Effective Date: 16/01/2020
This agreement governs the relationship between registered users who wish to order photoshoots (“Customers”) and those who wish to conduct photoshoots (“Photographers”). Klatz provides a platform to connect users, facilitates interactions and payments between users, and does not undertake any specific obligations or warranties of Customers and Photographers, except for those obligations expressly stated herein.
Unless otherwise authorized by Klatz in writing, users cannot apply any other agreements or terms to govern the relationship between them with respect to the photoshoots ordered at the Site; neither can they execute and perform this agreement outside of Klatz.
Customers may place orders at Klatz to invite Photographers to perform a specific photoshoot for them. To place an order, a Customer must select one of the predefined Klatz pricing plans and provide the following information:
type and style of the session;
description of location, object or persons to be photographed;
expected scope of work and timing;
any post-production requirements for Photographer or Klatz;
any additional requirements or examples.
Once an order is placed, it becomes available to suitable photographers. Photographers interested in the shoot may then accept the order at the Site, discuss the details of the shoot with the Customer, and proceed to the shoot sessions.
Customers may freely modify an offer until it is accepted by a Photographer, but once it is accepted, must obtain the Photographer’s consent to make any modifications. Photographers may not unilaterally change any requirements of the order, but may offer certain improvements or deviations for Customer’s approval.
Once the order is accepted (and any performance details clarified, if necessary), a Photographer must:
perform the order in good faith and in accordance with its requirements;
immediately notify Klatz and the respective Customer if they should fail to perform any part of the order, or certain requirements become impossible to perform;
as soon as practicable, deliver the created files to Klatz at the Site;
if required by the Customer, execute and deliver copyright assignments or other instruments in a form reasonably satisfactory to Customer and suitable for filing with the governmental authorities in applicable jurisdictions.
Upon Klatz’ receipt of files from Photographer, Klatz will review the files to ensure their conformity with Klatz’ standards and make any edits and improvements required in the order. Files will become available to Customers once the review and/or editing is completed by Klatz.
If any locations or objects are provided by the Customer, or if Customer arranges participation of any models in the shootings, the Customers bears the sole responsibility to assure its right and authority to use the images or likeness of those locations, objects or models (i.e., by sufficient model or property releases).
Once delivered to the Customer, and subject to full and timely payment, the Photographer irrevocably sells, assigns, transfers, and conveys to the Customer, and the Customer accepts, all of Photographer’s copyright, title, and interest in and to the following:
any files created at the photoshoot, together with any information about it, and subsidiary graphics and/or other images used to represent it, including but not limited to author, the date it was created and other data;
all licenses and similar contractual rights or permissions, whether exclusive or nonexclusive, related to any of the files;
all royalties, fees, income, payments, and other proceeds now or hereafter due or payable to the Photographer with respect to any of the foregoing;
all claims and causes of action with respect to any of the foregoing, whether accruing before, on, or after the date hereof, including all rights to and claims for damages, restitution, and injunctive and other legal and equitable relief for past, present, and future infringement, dilution, violation, breach, or default;
all other rights, privileges, and protections of any kind whatsoever of accruing to Photographer under any of the foregoing provided by any applicable law, treaty, or other international convention throughout the world.
The Customer selects a preferred plan from Klatz’ predefined set of plans based on quantity, term and other criteria. The full amount of payment must be deposited to Klatz in advance, as a prerequisite for successfully placing the order. This amount remains fully refundable until the order is accepted by a Photographer.
Klatz will hold the payment until the Photographer delivers the created files, at which point Klatz’ commission will be withheld. Once the files are approved and/or edited by Klatz, the remaining portion of payment will be released to the Photographer.
Photographers warrant, represent and guarantee to the Customers and Klatz that:
Photographer is the original owner of intellectual property rights in and to the files created at the shoots and has a full right to transfer the intellectual property rights specified herein;
created files do not, and the use or publication of the files will not:
violate or infringe any copyright, trademark or other intellectual property or proprietary right of any person; or
violate or infringe any right of privacy or publicity, or any obligation of confidentiality, or
create any liability in tort;
created files are original works;
unless otherwise authorized herein, files are accompanied by all the required documents related to publication, distribution and licensing including, without limitation, model/property releases and parental consents.
Customer and Photographer warrant, represent and guarantee to each other and Klatz that:
they have the authority to enter into and execute this agreement;
they will perform their obligations in accordance with this agreement;
entering into this agreement does not violate or conflict with any other agreement of the representing party;
parties do not fall within the scope of economic and trade sanctions of the United States of America and are not considered to be a Specially Designated National and are not included on the Specially Designated Nationals and Blocked Persons List.
Each party (in this case, the “Indemnifying Party”) shall indemnify, defend, release and hold harmless the other party (in this case, the “Indemnified Party”) and the Indemnified Party’s Representatives against any Claim and all Liabilities, in each case to the extent resulting from or in connection with breach or alleged breach by the Indemnifying Party of any of its express warranties or representations contained herein or made or gross negligence or intentional misconduct of the Indemnifying Party or its employees.
Indemnifications set forth above shall be conditioned upon the Indemnified Party:
promptly giving the Indemnifying Party written notice of the Claim that, in the case where Klatz acts as Indemnifying Party, shall be mailed by reputable delivery service to Klatz’ address, with the requirement of a return receipt and signature of Klatz’ Representative;
giving the Indemnifying Party sole control of the defense and settlement of the Claim (provided the Indemnifying Party may not settle or defend any Claim against the Indemnified Party unless it unconditionally releases the Indemnified Party of all liability); and
providing to the Indemnifying Party all reasonable assistance, at the Indemnified Party’s expense.
to the maximum extent permitted by applicable law, under no circumstances will klatz or klatz’ representatives be liable for any special, indirect, incidental, consequential, punitive, reliance, or exemplary damages, including without limitation any compensation, reimbursement, or damages arising in connection with lost business, any loss of prospective profits or revenue, anticipated sales, goodwill, or other benefits, arising out of or relating to this agreement, even if klatz has been advised of the possibility of such damages. klatz shall not bear liability for any modification of files and any results arising from customer’s use of files.
except in connection with payment obligations in this agreement, klatz’ total maximum obligation, liability and indemnification of klatz for all claims arising out of or in connection with this agreement shall be limited to the amount of fees received under the respective order.
The Customer and Klatz may terminate any orders for any reason before the orders are accepted by any Photographers. Customers may also cancel the orders accepted by Photographers, provided that the deposited amounts become non-refundable and immediately due to Photographer and Klatz.
Photographers may terminate the accepted orders if they waive their rights to compensation under this agreement, immediately deliver to Klatz the files already created under the order (if any), and transfer and assign to the Customer any intellectual property rights in and to the files according to section “Intellectual property rights” above.
Upon the expiration or termination of this agreement for any reason, each party will be released from all obligations to the other arising after the date of expiration or termination, except that expiration or termination will not relieve parties of their obligations under sections “Intellectual property rights,” “Warranties, representations and disclaimers,” and “Liability and indemnification,” and these provisions will survive in full, nor will expiration or termination of this agreement relieve Customer or Photographer from any liability arising from any breach of this agreement.
neither party shall be liable to the other for damages of any kind, including incidental or consequential damages, on account of the termination or expiration of this agreement in accordance with this section. both parties waive any right they may have to receive any compensation or reparations on termination or expiration of this agreement, other than as expressly provided in this agreement. neither parties nor klatz will be liable to each other on account of termination or expiration of this agreement for reimbursement or damages for the loss of goodwill, prospective profits or anticipated income, or on account of any expenditures, investments, leases or commitments made by either party or klatz or for any other reason whatsoever based upon or arising out of such termination.
Nothing in this agreement shall be construed to constitute either party as a partner, employee or joint venturer of the other, nor shall either party hold itself out as such. It is understood that all parties hereto are independent contractors and engage in the operation of their own respective businesses. Each party shall be fully responsible for its own employees and contractors, and the employees, contractors and agents of one party shall not be deemed to be employees, contractors or agents of the other party for any purpose whatsoever.
Parties will not assign, transfer or otherwise dispose this agreement in whole or in part to any third party.
This agreement is an entire agreement between the parties hereto relating to the subject matter herein, and supersedes all previous negotiations, agreements and commitments in respect thereto, and shall not be released discharged, changed or modified in any manner, except by instruments signed by duly authorized officers of each of the parties hereto. Notwithstanding the foregoing, and provided that no retroactive changes will be made, Klatz reserves the right to change any of the terms of this agreement upon Klatz’ sole discretion at any time.
The failure of either party to enforce at any time any provision hereof shall not be construed to be a waiver of such provision or of the right thereafter to enforce each and every provision. No action and/or inaction of either party, other than express written waiver, may be construed as a waiver of any provision of this agreement. No waiver by either party to this agreement, except as expressly stated in writing, of any breach of any term, condition, or obligation of this agreement, shall be construed as a waiver of any subsequent breach of that term, condition, or obligation or any other term, condition, or obligation of this agreement.
This agreement shall be deemed to have been executed in, and shall be exclusively governed by and interpreted in accordance with the laws of the State of New York, excluding choice of law rules. Jurisdiction and venue for any claim or cause of action whether in law or equity, arising under or relating to this agreement shall be brought exclusively in the state or federal courts located in New York County, New York, and parties herby consent to such jurisdiction and venue for this purpose. United Nations Convention on Contracts for the International Sale of Goods does not apply to or otherwise affect this agreement.
This agreement and all related documents are written in English. Any translation hereof or any versions in a language other than English may be used for convenience only. In the event of any discrepancy between this English version and any other version, the English version shall supersede.
“Claim” means any third-party claim, demand, suit, investigation or proceeding.
“Liabilities” mean any proven losses, damages, costs, expenses (including, without limitation, court costs and reasonable attorneys’ fees), judgments, assessments, fines, penalties and other liabilities.
“Representatives” mean parents, subsidiaries, affiliates, predecessors, successors, agents, authorized representatives, independent contractors, directors, officers, employees, managers, licensors, licensees, assigns, shareholders, members, suppliers and third-party partners.