SmartShoot makes our web site, platform and applications ("Platform") available as an online venue where clients for creative services ("Clients") and creative professionals including, but not limited to, filmmakers, videographers and photographers ("Creatives") identify each other and work together as independent contractors to complete, manage, collaborate and pay for projects ("Projects").
Relationship. The identification, selection, contracting, collaboration and fullfilment of a Project are between a Client and a Creative. Client acknowledges and agrees that their relationship is that of independent contractors. SmartShoot is not a party to the contracting and fullfilment of a Project between Client and Creative and SmartShoot does not have control over and does not guarantee the quality of Creative's services or that a Creative will actually complete a transaction. SmartShoot may provide ratings and past job information about a Creative and that information is solely informational and is not an endorsement or guarantee of a Creative by SmartShoot.
Payment. By visiting and using the SmartShoot site, you agree to use SmartShoot to make all payments to Creatives whom you find through the Site. For all Projects you commission, you agree to purchase and pay for in a timely manner the Project services and deliverables as specified on the applicable Project page. When you commission a Project through the SmartShoot platform, you are expressly agreeing that SmartShoot is authorized to charge 50% of the Project Fee, to the credit card you have provided, upon your selection of a Creative and 100% of the balance of the Project Fee upon your approval of the Project deliverables. If you do not request edits on, dispute, cancel or approve your Project within 30 days of when your Project deliverable is made available for your approval on the SmartShoot site, you are expressly agreeing that SmartShoot is authorized to charge the entire unpaid balance of the Project fee to the credit card you have provided and agree that the Creative and SmartShoot shall have fulfilled all obligations under that Project. SmartShoot shall have the right to refuse or cancel any order for any reason. You agree to notify SmartShoot immediately if your Creative solicits payment from you outside of SmartShoot.
SmartShoot Fees / Service Fee. When a Client pays a Creative, SmartShoot credits the Creative and then deducts a Service Fee of 20% that SmartShoot earns for creating, hosting, maintaining, and providing the Site. There are no charges to join SmartShoot and there are no charges to post jobs, to pitch jobs or to work on jobs. SmartShoot deducts a 20% Service Fee for all invoices submitted by Creatives. For 24 months from the time you identify or are identified by any party through the site ("Exclusivity Period"), you must use the Site as your exclusive method to request, make and receive all payments for work directly or indirectly with that party or arising out of your relationship with that party ("SmartShoot Relationship"). You may opt-out of this obligation only if the prospective Client pays SmartShoot an "Opt-Out Fee" computed to be the greater of the following amounts:
15% of the value of work to be performed in the SmartShoot Relationship during the Exclusivity Period, as estimated in good faith by the prospective Client; or
all Service Fees that would be earned by SmartShoot from the SmartShoot Relationship during the Exclusivity Period, computed based on the annualized amount earned by the Creative from the Client during the most recent normalized 8 week period, or during such shorter period as data is available to SmartShoot;
and, in any case, plus interest at the rate of 18% per annum or the maximum rate permitted by applicable law, whichever is less, calculated from the date the Client first makes payment to the subject Creative until the date the Opt-Out Fee is paid.To pay the Opt-Out Fee, you must request instructions by sending an email message to email@example.com.
Pro-rata Fees, Cancellations and Refunds. If you cancel a Project, any time before the shoot or other work has commenced on the Project, you agree that you will pay a cancellation fee equal to 10% of the total Project fee and, without limiting SmartShoot's other remedies, you are expressly agreeing that SmartShoot is authorized to charge the cancellation fee to the credit card you have provided or to retain the cancellation fee from any deposits you may have made. If you cancel a Project, any time after the shoot or after the first upload by the Creative, whichever comes first, you agree that you will pay a pro-rata fee equal to 50% of the total Project fee and, without limiting SmartShoot's other remedies, you are expressly agreeing that SmartShoot is authorized to charge the pro-rata fee to the credit card you have provided or to retain the pro-rata fee from any desposits you may have made. You must notify SmartShoot in writing or via email to firstname.lastname@example.org of your desire to cancel a Project no more than 10 days after the shoot or 10 days after the first upload by the Creative, whichever comes first and in all cases prior to requesting any edits on your Project.
If you cancel a Project after you have requested a round of edits, you agree that you will pay a pro-rata fee equal to 75% of the total Project Fee and, without limiting SmartShoot's other remedies, you are expressly agreeing that SmartShoot is authorized to charge the pro-rata fee to the credit card you have provided. You must notify SmartShoot in writing or via email to email@example.com of your desire to cancel a Project no more than 10 days after your receipt of your edited Project via the SmartShoot preview room and in all cases prior to requesting additional edits on your Project.
Term and Termination.
Term. This Agreement commenced with your acceptance and will remain in effect thereafter unless terminated earlier in accordance with the terms of this Agreement.
Termination for Breach. Each party will have the right to terminate this Agreement 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.
Without limiting SmartShoot's other remedies, if you engage in activities or actions which circumevent the SmartShoot site or otherwise reduce fees owed SmartShoot under this Agreement, you must pay SmartShoot for all fees owed to SmartShoot and reimburse SmartShoot for all losses and costs and reasonable expenses (including attorney fees) relating to enforce SmartShoot's rights and collecting such fees.
Survival. Sections 3, 4, 5, 8, 9, 10,11, 12, 13 and 14 will survive any termination of this Agreement.
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.
Your Representations and Warranties. You hereby represent and warrant that you have all necessary authority, rights and permissions to grant the licenses described in these terms and that the video or photos ("Project Deliverables") produced under this Agreement 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. In certain instances, you may be able to submit content (e.g., photos or music) ("Materials"), to be included in the Project Deliverables. You hereby also permit SmartShoot and/or Creative to retrieve photos from your website to be included in Projects 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 Project Deliverables 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 Deliverables 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. You are solely responsible for: (i) the accuracy, non-deceptiveness, completeness, proprietary, and substantiation of the Project Deliverables, including any scripts, (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 Creatives, as applicable, 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.
SmartShoot Representations and Warranties.
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.
Ownership and License Grants. Upon your payment hereunder, all rights, title and interest, including all copyrights, intellectual and other proprietary rights, in and to each Photo and/or Video as well all raw footage shot by SmartShoot or the Creative, including out-takes, "b-roll", interviews, location shots and clips (the "Raw Footage"), shall be your property unless you elect different ownership rights in the Project with the Creative. Delivery of Raw Footage is an additional service subject to availability and may be subject to an additional fee. Notwithstanding the preceeding, SmartShoot shall be under no obligation to deliver or store any portion of the Raw Footage. You hereby grant to SmartShoot and your Creative a perpetual, irrevocable, royalty-free, non-exclusive, fully transferable and sublicensable right and license to store, copy, display, and distribute your Project for SmartShoot or Creative's marketing efforts in any form, media, software or technology of any kind now existing or developed in the future.
Ownership of Music Content. Without limiting any of the foregoing, the Creative, SmartShoot or SmartShoot's third-party licensors, as applicable, retain all ownership rights, including copyright, to any music included in any Project, including without limitation any original musical compositions created by SmartShoot or the Creative 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").
Your License to SmartShoot. You hereby grant to SmartShoot or the Creative, as applicable 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.
Indemnification. You shall indemnify, defend and hold harmless SmartShoot, the Creative, 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 9, (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 Deliverables that is in breach of these Terms and Conditions, (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.
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.
Non-Solicitation. Upon placing an order and continuing for a period of 24 months following the delivery 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.
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 can be reviewed by visiting http://www.SmartShoot.com/tncs/. The most current version of the Terms and Conditions will supersede all previous versions as to new orders.
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.
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.
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.
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.
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
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.
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.