WORK ORDER TERMS AND CONDITIONS
PLEASE REVIEW THESE WORK ORDER TERMS IN ITS ENTIRETY. WHEN YOU EXECUTE THIS AGREEMENT, YOU WILL BE LEGALLY BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT ANY OF THE TERMS AND CONDITIONS, DO NOT EXECUTE THESE WORK ORDER TERMS OR SUBMIT OR ACCEPT A WORK ORDER.
. Photographer is an independent professional engaged in the business of providing photography services for individuals and entities seeking such services, including, but not limited to, Clients seeking such services through Shoott’s website and software platform (the “Platform”). The manner and method of performing the Services shall be under Photographer’s sole control and discretion. Client and Photographer agree that the Photographer is performing services as an independent contractor and that Photographer is not an employee or agent of Client. The manner and means of performing the Services will be determined and controlled solely by Photographer, which is engaged by Client as an independent contractor.
Independent Contractor Status
. Photographer is an independent contractor and not an employee of Client. No agreements by or among Client or Photographer shall be construed to create an employment, partnership, joint venture, or agency relationship. For purposes of verifying its independent contractor status, Photographer expressly represents and warrants that Photographer and its personnel possess the specialized skills and experience necessary to perform the services for any Client to whom it offers its services; Client will not provide Photographer with any training, direction, or similar assistance with the services; Photographer has the right to determine the manner in which the services will be performed consistent with Photographer’s experience and specialized skills; Except for the Platform and as expressly stated otherwise in a Work Order, Photographer will provide all equipment and tools that are necessary to complete the services and will be responsible for covering any and all costs associated with equipment and tool malfunctions (e.g. corrupt SD Cards, battery failure, etc.) and costs associated with providing reshoots, free galleries and/or photos, etc. to compensate and placate clients; Photographer will not be paid for any additional business expenses that Photographer incurs in providing the services unless the Work Order expressly states otherwise; and
Photographer will be responsible for the management of any employees or subcontractors working for it and, without limiting the generality of the foregoing, will be responsible for payment to the proper authorities of all federal, state, or provincial unemployment insurance premiums or taxes, required workers compensation premiums, any pension plan contributions required by any jurisdiction where work is performed, employment expenses for any of Photographer’s employees and for deduction and remittance of all income tax due for Photographer and any of its employees.
. Clients and Photographer may agree that Photographer should travel to/from a Client location to perform work in the Work Order. If Photographer travels to work for a Client location, Shoott shall not have any liability or responsibility related to Photographer’s travel or any associated expenses, costs, or liability.
Client Payment and Billing.
Photographer will be paid for the Services as stated in the Work Order, however, Shoott will charge a fee for the use of the Platform (the “Platform Fee”), which will be deducted from the amounts payable to Photographer for services performed. Photographer and Shoott acknowledge that Shoott may modify the Platform Fee based on the total dollar value of the Work Order. Use of the Platform constitutes acceptance of Shoott’s most current pricing. No other fees, benefits, or compensation of any kind shall be payable to Photographer unless otherwise agreed upon in writing between Client and Photographer.
Termination of a Work Order
. Either Client or Photographer has the right to terminate the Work Order (i) after providing any agreed-upon notice, or (ii) immediately on the end date specified in the Work Order terms, upon completion of the Services, in the event of a material breach, or with the consent of the other party. Except as required by law or as otherwise may be agreed to by the parties, Client remains obligated to pay Photographer for any Services provided prior to termination of the Work Order.
. All information disclosed by one Party (the “Discloser”) to the other (the “Recipient”) that (i) is marked “confidential” or “proprietary” before its disclosure to the Recipient; or (ii) the Discloser orally discloses to the Recipient, identifies as confidential or proprietary at the time of disclosure and confirms to be such in writing within 10 days of such disclosure is “Confidential Information” under these Work Order Terms. Confidential Information does not include information which: (i) is now, or later becomes, through no act or failure to act on the part of the Recipient, generally known or readily available to the public; (ii) was acquired by the Recipient before receiving such information from the Discloser and without restriction as to use or disclosure; (iii) is furnished to the Recipient by a third party rightfully entitled to it, without restriction as to use or disclosure; or (iv) was independently developed by the Recipient without reference to the Discloser’s Confidential Information. These Work Order Terms, its terms and all exhibits, is the Confidential Information of the Parties.
Use and Restrictions
. The Recipient agrees: (i) to hold the Discloser’s Confidential Information in strict confidence, (ii) not to disclose the Discloser’s Confidential Information to any third parties except as reasonably necessary for the Recipient to perform its obligations hereunder, and (iii) not to use any of the Discloser’s Confidential Information except to perform the Recipient’s obligations under these Work Order Terms. Notwithstanding the foregoing, the Recipient hereto may disclose any Confidential Information of the Discloser hereunder to the Recipient’s agents, attorneys and other representatives (under a duty not to disclose) and having a bona fide need to know such Confidential Information or any court of competent jurisdiction as reasonably required to resolve any dispute between the Parties. In addition, Photographer may disclose Client’s Confidential Information to any personnel of Photographer engaged under any Work Order so long as (i) such disclosure is reasonably required for the Photographer to perform Services, and (ii) the Photographer has entered into an agreement related to such Confidential Information with terms at least as restrictive as those in these Terms.
Client grants Photographer a limited, non-exclusive, revocable (at any time, at Client’s sole discretion) right to use the necessary client materials, including Confidential Information, solely for the performance of the Services under the applicable Work Order. Client reserves all other rights and interest, including, without limitation, all Intellectual Property Rights, in and to its materials. Upon completion or termination of the Work Order, or upon Client’s written request, Photographer will immediately return all client materials to Client and further agrees to destroy all copies of client materials and deliverables contained in or on Photographer’s premises, systems, or any other equipment or location otherwise under Photographer’s control. Within ten days of such request from Client, Photographer agrees to provide written certification to Client that Photographer has returned or destroyed all client materials as provided in this section.
. If Recipient is requested or required by law, government action, subpoena or other court order to disclose any of the Discloser’s Confidential Information, Recipient may disclose such information without liability under this Agreement, provided that (i) the Discloser has been given a reasonable opportunity to (a) intervene in any proceeding to try to protect the Confidential Information and (b) review the text or contents of such disclosure before it is made; and (ii) the disclosure is limited to only the Confidential Information specifically required to be disclosed.
. Each Party agrees that its obligations provided in these sections under Confidential Information are necessary and reasonable in order to protect the Discloser and its business, and each Party expressly agrees that monetary damages may be inadequate to compensate the Discloser for any breach by the Recipient of its confidentiality covenants and agreements set forth in this Agreement. Accordingly, each Party agrees and acknowledges that any such breach or threatened breach may cause irreparable injury to the Discloser and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the Discloser will be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the Recipient, without the necessity of proving actual damages or posting any bond.
Defend Trade Secrets Act
. Photographer and Client acknowledge receipt of this notice under 18 U.S.C § 1833(b)(1): An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for disclosing a trade secret that (A) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely to report or investigate a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
Photographic Content and Intellectual Property
Photographer acknowledges and agrees that the photographs, digital negatives, camera RAW files, other original data files pertaining to the photos and images produced as a result of the Photography Services for a Client (“Photograph Content”) contain content or features that are protected by copyright, trademark, trade secret or other proprietary rights and laws (“Photograph IP”). Photographer hereby assigns (and agrees to assign) all Photograph Content and the Photograph IP and all related intellectual property and proprietary rights to Shoott. Photographer shall further assist Shoott, at Shoott’s expense, to further evidence, record and perfect such assignments, and to perfect, obtain, maintain, enforce, and defend any rights specified to be so owned or assigned. Upon full receipt of all applicable Photographer Fees, Shoott agrees to assign, transfer and convey to the Client the purchased Photograph Content and associated Photograph IP.
Clients hereby grant Shoott a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to use, copy, display and distribute the Photograph Content and associated Photograph IP for marketing and advertising purposes. Photographers may request that Shoott provide a limited intellectual property license for the purpose of using photos in the Photographer’s portfolio of work or for other purposes by seeking prior written consent from both Shoott and the relevant Client.
. These Work Order Terms shall be governed by the laws of the jurisdiction in which the Photographer provides the Services. These terms shall be binding upon, and inure to the benefit of, the Parties and their permitted respective successors and assigns. Any express waiver or failure to exercise promptly any right under these terms will not create a continuing waiver or any expectation of non-enforcement. Any Work Order, together with these Work Order Terms, states the entire agreement between a Client and a Photographer regarding the Services to be provided pursuant to such Work Order. These Work Order Terms shall survive such completion and termination of any Work Order.
Shoott does not permit any photos of the session and/or subject(s) to be taken by anyone other than the assigned Shoott photographer, including photos taken from mobile and tablet devices. If someone other than the designated Shoott photographer takes photos of the session and/or subject(s), the photographer reserves the right to end the session, the client forfeits their session and any photos taken without penalty, and the client will be banned from future use of Shoott’s platform and services.
Photographer will provide the following services to Client in exchange for payment:
Services for ClientRate or Amount of Payment for ClientPhotography Session Complimentary 30 minute session (a $75 or $120 prepay may be required in the case of multiple bookings and/or prior purchases of $60 or less. Client is also subject to, per our Terms & Conditions, late fees, late cancellation fees, and no-show fees.)Lightly Retouched Photos $15 per photo, $120 for 10+ photos or $240 for their full digital gallery of 40+ lightly edited photos
Total amount to be paid to photographer: The greater of either $100 per shooting hour or Shoott’s Commission Rate of 60% of proceeds that Shoott receives net of marketing and payment processing fees* and, if applicable, any service delivery penalties as outlined in the Photographer Portal**.
* Proceeds that Shoott receives accounts for expenses from promotional codes/discounts and advertising specials.
** Commission Rate will only apply to eligible galleries i.e. those delivered by 8pm EST on the fifth business day following the session. Galleries delivered after this timeframe will only earn the minimum guarantee. Repeated late delivery on galleries may result in termination.
Method of Payment:
Date or timing of payment:
All of the Work Order Terms and Conditions are incorporated by reference into this Work Order and made a part of it.