of the
subject property or valuation of comparable properties.
7. Disclosure to third parties. RealPhoto reserves the right to
distribute to third parties certain information about Photographer,
including Photographer’s name and business address, phone number
and email address.
8. Disclosure to government. Photographer acknowledges that
RealPhoto may provide government agencies access to the RealPhoto
Service at any time in RealPhoto’s sole discretion.
9. Noninterference. Photographer agrees not to interfere with the
use of the Photographer Contribution by RealPhoto, Firm Participants,
Other Participants and Subscribers if such use is in compliance with the
10. Warranty of Photographer Contribution. Photographer
warrants that (a) the Photographer Contribution complies with the
RealPhoto Policies in all respects, including with regard to format of
submission and permitted and required photo types; (b) the Photographer
Contribution does not infringe or violate any patents, copyrights,
trademarks, trade secrets or other proprietary rights of any third party; (c)
Photographer has the written consent of any party necessary to provide
the Photographer Contribution to RealPhoto; (d) the Photographer
Contribution is not defamatory, offensive, or obscene; (e) the
Photographer Contribution contains only photos pertinent to the listed
property, floor plans of the listed property or renderings of the listed
RealPhoto Photographer Agreement Page 2 October 31, 2017
property; (f) the Photographer Contribution does not contain agent or
brokerage firm contact information such as names, phone numbers, email
addresses or website addresses, including use of embedded, overlayed,
or digitally stamped information; and (g) that there is no claim, litigation,
or proceeding pending or threatened with respect to the Photographer
11. Copyright Infringement Procedure. If Photographer believes
that its copyrights have been violated in the RealPhoto Services or by Other
Participants or Subscribers, including display on their respective
websites, then upon discovery of the alleged infringement, Photographer
must provide written notice to RealPhoto that includes a description of the
copyrighted work and where the material is located and a statement
under penalty of perjury that the information in the notice is accurate and
Photographer is the owner of the copyright or authorized to act on the
copyright owner’s behalf. Upon validation of the information provided in
the notice, RealPhoto will use commercially reasonable efforts to remove or
disable access to the infringing material, however RealPhoto may request
additional information before removing any infringing material. If RealPhoto
uses commercially reasonable efforts to remove or disable access to the
infringing material, then Photographer agrees to waive any potential
copyright infringement claims against RealPhoto and Other Participants and
12. License from Photographer. Photographer hereby grants to
RealPhoto a non-exclusive, perpetual, world-wide, royalty-free license to
reproduce, prepare derivative works of, distribute, display, perform and
license (including sublicenses through multiple tiers) the Photographer
Contribution. Photographer warrants that it has the authority to grant this
license. Photographer acknowledges that RealPhoto makes no grant of
license or assignment to Photographer of any rights in the RealPhoto
13. Term. This Agreement shall commence upon the Effective Date
set forth below and shall continue thereafter on a month-to-month basis
until terminated in writing by either party.
14. Termination for breach. RealPhoto may terminate this
Agreement with reasonable notice if Photographer fails to comply with the
terms of this Agreement or of the RealPhoto Policies.
15. Termination for convenience. Either party may terminate this
Agreement upon 30 days’ written notice to the other party.
16. Events upon termination. Promptly upon any termination of
this Agreement, all licenses granted hereunder shall immediately
terminate, except the license to the Photographer Contribution in
17. MAXIMUM AGGREGATE LIABILITY. IN NO EVENT SHALL
RealPhoto BE LIABLE TO PHOTOGRAPHER FOR ANY AMOUNT IN
EXCESS OF THE GREATER OF (A) THE FEES FIRM PARTICIPANT
OR PHOTOGRAPHER HAS PAID RealPhoto, IF ANY, IN THE YEAR
IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO ANY
CLAIM FOR DAMAGES; OR (B) $100.
18. Indemnification. Photographer shall defend, indemnify and
hold the RealPhoto Affiliates and Other Participants and Subscribers
harmless from and against any and all liability, damages, loss or expense
(including reasonable fees of attorneys and other professionals) in any
claim, demand, action or proceeding initiated by any third-party against
the RealPhoto Affiliates or Other Participants and Subscribers arising from
any acts of Photographer, including (i) making unauthorized use of the
RealPhoto Database; or (ii) infringing any proprietary or contract right of any
19. Acknowledgment. Photographer acknowledges that RealPhoto
has entered into this Agreement in reliance on the disclaimers of warranty
and limitations and exclusions of liability set forth in this Agreement and
that the same form an essential basis of the bargain between the parties.
20. Dispute resolution. Any controversy or claim arising out of or
relating to this Agreement, or the breach thereof, shall be settled by
arbitration. Unless the parties agree otherwise, such arbitration shall be
administered by the American Arbitration Association (“AAA”) under its
Commercial Arbitration Rules, including the Expedited Procedures where
applicable, the Optional Procedures for Large Complex Commercial
Disputes where applicable, and the Optional Rules for Emergency
Measures of Protection (collectively, the “Arbitration Rules”). Judgment
on the award rendered by the arbitrator may be entered in any court
having jurisdiction over the parties. Unless all parties to the dispute agree
otherwise, any arbitration hearing or proceeding hereunder shall be held
in Travis County, Texas, except that it may be held by telephone where
the Arbitration Rules expressly so permit. Photographer agrees to submit
any disputes or claims under this Agreement not subject to arbitration to
the jurisdiction and venue of the state and federal courts sitting in Travis
21. Legal fees. In the event of legal action or arbitration between
RealPhoto and Photographer, on account of or in respect to this
Agreement, the prevailing party in such action or arbitration shall be
entitled to recover its reasonable attorneys’ fees, expert witness fees,
costs and expenses incurred in such action or arbitration.
22. No third-party beneficiaries. Except as provided in Paragraph
6, above, this Agreement is entered into solely between, and may be
enforced only by, RealPhoto and Photographer, and this Agreement shall
not create or be construed to create any rights in any home owner, home
seller, home purchaser, board or association, or other third party.
23. Interpretation and amendment. This Agreement may not be
amended except by written instrument executed by both parties.
24. Assignment. Neither this Agreement nor any obligations or
duties hereunder may be assigned or delegated by Photographer. Any
purported assignment or delegation in contravention of this section is null
25. Integration and severability. This Agreement contains the
entire understanding of the parties and supersedes all previous oral and
written agreements on the subject hereof. Each provision of this
Agreement is severable from the whole, and if one provision is declared
invalid, the other provisions shall remain in full force and effect. The
foregoing notwithstanding, if any provision of Paragraph 17 through 21 is
declared invalid or unenforceable by any court of competent jurisdiction,
this Agreement shall immediately terminate.
26. Governing law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Texas applicable to
contracts made and performed in Texas, without regard to its conflicts of
law and choice of law provisions.
27. Notice. Any notice required or permitted to be given under this
Agreement shall be in writing and delivered via (a) U.S. Mail, postage
paid and return receipt requested; (b) express mailing service with
confirmation of receipt; (c) facsimile transmission, provided sender
obtains confirmation of transmission; or (d) electronic mail, provided
sender requests and receives a return receipt. All notices are effective on
the date of receipt or three days after transmission, whichever is earlier.
28. Survival. The following paragraphs shall survive termination or
expiration of this Agreement: 1, 2, 9, 10, 11, 12, 17 through 27.
RealPhoto Photographer Agreement Page 3 October 31, 2017
Having read this Agreement, the parties express their will to be bound by its terms by setting
their signatures below.
Austin/Central Texas Realty Information Service