2. Optional Services Payments. You agree to pay (and continue to pay if signing up for a subscription) SmartShoot, Inc. (“SmartShoot”) the amount(s) specified for each optional product or service you select, as specified on the applicable order page. SmartShoot shall have the right to refuse or cancel any order for any reason.
i. File or Digital Photo purchase. If you purchase a digital copy from SmartShoot of a video that was shot on behalf of one of SmartShoot’s brand partners (“File”) or if you purchase a digital copy of photos that were shot on behalf of one of SmartShoot’s brand partners (“Digital Photos”), we will charge your method of payment when the download is made available to you (usually via the SmartShoot web site).
ii. Subscriptions. If you choose one of SmartShoot’s Subscription distribution or streaming offerings, you may cancel such Subscription at any time. All fees and charges for Subscription services are nonrefundable and SmartShoot shall have no obligation to refund or provide credits for partially used periods. By choosing a Subscription offering, you are expressly agreeing that SmartShoot is authorized to charge you a monthly or annual Subscription fee, as applicable (after any free trial period), any applicable tax and any other charges you may incur to the credit card you provided at time of check-out (or to a different credit card if you later change your account information). Subscription fees will be billed at the beginning of your Subscription and each monthly or annual renewal thereafter unless and until you cancel such Subscription. SmartShoot automatically bills your credit card each month or year, as applicable, on the calendar day corresponding to the commencement of your subscription. In the event your Subscription began on a day not contained in a given month, SmartShoot will bill your credit card on the last day of such month. If you want to use a different payment method or if there is a change in your credit card validity or expiration date, you may edit your information by contacting SmartShoot or logging in to your account. If you with to cancel your Subscription, you must call SmartShoot customer service. SMARTSHOOT DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL SUBSCRIPTION PERIODS. SmartShoot reserves the right to terminate subscriptions for any or no reason.
iii. Additional Charges. Additional charges may include edits that you request that are beyond the scope of your original purchase (See Preview of Project(s) and Edits below). We will always disclose to you any additional edit charges before performing the edits.
3. Cancellations and Refunds. In the event (a) you fail to abide by the appointment time you select for your shoot ("Appointment"), (b) you reschedule or cancel an Appointment with less than forty-eight (48) hours’ notice to SmartShoot, (c) you fail to allow SmartShoot or its agents access to your place of business or other shoot location at a designated Appointment time or (d) you fail to provide signed location or appearance releases, as appropriate, to SmartShoot, your account will be assessed a $50 administrative fee and SmartShoot shall have the right to charge your credit card a $50 administrative fee. Notwithstanding the foregoing, if a shoot cannot occur because SmartShoot does not abide by the designated Appointment time or if you notify SmartShoot more than forty-eight (48) hours prior to a scheduled Appointment date that such Appointment has been canceled or that such Appointment needs to be rescheduled, SmartShoot shall not be entitled to the administrative fee, and shall attempt to reschedule the Appointment.
4. Term and Termination.
i. Term. This Agreement commenced with your acceptance and will remain in effect thereafter unless terminated earlier in accordance with the terms of this Agreement.
ii. Termination for Breach. Each party will have the right to terminate this Agreement granted hereunder if the other party breaches any material term of this Agreement and fails to cure such breach within thirty (30) days after written notice thereof.
iii. Survival. Sections 2.5, 7, 8.1, 8.2, 8.3, 8.4, 9, 10, 11, 12 and 13 will survive any termination of this Agreement.
5. Location and Appearance Releases.
You hereby agree to cooperate with SmartShoot to help secure location and appearance releases for the shooting of each Project, as necessary.
6. Preview of Projects(s) and Edits. For Projects which include edits, once a Project is ready to preview, SmartShoot will e-mail you a link to an online preview room (the “Preview Room”). Using the Preview Room, you may, depending on the product you have purchased, have the ability to request edits to the script, video or photos. Video edit requests may only include: lower third corrections (name/title changes), music swaps (limited to music in SmartShoot’s then-current library), add/remove/replace still images, re-order existing material in the video, remove sound bites, color correction, and audio level adjustment (relationship between dialogue and music). For the avoidance of doubt, change requests will not include requests to shoot additional footage or content. All other change requests may incur an additional fee which will be disclosed to you prior to making such edits. Preview Room e-mails will specify whether you have edits available and how many days you will have to submit edit requests (such period to be no less than two (2) and no more than ten (10) days). If you do not make any edit requests within such time period, the script, video, or photos, as applicable, will be deemed complete and, in the case of your Project may be syndicated to third party sites (if your order includes syndication). If you do make edit requests through the Preview Room, SmartShoot will use commercially reasonable efforts to make such edits and will send you the revised video within five (5) days of receiving such edit requests. Please note that once you approve your script, any additional change requests will be subject to additional fees.
7. Your Representations and Warranties. In certain instances, you may be able to submit content (e.g., photos) ("Materials"), to be included in the Project(s). You hereby also permit SmartShoot to retrieve photos from your website to be included in videos and such photos shall also be considered your Materials. You hereby represent and warrant that (a) you have all necessary authority, rights and permissions to submit the Materials and grant the licenses described in these terms, (b) the Materials and the use of the Materials in the Projects(s) will not infringe or misappropriate any copyright, trademark, patent or other intellectual property right of any third party or violate any other rights of a third party, including, without limitation, any rights of privacy or publicity or any contractual rights, (c) the Materials are truthful and not misrepresentative or misleading, (d) the Materials and your use of the Project(s) will not plagiarize or contain any libelous, defamatory, obscene, indecent, harmful, threatening, abusive, harassing, vulgar, hateful, racially, ethnically or otherwise objectionable matter, or any matter contrary to law or to the rules and regulations of any government agency and (e), in the event that a third party purchased the Projects(s) on your behalf, the Projects(s) shall not imply that you or your business is in any way sponsored or endorsed by such third party. You are solely responsible for (i) the accuracy, non-deceptiveness, completeness, proprietary, and substantiation of the Project(s), including any scripts, if applicable, as used by you to advertise your business(es), (ii) all Materials, and (iii) any information, disclosures, disclaimers or requirements that are imposed upon you as a result of your business activities by any governmental, regulatory or oversight agency, body, tribunal or proceeding. You agree to review and approve all materials prepared by SmartShoot or submitted by you to confirm that descriptions and representations, direct or implied, with respect to your business(es), products, services, industry, and competitors, are accurate and supportable and that such descriptions and representations are in compliance with all legal and regulatory requirements, directives and guidelines.
8. SmartShoot Representations and Warranties. SmartShoot represents and warrants that, subject to your obligations to obtain the necessary releases, the Project(s) created by SmartShoot under this Agreement, will not infringe the copyright or trademark of any third party; provided that SmartShoot makes no representation or warranty of non-infringement with regards to (a) any Materials provided by you to be included in the Project(s) or (b) any Raw Footage (as defined below) that does not become a part of the Project(s).
i. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SMARTSHOOT MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE AND NONINFRINGEMENT.
ii. Ownership and License Grants. If the Project you purchase includes a digital download (subscriptions to display a video do NOT include a digital download), upon your payment hereunder, all rights, title and interest, including all copyrights, intellectual and other proprietary rights, in and to each Project as well all raw footage shot by SmartShoot, including out-takes, “b-roll”, interviews, location shots and clips (the “Raw Footage”), shall be your property; SmartShoot makes no representation or warranty of non-infringement with regards to any Raw Footage and delivery of Raw Footage is an additional service subject to availability and may be subject to an additional fee. If you purchase the File or Digital Photos of a video or photo(s) shot for SmartShoot’s brand partners, upon your payment hereunder, you are granted a perpetual, irrevocable, royalty-free, non-exclusive, fully transferable and sublicensable right and license to access, store, copy, modify, display, distribute, perform, create derivative works from, and otherwise use and exploit the File or Digital Photos in any form, media, software or technology of any kind now existing or developed in the future, and the right to sublicense the foregoing rights.
iii. Ownership of Music Content. Without limiting any of the foregoing, SmartShoot or SmartShoot’s third-party licensors retain all ownership rights, including copyright, to any music included in any Project by SmartShoot, including without limitation any original musical compositions created by SmartShoot and any music licensed by SmartShoot from a third-party, and all related rights of every kind to such music, including without limitations the rights to the musical composition, sound recording, arrangement, reproduction, transmission, broadcast, dissemination by any manner, performance and moral rights (all such rights together, the “Music”).
iv. Your License to SmartShoot. You hereby grant to SmartShoot a perpetual, irrevocable, royalty-free, non-exclusive, fully transferable and sublicensable right and license to access, store, copy, modify, display, distribute, perform, create derivative works from, and otherwise use and exploit all of your Materials in connection with the applicable Project in any form, media, software or technology of any kind now existing or developed in the future, and the right to sublicense the foregoing rights. You further grant to SmartShoot a royalty-free right and license to use the name, image and likeness of any individuals appearing in the Materials in advertising and in connection with the licensed rights for the Materials. SmartShoot shall have no obligation to return the Materials to you following production of the applicable Project.
9. Indemnification. You shall indemnify, defend and hold harmless SmartShoot, and SmartShoot’s affiliates, officers, directors, employees and agents, from and against all third-party claims, suits, proceedings, liabilities and costs (including reasonable attorneys' fees) to the extent arising from or based upon (a) your gross negligence or willful misconduct, (b) your breach of Section 7, (c) a claim that any mark, copyright, logo or other element of your business or any material provided by you to be included in any Project violates the trademark, copyright or other rights of any third party, (d) your use of any Project that is in breach of these Terms and Conditions; provided that such claim is not a result of SmartShoot’s breach of Section 8, (e) any edit, change or other alteration made to any Project as delivered by SmartShoot, (f) a claim that your products and services are defective, injurious or harmful (including, without limitation, any claim for bodily injury or death), (g) a claim that the manufacture, sale, distribution or use of any of your products or services violates the rights of any third party or that the advertising, publicity or promotion of your products or services violates or encourages or induces the violation of the rights of any third party, and (h) a claim that a Project contains false or misleading statements or otherwise violates any information, disclosures or requirements that are imposed upon you as a result of your business activities by any governmental, regulatory or oversight agency, body, tribunal or proceeding.
10. Limitation of Liability. EXCEPT FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL SMARTSHOOT OR ITS AFFILIATES OR AGENTS BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR IN ANY WAY CONNECTED WITH ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, WHETHER IN CONTRACT (INCLUDING BREACH OF WARRANTY), TORT (INCLUDING STRICT LIABILITY AND NEGLIGENCE) OR OTHERWISE. ADDITIONALLY, IN NO EVENT SHALL SMARTSHOOT’S AGGREGATE LIABILITY EXCEED THE ACTUAL AMOUNTS PAID UNDER THIS AGREEMENT.
11. Non-Solicitation. Upon placing an order and continuing for a period of 12 months following the shooting of the last Project produced by SmartShoot for you, you agree that you will not, without SmartShoot’s prior written consent, directly or indirectly, solicit or encourage any employee or contractor of SmartShoot or its affiliates to work directly for you.
12. User Content. Parts of the SmartShoot site allow the posting of feedback, comments and ratings (“User Content”). You are solely responsible for User Content that you submit or make available on the Site and understand the SmartShoot makes no guarantee in terms of the confidentiality of User Content. By posting User Content you grant and represent and warrant that you have a right to grant to SmartShoot a royalty-free, tranferable, perpetual, irrevocable, worldwide license to use, reproduce, modify, publish, publicly display and make derivative works of all such User Content.
i. Modification. SmartShoot reserves the right, from time to time to change these Terms and Conditions in our sole and absolute discretion. Each such revision will be marked with a revision date. The most current version of these Terms and Conditions will be available when placing an order and can be reviewed by emailing firstname.lastname@example.org The most current version of the Terms and Conditions will supersede all previous versions as to new orders.
ii. Governing Law; Arbitration. This Agreement shall be construed and governed by the laws of the State of California. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
iii. Independent Contractor. Each party is an independent contractor and not an agent or partner of, or joint venturer with, the other party for any purpose, neither party by virtue of this Agreement shall have any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.
iv. Assignment. You shall not assign these Terms and Conditions, or any rights or obligations hereunder, without the prior written consent of SmartShoot. SmartShoot may assign the Terms and Conditions in their entirety, including all rights and obligations hereunder, without consent to a party affiliated with SmartShoot or to a third party in connection with a merger, consolidation, reorganization, or a transfer of all or substantially all of SmartShoot's assets or shares to any third party. Any assignment in violation of this provision shall be void.
v. Force Majeure. Neither party shall be liable or deemed in default for any delay or failure in performance of this Agreement (except for any payment obligations) resulting from any cause completely, solely and exclusively beyond the control of that party, but only for so long as, its performance is prevented by any acts or events beyond that Party's reasonable control.
vi. Notices. All notices, requests, demands, and other communications hereunder shall be in writing and shall be deemed to have been duly given if personally delivered or when received if mailed, by courier, overnight delivery services or certified or registered mail, postage pre-paid, to the parties at the address set forth below:
121 2nd Street, Third Floor
San Francisco, CA 94105
vii. Headings. The headings of the Sections of this Agreement are for convenience only and will not be of any effect in construing the meanings of the Sections.
viii. Severability. This Agreement shall be deemed severable, and if any portion here of shall be held invalid for any reason, the remainder shall not hereby be invalidated, but shall remain in full force and effect.