Terms of service

CGU | CGV

GENERAL TERMS AND CONDITIONS OF SALE OF OOSHOT

Version posted on-line on 10th February 2016

Preamble - Purpose

The Company OOSHOT (hereinafter to be referred to as “Ooshot”) makes available an online platform which brings together photographers (hereinafter to be referred to as the “Photographer(s)”) and customers (hereinafter to be referred to as the “Customer(s)”) who wish to order photography services from the Photographers.

This service is accessible on www.ooshot.com and on any or all other Website used by Ooshot to offer its services, as well as in the form of an application for mobile telephones (hereinafter to be referred to as the “Website”).

Any or all order of a photography service by the Customer via the Website and accepted by the Photographer implies full acceptance of these General Terms and Conditions of Sale.

As Ooshot has signed an agreement with the Company Stripe, which is responsible for the collection of sums paid via a virtual escrow account (hereinafter to be referred to as the “Stripe Service”), any or all order of a photography service also implies full acceptance of the general terms and conditions of use of the Stripe Service and use of e-money.

If there is a discrepancy between these General Terms and Conditions of Sale and the special terms and conditions, the latter shall prevail. These General Terms and Conditions of Sale shall prevail over any or all other general terms and conditions or clauses to the contrary that are mentioned by the Customer or the Photographer in any document and in any form whatsoever, unless Ooshot has given its prior, written consent.

The contract shall be formed by the pro forma invoice which refers to these General Terms and Conditions of Sale and to the general terms. The contract shall be generated automatically, immediately you have completed settlement.

Article 1 - Purpose

The purpose of these General Terms and Conditions of Sale is to lay down the terms and conditions governing the tripartite relationship between Ooshot (in its dual capacity as the intermediary on the one hand and as the payment, invoicing and collection agent for the Photographers on the other), the Photographers registered on the Website and the Customers wishing to order a photography service (hereinafter to be referred to as the “Service”).

THE WEBSITE CONSTITUTES AN ONLINE PLATFORM ON WHICH THE PHOTOGRAPHERS CAN CREATE A USER ACCOUNT IN ORDER TO PRESENT THEIR WORK AND WHICH MAY BE CONSULTED BY THE CUSTOMERS BEFORE ORDERING A PHOTOGRAPHY SERVICE. OOSHOT MERELY ACTS AS AN INTERMEDIARY BETWEEN THE PHOTOGRAPHER AND THE CUSTOMER, PERMITTING A SECURE INTERFACING VIA ITS WEBSITE. AS A CONSEQUENCE, OOSHOT DOES NOT HAVE ANY CONTROL WHATSOEVER OVER THE PHOTOGRAPHY SERVICE AND SHALL NOT THEREFORE BE LIABLE IN THIS RESPECT TO THE EXTENT PERMITTED BY LAW.

Furthermore, Ooshot shall act as the agent for the invoicing, collection and renewal of the copyright on behalf and in the name of the Photographer without providing a del credere guarantee.

Article 2 - Term

2.1 These General Terms and Conditions of Sale may be modified. As a consequence, the Customer and the Photographer are asked to validate these General Terms and Conditions of Sale for each order.

2.2 The contract shall be concluded for a set period of time as laid down in the special terms and conditions of the purchase order.

Article 3 – Service fees

In exchange for using Ooshot’s online platform and marketplace, Ooshot shall apply services fees which represent the agreements stipulated between the parties (hereinafter to be referred to as the “Service Fees”).

All the service fees are included in the total amount of the order paid by the Customer.

Article 4 – Terms of payment and validation of Service

All orders are invoiced in line with the price and conditions that are indicated on the quote, which are firm and final (unless specified otherwise on the purchase order), and include the Service Fees specified in Article 3 herein.

4.1 Validation of order

When a Customer orders a Service from a Photographer via the Website, the Photographer must either confirm or refuse the order within the deadline indicated on the platform. If no answer is provided by the Photographer within the allotted deadline, the Customer’s order will be automatically cancelled.

Once the order is validated by the Photographer, the Customer and the Photographer undertake to contact one another in order to agree on the performance of a precise photo shoot. This agreement on the performance and details of the Service shall be formalised on the platform, with the maximum possible degree of detail. The use of the “Moodboard”, which can be accessed securely on the Website, is recommended.

This agreement shall be definitively embodied upon the validation by the Customer of the quote established by the Photographer. It is expressly understood that the person who validates the quote on behalf of the Customer shall declare ipso facto that they are qualified to represent the Client and to engage the liability of the latter vis-à-vis the Photographer and any other operator, where applicable.

4.2 Settlement by the Customer

The Customer undertakes to settle the full amount of the order, including the Service Fees provided in Article 3, upon the confirmation of the quote.

The funds shall be kept in the form of a deposit until the Photographer’s Service has been performed effectively and in full.

Ooshot, in its capacity as the payment, invoicing and collection agent in the name and on behalf of the Photographer, hereby undertakes to inform the Photographer when the amount of the order has been paid by the Customer to the MangoPay Service so that the Photographer can begin the Service. Under no circumstances shall Ooshot stand surety for any default in settlement by the Customer. The Photographer shall then undertake to execute the Service requested, as if they had collected the value of the order on their own account.

4.3 Validation of Service by the Customer

For the validation of their Service, the Photographer shall undertake to provide access to photographs taken during the shoot, in high-definition format, on a space exterior to Ooshot and accessible to the Customer, or by means of file transfer.

With effect from this provision of access to photographs, the Customer shall be permitted a term of 72 hours for the validation thereof or for the notification of any reservations in respect of the Service executed. In the event of reservations, the Customer shall undertake to notify their comments within a term of 4 days, or the Service shall otherwise be deemed to have been entirely validated by the offices of the Customer.

It is strongly recommended to the Photographer and the Customer that the shoot should be properly prepared, and that all details should be confirmed on the platform in advance of the shoot. We would also recommend that the Customer should be present during the shoot, in order to provide guidance for the creation of images. The Customer shall not be entitled to review a shoot which has previously been validated. Any modification by the Customer shall be the subject of a new quote.

4.4 Finalization of settlement

Ooshot, in its capacity as the payment, invoicing and collection agent for and on behalf of the Photographer, shall assume an obligation to transfer the funds as follows once the Service has been completed by the Photographer and validated by the Customer:

Payment by instalments

The Customer shall be entitled to pay for the amount of the Service in three instalments at no extra cost in accordance with the provisions laid down in conjunction with the purchase order.

Advance payments

The Customer and the Photographer shall be entitled to provide that the latter shall receive part of the amount of the Service in advance before the performance of the Service is completed. In such a case, the advance payment shall be transferred to the Photographer via Ooshot on the date and conditions that are stipulated in the purchase order.

Article 5 – Performance and delivery deadlines

5.1 The Photographer shall endeavour, in the Customer’s interests, to perform his or her Services within the deadlines laid down in the purchase order or, failing this, as quickly as possible.

5.2 In the event that the order is modified, the new performance deadlines shall be stipulated in the addendum to the order and shall replace the initial deadlines.

Article 6 – Collaboration and Obligations of the Customer and Photographer

6.1 The Customer shall ensure that it provides all the relevant elements and information for the Service to be completed by the Photographer within the deadlines stipulated on the purchase order. The Customer shall collaborate with the Photographer in order to ensure that the contract is performed properly in particular by allocating the necessary resources and staff and by providing a prompt reply to the Photographer’s questions.

6.2 The Customer and the Photographer shall define the phases of the project together and shall undertake to abide by them. The Customer and the Photographer shall also be entitled to agree on the terms and conditions governing the post-production of the photo shoots completed during the Service. Ooshot shall not in any way be liable if the said phases are not complied with by the Customer or Photographer.

6.3 Conservation of data by the Photographer

Photographs and the medium upon which photographs are stored shall remain the property of the Photographer, pending the definitive validation thereof by the Customer. Consequently, the Photographer shall undertake to save the file of shots and, more generally, to execute any such back-up operations as shall be necessary.

Under no circumstances shall Ooshot be held liable for any loss of data or files.

Article 7 – Place of performance of the Service

The Customer and Photographer are free to choose the place of performance of the Service.

Article 8 – Fees, assignment of copyright and renewals

8.1 Assignment of copyright

8.1.1. The Photographer shall assign to the Customer, on an exclusive basis, all the rights to reproduce, represent and adapt the photographs resulting from his or her Service for the term, the territory and on the media stipulated in the purchase order.

8.1.2. The copyright shall only be assigned after the Customer has paid the total amount of the order in full, and further to the definitive validation of photographs from the shoot by the Customer on the Site.

The Customer shall therefore undertake not to use the photographs until they have been validated on the Site.

8.2 Overall invoicing of the fees and copyright assignment

Ooshot, in its capacity as the invoicing and collection agent in the name and on behalf of the Photographer shall prepare the invoices and royalties invoices in the name and on behalf of the Photographer based on the elements provided by the Photographer on the Site.

An overall invoice shall be prepared including the Photographer’s fees and royalties: the amount for the copyright assigned shall thus be included in the overall amount of the Service and shall be owed even if the Customer decides not to publish the Photographer’s work.

With regard to invoicing, it is hereby understood that Ooshot shall not be liable, on whatever grounds, for inaccurate or incomplete information provided by the Photographer and/or the Customer.

8.3 Renewals

8.3.1 Ooshot acts as an agent for the renewal of the copyright assignment in the name and on behalf of the Photographer. As a consequence, in the event of any renewal of the copyright assignment on the work produced within the scope of the Service, the parties hereby agree to carry out such a renewal through the intermediary of Ooshot.

If no agreement is reached, it is hereby agreed that two months before the term of the copyright, Ooshot shall remind the Photographer and Customer of the expiry date by offering to manage the renewal of the copyright.

8.3.2 In the event of an effective renewal of the copyright, the Customer shall pay the total amount owed via Ooshot, in consideration of the percentage already settled in favour of the Photographer under the terms of the initial invoice.

8.3.3 In the event that the Customer and the Photographer were to fail to comply with this obligation, they hereby undertake to pay an amount corresponding to 300% of the total amount of the renewal of the copyright assignment to Ooshot immediately by way of compensation, without prejudice to any possible damages.

Article 9 – Modification of the order

9.1 If during the performance of the order, the Customer wishes to modify or add elements to his or her order, the said elements should be laid down in an additional purchase order.

9.2 The work that has already been completed but which is subsequently modified or cancelled shall be invoiced in line with the terms of the initial purchase order.

Article 10 – Withdrawal

The Service shall be executed in accordance with the specifications of the Customer, and is manifestly customized accordingly. Consequently, and in accordance with article L.120-20-2, 3° of the Consumer Code, a professional or private Customer shall not be entitled to exercise the right of withdrawal.

Article 11 – Cancellation / Postponement of the order

11.1 A cancellation of the order which is duly notified to the Photographer by the Customer will in all events result in all the costs incurred, all or part of the agreed Photographers’ fees and the total amount of the Service Fees becoming immediately payable, notwithstanding any compensation due.

If the cancellation occurs more than 4 days before the planned date of the Services, the following shall be owed:

If the cancellation occurs less than 48 hours before the planned date of the Services, the following shall be owed:

11.2 The cancellation of the order by the Photographer, duly notified to the Customer, shall, in all cases, entail the immediate enforcement of any costs incurred by the Customer and by third parties.

Service Fees payable to Ooshot shall also be due as follows:

Article 12 – Exclusion of liability and warranties by Ooshot

12.1 Liability of Ooshot

12.1.1 It is hereby agreed that the Photographer and the Customer shall use the Website at their own risks and that the order of the Service, which is concluded between the Customer and the Photographer, excludes any liability on the part of Ooshot. Any or all claim should be made through the offices of Ooshot.

12.1.2 As a consequence, Ooshot is not in any way obliged to verify the identity or background of any member, Photographer or Customer whatsoever, but shall be entitled to do so at its sole discretion.

12.1.3 Ooshot expressly excludes any or all warranty of quality of the Service, of non-infringement, of compliance with the deadlines and of payments, as well as any or all warranty resulting from commercial practices.

12.4 More generally speaking, notwithstanding the designation of Ooshot as the payment and collection agent in the name and on behalf of the Photographers in order to verify Customers’ payments, Ooshot expressly excludes any or all liability for any or all act or omission on the part of the Customer or the Photographer.

Ooshot shall only be liable with regard to the Photographer for errors that it might have committed within the framework of its role as the invoicing and collection agent.

12.1.5 No notice or information whatsoever, whether oral or written, which has been obtained from Ooshot or through the Website shall constitute a warranty other than those that are expressly stipulated in these General Terms and Conditions of Sale.

12.2 Verification of members of the Site

12.2.1 Ooshot shall verify the identity, the fiscal and social status of the Photographer, together with the documents submitted by the latter for the creation of their account on the Site.

However, the Photographer shall assume sole liability for their status and for information supplied, and Ooshot shall not under any circumstances be liable in respect thereof vis-à-vis the Customer.

12.2.2 Ooshot shall not be obliged to verify the identity or the previous history of the Customer, but shall be entitled to do so at their sole discretion.

Article 13 – Insurances

13.1 Public Liability of the Photographer and insurance for the infringement of third party entitlements

The Photographer shall be required to conclude a Public Liability insurance policy with an insurance company of reputable solvency, for the coverage of infringements of third party entitlements, specifically including any infringements of intellectual property rights and image rights and, more generally, any intangible rights.

Ooshot has concluded a framework agreement with the insurance company HISCOX which permits any photographer not in possession of Public Liability insurance to conclude such insurance directly on the Site.

Each year, the Photographer shall supply Ooshot with evidence of the conclusion of a Public Liability insurance policy, and shall permit Ooshot to verify conditions for the conclusion thereof at any time, together with the correct settlement of premiums for the policy concluded by the offices of the Photographer. In the event of failure to conclude such an insurance policy, or in case of default in settlement, Ooshot shall immediately block any access by the Photographer via its Site, pending the rectification of the situation.

Infringements of third party entitlements, associated with the authorized availment of Services executed via the Site, shall therefore be covered by the Public Liability insurance policy of the Photographer.

13.2 Complementary Public Liability of Ooshot

Ooshot shall also be insured under the terms of complementary cover concluded with the insurance company HISCOX in respect of infringements of third party entitlements, in order to provide cover for any sums not assumed by the insurance policy of the Photographer, subject to the limits of terms and exclusions applied under the insurance contract concluded by Ooshot (which shall be available to the Customer on request).

Consequently, the guarantee assumed by Ooshot shall not exceed the limits of indemnification under the terms of the insurance contract concluded.

Article 14 – Compensation

The Photographer and the Customer hereby accept to release, defend, pay compensation to and hold Ooshot harmless from any or all liability concerning any or all claim, liability, damage, loss and expense, including in particular, reasonable legal and accounting costs which result from or are linked in any manner whatsoever to: (a) their access or use of the Website; (b) a failure on their part to comply with these General Terms and Conditions of Sale; (c) the order of the Service by the Customer or (d) the performance of the Service by the Photographer.

Article 15 – Security of the Website and personal data protection

15.1 Ooshot shall not, under any circumstances, be held liable for an interruption of the services available on the Website irrespective of the cause, length or frequency of the said interruption.

15.2 Ooshot hereby warrants that it shall process personal data in accordance with the legal and regulatory provisions, and hereby warrants that it has implemented the appropriate technical and organisational measures to ensure the security of the personal data which are processed within the framework of this contract. Ooshot hereby undertakes in particular to make a simplified declaration to the CNIL [The National Commission for Data Protection and Liberties].

However, Ooshot cannot guarantee the security of data concerning members’ accounts. Non-authorised consultations or uses, hardware or software failures as well as other factors may at any time compromise the security of members’ data.

For further information, please refer to the General Terms and Conditions of Use of the Website.

Article 16 - Confidentiality

The Customer and the Photographer hereby undertake in their name and in the name of their employees to consider the documents and information that might be brought to their knowledge during the performance of the Services – in particular the metadata – as confidential throughout the term of this contract and after it has terminated, and not to use them other than for the requirements of the said Services.

Article 17 - Promotion

The Customer and the Photographer hereby authorise Ooshot, to use, operate or reproduce the photographs on any or all media hitherto known or unknown, and in particular on its Website, newsletter and social networks, for the sole purposes of promoting its intermediation service, free of charge and for a period of ten years from the disclosure and publication of the photographs taken within the scope of the Service.

Article 18 – Non-competition clause – Renewals of the copyright assignment

18.1 It is hereby understood that Ooshot shall act as a joint-interest agent between the Customer and the Photographer. The Customer and the Photographer hereby undertake as a consequence to call upon Ooshot for subsequent joint services.

18.2.In the event that the Customer and the Photographer were to fail to comply with this obligation, they hereby undertake to pay an amount corresponding to the sum of 10,000 euros to Ooshot immediately by way of compensation, without prejudice to any possible damages.

18.3 Article 18.1 shall not apply if the Photographer and the Customer have worked together previously, before using the Ooshot platform.

Express evidence of this previous collaboration shall be provided to Ooshot, at the request of the latter.

Article 19 – Mediation by Ooshot

In the event of a disputed between the Customer and the Photographer pertaining to the execution of Services, Ooshot may act as a mediator for the resolution of the dispute, subject to the agreement of the Parties.

Throughout the duration of the dispute, sums shall not be reimbursed in favour of the Customer, and shall be held in trust by a third party custodian who shall be selected at the discretion of Ooshot.

Article 20 – Force Majeure

Ooshot shall not be held liable or considered to have failed in its obligations under these General Terms and Conditions of Sale for any or all delay or non-performance if the cause of the delay or non-performance is linked to a case of force majeure such as defined by French case law including, in particular, acts of state, hacker attacks, the unavailability of the equipment, the interruption, suspension, reduction or disturbances of the computer networks, etc.

Article 21 - Invalidity

If one of the clauses of these General Terms and Conditions of Sale were to be contrary to a national or international law of public order, only such a clause would be deemed not to have been written and the remainder of the contract would remain valid. In such events, the parties would negotiate the drafting of a new clause in good faith to replace the invalid clause.

Article 22 – Governing law and disputes

22.1 These General Terms and Conditions of Sale are governed by French law.

22.2 Any or all protest or dispute which might arise as a result of these General Terms and Conditions of Sale shall be referred to the competent courts of the judicial district of the Court of Appeal of PARIS which shall have sole jurisdiction.