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Proceed to sign in.INDEPENDENT CONTRACTOR AGREEMENT
Welcome, and thanks for being a part of SmartShoot.
We (our lawyers, actually) cover a lot of ground in these agreements which we encourage you to read. Here are some key highlights:
1. No matter what, you are always in control of whether or not you take jobs referred to you on the platform - so take only the ones that work for you!
2. We ask for a license to distribute, communicate and market the work you post to your portfolio. Without a doubt, you still own it.
3. Be professional and know the laws/regulations you are governed by. This includes your agreement to protect the privacy and personal data of others.
4. You must be a professional photographer or videographer, offering photography or videography services outside of SmartShoot, and in California, you must be performing work as, or on behalf of, a sole proprietorship, partnership, corporation, LLC or LLP.
5. You are in control of setting the usage and ownership terms when you find a new client through the SmartShoot marketplace with the exception of Certified Partner Jobs. CPJs have general terms negotiated in advance and are always work for hire. You never have to accept these jobs if that goes against your business model. At the end of the day, we put you in control of your work and your clients so that you can make decisions around what's best for you.
6. If we have claims against each other, we’ll resolve them in arbitration on an individual basis, not as a class member.
There are three types of agreements listed below. Be sure to read the one or ones that apply to you. If you are just checking out the site and want to sign up to post your work and create a free portfolio, then you’ll want to read the section entitled Free Portfolio. If you want to respond to a direct request for an assignment that originates from your Portfolio page or from the SmartShoot website, then you’ll want to read the section entitled Job Assignments. Finally, if we approve your account to work with our brand partners and you want to respond to a specific job posted by one of our brand partners, then you’ll want to read the section entitled Certified Partner Jobs.
This Independent Contractor Agreement (“Agreement”) is entered into by and between SmartShoot, Inc. ("SmartShoot," "we, "us," or "our") and you ("Independent Contractor," "you," or "your"), a professional photographer or filmmaker, (performing work as, or on behalf of, a sole proprietorship, partnership, corporation, LLC or LLP if in California), as of the date you register with SmartShoot and/or upon your acceptance of a job under the terms below. For those Projects in which the client for creative services ("Client") and you set a price between the two parties ("Job Assignments"), this Independent Contractor Agreement is entered into by and between Client and Independent Contractor upon Client's award and Independent Contractor's acceptance of a Project under the terms below.
Free Portfolio
1. Creative Portfolio Pages. "Creative Portfolio Pages" allow you to create and publish a portfolio site, leveraging your photos and videos and reviews to market your photography and/or video production services. By uploading or submitting content to create a Creative Portfolio Page, you grant SmartShoot (and our parent and affiliates), a worldwide license to communicate, distribute, host, make modifications or derivative works (for the purpose of better showcasing your work), publicly display, publicly perform, publish, reproduce, store and use such content. This license grant is solely for operating, marketing, promoting and improving our services. By submitting your content, you also give other SmartShoot users the right to share your content via various social media platforms integrated with SmartShoot. You are responsible for determining the limitations that are placed on your content. You agree to use your real name and to only post your own creative work to your Creative Portfolio Page. If SmartShoot decides in its sole determination that your conduct violates our Terms Of Service available at http://www.smartshoot.com/terms-of-service, which are incorporated here by reference, we may remove your content or disable your use of Creative Portfolio Pages, with or without notice to you. We are not responsible for (a) the loss, corruption or damage to your content, (b) the deletion or accuracy of your content, (c) the security, privacy, or communications related to your project. We may create limits on the use of Creative Portfolio Pages, including limitation on file size and storage space and may require you to delete your content until you are within certain storage limits. We may provide you with a custom URL for your Creative Portfolio page and reserve the right to reclaim custom URLs or remove them for any reason without notice. You agree to not include words of phrases in your custom URL that would violate our Terms of Service.
You are allowing us to showcase your work and agree that we have the right to do so on your behalf.
2. Code of Professional Conduct. SmartShoot is committed to fostering an environment that is respectful and free from harassment and discrimination, including on the part of Independent Contractors. SmartShoot does not tolerate harassment of or discrimination against any SmartShoot employee, client, or third-party service provider. Your conduct may also impact SmartShoot's reputation with our customers. Accordingly, you agree to follow, and will ensure that all of your Personnel (i.e., those who work for you either as employees or subcontractors) will follow a professional level of conduct, including: (i) completing each Project with integrity and in a professional manner, (ii) treating and speaking with SmartShoot's Clients and their respective employees in a respectful, courteous and professional tone and demeanor, (iii) communicating with SmartShoot's employees in a respectful, courteous and professional tone and demeanor, (iv) not performing any Project while under the influence of drugs or alcohol, (v) not requesting or accepting anything of value from SmartShoot's Clients, or third-party service providers, and/or (vi) not directly or indirectly soliciting any of SmartShoot's Clients for the purpose of securing additional work to the detriment of SmartShoot's business relationship with our Clients. If you are not able to comply with SmartShoot's Code of Professional Conduct, please notify SmartShoot immediately. You agree that your violation of this Code of Professional Conduct is a material breach of the Agreement, which thereby entitles SmartShoot to terminate the Agreement immediately.
Play nice
3. Content Clearances. You are solely responsible for the acquisition and payment of any and all third-party clearances, permissions, fees, and licenses that are necessary in connection with your Creative Portfolio Pages, each Project and/or SmartShoot's or Client's exercise of any Deliverable, including with respect to the use of any copyrighted or trademarked materials and the use of any names, likenesses or biographical materials. In addition, you will verify all facts in each Deliverable.
You're responsible for the content you create - that includes any kind of permission, fees, licenses, etc needed.
4. Representations. You represent, warrant, and covenant for yourself and each of your Personnel that: (i) you and your Personnel are a validly existing business entity or individual, duly licensed and qualified to carry on your business/operations and perform your obligations and that you have procured insurance associated with performing the services, including, but not limited to, unemployment insurance and worker’s compensation insurance and contributions (ii) you and your Personnel have all rights, insurance, licenses, permits, qualifications and consents necessary to perform your and/or their respective obligations and own all intellectual property rights (or have obtained all necessary permissions) to the content you upload to your Creative Portfolio Page, (iii) you and your Personnel will and have complied with all federal, state and local laws, (iv) you and your Personnel's performance under the Agreement does not and will not violate or cause a breach of the terms of any other agreement to which you or your Personnel are a party, (v) you and Personnel are not in default of any other agreement and there are no proceedings threatened or pending under order of any court, arbitrator, administrative agency or other authority, which would affect performance of the Agreement, (vi) you and your Personnel are not a party to any collective bargaining agreement that might be applicable to the Services provided hereunder, and that neither the Agreement nor the Services provided by you are subject to any collective bargaining, (vii) there is and have been no unfair labor practice complaint against you or your Personnel, (viii) the content you upload to create a Creative Portfolio Page, the Deliverables, and SmartShoot and/or each respective Client's use of such Deliverables, do not and will not (a) violate, infringe or misappropriate the Intellectual Property Rights of any third party, rights of publicity, rights of personality, rights of privacy, rights to payment of royalties, or any other rights of third parties, (b) result in any tort, injury, damage or harm to any third party, or (c) contain material that is obscene, defamatory, libelous, or slanderous, (ix) the Deliverables and the media on which the Deliverables are performed and/or delivered will be free of viruses, Trojan horses, trap doors, backdoors, Easter eggs, logic bombs, worms, time bombs, cancelbots, and/or other computer programming routines that may potentially damage, interfere with, intercept, disable, deactivate, or expropriate any SmartShoot entity or Client property, (x) you and your Personnel will deliver each Deliverable in a professional and workmanlike manner in accordance with standards generally accepted in Independent Contractor's industry, (xi) Deliverables furnished hereunder are and will be: (a) new and free from defects in design, materials and workmanship; (b) of merchantable quality and fit for the purposes for which they are intended; and (c) free and clear of all liens, claims and encumbrances; (xii) you and your Personnel have all rights, licenses, permits, qualifications and consents necessary to grant SmartShoot or Client ownership and use of the Deliverables, and delivery to SmartShoot or Client of all rights and licenses in and to the Deliverables does not violate any laws, (xiii) Services will conform with the Agreement, and (xiv) you and your Personnel will take all necessary precautions to prevent injury to any person or damage to any property while performing each Project.
Promises you make to us are true - really.
5. Indemnification. You will indemnify, defend and hold harmless SmartShoot from all claims, whether actual or alleged, that arise out of or in connection with your Creative Portfolio Page, including: (i) personal injury, death, property damage, or theft, (ii) negligent, gross negligence or intentional conduct, and/or (iii) your breach of the Agreement (collectively, "Claims"). You are solely responsible for defending any Claim against SmartShoot, subject to such SmartShoot's right to participate with counsel of its own choosing at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys' fees, resulting from all Claims against SmartShoot; provided however, that you will not agree to any settlement that imposes any obligation or liability on SmartShoot without SmartShoot's prior express written consent. This provision is further supplemented by Appendix A relating to Release of Liability.
Your promise to be responsible for your work and content.
6. Term and Termination. The term of the Agreement commences when you register with SmartShoot, and continues until terminated as set forth herein. Either Party may terminate the Agreement by written notice to the other Party if the other Party breaches any material provision of the Agreement and such breach is not cured within 30 days after written notice thereof is received by the other Party. We may add, modify or remove features or functionalities, and we may suspend or stop a Service. We may also stop providing Service to you, or add or create new limits to our Services at any time. In addition, SmartShoot reserves the right to terminate the Agreement or any portion thereof, with or without cause, upon 15 days prior written notice to Independent Contractor. You may terminate this Agreement, without or without cause, upon 15 days prior written notice to SmartShoot, provided that you have no outstanding obligations for Services to SmartShoot or Client. Upon termination of the Agreement, SmartShoot, as its sole liability, will pay you for Deliverables completed and accepted by SmartShoot. Sections 3, 4, 5, 7 and 8 will survive termination of the Agreement.
Either one of us can terminate this agreement at any time via written notice to the other party.
7. Choice of Law. The terms of the Agreement and any dispute relating thereto will be governed by the laws of the State of California, without regard to conflict/choice of law principles, except as otherwise agreed to by the Parties in writing. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.
7.1 Non-California Residents: The fact that the terms and enforceability of this Agreement are to be interpreted pursuant to California law does not create or invest any substantive right for non-Californians to assert under California law whether that be by statute, common law, or otherwise. Likewise with the forum selection provision people; its only purpose is to specify a forum should any disputes arise between us. No provision in this agreement shall be interpreted as generally extending California law to you if you do not otherwise reside or provide services in California.
7.2: The Arbitration Agreement Below: In Section 8 below, we agree to submit claims between us to arbitration as permitted by law pursuant to the Federal Arbitration Act. That means that arbitration procedures and issues are controlled by federal law, not California law.
If there is anything in question, this will be mostly be done under California State Law.
Except as provided in Section 8.2.5 below, regarding the Class Action Waiver, such disputes include without limitation disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an Arbitrator and not by a court or judge. However, as set forth below, the preceding sentences shall not apply to disputes relating to the interpretation or application of the Class Action Waiver or PAGA Waiver below, including their enforceability, revocability or validity. Except as it otherwise provides, this Arbitration Provision also applies, without limitation, to all disputes between You and SmartShoot and all successors and assigns of SmartShoot, including but not limited to any disputes arising out of or related to this Agreement and disputes arising out of or related to your relationship with SmartShoot, including termination of the relationship. This Arbitration Provision also applies, without limitation, to disputes regarding any city, county, state or federal wage-hour law, trade secrets, unfair competition, privacy laws, compensation, breaks and rest periods, expense reimbursement, termination, harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by SmartShoot and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), Genetic Information Non-Discrimination Act, and state statutes, if any, addressing the same or similar subject matters, and all other similar federal and state statutory and common law claims.
This Agreement is intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of this Agreement are expressly excluded from the Arbitration Provision.
8. Arbitration and Dispute Resolution.
8.1 Arbitration. Other than disputes regarding the intellectual property rights of the parties and other claims identified in Section 8.2.2, any disputes, actions, claims or causes of action arising out of or in connection with this Agreement shall be subject to arbitration pursuant to Section 8.2 to the extent permitted by law.
8.2 Arbitration Provision.
WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT BUSINESS DECISION. IT IS YOUR DECISION TO MAKE, AND YOU SHOULD NOT RELY SOLELY UPON THE INFORMATION PROVIDED IN THIS AGREEMENT AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ARBITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS — INCLUDING BUT NOT LIMITED TO AN ATTORNEY — REGARDING THE CONSEQUENCES OF YOUR DECISION, JUST AS YOU WOULD WHEN MAKING ANY OTHER IMPORTANT BUSINESS OR LIFE DECISION.
8.2.1 How This Arbitration Provision Applies.
This Arbitration Provision applies to any dispute arising out of or related to this Agreement or termination of the Agreement and survives after the Agreement terminates. Nothing contained in this Arbitration Provision shall be construed to prevent or excuse you from utilizing any informal procedure for resolution of complaints established in this Agreement (if any), and this Arbitration Provision is not intended to be a substitute for the utilization of such procedures.
Except as prohibited by law and as the parties otherwise agree, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before any forum other than arbitration, with the exception of proceedings that must be exhausted under applicable law before pursuing a claim in a court of law or in any forum other than arbitration. Except as it otherwise provides, this Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective, or representative action.
8.2.2 Limitations on How This Agreement Applies.
The disputes and claims set forth below shall not be subject to arbitration and the requirement to arbitrate set forth in this Arbitration Provision shall not apply:
a. A representative action brought on behalf of others under the Private Attorneys General Act of 2004 ("PAGA"), California Labor Code § 2698 et seq., to the extent waiver of such a claim is deemed unenforceable by a court of competent jurisdiction;
b. Claims for worker's compensation, state disability insurance and unemployment insurance benefits; and
c. Disputes regarding SmartShoot or your intellectual property rights.
Regardless of any other terms of this Agreement, nothing prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, and nothing in this Agreement or Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. Nothing in this Arbitration Provision shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration.
8.2.3 In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach of this Agreement, or arising from any arrangement under this Agreement as between Independent Contractor and SmartShoot; the parties to this Agreement will use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, the parties will consult and negotiate with one another in good faith, in an attempt to reach a just and equitable solution, satisfactory to all parties. If informal resolution of the dispute, claim, question or disagreement cannot be reached, disputes that are within the jurisdictional maximum for small claims will be settled in the county of San Francisco, CA Small Claims Court. With regard to other disputes, SmartShoot and you mutually agree to resolve any justifiable disputes between them, specifically including any claims related to payments due and the classification of you as an independent contractor that cannot be resolved by the Parties, exclusively through final and binding arbitration instead of filing a lawsuit in court. This arbitration agreement will apply to any and all claims arising out of or relating to this Agreement, the provision of services pursuant to this Agreement, the payments received by you, the termination of this Agreement, and all other aspects of your relationship with SmartShoot, past or present, whether arising under federal, state or local statutory and/or common law.
8.2.4 If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, 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 will be delivered to the address indicated in the notice terms of this Agreement, unless that address has been updated, in writing.
8.2.5 Class Action Waiver SmartShoot and you mutually agree that by entering into this Agreement, both waive their right to have any dispute brought, heard or arbitrated as a class action, collective action and/or representative action, and an arbitrator will not have any authority to hear or arbitrate any class, collective or representative action. All claims covered by this arbitration agreement will be pursued in an individual claimant proceeding and not as part of a representative, collective, or class action. Apart from any other clause contained in this Agreement, 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. This Agreement does not prevent the filing of charges with a government agency like the Department of Labor or participation in any investigation or proceeding conducted by a government agency.
8.2.6 Private Attorneys General Act Notwithstanding any other provision of this Agreement or the Arbitration Provision, to the extent permitted by law, (1) You and SmartShoot agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 ("PAGA"), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis—i.e., where you are seeking to pursue a claim on behalf of a government entity—both you and SmartShoot agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) ("PAGA Waiver"). Notwithstanding any other provision of this Agreement or the Arbitration Provision, the validity of the PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of the PAGA Waiver is found to be unenforceable or unlawful for any reason, (1) the unenforceable provision shall be severed from this Agreement; (2) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Provision or the Parties' attempt to arbitrate any remaining claims on an individual basis pursuant to the Arbitration Provision; and (3) any representative action brought under PAGA on behalf of others must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the PAGA Waiver is unenforceable with respect to those claims, the Parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
8.2.7 If the parties can not otherwise mutually agree upon an arbitrator, any arbitration will be governed by the American Arbitration Association Commercial Arbitration Procedures, except as follows:
a. Arbitration will be conducted by a mutually agreeable arbitrator or the American Arbitration Association (AAA) if no arbitrator can be agreed upon. The arbitrator designated through AAA will be selected from a list of no less than seven names through alternative strikes.
b. If the parties cannot otherwise agree on a location for the arbitration, the location of the arbitration proceeding shall be no more than 45 miles from the place where you last provided services under this Agreement, unless each party to the arbitration agrees in writing otherwise.
c. Unless the parties agree otherwise, Arbitrator’s fees and costs will be paid and apportioned as required by applicable law and regulation.
d. The arbitrator may issue orders 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.
e. 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 will 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 will apply the state or federal substantive law, or both, as is applicable.
f. 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.
g. Any decision or award by the arbitrator will be in writing.
8.2.8 Nothing in this Agreement is intended to or will preclude SmartShoot or you from filing a complaint and/or charge with any appropriate federal, state, or local government agency and/or cooperating with said agency in its investigation. Nonetheless, SmartShoot and you acknowledge that to the fullest extent permitted by law they will not be entitled to receive any private relief, recovery, or monies in connection with any governmental complaint or charge, without regard as to who brought said complaint or charge. All monetary relief will only be available through small claims court or arbitration.
8.2.9 You may opt out of the requirement to arbitrate pursuant to the terms of this subsection if you have not previously agreed to an arbitration provision in SmartShoot’s Independent Contractor Agreement where you had the opportunity to opt out of the requirement to arbitrate. If you have previously agreed to such an arbitration provision, you may opt out of any revisions to your prior arbitration agreement made by this provision in the manner specified below, but opting out of this arbitration provision has no effect on any previous, other, or future arbitration agreements that you may have with SmartShoot. If you have not previously agreed to such an arbitration provision and do not wish to be subject to this arbitration clause, you may opt out of arbitration by notifying SmartShoot in writing of your desire to opt out of arbitration, which writing must be dated, signed and delivered by: (1) electronic mail to legal@smartshoot.com, or (2) by certified mail, postage prepaid and return receipt requested, or by any nationally recognized delivery service (e.g, UPS, Federal Express, etc.) that is addressed to:
General Counsel
SmartShoot, Inc.
548 Market Street
PMB 86499
San Francisco, CA 94104-5401
In order to be effective, (A) the writing must clearly indicate your intent to opt out of arbitration, (B) the writing must include the name, phone number, and email address associated with your SmartShoot account, and (C) the email or envelope containing the signed writing must be sent within 30 days of the date this Agreement is first executed by you. Should you not opt out within the 30-day period, you and SmartShoot shall be bound by the arbitration terms of this Agreement in full.
8.2.10 Either Party may bring an action in a court of competent jurisdiction to compel arbitration under this Agreement, to enforce an arbitration award, or to review an arbitration award. In an action to review an award, the standard of review applied will be the same as that applied by an appellate court reviewing the decision of a trial court sitting without a jury, without any special deference to the arbitrator.
8.2.11 You and SmartShoot expressly waive trial by jury for all claims covered by this Agreement. All other rights, remedies, exhaustion requirements, statutes of limitation and defenses applicable to claims asserted in a court of law will apply in the arbitration. You and SmartShoot agree that arbitration as explained in this Agreement provides a fair and adequate mechanism for enforcing the Parties’ statutory rights.
8.2.12 You agree and acknowledge that entering into this arbitration agreement does not change your status as an independent contractor in fact and in law, and that you are not an employee of SmartShoot apart from this arbitration agreement.
We'll work most things out in arbitration on an individual basis.
9. Miscellaneous The Agreement constitutes the entire agreement and understanding between the Parties regarding the subject matter contained herein and supersedes all agreements, understandings, negotiations, representations, claims, and communications in all forms of media, written and oral, regarding the subject matter contained herein. Only a written instrument signed by whichever of SmartShoot or you is entitled to waive such compliance may waive any term and/or condition of the Agreement. No waiver by either SmartShoot or you of any provision hereof will be deemed a waiver of any other breach of such provision or a waiver of the provision. If any provision of the Agreement is held or made invalid or unenforceable for any reason, such invalidity will not affect the remainder of the Agreement, and the invalid or unenforceable provision will be replaced by a valid provision that has a similar effect. We may give notices to you by email, first class mail or facsimile as provided by you when you registered with SmartShoot. You must ensure that your contact and account information is current and correct, and promptly notify us in writing of any changes to such information. You will send all notices to us via recognized overnight courier or certified mail, return receipt requested, to: General Counsel, SmartShoot, Inc., 548 Market St, PMB 86499 San Francisco, California 94104-5401. Neither SmartShoot nor you nor Client will have any liability under the Agreement by reason of any failure or delay in the performance of SmartShoot's or Client's or your obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet and/or electrical outages, computer viruses, acts of God, war, governmental action, or any cause that is beyond, as applicable, SmartShoot's or Client's or your reasonable control. SmartShoot, Client and you as applicable are independent contractors and nothing in the Agreement will be construed to create, evidence, or imply any agency, employment, partnership, or joint venture between SmartShoot, Client and you. Except as otherwise set forth in the Agreement with respect to Clients, the Agreement is not intended to benefit, nor will it be deemed to give rise to any rights in, any third party. You may not assign, sublicense or transfer the Agreement or any right or duty under the Agreement to another party, in whole or in part, without SmartShoot's prior written consent. Any assignment, transfer, or attempted assignment or transfer in violation of this Section will be void and of no force or effect. Any rights not expressly granted in the Agreement are reserved by SmartShoot, Client or you, as applicable, and all implied licenses are disclaimed. Headings of Sections are for convenience only, and are not intended to affect the interpretation or construction of any other provision of the Agreement. As used in the Agreement, the word "including" is a term of enlargement meaning "including without limitation" and does not denote exclusivity, and the words "will," "shall," and "must" are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable. All definitions apply both to their singular and plural forms, as the context may require. Executed counterparts of the Agreement will each be deemed originals, whether exchanged via mail, facsimile, or electronically.
This section contains all the miscellaneous information including our address.
10. Electronic Signatures Effective. a.) By clicking on the "I Accept" or similar button, you create an electronic signature to the Agreement, establishing a valid, legal contract. In doing so, you agree to accept these terms and conditions and any other agreement contained or referenced herein; you also agree that we may supply you a copy of the Agreement in electronic form. Please print or save a copy of the Agreement for your records. You also may choose to receive a copy of the Agreement in non-electronic form at any time by submitting a request to us at the address set forth above. b.) You may choose to withdraw your consent to receive the Agreement in electronic form. Withdrawing your consent to receive the Agreement in electronic form does not change your existing obligations to us under the Agreement. Instead, withdrawing your consent simply means that you wish to have our relationship with you governed by a non-electronic form of the Agreement. If you wish to withdraw your consent to receive the Agreement in electronic form and to instead enter into a non-electronic form of the Agreement, please send a letter and self-addressed, stamped envelope to the address set forth above. We then will send you a non-electronic form of the Agreement. Your withdrawal of consent will become effective when we mail to you a copy of the non-electronic form of Agreement, at which point our relationship will be governed by the terms of such Agreement. In either instance, the obligations that you incur pursuant to the electronic form of the Agreement, prior to the effective date of the withdrawal of your consent, will remain unchanged until they are fully discharged by you. c.) In order to access and retain the electronic Agreement, you must have access to the Internet, either directly or through devices that access Web-based content, and pay any charges associated with such access. In addition, you must use all equipment necessary to make such connection to the Internet (e.g., a computer and modem or other access device). We will notify you of any changes in the hardware or software requirements needed to access and/or retain the Agreement that create a material risk that you will not be able to continue to access and/or retain the electronic Agreement.
If you're cool with this being your electronic signature, so are we.
Job Assignments
These terms cover and form the basic agreement between Independent Contractor and Client with respect to the creative services to be provided by Independent Contractor to Client.
1. Scope of the Agreement. The parties will agree to the scope and timing of delivery for each Project, including the Deliverables (defined below), and the fees to be paid by Client to Independent Contractor ("Fees") either in a written addendum to the Agreement, as posted through SmartShoot's website, by email, or any other method as may be used by the parties from time-to-time, each of which will be deemed a part of and governed by the Agreement. Descriptions of Projects may include compensation, ownership rights, deadline, delivery timeline commitments, and required Deliverables ("Project Description"). "Deliverables" mean all work created, developed or supplied by Independent Contractor in connection with your services and each Project, whether as finished products or work in process, including writings of any kind, audio-visual works, user interfaces, "look and feel," artwork, illustrations, images, photographs, printed or graphic matter, trademarks (including service marks, trade dress, trade names, logos, and domain names), works of authorship, preparatory materials, charts, diagrams, memoranda, drafts, sketches, outlines, developments, materials, data, inventions (whether patentable or not), trade secrets, improvements, processes, discoveries, compositions, methodologies, program materials, notes, lists, compilations, manuscripts, pictorial materials, schematics, drawings, specifications, blueprints, flowcharts, schematics, protocols, designs, design rights, plans, proposals, technical data, financial and marketing plans, as well as all Intellectual Property Rights, whether foreign or domestic, in each of the foregoing. "Intellectual Property" or "Intellectual Property Rights" means all: trade secrets, patents and patent applications, trademarks and trademark applications, service marks and service mark applications, trade names, Internet domain names, copyrights and copyright applications, moral rights, rights of privacy, publicity, and similar rights, design rights, rights in know-how, rights in inventions (whether patentable or not), renewals or extensions of, and goodwill associated with the foregoing, and all other equivalent rights anywhere in the world. You will be notified in advance of any material changes to the Project by Client. Independent Contractor grants SmartShoot the right to provide Independent Contractor's name, image, synchronized calendar(s), location and contact information to any Partner or Client in connection with each Project or potential Project.
Make sure to define all aspects and expectations of your work and projects in the descriptions and messages.
2. Staffing. Independent Contractor will supervise and control its Personnel (i.e., those who work for you either as employees or subcontractors) and represents and warrants that when employing or subcontracting with third parties, it does so as a legally recognized entity or person and in compliance with all applicable laws and regulations pertaining to hire and/or contract employees and/or independent contractors (a "Bureau"). Independent Contractor and Bureau agree and acknowledge that Bureau's employees and independent contractors are not employees of SmartShoot or Client. As between SmartShoot and Independent Contractor, Independent Contractor agrees that SmartShoot has no responsibility for any wages, costs, unemployment insurance, workers' compensation insurance, and expenses of Bureau's employees and independent contractors and that SmartShoot has no obligation to, and will not, supervise or control them. Independent Contractor represents, warrants, and covenants that Bureau acknowledges and agrees that: (a) Bureau is solely responsible for all wages, costs, unemployment insurance, workers' compensation insurance, contributions, and expenses of Bureau's employees and independent contractors and has the sole and exclusive right to supervise and control them, and (b) neither Independent Contractor, nor Bureau, nor any of its employees, independent contractors or agents, will have any claim under this Agreement for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, contributions, or any other employee benefits of any kind from SmartShoot or Client.
You are responsible for staffing and payment of that staff if required for a shoot.
3. Work for Hire. Independent Contractor and Client will set the ownership rights for each Project in the Project Description and in the pitch made by the Independent Contractor. In the event that no ownership rights are defined in the Project Description or in the pitch, (i) Independent Contractor acknowledges that all works of authorship developed in the course of work performed pursuant to this Agreement and which are protectable by copyright are "works made for hire," as that term is defined in the United States Copyright Act (17 U.S.C. Section 101 et seq.). To the extent that such works do not constitute works made for hire under operation of law, Independent Contractor hereby assigns all rights, title and interest in and to such works to Client. (ii) Independent Contractor will require and cause its Personnel to assign to Independent Contractor all materials prepared, developed, and/or used by such Personnel in connection with, relating to, or regarding each Project, including all "moral rights" and Prior Inventions (defined below) therein. In jurisdictions such as Canada, where moral rights may not be assigned, Independent Contractor irrevocably and expressly waives in favor of Client and agrees never to assert any and all "moral rights" that it may have in any Deliverable. Independent Contractor agrees to give Client and any person designated by Client reasonable assistance, at Client's expense, required to perfect the rights granted pursuant to the Agreement. If Client is unable because of Independent Contractor's unavailability, dissolution, mental or physical incapacity, or for any other reason, to secure Independent Contractor's signature for the purpose of applying for or pursuing any Intellectual Property Rights assigned to Client herein, Independent Contractor hereby irrevocably designates and appoints Client and its duly authorized officers as Independent Contractor's agent and attorney-in-fact, to act for and on Independent Contractor's behalf to execute and file for such Intellectual Property Rights and to do all other lawfully permitted acts to further the prosecution of such Intellectual Property Rights with the same legal force and effect as if executed by Independent Contractor. This power of attorney shall be deemed coupled with an interest, and shall be irrevocable. (iii) Notwithstanding anything to the contrary in the Agreement, all rights and licenses granted by Independent Contractor pursuant to the Agreement will be deemed to be, for purposes of Section 365(n) of the Bankruptcy Code, 11 U.S.C. S 101 et seq., licenses of rights to "intellectual property" as defined under Section 101(35A) of the Bankruptcy Code, and software is, and will be deemed to be, "embodiment[s]" of "intellectual property" for purposes of same. Client will retain and may exercise all of its rights and elections under the Bankruptcy Code or equivalent legislation in any other jurisdiction. (iv) If in the course of performing the services, Independent Contractor incorporates into any Deliverable or utilizes in the performance of the services any pre-existing invention, discovery, original works of authorship, development, improvement, trade secret, concept, or other proprietary information or Intellectual Property Right owned by Independent Contractor or in which Independent Contractor has an interest ("Prior Inventions"), Independent Contractor agrees that (a) Independent Contractor will provide Client with prior written notice thereof, and (b) Client is hereby granted a nonexclusive, royalty-free, perpetual, irrevocable, transferable, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Prior Inventions, without restriction, including as part of or in connection with such Deliverable, and to practice any method related thereto. Client shall own all right, title and interest in and to any modifications or derivative works of the Prior Inventions made by Client or made by Independent Contractor as part of the Services ("Client Modifications"), including all Intellectual Property Rights in and to the Client Modifications. Independent Contractor will not incorporate any invention, improvement, development, concept, discovery, work of authorship or other proprietary information owned by any third Party into any Deliverable without Client's prior written approval.
Make sure to set the terms of ownership in your pitch and Project Description. If the terms are not defined, all works are deemed "Work for hire".
4. Code of Professional Conduct. SmartShoot is committed to fostering an environment that is respectful and free from harassment and discrimination, including on the part of Independent Contractors. SmartShoot does not tolerate harassment of or discrimination against any SmartShoot employee, client, or third-party service provider. Your conduct may also impact SmartShoot's reputation with our customers. Accordingly, you agree to follow, and will ensure that all of your Personnel (i.e., those who work for you either as employees or subcontractors) will follow a professional level of conduct, including: (i) completing each Project with integrity and in a professional manner, (ii) treating and speaking with SmartShoot's Clients and their respective employees in a respectful, courteous and professional tone and demeanor, (iii) communicating with SmartShoot's employees in a respectful, courteous and professional tone and demeanor, (iv) not performing any Project while under the influence of drugs or alcohol, (v) not requesting or accepting anything of value from SmartShoot's Clients, or third-party service providers, and/or (vi) not directly or indirectly soliciting any of SmartShoot's Clients for the purpose of securing additional work to the detriment of SmartShoot's business relationship with our Clients. If you are not able to comply with SmartShoot's Code of Professional Conduct, please notify SmartShoot and Client immediately. You agree that your violation of this Code of Professional Conduct is a material breach of the Agreement, which thereby entitles Client to terminate the Agreement immediately.
Play nice
5. Content Clearances. You are solely responsible for the acquisition and payment of any and all third-party clearances, permissions, fees, and licenses that are necessary in connection with your Creative Portfolio Pages, each Project and/or Client's exercise of any Deliverable, including with respect to the use of any copyrighted or trademarked materials and the use of any names, likenesses or biographical materials. In addition, you will verify all facts in each Deliverable.
Please make sure that you have all rights before posting any content, or else….
6. Payment. a.) Subject to Independent Contractor's strict compliance with the Agreement and Client’s acceptance of the Deliverables, Client will pay Independent Contractor the Fees as set forth herein. Client is responsible for managing, inspecting, accepting and paying through the SmartShoot platform for satisfactory Deliverables in accordance with the Project Description. Independent Contractor is responsible for the performance and quality of the Deliverables in accordance with the Project Description and will promptly invoice Client through the SmartShoot platform upon delivery of the final Deliverable. In no case shall Independent Contractor solicit Client to deliver payment for Projects outside of the SmartShoot platform, including, but not limited to cash or credit card payment through other service providers. All payments from Client to Independent Contractor, including cancellation and pro-rata charges, are net of SmartShoot's commission (ten percent (10%) for jobs originating through your Portfolio page and twenty percent (20%) for jobs originating through the SmartShoot website). For any Project that Client cancels or any Deliverable that Client chooses not to accept based on creative, technical, qualitative or other considerations, SmartShoot will make reasonable business efforts to collect from Client and pay to Independent Contractor (subject to SmartShoot's successful collection of fees from Client minus SmartShoot's then current commission structure) as follows: for Projects, including those involving solely photography or raw video footage, 50% of the Project fee if Client cancels the Project after the shoot or first upload by you through the SmartShoot platform, whichever comes first, or 75% of the Project fee if Client cancels the Project after requesting a round of edits through the SmartShoot platform. b.) SmartShoot may withhold payments (i) for any item on Independent Contractor's invoice that Client reasonably disputes, and/or (ii) until all Independent Contractor, including its Personnel, executes and delivers all documents necessary to effectuate the purposes of the Agreement, including Section 3 hereof.
You will be paid following acceptance of Deliverables.
7. Exclusivity By registering and communicating with potential Clients identified through the SmartShoot website and/or your Portfolio page, you agree to use SmartShoot to receive all payments from Clients whom you identify or who identify you through the SmartShoot website so that SmartShoot can collect its commission. You agree to notify SmartShoot immediately if a Client attempts to pay you outside the SmartShoot website.
Please let us know if a client wants to pay you outside of SmartShoot. If they found you on the site, they agree to pay through SmartShoot and you agree to be paid through the site as well.
8. Confidentiality. Confidential Information" means information disclosed by you to us or us to you or Clients to you, either directly or indirectly, in writing, orally, or by inspection of tangible objects that is designated as "Confidential," "Proprietary," or some similar designation or which under the circumstances should reasonably be understood to be confidential. Information communicated orally and/or other intangible information will be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information disclosed to a disclosing party by third parties. Confidential Information will not, however, include any information which: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving Party at the time of disclosure by the disclosing party as shown by the receiving party's files, records, and/or other competent evidence immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving Party's possession. The receiving party will not at any time (a) disclose, sell, license, transfer, or otherwise make available to any person or entity any Confidential Information of the disclosing party, except to employees, contractors, or agents, in each case who have a legitimate need to know such Confidential Information and are bound to confidentiality and non-use obligations no less restrictive than those contained in the Agreement, or (b) use, reproduce, or copy any Confidential Information of the disclosing party, except as necessary in connection with the purpose for which such Confidential Information is disclosed to the receiving party by the disclosing party, or in connection with or as set forth in the Agreement. All Confidential Information will remain the disclosing party's property and all documents, electronic media, and other tangible items containing or relating to any Confidential Information of the disclosing party will be delivered to the disclosing party promptly upon the disclosing party's written request. Notwithstanding the foregoing, neither party will be required to remove copies of the other party's Confidential Information from any backup servers. The receiving party may disclose Confidential Information of the disclosing party in connection with subpoenas, court orders, other legal processes, or as otherwise required by law, provided that the receiving party gives the disclosing party prompt written notice of such requirement (unless expressly prohibited in writing in such subpoena, court order, or other legal process) prior to such disclosure and takes reasonable steps to protect the information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. Notwithstanding anything to the contrary in the Agreement, without consent, either you or we may disclose (x) the Agreement (or the existence of the Agreement) to bona fide potential investors or prospective purchasers of a portion of its assets or beneficial ownership interests provided such disclosure is subject to confidentiality and non-use obligations no less restrictive than those contained in the Agreement, and/or (y) as required by law, including any governmental or regulatory filings.
So that you may perform services, we may provide you with personal information about customers through the SmartShoot platform. You agree that: a.) when you no longer have a bonafide business reason to access a customer’s personal information to perform services for us or b.) upon our request, you will delete any copies of personal information about a customer that you may have in your possession and any work product that you have created as part of your relationship with SmartShoot. Personal information is any information relating to an identified or identifiable natural person, including, but not limited to name, email address, phone number and location.
Pretty simple - keep things confidential that are supposed to be confidential and protect people’s personal information.
9. Representations. You represent, warrant, and covenant for yourself and each of your Personnel that: (i) you and your Personnel are a validly existing business entity or individual, duly licensed and qualified to carry on your business/operations and perform your obligations and that you have procured insurance associated with performing the services, including, but not limited to, unemployment insurance and worker’s compensation insurance and contributions (ii) you and your Personnel have all rights, insurance, licenses, permits, qualifications and consents necessary to perform your and/or their respective obligations and own all intellectual property rights (or have obtained all necessary permissions) to the content you upload to your Creative Portfolio Page or in connection with the Deliverables, (iii) you and your Personnel will and have complied with all federal, state and local laws, (iv) you and your Personnel's performance under the Agreement does not and will not violate or cause a breach of the terms of any other agreement to which you or your Personnel are a party, (v) you and Personnel are not in default of any other agreement and there are no proceedings threatened or pending under order of any court, arbitrator, administrative agency or other authority, which would affect performance of the Agreement, (vi) you and your Personnel are not a party to any collective bargaining agreement that might be applicable to the Services provided hereunder, and that neither the Agreement nor the Services provided by you are subject to any collective bargaining, (vii) there is and have been no unfair labor practice complaint against you or your Personnel, (viii) the content you upload to create a Creative Portfolio Page, the Deliverables, and each respective Client's use of such Deliverables, do not and will not (a) violate, infringe or misappropriate the Intellectual Property Rights of any third party, rights of publicity, rights of personality, rights of privacy, rights to payment of royalties, or any other rights of third parties, (b) result in any tort, injury, damage or harm to any third party, or (c) contain material that is obscene, defamatory, libelous, or slanderous, (ix) the Deliverables and the media on which the Deliverables are performed and/or delivered will be free of viruses, Trojan horses, trap doors, backdoors, Easter eggs, logic bombs, worms, time bombs, cancelbots, and/or other computer programming routines that may potentially damage, interfere with, intercept, disable, deactivate, or expropriate any SmartShoot entity or Client property, (x) you and your Personnel will deliver each Deliverable in a professional and workmanlike manner in accordance with standards generally accepted in Independent Contractor's industry, (xi) Deliverables furnished hereunder are and will be: (a) new and free from defects in design, materials and workmanship; (b) of merchantable quality and fit for the purposes for which they are intended; and (c) free and clear of all liens, claims and encumbrances; (xii) you and your Personnel have all rights, licenses, permits, qualifications and consents necessary to grant Client ownership and use of the Deliverables, and delivery to Client of all rights and licenses in and to the Deliverables does not violate any laws, (xiii) Services will conform with the Agreement, and (xiv) you and your Personnel will take all necessary precautions to prevent injury to any person or damage to any property while performing each Project.
Promises you are making to Clients are true.
10. Trademarks. Independent Contractor is not authorized to use and agrees it will not use any Client trademark(s), logo(s), service mark(s), trade name(s), and/or legal notice(s) (collectively, "Client Trademarks"), provided however in the event use of any SmartShoot Trademark is necessary in connection with performing any service hereunder, subject to Independent Contractor's strict compliance with the Agreement, Client grants Independent Contractor a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable, royalty-free license to use during the Term, only to the extent essential and necessary to provide the service, the Client Trademarks provided by Client to Independent Contractor for purposes of the Agreement. Upon Client’s request, Independent Contractor agrees to promptly remove or replace any Client Trademark, but in no event later than three (3) days after receipt of any such request. Upon termination of the Agreement, all use of any Client Trademark shall immediately cease. Each use, display (including the size, place, and manner), and/or reproduction of the Client Trademarks by Independent Contractor must be pre-approved by Client in writing in advance and be in accordance with the Agreement. Independent Contractor's use of the Client Trademarks does not confer or imply any ownership, goodwill, or other rights in the Client Trademarks. Independent Contractor recognizes the unique value, goodwill, and secondary meaning associated with the Client Trademarks. Independent Contractor acknowledges that all rights, title, and interests in the Client Trademarks and the goodwill pertaining thereto automatically vests in Client, and at all times will remain owned by and in the name of Client. Independent Contractor shall not contest the validity of Client’s ownership of any Client Trademark. Independent Contractor shall not, in any jurisdiction, adopt, use, register, or apply for registration of, whether as a corporate name, trademark, domain name, service mark, or other indication of origin, any Client Trademark or any word, symbol, device, or combination thereof confusingly similar to any Client Trademark.
Do not use Client trademarks without permission please.
11. Equitable Remedies. In the event of any breach of the Agreement by Client, the parties agree that Independent Contractor's sole remedy shall be limited to an action at law for actual monetary damages. In no event shall Independent Contractor be entitled to terminate the Agreement, rescind the rights granted to Client under the Agreement, or otherwise exercise any equitable remedies, including, seeking rescission of the Agreement and/or seek an injunction against the development, production, distribution, or exploitation of any Project and/or any derivative work. The parties agree that the rights granted by the Agreement in favor of Client are however unique, special, unusual and extraordinary, giving them a peculiar value which cannot be remedied by money damages. Therefore, the parties agree that in the event of a breach by Independent Contractor of the Agreement, Client will be entitled to equitable relief and remedies, including specific performance and/or injunctive relief without the necessity of proving actual damages or posting a bond of more than $1,000.
If you and the Client disagree, you agree that you can only sue for money damages.
12. Indemnification. You will indemnify, defend and hold harmless Client from all claims, whether actual or alleged, that arise out of or in connection with your Creative Portfolio Page, the Services, each Project, and/or each Deliverable, including: (i) personal injury, death, property damage, or theft, (ii) negligent, gross negligence or intentional conduct, and/or (iii) your breach of the Agreement (collectively, "Claims"). You are solely responsible for defending any Claim against Client, subject to such Client’s to participate with counsel of its own choosing at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys' fees, resulting from all Claims against Client; provided however, that you will not agree to any settlement that imposes any obligation or liability on Client without Client’s prior express written consent.This provision is further supplemented by Appendix A relating to Release of Liability.
Your promise to be responsible for your work and content.
13. LIMITATION OF LIABILITY. EXCEPT FOR A PARTY's BREACH OF ITS CONFIDENTIALITY OBLIGATIONS ABOVE, AND THE INDEMNIFICATION OBLIGATIONS ABOVE, IN NO EVENT WILL INDEPENDENT CONTRACTOR AND/OR ANY CLIENT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT.
This gives both Client and you reasonable limitations on liability.
14. Term and Termination. The term of the Agreement commences when you register with SmartShoot, and continues until terminated as set forth herein. Either party may terminate the Agreement by written notice to the other party if the other party breaches any material provision of the Agreement and such breach is not cured within 30 days after written notice thereof is received by the other party. Sections 3, 4, 5, 6, 8 through 13, 16 and 17 will survive termination of the Agreement.
This section describes the length of your relationship.
15. Press Release. You will not issue any press release regarding the Agreement unless approved in advance by Client in writing.in 30 days after written notice thereof is received by the other party.
Please talk with Client if you want to issue a press release.
16. Choice of Law. The terms of the Agreement and any dispute relating thereto will be governed by the laws of the State of California, without regard to conflict/choice of law principles, except as otherwise agreed to by the Parties in writing. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.
16.1 Non-California Residents: The fact that the terms and enforceability of this Agreement are to be interpreted pursuant to California law does not create or invest any substantive right for non-Californians to assert under California law whether that be by statute, common law, or otherwise. Likewise with the forum selection provision people; its only purpose is to specify a forum should any disputes arise between us. No provision in this agreement shall be interpreted as generally extending California law to you if you do not otherwise reside or provide services in California.
16.2: The Arbitration Agreement Below: In Section 17 below, we agree to submit claims between us to arbitration as permitted by law pursuant to the Federal Arbitration Act. That means that arbitration procedures and issues are controlled by federal law, not California law.
If there is anything in question, this will be mostly be done under California State Law.
17. Arbitration and Dispute Resolution.
17.1 Arbitration. Other than disputes regarding the intellectual property rights of the parties and other claims identified in Section 17.2.2, any disputes, actions, claims or causes of action arising out of or in connection with this Agreement shall be subject to arbitration pursuant to Section 17.2 to the extent permitted by law.
17.2 Arbitration Provision.
WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT BUSINESS DECISION. IT IS YOUR DECISION TO MAKE, AND YOU SHOULD NOT RELY SOLELY UPON THE INFORMATION PROVIDED IN THIS AGREEMENT AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ARBITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS — INCLUDING BUT NOT LIMITED TO AN ATTORNEY — REGARDING THE CONSEQUENCES OF YOUR DECISION, JUST AS YOU WOULD WHEN MAKING ANY OTHER IMPORTANT BUSINESS OR LIFE DECISION.
17.2.1 How This Arbitration Provision Applies.
This Arbitration Provision applies to any dispute arising out of or related to this Agreement or termination of the Agreement and survives after the Agreement terminates. Nothing contained in this Arbitration Provision shall be construed to prevent or excuse you from utilizing any informal procedure for resolution of complaints established in this Agreement (if any), and this Arbitration Provision is not intended to be a substitute for the utilization of such procedures.
Except as prohibited by law and as the parties otherwise agree, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before any forum other than arbitration, with the exception of proceedings that must be exhausted under applicable law before pursuing a claim in a court of law or in any forum other than arbitration. Except as it otherwise provides, this Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective, or representative action.
Except as provided in Section 18.2.5 below, regarding the Class Action Waiver, such disputes include without limitation disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an Arbitrator and not by a court or judge. However, as set forth below, the preceding sentences shall not apply to disputes relating to the interpretation or application of the Class Action Waiver or PAGA Waiver below, including their enforceability, revocability or validity. Except as it otherwise provides, this Arbitration Provision also applies, without limitation, to all disputes between You and SmartShoot and all successors and assigns of SmartShoot, including but not limited to any disputes arising out of or related to this Agreement and disputes arising out of or related to your relationship with SmartShoot, including termination of the relationship. This Arbitration Provision also applies, without limitation, to disputes regarding any city, county, state or federal wage-hour law, trade secrets, unfair competition, privacy laws, compensation, breaks and rest periods, expense reimbursement, termination, harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by SmartShoot and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), Genetic Information Non-Discrimination Act, and state statutes, if any, addressing the same or similar subject matters, and all other similar federal and state statutory and common law claims.
This Agreement is intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of this Agreement are expressly excluded from the Arbitration Provision.
17.2.2 Limitations on How This Agreement Applies.
The disputes and claims set forth below shall not be subject to arbitration and the requirement to arbitrate set forth in this Arbitration Provision shall not apply:
a. A representative action brought on behalf of others under the Private Attorneys General Act of 2004 ("PAGA"), California Labor Code § 2698 et seq., to the extent waiver of such a claim is deemed unenforceable by a court of competent jurisdiction;
b. Claims for worker's compensation, state disability insurance and unemployment insurance benefits; and
c. Disputes regarding SmartShoot or your intellectual property rights.
Regardless of any other terms of this Agreement, nothing prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, and nothing in this Agreement or Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. Nothing in this Arbitration Provision shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration.
17.2.3 In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach of this Agreement, or arising from any arrangement under this Agreement as between Independent Contractor and SmartShoot; the parties to this Agreement will use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, the parties will consult and negotiate with one another in good faith, in an attempt to reach a just and equitable solution, satisfactory to all parties. If informal resolution of the dispute, claim, question or disagreement cannot be reached, disputes that are within the jurisdictional maximum for small claims will be settled in the county of San Francisco, CA Small Claims Court. With regard to other disputes, SmartShoot and you mutually agree to resolve any justifiable disputes between them, specifically including any claims related to payments due and the classification of you as an independent contractor that cannot be resolved by the Parties, exclusively through final and binding arbitration instead of filing a lawsuit in court. This arbitration agreement will apply to any and all claims arising out of or relating to this Agreement, the provision of services pursuant to this Agreement, the payments received by you, the termination of this Agreement, and all other aspects of your relationship with SmartShoot, past or present, whether arising under federal, state or local statutory and/or common law.
17.2.4 If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, 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 will be delivered to the address indicated in the notice terms of this Agreement, unless that address has been updated, in writing.
17.2.5 Class Action Waiver SmartShoot and you mutually agree that by entering into this Agreement, both waive their right to have any dispute brought, heard or arbitrated as a class action, collective action and/or representative action, and an arbitrator will not have any authority to hear or arbitrate any class, collective or representative action. All claims covered by this arbitration agreement will be pursued in an individual claimant proceeding and not as part of a representative, collective, or class action. Apart from any other clause contained in this Agreement, 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. This Agreement does not prevent the filing of charges with a government agency like the Department of Labor or participation in any investigation or proceeding conducted by a government agency.
17.2.6 Private Attorneys General Act. Notwithstanding any other provision of this Agreement or the Arbitration Provision, to the extent permitted by law, (1) You and SmartShoot agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 ("PAGA"), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis—i.e., where you are seeking to pursue a claim on behalf of a government entity—both you and SmartShoot agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) ("PAGA Waiver"). Notwithstanding any other provision of this Agreement or the Arbitration Provision, the validity of the PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of the PAGA Waiver is found to be unenforceable or unlawful for any reason, (1) the unenforceable provision shall be severed from this Agreement; (2) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Provision or the Parties' attempt to arbitrate any remaining claims on an individual basis pursuant to the Arbitration Provision; and (3) any representative action brought under PAGA on behalf of others must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the PAGA Waiver is unenforceable with respect to those claims, the Parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
17.2.7 If the parties can not otherwise mutually agree upon an arbitrator, any arbitration will be governed by the American Arbitration Association Commercial Arbitration Procedures, except as follows:
a. Arbitration will be conducted by a mutually agreeable arbitrator or the American Arbitration Association (AAA) if no arbitrator can be agreed upon. The arbitrator designated through AAA will be selected from a list of no less than seven names through alternative strikes.
b. If the parties cannot otherwise agree on a location for the arbitration, the location of the arbitration proceeding shall be no more than 45 miles from the place where you last provided services under this Agreement, unless each party to the arbitration agrees in writing otherwise.
c. Unless the parties agree otherwise, Arbitrator’s fees and costs will be paid and apportioned as required by applicable law and regulation.
d. The arbitrator may issue orders 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.
e. 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 will 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 will apply the state or federal substantive law, or both, as is applicable.
f. 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.
g. Any decision or award by the arbitrator will be in writing.
17.2.8 Nothing in this Agreement is intended to or will preclude SmartShoot or you from filing a complaint and/or charge with any appropriate federal, state, or local government agency and/or cooperating with said agency in its investigation. Nonetheless, SmartShoot and you acknowledge that to the fullest extent permitted by law they will not be entitled to receive any private relief, recovery, or monies in connection with any governmental complaint or charge, without regard as to who brought said complaint or charge. All monetary relief will only be available through small claims court or arbitration.
17.2.9 You may opt out of the requirement to arbitrate pursuant to the terms of this subsection if you have not previously agreed to an arbitration provision in SmartShoot’s Independent Contractor Agreement where you had the opportunity to opt out of the requirement to arbitrate. If you have previously agreed to such an arbitration provision, you may opt out of any revisions to your prior arbitration agreement made by this provision in the manner specified below, but opting out of this arbitration provision has no effect on any previous, other, or future arbitration agreements that you may have with SmartShoot. If you have not previously agreed to such an arbitration provision and do not wish to be subject to this arbitration clause, you may opt out of arbitration by notifying SmartShoot in writing of your desire to opt out of arbitration, which writing must be dated, signed and delivered by: (1) electronic mail to legal@smartshoot.com, or (2) by certified mail, postage prepaid and return receipt requested, or by any nationally recognized delivery service (e.g, UPS, Federal Express, etc.) that is addressed to:
General Counsel
SmartShoot, Inc.
548 Market Street
PMB 86499
San Francisco, CA 94104-5401
In order to be effective, (A) the writing must clearly indicate your intent to opt out of arbitration, (B) the writing must include the name, phone number, and email address associated with your SmartShoot account, and (C) the email or envelope containing the signed writing must be sent within 30 days of the date this Agreement is first executed by you. Should you not opt out within the 30-day period, you and SmartShoot shall be bound by the arbitration terms of this Agreement in full.
17.2.10 Either Party may bring an action in a court of competent jurisdiction to compel arbitration under this Agreement, to enforce an arbitration award, or to review an arbitration award. In an action to review an award, the standard of review applied will be the same as that applied by an appellate court reviewing the decision of a trial court sitting without a jury, without any special deference to the arbitrator.
17.2.11 You and SmartShoot expressly waive trial by jury for all claims covered by this Agreement. All other rights, remedies, exhaustion requirements, statutes of limitation and defenses applicable to claims asserted in a court of law will apply in the arbitration. You and SmartShoot agree that arbitration as explained in this Agreement provides a fair and adequate mechanism for enforcing the Parties’ statutory rights.
17.2.12 You agree and acknowledge that entering into this arbitration agreement does not change your status as an independent contractor in fact and in law, and that you are not an employee of SmartShoot apart from this arbitration agreement.
We'll work most things out in arbitration on an individual basis.
18. Miscellaneous. The Agreement constitutes the entire agreement and understanding between the parties regarding the subject matter contained herein and supersedes all agreements, understandings, negotiations, representations, claims, and communications in all forms of media, written and oral, regarding the subject matter contained herein. Only a written instrument signed by whichever of Client or you is entitled to waive such compliance may waive any term and/or condition of the Agreement. No waiver by either Client or you of any provision hereof will be deemed a waiver of any other breach of such provision or a waiver of the provision. If any provision of the Agreement is held or made invalid or unenforceable for any reason, such invalidity will not affect the remainder of the Agreement, and the invalid or unenforceable provision will be replaced by a valid provision that has a similar effect. Notices may be given to you by email, first class mail or facsimile as provided by you when you registered with SmartShoot. You must ensure that your contact and account information is current and correct, and promptly notify us in writing of any changes to such information. You will send all notices to us via recognized overnight courier or certified mail, return receipt requested, to: General Counsel, SmartShoot, Inc., 548 Market Street, PMB 86499 San Francisco, California 94104-5401. Neither Client nor you will have any liability under the Agreement by reason of any failure or delay in the performance of Client’s or your obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet and/or electrical outages, computer viruses, acts of God, war, governmental action, or any cause that is beyond, as applicable, Client’s or your reasonable control. Client and you as applicable are independent contractors and nothing in the Agreement will be construed to create, evidence, or imply any agency, employment, partnership, or joint venture between Client and you. Except as otherwise set forth in the Agreement with respect to SmartShoot, the Agreement is not intended to benefit, nor will it be deemed to give rise to any rights in, any third party. You may not assign, sublicense or transfer the Agreement or any right or duty under the Agreement to another party, in whole or in part, without Client’s prior written consent. Any assignment, transfer, or attempted assignment or transfer in violation of this Section will be void and of no force or effect. Any rights not expressly granted in the Agreement are reserved by Client or you, as applicable, and all implied licenses are disclaimed. Headings of Sections are for convenience only, and are not intended to affect the interpretation or construction of any other provision of the Agreement. As used in the Agreement, the word "including" is a term of enlargement meaning "including without limitation" and does not denote exclusivity, and the words "will," "shall," and "must" are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable. All definitions apply both to their singular and plural forms, as the context may require. Executed counterparts of the Agreement will each be deemed originals, whether exchanged via mail, facsimile, or electronically.
This section contains all the miscellaneous information including our address.
19. Electronic Signatures Effective. a.) By clicking on the "I Accept" or similar button, you create an electronic signature to the Agreement, establishing a valid, legal contract. In doing so, you agree to accept these terms and conditions and any other agreement contained or referenced herein; you also agree that we may supply you a copy of the Agreement in electronic form. Please print or save a copy of the Agreement for your records. You also may choose to receive a copy of the Agreement in non-electronic form at any time by submitting a request to us at the address set forth above. b.) You may choose to withdraw your consent to receive the Agreement in electronic form. Withdrawing your consent to receive the Agreement in electronic form does not change your existing obligations to us under the Agreement. Instead, withdrawing your consent simply means that you wish to have our relationship with you governed by a non-electronic form of the Agreement. If you wish to withdraw your consent to receive the Agreement in electronic form and to instead enter into a non-electronic form of the Agreement, please send a letter and self-addressed, stamped envelope to the address set forth above. We then will send you a non-electronic form of the Agreement. Your withdrawal of consent will become effective when we mail to you a copy of the non-electronic form of Agreement, at which point our relationship will be governed by the terms of such Agreement. In either instance, the obligations that you incur pursuant to the electronic form of the Agreement, prior to the effective date of the withdrawal of your consent, will remain unchanged until they are fully discharged by you. c.) In order to access and retain the electronic Agreement, you must have access to the Internet, either directly or through devices that access Web-based content, and pay any charges associated with such access. In addition, you must use all equipment necessary to make such connection to the Internet (e.g., a computer and modem or other access device). We will notify you of any changes in the hardware or software requirements needed to access and/or retain the Agreement that create a material risk that you will not be able to continue to access and/or retain the electronic Agreement.
If you're cool with this being your electronic signature, so are we.
Certified Partner Jobs
These terms cover and form the basic agreement between Independent Contractor and SmartShoot with respect to jobs referred by SmartShoot to the Independent Contractor.
Alert! Alert! This section sounds scary, but it's really not. Work For Hire applies specifically to Certified Partner Jobs. In order to be referred jobs on behalf of SmartShoot’s partners “Certified Partner Jobs”, you must be a professional photographer or filmmaker who also shoots photography or video outside of SmartShoot. Certified Partner Jobs are always work for hire and have a specific offer price based on the shoot which may be negotiated based on mutual agreement. You will know which jobs fall under this part of the agreement. At no time are you required to take these jobs.
1. Scope of the Agreement. The parties will agree to the scope and timing of delivery for each Project, including the Deliverables (defined below), and the fees to be paid by SmartShoot, on behalf of the partner, to Independent Contractor ("Fees") either in a written addendum to the Agreement, as posted on SmartShoot's website, by email, or any other method as may be used by the parties from time-to-time, each of which will be deemed a part of and governed by the Agreement. SmartShoot’s partner’s Descriptions of Projects may include compensation, ownership rights, and required Deliverables ("Project Description"). "Deliverables" mean all work created, developed or supplied by Independent Contractor in connection with your services and each Project, whether as finished products or work in process (including any additional work requested by shoot location contact either during the shoot appointment or that is substantially similar to the Project), including writings of any kind, audio-visual works, user interfaces, "look and feel," artwork, illustrations, images, photographs, printed or graphic matter, trademarks (including service marks, trade dress, trade names, logos, and domain names), works of authorship, preparatory materials, charts, diagrams, memoranda, drafts, sketches, outlines, developments, materials, data, inventions (whether patentable or not), trade secrets, improvements, processes, discoveries, compositions, methodologies, program materials, notes, lists, compilations, manuscripts, pictorial materials, schematics, drawings, specifications, blueprints, flowcharts, schematics, protocols, designs, design rights, plans, proposals, technical data, financial and marketing plans, as well as all Intellectual Property Rights, whether foreign or domestic, in each of the foregoing. "Intellectual Property" or "Intellectual Property Rights" means all: trade secrets, patents and patent applications, trademarks and trademark applications, service marks and service mark applications, trade names, Internet domain names, copyrights and copyright applications, moral rights, rights of privacy, publicity, and similar rights, design rights, rights in know-how, rights in inventions (whether patentable or not), renewals or extensions of, and goodwill associated with the foregoing, and all other equivalent rights anywhere in the world. We will notify you in advance of any material changes to the Project. All Deliverables will be credited to partner. Independent Contractor grants SmartShoot the right to provide Independent Contractor's name, image, general location and contact information to any SmartShoot partner or Client in connection with each Project or potential Project.
This section outlines the overall scope of our relationship, but pay attention to the actual terms of each job.
2. Staffing. Independent Contractor will supervise and control its Personnel (i.e., those who work for you either as employees, agents, subsidiaries, representatives or subcontractors) and represents and warrants that when employing or subcontracting with third parties, it does so as a legally recognized entity or person and in compliance with all applicable laws and regulations pertaining to hire and/or contract employees and/or independent contractors (a "Bureau"). Independent Contractor and Bureau agree and acknowledge that Bureau's employees and independent contractors are not employees of SmartShoot or SmartShoot’s partner. Independent Contractor’s Personnel shall be regarded at all times as employees, agents or subcontractors of Independent Contractor and no relationship of employer and employee shall arise between SmartShoot or Client or any affiliate of SmartShoot or Client and any Independent Contractor’s Personnel under any circumstances (save where an offer of employment by SmartShoot or Client is made and accepted), including for the avoidance of doubt upon termination of all or part of any services, regardless of the degree of supervision that may be exercised over the Independent Contractor’s Personnel by SmartShoot or Client or any affiliate of SmartShoot or Client. As between SmartShoot and Independent Contractor, Independent Contractor represents that they are a professional photographer or filmmaker offering photography or video services outside of SmartShoot and agrees that SmartShoot has no responsibility for any wages, costs, unemployment insurance, workers' compensation insurance, and expenses of Bureau's employees and independent contractors and that SmartShoot has no obligation to, and will not, supervise or control them. Independent Contractor represents, warrants, and covenants that Bureau acknowledges and agrees that: (a) Bureau is solely responsible for all wages, costs, unemployment insurance, workers' compensation insurance, contributions, and expenses of Bureau's employees and independent contractors and has the sole and exclusive right to supervise and control them, and (b) neither Independent Contractor, nor Bureau, nor any of its employees, independent contractors or agents, will have any claim under this Agreement for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, contributions, or any other employee benefits of any kind from SmartShoot or SmartShoot’s partner. Independent Contractor will have sole responsibility for (i) the control, supervision, discipline and all acts and omissions of omissions of its Personnel; (ii) the management and training of the its Personnel; (iii) paying / deducting any applicable taxes, national insurance or social security payments; (iv) ensuring that all its personnel who provide services under this Agreement have the relevant immigration and employment status necessary to provide those services lawfully; (v) compliance with all employee related applicable laws; (vi) ensuring that all its personnel are subject to contractually binding confidentiality provisions which comply with Independent Contractor’s obligations under Clause 7 (Confidentiality); (vii) ensuring that all its relevant personnel have such security clearance as may be required under any statement of work; and (viii) ensuring that adequate records are kept and maintained of compliance with its obligations under this clause.
You are responsible for staffing and payment of that staff if required for a shoot.
3. Work for Hire. For all Projects on which SmartShoot has referred you on behalf of SmartShoot’s partner, as identified in the SmartShoot partner supplied job description, (i) Independent Contractor acknowledges that all works of authorship developed in the course of work performed pursuant to this Agreement and which are protectable by copyright are "works made for hire," as that term is defined in the United States Copyright Act (17 U.S.C. Section 101 et seq.). To the extent that such works do not constitute works made for hire under operation of law, Independent Contractor hereby assigns all rights, title and interest in and to such works to SmartShoot’s partner. For each Project, SmartShoot’s partner shall acquire sole and exclusive ownership rights to all Deliverables. SmartShoot’s partner is the sole and exclusive owner of and Independent Contractor hereby irrevocably assigns to SmartShoot’s partner all Deliverables, regardless of whether such Deliverables are specified in any Project description, and all rights, title, interest, and ownership throughout the world in any Deliverable, including all Intellectual Property Rights in and to any Deliverable. Independent Contractor hereby irrevocably and unconditionally waives all enforcement of each of the foregoing rights. All Deliverables are and will belong exclusively to SmartShoot’s partner with SmartShoot’s partner having the right to obtain and to hold in its name, any and all Intellectual Property Rights. With the prior written approval of SmartShoot, not to be unreasonably withheld, SmartShoot may grant Independent Contractor a non-exclusive license to retain and use for portfolio purposes only a reasonable number of images created under this Agreement as "samples" or "portfolio copies" of Independent Contractor's work, provided that Independent Contractor shall neither make nor allow any commercial use or exploitation of such images; (ii) Independent Contractor will require and cause its Personnel to assign to Independent Contractor all materials prepared, developed, and/or used by such Personnel in connection with, relating to, or regarding each Project, including all "moral rights" and Prior Inventions (defined below) therein. In jurisdictions such as Canada, where moral rights may not be assigned, Independent Contractor irrevocably and expressly waives in favor of SmartShoot and SmartShoot’s partner and agrees never to assert any and all "moral rights" that it may have in any Deliverable. Independent Contractor agrees to give SmartShoot and any person designated by SmartShoot reasonable assistance, at SmartShoot's expense, required to perfect the rights granted pursuant to the Agreement. Upon the earlier of the completion of each Project or the termination of the Agreement, Independent Contractor will immediately turn over to SmartShoot all materials related to each Project and/or all Deliverables pursuant to the Agreement; (iii) Notwithstanding anything to the contrary in the Agreement, all rights and licenses granted by Independent Contractor pursuant to the Agreement will be deemed to be, for purposes of Section 365(n) of the Bankruptcy Code, 11 U.S.C. S 101 et seq., licenses of rights to "intellectual property" as defined under Section 101(35A) of the Bankruptcy Code, and software is, and will be deemed to be, "embodiment[s]" of "intellectual property" for purposes of same. SmartShoot will retain and may exercise all of its rights and elections under the Bankruptcy Code or equivalent legislation in any other jurisdiction. Without limiting the generality of the foregoing, Independent Contractor agrees that the rights and licenses granted to SmartShoot’s partner(s) will not be affected by Independent Contractor's rejection of the Agreement in bankruptcy, and will continue to be subject to the Agreement. Upon Independent Contractor's filing of a bankruptcy petition (or an involuntary filing), SmartShoot will be entitled to a complete duplicate of (or complete access to, as appropriate) any such intellectual property concerning the Deliverables furnished by Independent Contractor, and such Deliverable, if not already in SmartShoot's possession, will be promptly delivered to SmartShoot; (iv) If in the course of performing your services, Independent Contractor incorporates into any Deliverable or utilizes in the performance of the services any pre-existing invention, discovery, original works of authorship, development, improvement, trade secret, concept, or other proprietary information or Intellectual Property Right owned by Independent Contractor or in which Independent Contractor has an interest ("Prior Inventions"), Independent Contractor agrees that (a) Independent Contractor will provide SmartShoot with prior written notice thereof, and (b) SmartShoot and SmartShoot’s partner is hereby granted a nonexclusive, royalty-free, perpetual, irrevocable, transferable, worldwide license (with the right to grant and authorize sublicenses) to make, have made, use, import, offer for sale, sell, reproduce, distribute, modify, adapt, prepare derivative works of, display, perform, and otherwise exploit such Prior Inventions, without restriction, including as part of or in connection with such Deliverable, and to practice any method related thereto. SmartShoot shall own all right, title and interest in and to any modifications or derivative works of the Prior Inventions made by SmartShoot or made by Independent Contractor as part of the Services ("SmartShoot Modifications"), including all Intellectual Property Rights in and to the SmartShoot Modifications. Independent Contractor will not incorporate any invention, improvement, development, concept, discovery, work of authorship or other proprietary information owned by any third party into any Deliverable without SmartShoot's prior written approval.
Certified Partner Jobs are always work for hire. You choose whether to take these types of jobs.
4. Code of Professional Conduct. SmartShoot is committed to fostering an environment that is respectful and free from harassment and discrimination, including on the part of Independent Contractors. SmartShoot does not tolerate harassment of or discrimination against any SmartShoot employee, partner, or third-party service provider. Your conduct may also impact SmartShoot's reputation with our customers and partners. Accordingly, you agree to follow, and will ensure that all of your Personnel (i.e., those who work for you either as employees or subcontractors) will follow a professional level of conduct. If you are not able to comply with SmartShoot's Code of Professional Conduct, please notify SmartShoot immediately. You agree that your violation of this Code of Professional Conduct is a material breach of the Agreement, which thereby entitles SmartShoot to terminate the Agreement immediately.
Play nice.
5. Content Clearances. You are solely responsible for the acquisition and payment of any and all third-party clearances, permissions, fees, and licenses that are necessary in connection with your Creative Portfolio Pages, each Project and/or SmartShoot's, SmartShoot’s partner’s orClient's exercise of any Deliverable, including with respect to the use of any copyrighted or trademarked materials and the use of any names, likenesses or biographical materials. In addition, you will verify all facts in each Deliverable.
You're responsible for the content you create - that includes any kind of permission, fees, licenses, etc needed.
6. Payment. a.) Subject to Independent Contractor's strict compliance with the Agreement and SmartShoot's acceptance of the Deliverables, SmartShoot will pay Independent Contractor the Fees as set forth herein on net 30 terms following acceptance of the Deliverables. Independent Contractor is responsible for the performance and quality of the Deliverables in accordance with the Project Description and will promptly invoice SmartShoot through the SmartShoot platform upon delivery of the final Deliverable. For any Deliverable that SmartShoot chooses not to accept based on creative, technical, qualitative or other considerations, SmartShoot may choose to pay a non-acceptance fee, in which case, no further payment is due Independent Contractor. b.) SmartShoot may withhold payments (i) for any item on Independent Contractor's invoice that SmartShoot reasonably disputes, and/or (ii) until all Independent Contractor, including its Personnel, executes and delivers all documents necessary to effectuate the purposes of the Agreement, including Section 3 hereof.
You will be paid following acceptance of Deliverables.
7. Confidentiality. Confidential Information" means information disclosed by you to us or us to you or Clients to you or SmartShoot partners to you, either directly or indirectly, in writing, orally, or by inspection of tangible objects that is designated as "Confidential," "Proprietary," or some similar designation or which under the circumstances should reasonably be understood to be confidential. Information communicated orally and/or other intangible information will be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information disclosed to a disclosing party by third parties. Confidential Information will not, however, include any information which: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving Party at the time of disclosure by the disclosing party as shown by the receiving party's files, records, and/or other competent evidence immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party without a breach of such third party's obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other competent evidence in the receiving Party's possession. The receiving party will not at any time (a) disclose, sell, license, transfer, or otherwise make available to any person or entity any Confidential Information of the disclosing party, except to employees, contractors, or agents, in each case who have a legitimate need to know such Confidential Information and are bound to confidentiality and non-use obligations no less restrictive than those contained in the Agreement, or (b) use, reproduce, or copy any Confidential Information of the disclosing party, except as necessary in connection with the purpose for which such Confidential Information is disclosed to the receiving party by the disclosing party, or in connection with or as set forth in the Agreement. All Confidential Information will remain the disclosing party's property and all documents, electronic media, and other tangible items containing or relating to any Confidential Information of the disclosing party will be delivered to the disclosing party promptly upon the disclosing party's written request. Notwithstanding the foregoing, neither party will be required to remove copies of the other party's Confidential Information from any backup servers. The receiving party may disclose Confidential Information of the disclosing party in connection with subpoenas, court orders, other legal processes, or as otherwise required by law, provided that the receiving party gives the disclosing party prompt written notice of such requirement (unless expressly prohibited in writing in such subpoena, court order, or other legal process) prior to such disclosure and takes reasonable steps to protect the information from public disclosure, and provided further that any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. Notwithstanding anything to the contrary in the Agreement, without consent, either you or we may disclose (x) the Agreement (or the existence of the Agreement) to bona fide potential investors or prospective purchasers of a portion of its assets or beneficial ownership interests provided such disclosure is subject to confidentiality and non-use obligations no less restrictive than those contained in the Agreement, and/or (y) as required by law, including any governmental or regulatory filings.
So that you may perform services, we may provide you with personal information about customers through the SmartShoot platform. You agree that: a.) when you no longer have a bonafide business reason to access a customer’s personal information to perform services for us or b.) upon our request, you will delete any copies of personal information about a customer that you may have in your possession and any work product that you have created as part of your relationship with SmartShoot. Personal information is any information relating to an identified or identifiable natural person, including, but not limited to name, email address, phone number and location.
Pretty simple - keep things confidential that are supposed to be confidential and protect people’s personal information.
8. Representations. You represent, warrant, and covenant for yourself and each of your Personnel that: (i) you and your Personnel are a validly existing business entity if you perform work in California, or a validly existing business entity or individual if you perform work outside of California, and if you perform work in a jurisdiction that requires you to have a business license or business tax registration, you have the required business license or business tax registration and are duly licensed and qualified to carry on your business/operations and perform your obligations and that you have procured insurance associated with performing the services, including, but not limited to, unemployment insurance and worker’s compensation insurance and contributions (ii) you and your Personnel have all rights, insurance, licenses, permits, qualifications and consents necessary to perform your and/or their respective obligations and own all intellectual property rights (or have obtained all necessary permissions) to the content you upload to your Creative Portfolio Page or in connection with the Deliverables, (iii) you and your Personnel will and have complied with all federal, state and local laws, as well as with all laws, regulations, codes of practice and industry guidelines which apply to the provision of the services provided by the Independent Contractor and/or its Personnel, (iv) you and your Personnel's performance under the Agreement does not and will not violate or cause a breach of the terms of any other agreement to which you or your Personnel are a party, (v) you and Personnel are not in default of any other agreement and there are no proceedings threatened or pending under order of any court, arbitrator, administrative agency or other authority, which would affect performance of the Agreement, (vi) you and your Personnel are not a party to any collective bargaining agreement that might be applicable to the Services provided hereunder, and that neither the Agreement nor the Services provided by you are subject to any collective bargaining, (vii) there is and have been no unfair labor practice complaint against you or your Personnel, (viii) the content you upload to create a Creative Portfolio Page, the Deliverables, and SmartShoot and/or each respective SmartShoot partner’s's use of such Deliverables, do not and will not (a) violate, infringe or misappropriate the Intellectual Property Rights of any third party, rights of publicity, rights of personality, rights of privacy, rights to payment of royalties, or any other rights of third parties, (b) result in any tort, injury, damage or harm to any third party, or (c) contain material that is obscene, defamatory, libelous, or slanderous, (ix) the Deliverables and the media on which the Deliverables are performed and/or delivered will be free of viruses, Trojan horses, trap doors, backdoors, Easter eggs, logic bombs, worms, time bombs, cancelbots, and/or other computer programming routines that may potentially damage, interfere with, intercept, disable, deactivate, or expropriate any SmartShoot entity or SmartShoot partner property, (x) you and your Personnel will deliver each Deliverable in a professional and workmanlike manner in accordance with standards generally accepted in Independent Contractor's industry, (xi) Deliverables furnished hereunder are and will be: (a) new and free from defects in design, materials and workmanship; (b) of merchantable quality and fit for the purposes for which they are intended; and (c) free and clear of all liens, claims and encumbrances; (xii) you and your Personnel have all rights, licenses, permits, qualifications and consents necessary to grant SmartShoot ownership and use of the Deliverables, and delivery to SmartShoot of all rights and licenses in and to the Deliverables does not violate any laws, (xiii) Services will conform with the Agreement, and (xiv) you and your Personnel will take all necessary precautions to prevent injury to any person or damage to any property while performing each Project.
Promises you are making to us are true.
9. General Obligation: The Independent Contractor shall perform the services in accordance with the best practices of its profession and in the best manner and in particular shall bring all its skills, experience and expertise, in the best interest of the SmartShoot and the Client. The Independent Contractor is solely responsible for the organization and the means and methods uses by the latter in the context of this Agreement. The Independent Contractor shall be solely responsible for the organization of its work and shall not receive any instructions from SmartShoot and/or the Client; the Independent Contractor shall be the sole judge of the different resources (including human resources, methods, etc.) that it shall use to perform the Services in the best possible conditions.
You're a skilled professional who best understands how to get the job done.
10. Trademarks. Independent Contractor is not authorized to use and agrees it will not use any SmartShoot trademark(s), logo(s), service mark(s), trade name(s), and/or legal notice(s) (collectively, "SmartShoot Trademarks"), provided however in the event use of any SmartShoot Trademark is necessary in connection with performing any service hereunder, subject to Independent Contractor's strict compliance with the Agreement, SmartShoot grants Independent Contractor a limited, revocable, non-exclusive, non-assignable, non-transferable, non-sublicensable, royalty-free license to use during the Term, only to the extent essential and necessary to provide the service, the SmartShoot Trademarks provided by SmartShoot to Independent Contractor for purposes of the Agreement. Upon SmartShoot's request, Independent Contractor agrees to promptly remove or replace any SmartShoot Trademark, but in no event later than three (3) days after receipt of any such request. Upon termination of the Agreement, all use of any SmartShoot Trademark shall immediately cease. Each use, display (including the size, place, and manner), and/or reproduction of the SmartShoot Trademarks by Independent Contractor must be pre-approved by SmartShoot in writing in advance and be in accordance with the Agreement. Independent Contractor's use of the SmartShoot Trademarks does not confer or imply any ownership, goodwill, or other rights in the SmartShoot Trademarks. Independent Contractor recognizes the unique value, goodwill, and secondary meaning associated with the SmartShoot Trademarks. Independent Contractor acknowledges that all rights, title, and interests in the SmartShoot Trademarks and the goodwill pertaining thereto automatically vests in SmartShoot, and at all times will remain owned by and in the name of SmartShoot. Independent Contractor shall not contest the validity of SmartShoot's and/or its Affiliates' ownership of any SmartShoot Trademark. Independent Contractor shall not, in any jurisdiction, adopt, use, register, or apply for registration of, whether as a corporate name, trademark, domain name, service mark, or other indication of origin, any SmartShoot Trademark or any word, symbol, device, or combination thereof confusingly similar to any SmartShoot Trademark.
Do not use our trademarks without permission please.
11. Equitable Remedies. In the event of any breach of the Agreement by SmartShoot, the parties agree that Independent Contractor's sole remedy shall be limited to an action at law for actual monetary damages. In no event shall Independent Contractor be entitled to terminate the Agreement, rescind the rights granted to SmartShoot under the Agreement, or otherwise exercise any equitable remedies, including, seeking rescission of the Agreement and/or seek an injunction against the development, production, distribution, or exploitation of any Project and/or any derivative work. The parties agree that the rights granted by the Agreement in favor of SmartShoot are however unique, special, unusual and extraordinary, giving them a peculiar value which cannot be remedied by money damages. Therefore, the parties agree that in the event of a breach by Independent Contractor of the Agreement, SmartShoot will be entitled to equitable relief and remedies, including specific performance and/or injunctive relief without the necessity of proving actual damages or posting a bond of more than $1,000.
If we disagree, you agree that you can only sue for money damages.
12. Indemnification. You will indemnify, defend and hold harmless SmartShoot from all claims, whether actual or alleged, that arise out of or in connection with your Creative Portfolio Page, the Services, each Project, and/or each Deliverable, including: (i) personal injury, death, property damage, or theft, (ii) negligent, gross negligence or intentional conduct, and/or (iii) your breach of the Agreement (collectively, "Claims"). You are solely responsible for defending any Claim against SmartShoot, subject to such SmartShoot's to participate with counsel of its own choosing at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorneys' fees, resulting from all Claims against SmartShoot; provided however, that you will not agree to any settlement that imposes any obligation or liability on SmartShoot without SmartShoot's prior express written consent. This provision is further supplemented by Appendix A relating to Release of Liability.
Your promise to be responsible for your work and content.
13. LIMITATION OF LIABILITY. EXCEPT FOR A PARTY's BREACH OF ITS CONFIDENTIALITY OBLIGATIONS ABOVE, AND THE INDEMNIFICATION OBLIGATIONS ABOVE, IN NO EVENT WILL INDEPENDENT CONTRACTOR AND/OR ANY SMARTSHOOT ENTITY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT.
This gives both of us reasonable limitations on liability.
14. Term and Termination. The term of the Agreement commences when you register with SmartShoot, and continues until terminated as set forth herein. Either Party may terminate the Agreement by written notice to the other Party if the other Party breaches any material provision of the Agreement and such breach is not cured within 30 days after written notice thereof is received by the other Party. We may add, modify or remove features or functionalities, and we may suspend or stop a Service. We may also stop providing Service to you, or add or create new limits to our Services at any time. In addition, SmartShoot reserves the right to terminate the Agreement or any portion thereof, with or without cause, upon 15 days prior written notice to Independent Contractor. You may terminate this Agreement, without or without cause, upon 15 days prior written notice to SmartShoot, provided that you have no outstanding obligations for Services to SmartShoot or SmartShoot partner. Upon termination of the Agreement, SmartShoot, as its sole liability, will pay you for Deliverables completed and accepted by SmartShoot. Sections 3, 4, 5, 6, 8 through 12, and 15 and 16 will survive termination of the Agreement.
This section describes the length of our relationship.
15. Press Release. You will not issue any press release regarding the Agreement unless approved in advance by us in writing.
Please talk with us if you want to issue a press release.
16. Choice of Law. The terms of the Agreement and any dispute relating thereto will be governed by the laws of the State of California, without regard to conflict/choice of law principles, except as otherwise agreed to by the Parties in writing. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.
16.1 Non-California Residents: The fact that the terms and enforceability of this Agreement are to be interpreted pursuant to California law does not create or invest any substantive right for non-Californians to assert under California law whether that be by statute, common law, or otherwise. Likewise with the forum selection provision people; its only purpose is to specify a forum should any disputes arise between us. No provision in this agreement shall be interpreted as generally extending California law to you if you do not otherwise reside or provide services in California.
16.2: The Arbitration Agreement Below: In Section 16 below, we agree to submit claims between us to arbitration as permitted by law pursuant to the Federal Arbitration Act. That means that arbitration procedures and issues are controlled by federal law, not California law.
If there is anything in question, this will be mostly be done under California State Law.
17. Arbitration and Dispute Resolution.
17.1 Arbitration. Other than disputes regarding the intellectual property rights of the parties and other claims identified in Section 16.2.2, any disputes, actions, claims or causes of action arising out of or in connection with this Agreement shall be subject to arbitration pursuant to Section 16.2 to the extent permitted by law.
17.2 Arbitration Provision.
WHETHER TO AGREE TO ARBITRATION IS AN IMPORTANT BUSINESS DECISION. IT IS YOUR DECISION TO MAKE, AND YOU SHOULD NOT RELY SOLELY UPON THE INFORMATION PROVIDED IN THIS AGREEMENT AS IT IS NOT INTENDED TO CONTAIN A COMPLETE EXPLANATION OF THE CONSEQUENCES OF ARBITRATION. YOU SHOULD TAKE REASONABLE STEPS TO CONDUCT FURTHER RESEARCH AND TO CONSULT WITH OTHERS — INCLUDING BUT NOT LIMITED TO AN ATTORNEY — REGARDING THE CONSEQUENCES OF YOUR DECISION, JUST AS YOU WOULD WHEN MAKING ANY OTHER IMPORTANT BUSINESS OR LIFE DECISION.
17.2.1 How This Arbitration Provision Applies.
This Arbitration Provision applies to any dispute arising out of or related to this Agreement or termination of the Agreement and survives after the Agreement terminates. Nothing contained in this Arbitration Provision shall be construed to prevent or excuse you from utilizing any informal procedure for resolution of complaints established in this Agreement (if any), and this Arbitration Provision is not intended to be a substitute for the utilization of such procedures.
Except as prohibited by law and as the parties otherwise agree, this Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before any forum other than arbitration, with the exception of proceedings that must be exhausted under applicable law before pursuing a claim in a court of law or in any forum other than arbitration. Except as it otherwise provides, this Arbitration Provision requires all such disputes to be resolved only by an arbitrator through final and binding arbitration on an individual basis only and not by way of court or jury trial, or by way of class, collective, or representative action.
Except as provided in Section 17.2.5 below, regarding the Class Action Waiver, such disputes include without limitation disputes arising out of or relating to interpretation or application of this Arbitration Provision, including the enforceability, revocability or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an Arbitrator and not by a court or judge. However, as set forth below, the preceding sentences shall not apply to disputes relating to the interpretation or application of the Class Action Waiver or PAGA Waiver below, including their enforceability, revocability or validity. Except as it otherwise provides, this Arbitration Provision also applies, without limitation, to all disputes between You and SmartShoot and all successors and assigns of SmartShoot, including but not limited to any disputes arising out of or related to this Agreement and disputes arising out of or related to your relationship with SmartShoot, including termination of the relationship. This Arbitration Provision also applies, without limitation, to disputes regarding any city, county, state or federal wage-hour law, trade secrets, unfair competition, privacy laws, compensation, breaks and rest periods, expense reimbursement, termination, harassment and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by SmartShoot and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), Genetic Information Non-Discrimination Act, and state statutes, if any, addressing the same or similar subject matters, and all other similar federal and state statutory and other law claims.
This Agreement is intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of this Agreement are expressly excluded from the Arbitration Provision.
17.2.2 Limitations on How This Agreement Applies.
The disputes and claims set forth below shall not be subject to arbitration and the requirement to arbitrate set forth in this Arbitration Provision shall not apply:
a. A representative action brought on behalf of others under the Private Attorneys General Act of 2004 ("PAGA"), California Labor Code § 2698 et seq., to the extent waiver of such a claim is deemed unenforceable by a court of competent jurisdiction;
b. Claims for worker's compensation, state disability insurance and unemployment insurance benefits; and
c. Disputes regarding SmartShoot or your intellectual property rights.
Regardless of any other terms of this Agreement, nothing prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, or Office of Federal Contract Compliance Programs, and nothing in this Agreement or Arbitration Provision prevents the investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision. Nothing in this Arbitration Provision shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration.
17.2.3 In the event of any dispute, claim, question, or disagreement arising from or relating to this Agreement or the breach of this Agreement, or arising from any arrangement under this Agreement as between Independent Contractor and SmartShoot; the parties to this Agreement will use their best efforts to settle the dispute, claim, question, or disagreement. To this effect, the parties will consult and negotiate with one another in good faith, in an attempt to reach a just and equitable solution, satisfactory to all parties. If informal resolution of the dispute, claim, question or disagreement cannot be reached, disputes that are within the jurisdictional maximum for small claims will be settled in the county of San Francisco, CA Small Claims Court. With regard to other disputes, SmartShoot and you mutually agree to resolve any justifiable disputes between them, specifically including any claims related to payments due and the classification of you as an independent contractor that cannot be resolved by the Parties, exclusively through final and binding arbitration instead of filing a lawsuit in court. This arbitration agreement will apply to any and all claims arising out of or relating to this Agreement, the provision of services pursuant to this Agreement, the payments received by you, the termination of this Agreement, and all other aspects of your relationship with SmartShoot, past or present, whether arising under federal, state or local statutory and/or common law.
17.2.4 If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, 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 will be delivered to the address indicated in the notice terms of this Agreement, unless that address has been updated, in writing.
17.2.5 Class Action Waiver SmartShoot and you mutually agree that by entering into this Agreement, both waive their right to have any dispute brought, heard or arbitrated as a class action, collective action and/or representative action, and an arbitrator will not have any authority to hear or arbitrate any class, collective or representative action. All claims covered by this arbitration agreement will be pursued in an individual claimant proceeding and not as part of a representative, collective, or class action. Apart from any other clause contained in this Agreement, 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. This Agreement does not prevent the filing of charges with a government agency like the Department of Labor or participation in any investigation or proceeding conducted by a government agency.
17.2.6 Private Attorneys General Act. Notwithstanding any other provision of this Agreement or the Arbitration Provision, to the extent permitted by law, (1) You and SmartShoot agree not to bring a representative action on behalf of others under the Private Attorneys General Act of 2004 ("PAGA"), California Labor Code § 2698 et seq., in any court or in arbitration, and (2) for any claim brought on a private attorney general basis—i.e., where you are seeking to pursue a claim on behalf of a government entity—both you and SmartShoot agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) ("PAGA Waiver").
Notwithstanding any other provision of this Agreement or the Arbitration Provision, the validity of the PAGA Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of the PAGA Waiver is found to be unenforceable or unlawful for any reason, (1) the unenforceable provision shall be severed from this Agreement; (2) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Provision or the Parties' attempt to arbitrate any remaining claims on an individual basis pursuant to the Arbitration Provision; and (3) any representative action brought under PAGA on behalf of others must be litigated in a civil court of competent jurisdiction and not in arbitration. To the extent that there are any claims to be litigated in a civil court of competent jurisdiction because a civil court of competent jurisdiction determines that the PAGA Waiver is unenforceable with respect to those claims, the Parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
17.2.7 If the parties can not otherwise mutually agree upon an arbitrator, any arbitration will be governed by the American Arbitration Association Commercial Arbitration Procedures, except as follows:
a. Arbitration will be conducted by a mutually agreeable arbitrator or the American Arbitration Association (AAA) if no arbitrator can be agreed upon. The arbitrator designated through AAA will be selected from a list of no less than seven names through alternative strikes.
b. If the parties cannot otherwise agree on a location for the arbitration, the location of the arbitration proceeding shall be no more than 45 miles from the place where you last provided services under this Agreement, unless each party to the arbitration agrees in writing otherwise.
c. Unless the parties agree otherwise, Arbitrator’s fees and costs will be paid and apportioned as required by applicable law and regulation.
d. The arbitrator may issue orders 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.
e. 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 will 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 will apply the state or federal substantive law, or both, as is applicable.
f. 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.
g. Any decision or award by the arbitrator will be in writing.
17.2.8 Nothing in this Agreement is intended to or will preclude SmartShoot or you from filing a complaint and/or charge with any appropriate federal, state, or local government agency and/or cooperating with said agency in its investigation. Nonetheless, SmartShoot and you acknowledge that to the fullest extent permitted by law they will not be entitled to receive any private relief, recovery, or monies in connection with any governmental complaint or charge, without regard as to who brought said complaint or charge. All monetary relief will only be available through small claims court or arbitration.
17.2.9 You may opt out of the requirement to arbitrate pursuant to the terms of this subsection if you have not previously agreed to an arbitration provision in SmartShoot’s Independent Contractor Agreement where you had the opportunity to opt out of the requirement to arbitrate. If you have previously agreed to such an arbitration provision, you may opt out of any revisions to your prior arbitration agreement made by this provision in the manner specified below, but opting out of this arbitration provision has no effect on any previous, other, or future arbitration agreements that you may have with SmartShoot. If you have not previously agreed to such an arbitration provision and do not wish to be subject to this arbitration clause, you may opt out of arbitration by notifying SmartShoot in writing of your desire to opt out of arbitration, which writing must be dated, signed and delivered by: (1) electronic mail to legal@smartshoot.com, or (2) by certified mail, postage prepaid and return receipt requested, or by any nationally recognized delivery service (e.g, UPS, Federal Express, etc.) that is addressed to:
General Counsel
SmartShoot, Inc.
548 Market Street
PMB 86499
San Francisco, CA 94104-5401
In order to be effective, (A) the writing must clearly indicate your intent to opt out of arbitration, (B) the writing must include the name, phone number, and email address associated with your SmartShoot account, and (C) the email or envelope containing the signed writing must be sent within 30 days of the date this Agreement is first executed by you. Should you not opt out within the 30-day period, you and SmartShoot shall be bound by the arbitration terms of this Agreement in full.
17.2.10 Either Party may bring an action in a court of competent jurisdiction to compel arbitration under this Agreement, to enforce an arbitration award, or to review an arbitration award. In an action to review an award, the standard of review applied will be the same as that applied by an appellate court reviewing the decision of a trial court sitting without a jury, without any special deference to the arbitrator.
17.2.11 You and SmartShoot expressly waive trial by jury for all claims covered by this Agreement. All other rights, remedies, exhaustion requirements, statutes of limitation and defenses applicable to claims asserted in a court of law will apply in the arbitration. You and SmartShoot agree that arbitration as explained in this Agreement provides a fair and adequate mechanism for enforcing the Parties’ statutory rights.
17.2.12 You agree and acknowledge that entering into this arbitration agreement does not change your status as an independent contractor in fact and in law, and that you are not an employee of SmartShoot apart from this arbitration agreement.
We’ll work most things out in arbitration on an individual basis.
18. Miscellaneous. The Agreement constitutes the entire agreement and understanding between the Parties regarding the subject matter contained herein and supersedes all agreements, understandings, negotiations, representations, claims, and communications in all forms of media, written and oral, regarding the subject matter contained herein. Only a written instrument signed by whichever of SmartShoot or you is entitled to waive such compliance may waive any term and/or condition of the Agreement. No waiver by either SmartShoot or you of any provision hereof will be deemed a waiver of any other breach of such provision or a waiver of the provision. If any provision of the Agreement is held or made invalid or unenforceable for any reason, such invalidity will not affect the remainder of the Agreement, and the invalid or unenforceable provision will be replaced by a valid provision that has a similar effect. We may give notices to you by email, first class mail or facsimile as provided by you when you registered with SmartShoot. You must ensure that your contact and account information is current and correct, and promptly notify us in writing of any changes to such information. You will send all notices to us via recognized overnight courier or certified mail, return receipt requested, to: SmartShoot, Inc. Attn: General Counsel, 548 Market Street, PMB 86499, San Francisco, CA 94104-5401. Neither SmartShoot nor you will have any liability under the Agreement by reason of any failure or delay in the performance of SmartShoot's or your obligations on account of strikes, shortages, riots, acts of terrorism, insurrection, fires, flood, storm, explosions, earthquakes, Internet and/or electrical outages, computer viruses, acts of God, war, governmental action, or any cause that is beyond, as applicable, SmartShoot's or your reasonable control. SmartShoot and you as applicable are independent contractors and nothing in the Agreement will be construed to create, evidence, or imply any agency, employment, partnership, or joint venture between SmartShoot and you. Except as otherwise set forth in the Agreement with respect to Clients and SmartShoot partners, the Agreement is not intended to benefit, nor will it be deemed to give rise to any rights in, any third party. You may not assign, sublicense or transfer the Agreement or any right or duty under the Agreement to another party, in whole or in part, without SmartShoot's prior written consent. Any assignment, transfer, or attempted assignment or transfer in violation of this Section will be void and of no force or effect. Any rights not expressly granted in the Agreement are reserved by SmartShoot or you, as applicable, and all implied licenses are disclaimed. Headings of Sections are for convenience only, and are not intended to affect the interpretation or construction of any other provision of the Agreement. As used in the Agreement, the word "including" is a term of enlargement meaning "including without limitation" and does not denote exclusivity, and the words "will," "shall," and "must" are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable. All definitions apply both to their singular and plural forms, as the context may require. Executed counterparts of the Agreement will each be deemed originals, whether exchanged via mail, facsimile, or electronically.
This section contains all the miscellaneous information including our address.
19. Personal Data Requirements. Independent Contractor warrants that its obligations under this Agreement shall at all times be performed in accordance with the requirements of the applicable Data Protection Legislation, which means, all applicable legislation on the protection of data subjects applicable to the Independent Contractor, including, as the case may be, in the EEA and United Kingdom, the GDPR (Regulation (EU) 2016/679 of the European Parliament and Council of 27 April 2016) and the UK GDPR (Regulation (EU) 2016/679 of the European Parliament and of the Council of 27th April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018) and all related national laws, regulations, rules and secondary legislation, and in each case as amended, replaced or updated from time to time and together any subordinate or related legislation made under any of the foregoing. Independent Contractor warrants that it has appropriate operational and technological processes and procedures in place to safeguard against any unauthorised, unlawful or non-compliant access to or loss, corruption, damage, deletion or other processing of personal data, and will ensure that those of its personnel who are used to process any personal data under this Agreement have had sufficient and adequate training. If Independent Contractor is subject to the EU Data Protection Directive 95/46/EC, the Privacy and Electronic Communications Directive 2002/58/EC, and all applicable laws and regulations relating to processing of personal data and privacy, Independent Contractor shall not transfer or process any personal data to which it is granted or otherwise acquires access in connection with this Agreement or any contract outside of the European Economic Area without SmartShoot’s prior written consent, which SmartShoot shall be entitled to withhold in its sole discretion. Independent Contractor shall notify SmartShoot promptly of any actual or suspected unauthorised, unlawful or non-compliant access to or loss, corruption, damage, deletion or other processing of personal data and will direct any data protection enquiries from persons whose data has been transferred or processed under or in connection with this Agreement to SmartShoot. Independent Contractor shall indemnify and keep indemnified SmartShoot for any and all losses suffered as a result of any breach by Independent Contractor of any of its obligations under this Clause 19.
It's important that you follow all applicable data protection regulations.
20. No Partnership. Nothing in this Agreement will constitute a partnership, a joint venture, an agency or other similar relationship between the Parties. A Party has no authority to bind, contract in the name of or create a liability for the other Party in any way or for any purpose.
We're not forming a partnership or jv.
21. Electronic Signatures Effective. a.) By clicking on the "I Accept" or similar button, you create an electronic signature to the Agreement, establishing a valid, legal contract. In doing so, you agree to accept these terms and conditions and any other agreement contained or referenced herein; you also agree that we may supply you a copy of the Agreement in electronic form. Please print or save a copy of the Agreement for your records. You also may choose to receive a copy of the Agreement in non-electronic form at any time by submitting a request to us at the address set forth above. b.) You may choose to withdraw your consent to receive the Agreement in electronic form. Withdrawing your consent to receive the Agreement in electronic form does not change your existing obligations to us under the Agreement. Instead, withdrawing your consent simply means that you wish to have our relationship with you governed by a non-electronic form of the Agreement. If you wish to withdraw your consent to receive the Agreement in electronic form and to instead enter into a non-electronic form of the Agreement, please send a letter and self-addressed, stamped envelope to the address set forth above. We then will send you a non-electronic form of the Agreement. Your withdrawal of consent will become effective when we mail to you a copy of the non-electronic form of Agreement, at which point our relationship will be governed by the terms of such Agreement. In either instance, the obligations that you incur pursuant to the electronic form of the Agreement, prior to the effective date of the withdrawal of your consent, will remain unchanged until they are fully discharged by you. c. In order to access and retain the electronic Agreement, you must have access to the Internet, either directly or through devices that access Web-based content, and pay any charges associated with such access. In addition, you must use all equipment necessary to make such connection to the Internet (e.g., a computer and modem or other access device). We will notify you of any changes in the hardware or software requirements needed to access and/or retain the Agreement that create a material risk that you will not be able to continue to access and/or retain the electronic Agreement.
If you're cool with this being your electronic signature, so are we.
Appendix A
In addition to the general release set forth the Agreement, you further agrees to waive any claims against SmartShoot arising out of this Agreement as supplemented below:
In Massachusetts: the Massachusetts Fair Employment Practices Act, the Massachusetts Overtime Law, the Massachusetts Payment of Wages Law,
In New Jersey: the Conscientious Employee Protection Act and the New Jersey Law Against Discrimination,
In West Virginia: the West Virginia Human Rights Act,Further, as applicable,
You further acknowledge and agree that: In California: You are releasing all rights under section 1542 of the California Civil Code, which provides: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.
In Montana: You are releasing all rights under Montana Code Annotated Section 28-1-1602, which provides: A general release does not extend to claims that the creditor does not know or suspect to exist in the creditor's favor at the time of executing the release, which, if known by the creditor, must have materially affected the creditor's settlement with the debtor.
In North Dakota: You expressly waive any and all rights that You may have under any state or local statute, executive order, regulation, common law and/or public policy relating to unknown claims, including but not limited to North Dakota Century Code Section 9-13-02.
In South Dakota: You expressly waive any and all rights that You may have under any state or local statute, executive order, regulation, common law and/or public policy relating to unknown claims, including but not limited to South Dakota Codified Laws Section 20-7-11.
As of February 27, 2023