Last updated: March 24, 2020
CLIENT TERMS AND CONDITIONS
YOU SHOULD REVIEW THIS AGREEMENT IN ITS ENTIRETY. YOU ACKNOWLEDGE YOUR ACCEPTANCE OF THIS AGREEMENT BY REGISTERING TO BECOME A USER OR BY USING THE SHOOTT PLATFORM. YOU WILL BE LEGALLY BOUND BY THESE TERMS. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT REGISTER TO USE OR USE THE PLATFORM.
These Client Terms and Conditions (the “Client Terms”) state the terms and conditions between Shoott.com (“Shoott,” “we,” “us,” or “our”) and users of the Shoott website and software platform (the “Platform”) who book photography sessions as clients (“Client,” “you,” or “your”) to purchase services from registered providers (“Photographers”). Client and all other Users are also subject to the terms of any applicable Work Order.
We reserve the right to change the Client Terms at any time in our sole business discretion. Please check these Client Terms regularly for changes. Your continued use of the Platform following the posting of any changes to the Client Terms will constitute your acceptance of and agreement to our changes.
- These Client Terms state the terms under which Client has the right to use the Platform, and the obligation to pay Shoott fees, if applicable.
- Photographers are independent contractors who use the Platform to offer their services and to perform work on specific projects for Clients pursuant to accepted Work Orders. Shoott is not a party to accepted Work Orders or other services agreement between Clients and Photographers. Shoott has no responsibility for, control over, or involvement in the scope, nature, quality character, timing or location of any work or services performed by a Photographer under a Work Order.
- Unless modified by you directly through the Platform prior to proposal or by a Photographer pursuant to an accepted counteroffer, all Work Orders are governed by Standard Work Order Terms and Conditions accessible by following this link: https://shoott.com/terms-of-service/sample-work-order/
- Shoott is not a party to any Work Order and is not bound by any terms of a Work Order. Work Orders are entered into exclusively by and between Clients and Photographers.
- Shoott is not an employer or joint employer of any Photographer. Shoott is not responsible for the performance or non-performance of any Client or any Photographer. Each Photographer is solely and entirely responsible for the Photographer’s acts and for the acts of the Photographer’s employees, agents and subcontractors. Each Client is solely and entirely responsible for the Client’s acts and for the acts of the Client’s employees, agents and subcontractors.
- In the event Client uses a third party to manage Photographers on the Platform on behalf of Client, the third party is deemed the Client’s agent for this and all related purposes. Client will remain responsible for all obligations set forth in these Client Terms, including without limitation those regarding payment, data ownership, confidential information, and indemnity. In the event the third party breaches these Client Terms or the User Terms while acting on Client’s behalf, Client is responsible for such breach, including any related indemnity. Client shall provide the third party with administrator privileges on Client’s account. Except as expressly provided herein, Client shall not otherwise grant a third party access to its administrator account, and shall not sublicense, assign, sell, grant, or otherwise transfer its privileges under these Client Terms.
Shoott does not and will not investigate Photographers and does not certify or verify the skills, qualifications, background, experience or other information provided by Photographers through the Platform. Shoott makes no representation as to the validity or accuracy of information provided by Photographers. Client uses the Platform and contracts with Photographers for completion of Work Orders at its own risk.
- The Platform allows Clients to book sessions by creating a profile to be viewed by prospective Photographers who wish to offer their services. Shoott does not own any information, text, data, or other content that Client submits, stores, or uses in the Platform, including all Work Order information (the “Client Data”). Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Client Data.
- Client must enter information and data in the Platform for purposes of accepting and updating the status of Work Orders. All such Work Order information is the property of the applicable Client.
- Payment to Photographers and Fees.
- A Photographer who performs work for a Client under a Work Order through the Platform will be paid via the Platform on behalf of the Client.
- Shoott charges fees for the use of the Platform upon completion of a Work Order. When a Client sources a Photographer through the Platform, the Photographer will pay Shoott a set percentage of the fees agreed to in the Work Order. Shoott will deduct these fees directly from the fees payable to a Photographer by a Client. This fee shall be up to forty percent (40%) of the amount payable to Photographer by Client pursuant to a completed Work Order. Shoott’s fees are subject to periodic changes in its sole business discretion. Use of the Platform constitutes acceptance of Shoott’s most current pricing.
- Once the Client authorizes its acceptance of a completed Work Order through the Platform in accordance with the Work Order Terms and Shoott facilitates Client’s payment for services under the Work Order to the Photographer, Shoott shall have no further financial obligation with respect to Client or Photographer under that Work Order. Any refund of amounts paid or a warranty claim related to a Work Order shall be the responsibility of the Photographer who was paid for the services.
- In addition to any other remedies it may have under these Client Terms, Shoott reserves the right to suspend or terminate Client’s access to the Platform in order to protect Shoott’s rights and interests.
- In the event that any jurisdiction imposes sales, use, value-added, excise, or other taxes payable on account of payments to Shoott, other than taxes on Shoott’s own income (“Taxes”), Shoott’s fees will be increased to cover such Taxes so that it receives a net amount equal to the full amount of the fees or other payment obligations that would otherwise have been payable under these Client Terms as if no such deduction or withholding was required.
- Tax Reporting and Payment Obligations.
- As a service to registered Clients and on behalf of registered Clients, Shoott will provide Photographers with annual 1099s and file such forms as required by the Internal Revenue Service. The filings will only be made for Photographers who are U.S. Residents, for net fees paid to Photographers on Work Orders sourced through the Platform, and for work done in the United States for each year that the fees paid to Photographer for completed Work Orders exceeds $600.
- Subject to Section 6.1, Client otherwise will be responsible for meeting any and all tax payment or reporting obligations that may be imposed by the laws of any legal jurisdiction as a result of the payment of fees or other compensation to Photographers for services provided pursuant to Work Orders completed via the Platform.
Shoott will use reasonable efforts to make the Platform available for access and use by Client. Client acknowledges and agrees that Shoott will not be liable for (a) any unavailability caused by acts or omissions of Client, any Photographers or other third parties, or caused by events outside Shoott’s control; (b) problems with Client’s internet access or private computer network and equipment; and (c) Shoott’s regularly scheduled maintenance work.
Shoott will provide email, text-based, or telephone support to Client. Support shall include assistance with general usage and functionality issues and correction of software bugs and errors. Shoott will make reasonable efforts to correct or fix reported software bugs and errors promptly after being notified of the problem.
Shoott will use reasonable efforts to secure, protect, and maintain the integrity of all data stored by Client in accessing and using the Platform. Client is solely responsible for the security of all usernames and passwords that may be required to access and use the Platform. If the security of such information is comprised, Client agrees to promptly notify Shoott.
Client will be responsible for all equipment, network, and other costs necessary for Client to access and use the Platform via the Internet.
Shoott will not be obligated to provide Client with any consulting or other services related to the use of the Platform.
In performing and accepting services under these Client Terms, Shoott and Client may exchange technical, product, financial, and business information which is confidential or proprietary to them (“Confidential Information”). Confidential Information shall be limited to information clearly marked as confidential or proprietary, or information which is disclosed verbally and identified as confidential or proprietary when disclosed.
Shoott and Client will hold all Confidential Information they receive from the other party in strict confidence and will only use it to perform their respective obligations and exercise their rights under this Agreement. Confidential Information may only be disclosed to employees, agents, consultants, and professional advisors who have a good faith need to know such information for the purposes of this Agreement, provided the person receiving the information has a confidentiality obligation to the disclosing party which is at least as stringent as the confidentiality terms of this Agreement. The receiving party shall protect and safeguard the Confidential Information against unauthorized disclosure by procedures no less stringent than those it uses for protecting its own confidential or proprietary information, and in any event by use of no less than a reasonable degree of care.
These Client Terms impose no obligation with respect to information which: (a) was in the possession of, or was known by, the receiving party prior to its receipt from the discloser, without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public without violation of these Client Terms; (c) was obtained by the receiving party from a third party having the right to disclose it, without an obligation to keep such information confidential; or (d) is independently developed by the receiving party without the use of Confidential Information.
Each party retains all intellectual property rights in and to its own Confidential Information.
The confidentiality provisions of these Client Terms shall survive its termination for a period of two (2) years, except for the obligations of the parties regarding any trade secret information which shall survive indefinitely.
- No Circumvention; Non-Interference.
- Photographer shall do all work for Clients directly through the Platform only. If a Photographer directly engages with any Clients, or Clients’ clients, outside of the Platform, Shoott will assess a smaller Shoott Fee based on the value of the additional services.
- For the term of Client’s use of the Platform and one (1) year thereafter, Client shall not directly or indirectly: (a) solicit for employment or contract services or hire any Photographer to perform services similar to those offered by Photographer through the platform, except for services to be performed pursuant to Work Orders via the Platform without the prior written consent of Shoott; nor (b) take any action which interferes with the contractual relationship between Shoott and any of its Photographers.
These Client Terms commence when Client registers to use the Platform for the first time and continue in force until terminated by either party. Client may terminate these Client Terms immediately upon notice to Shoott at any time and for any reason. Shoott may terminate these Client Terms immediately without any notice at any time and for any reason, including, but not limited to, because Shoott has a good faith belief that such action is necessary to prevent abuse or otherwise protect the safety of the Shoott community, including Photographers, or any third parties. Upon termination by either party, Client’s rights to access and use the Platform will cease immediately. Upon any termination, Client will not be relieved of any obligation to pay any fees due to Shoott which accrued before the termination date. If these Client Terms are terminated for any reason, Shoott will make the Client Data available for transmittal to Client within a reasonable period after receiving a written request from Client, provided such request is received within sixty (60) days following termination.
- Warranties and Disclaimer.
Shoott and Client each represent and warrant as to themselves that (a) each are duly organized, validly existing and in good standing under the laws of the respective jurisdictions in which they were formed (in the case of Clients who are not individual persons); (b) each has full power and authority to execute, deliver, and perform these Client Terms; (c) these Client Terms have been duly authorized, executed, and delivered by and are a legal, valid, and binding obligation in accordance with these terms; and (d) each of their obligations under these Client Terms shall be performed in compliance with any obligations to third parties and all applicable law, rules, or regulations of any governmental entity or agency.
- Client Data.
Client represents and warrants that: (a) Client owns or has secured sufficient intellectual property rights to the Client Data to deliver it to Shoott for use in the Platform as intended by these Client Terms; (b) the Client Data does not and will not contain any content that is unlawful, threatening, harassing, profane, tortious, defamatory, libelous, deceptive, fraudulent, or violates any person’s privacy or publicity rights; and (c) the Client Data does not and will not contain a software virus or other harmful component.
- ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
Shoott and Client mutually agree to resolve any and all covered justiciable disputes between them exclusively through final and binding arbitration instead of a court or jury trial. This arbitration agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and applies to any and all claims arising out of or relating to the Client Terms, this arbitration agreement, the Photographer’s classification as an independent contractor, Photographer’s provision of services, use of the Platform, any payments made or received by or through the Platform or arising out of or relating to the acceptance or performance of services arranged through the Platform, the termination of this Agreement, and all other aspects of the Client’s relationship (or the termination of its relationship) with Shoott, past, present or future, whether arising under federal, state or local statutory and/or common law. Client and Shoott agree that the mutual obligations to arbitrate disputes provide adequate consideration for this arbitration agreement.
- If either party initiates arbitration, the initiating party must notify the other party in writing via U.S. Mail, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include: (1) the name and address of the party seeking arbitration; (2) a statement of the legal and factual basis of the claim; and (3) a description of the remedy sought. Any demand for arbitration by Photographer must be delivered to the Shoott at 154 Grand Street, New York, NY 10013. The arbitrator will resolve all disputes regarding the timeliness or propriety of the demand for arbitration.
- Class and Collective Action Waivers. Shoott and Client mutually agree that by entering into this agreement to arbitrate, both waive their right to have any dispute or claim brought, heard or arbitrated as a class action and/or collective action, and an arbitrator will not have any authority to hear or arbitrate any class and/or collective (“Class Action Waiver”). Notwithstanding any other clause contained in this arbitration agreement or the AAA Rules, as defined below and incorporated herein by reference, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class and/or collective action and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class and/or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.
- Client agrees and acknowledges that entering into this arbitration agreement does not affect Photographer’s status as an independent contractor in fact and in law, that Photographer is not an employee of Shoott and that any disputes in this regard shall be subject to arbitration as provided in this agreement.
- Except as otherwise stated in this arbitration agreement, any arbitration shall be governed by the American Arbitration Association Commercial Arbitration Rules (“AAA Rules”), subject to the following:
- The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. Unless the parties agree otherwise, the arbitrator shall be an attorney experienced in the law in the underlying dispute and licensed to practice law in the state in which the arbitration is convened, or a former judge from any jurisdiction. The arbitrator shall have authority to decide gateway issues, including arbitrability.
- The location of the arbitration proceeding will be no more than 45 miles from the place where Photographer last performed services for Client, unless Client and Shoott agree in writing otherwise.
- Unless applicable law provides otherwise, as determined by the Arbitrator, the parties agree that Company shall pay all of the Arbitrator’s fees and costs.
- The Arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
- Except as provided in the Class Action Waiver, the Arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The Arbitrator shall apply the state or federal substantive law, or both, as is applicable.
- The Arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.
- The Arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law. Judgment may be entered on the arbitrator’s decision or award in any court having jurisdiction.
- Either Shoott or Photographer may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this paragraph may be rendered ineffectual.
- Regardless of any other terms of this arbitration agreement, claims may be brought before, and remedies awarded by, an administrative agency if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate governed by the Federal Arbitration Act (such as the National Labor Relations Board, the U.S. Department of Labor or the Equal Employment Opportunity Commission). This arbitration agreement does not apply to any claim that may not be arbitrated as provided by an Act of Congress or lawful, enforceable presidential Executive Order.
- The AAA Rules may be found at www.adr.org or by searching for “AAA Commercial Arbitration Rules” using a service such as www.Google.com or www.Bing.com.
- This arbitration agreement is the full and complete agreement relating to the formal resolution of disputes covered by this arbitration agreement. In the event any portion of this arbitration agreement is deemed unenforceable, the remainder of this arbitration agreement will be enforceable. This arbitration agreement survives after the termination of the Photographer Terms and/or after Photographer ceases any assignment and/or relationship with Shoott. This arbitration agreement will also continue to apply notwithstanding any change in Photographer’s responsibilities, position, or title, or if Photographer transfers companies. Notwithstanding any contrary language in the Photographer Terms or in any Shoott policy or other agreement, this arbitration agreement may not be modified or terminated absent a writing signed (electronically or otherwise) by both Photographer and an authorized representative of Shoott.
USE OF THE PLATFORM IS AT CLIENT’S SOLE RISK. EXCEPT AS SET FORTH EXPRESSLY IN THESE TERMS AND CONDITIONS, THE PLATFORM IS PROVIDED “AS IS” AND “AS-AVAILABLE” AND WITHOUT A WARRANTY OF ANY KIND. SHOOTT DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS CONCERNING THE PERFORMANCE, OPERATION OR QUALITY OF THE PLATFORM, INCLUDING ALL IMPLIED WARRANTIES OF NON-INFRINGEMENT MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SHOOTT DOES NOT WARRANT THAT THE PLATFORM WILL MEET ANY USER’S REQUIREMENTS, OPERATE IN COMBINATION WITH OTHER SOFTWARE OR WEBSITES, BE UNINTERRUPTED OR ERROR-FREE, OR FUNCTION WITHIN A PARTICULAR SYSTEM. NO OTHER ORAL OR WRITTEN ADVICE GIVEN BY SHOOTT WILL CREATE A WARRANTY REGARDING THE PLATFORM. NO AGENT OR EMPLOYEE OF SHOOTT IS AUTHORIZED TO MAKE ANY WARRANTY OBLIGATIONS ON BEHALF OF SHOOTT OR MODIFY THE LIMITATIONS STATED IN THIS SECTION 16.
- Shoott Indemnification.
Shoott shall indemnify and hold Client, its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses, including reasonable legal fees and costs, arising out of or in connection with: (a) any alleged conduct which would constitute a breach of the representations and warranties of Shoott set forth herein; or (b) a claim that the use of the Platform (other than third party materials) infringes the copyright, trademark, or United States or Canadian patent rights of any third party. Upon notice of an alleged infringement or if in Shoott’s opinion such a claim is likely, Shoott shall have the right, at its option, to obtain for Client the continuing right to use the Platform, substitute other non-infringing functionality, or modify the Platform so that it is no longer infringing. THIS SECTION SETS FORTH SHOOTT’S SOLE AND EXCLUSIVE LIABILITY, AND CLIENT’S SOLE AND EXCLUSIVE REMEDY, FOR SHOOTT’S INFRINGEMENT OF THIRD PARTY RIGHTS OF ANY KIND.
- Client Indemnification.
Client shall indemnify and hold Shoott, its licensors and their respective parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses, including reasonable legal fees and costs, arising out of or in connection with: (a) a claim based on any alleged misuse of the Platform by Client, or its agent or a claim that any Client Data infringes the copyright, trademark, or patent rights of any third party; (b) any alleged conduct which would constitute a breach of the representations and warranties of Client set forth herein; and; and (c) any claims arising out of or related to any Work Order, including (i) any claims by any third party or government agency that a Photographer was misclassified as an independent contractor or employee of Client; and (ii) any claim that Shoott was an employer or joint employer of a Photographer; and (iii) related legal claims under any employment laws.
Each party shall indemnify the other party as set forth above provided that: (a) the indemnified party notifies the indemnifying party promptly in writing of the claim; (b) the indemnifying party has sole control of the defense and all related settlement negotiations with respect to the claim; provided, that the indemnified party has the right, but not the obligation, to participate in the defense of any such claim through counsel of its own choosing; and (c) the indemnified party cooperates fully to the extent necessary, and executes all documents necessary for the defense of such claim.
- Limitations of Liability.
- SHOOTT’S AGGREGATE LIABILITY TO CLIENT FOR CLAIMS RELATING TO THESE TERMS, WHETHER IN CONTRACT OR TORT, WILL BE LIMITED TO THE TOTAL FEES PAID OR OWING TO SHOOTT FOR WORK ORDERS COMPLETED FOR CLIENT DURING THE MOST RECENT SIX (6) MONTHS OF THE TERM OF THESE CLIENT TERMSOR $2,500, WHICHEVER IS LESS.
- NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THESE TERMS, INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE, HOWEVER IT ARISES, WHETHER IN CONTRACT OR TORT, EVEN IF THE PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
Shoott and Client acknowledge that the foregoing limitations of liability represent a reasonable and negotiated allocation of risk, that these limitations constitute an integral part of these Client Terms, and that absent these limitations the parties would not have executed these Client Terms. The limitations will apply notwithstanding the failure of the essential purpose of any limited remedy.
- Photographic Content and Intellectual Property
- Buyers acknowledge and agree 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 Buyer (“Photograph Content”) contain content or features that are protected by copyright, trademark, trade secret or other proprietary rights and laws (“Photograph IP”). Buyers 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 Buyer.
- Cancellation & Lateness Policy
- Buyers can easily cancel or reschedule at any time up to 10:00am two days before a scheduled session. If Buyer does not show up for a session or cancels after this time, Buyer agrees to pay a $40 fee to cover your photographer’s time and forfeiture of other paid gigs. If Buyer is more than 15 minutes late to a session start time, Buyer agrees to pay a late fee of $20-40 depending on time of arrival.
All notices and other communications shall be in writing and shall be deemed to have been duly given or made (i) with delivery by hand, when delivered, (ii) with delivery by certified or registered mail, postage prepaid.
- Successors and Assigns. These Photographer Terms shall be binding upon Photographer and inure to the benefit of the Shoott and its successors and assigns, including, without limitation, any entity to which substantially all of the assets or the business of the Shoott are sold or transferred. Photographer shall not be entitled to assign these Photographer Terms or any of Photographer’s rights or obligations hereunder.
- Severability. If any provision of these Photographer Terms is or becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired.
- Waivers. No delay or omission by either party hereto in exercising any right, power, or privilege hereunder shall impair such right, power, or privilege, nor shall any single or partial exercise of any such right, power, or privilege preclude any further exercise thereof or the exercise of any other right, power, or privilege.
- Headings. The headings and other captions in these Photographer Terms are included solely for convenience of reference and will not control the meaning and interpretation of any provision of these Photographer Terms.
- No Strict Construction. The language used in these Photographer Terms will be deemed the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any person.
- Governing Law. Other than the Arbitration Agreement and Class Action Waiver, which shall be governed by the Federal Arbitration Act, these Photographer Terms will in all respects be is governed by the laws of the state in which the Photographer last performed services without reference to its principles of conflicts of laws.
- Entire Agreement. These Photographer Terms, and any Work Order (including the Work Order Terms), contain the entire agreement between the Shoott and Photographer concerning the subject matter hereof and as of the Effective Date and supersedes any contract, severance, confidentiality or invention assignment agreement between the parties hereto, provided, however, that the Shoott reserves and shall retain all rights and remedies it may have against Photographer with respect to any breach on or before the Effective Date of any prior agreements. If there are any inconsistencies between these various agreements, the Photographer Terms control, as between Shoott and Photographer.
- Signature. These Photographer Terms may be signed and is enforceable by electronic signature, digital signature, wet signature, and facsimile signature.
Questions? Concerns? Suggestions?
Please contact us at firstname.lastname@example.org to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.