Independent Contractor Agreement

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Welcome, and thanks for being a part of FotoGenie. By signing this Agreement you gain access to all FotoGenie’s booking and photo archival tools. You also agree that you are an Independent Contractor; not an employee.

We (our lawyers, actually) cover a lot of ground in these agreements which we encourage you to read, but we know you don’t speak legalese so we’ve tried to great a way to quickly peruse this document in a few minutes.

If you want to start with a summary version, just take a look below for a brief overview explanation. Below each section, you’ll find a summary in bold type that clearly defines the expectations of the clause.

  1. No matter what, you are always in control of whether or not you accept shoots on the FotoGenie mobile or online platform - so take only the ones that work for you with sufficent budget and relative proximity to location!

  2. Without a doubt, we never own the exclusive rights to your work; you own every photo you capture. Howevere, we do ask for a limited license to distribute, communicate and market the work you shoot or post to your free gallery portfolio. We share limited rights to disseminate your photos and post on social media as well as in our ads for the purposes of building the FotoGenie brand. Unless you are specifically instructed by the Customer not to do so, feel free to use the images you capture for your portfolio or for your social media promotion. If you ever want to own the exclusive rights to a specific image to license it to commercial retailers or third-parties, we will first ask the Customer if they consent and then immediately relinquish the “Shared” ownership. To request exclusive commercial rights, request an Exclusive Rights Release Form via email: support@fotogenieapp.com

  3. Be professional and know the laws/regulations you are governed by in the state you are shooting. This includes your agreement to protect the privacy and personal data of others. Specifically, when you get Customer contact information including private residence and workplace addresses, phone numbers, emails etc. you are required under the terms of this agreement to keep that information totally secure and private.

  4. We ask that you encourage all Customers to continue using the FotoGenie platform to book new jobs rather than reach out to you personally because it strengthens the FotoGenie brand and ensures future FotoGenie job opportunities. However, if you find a recurring client through the FotoGenie marketplace, you are in control of setting the usage and ownership terms of shoots you book outside our booking platforms. FotoGenie is only responsible for negotiating the terms of shoots we book via our platforms – not shoots you book outside those platforms. 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.

  5. If we have claims against each other, we’ll resolve them in arbitration on an individual basis, not as a class member.

Please take the time to read through the rest of the agreement for a more detailed outline of our collaboration.

If you are just checking out the app/website and want to sign up to post your work on FotoGenie social media or create a free portfolio via our SmugMug galleries, simply sign up at: https://www.fotogenieapp.com/pro-lenser-landing-page  

Finally, if we approve your application and activate your account to work with our Customers be sure to read the section entitled Photo Assignments.

This Independent Contractor Agreement (“Agreement”) is entered into by and between Ubergram, LLC. ("FotoGenie," "we, "us," or "our") and you ("Independent Contractor," "you," or "your") as of the date you register with FotoGenie and/or upon your acceptance of an assignment (“Photo Assignment,” “Custom Bid” etc) under the terms below and those of our Terms of Use

 

Social Media Posts & Free SmugMug Portfolio Galleries

1.    Social Media Posts: You may post any image you capture during a FotoGenie Shoot to your own personal or professional social media sites, profiles or blogs. We ask that, in the interest of promoting the service, you “credit” FotoGenie and the Customer for booking the shoot. You can say something like: “Check out these cool shots I captured with “X Client” during our FotoGenie shoot…” or “Super stoked to get these great shots with FotoGenie and “X Client…” You decide. The more promotion we get, the more likely you will get booked on future FotoGenie shoots. Please also tag all photos with a #fotogenieapp  

2.    Free SmugMug Portfolio Galleries: SmugMug is the world’s leading platform offering professional photographers all the tools they need to showcase and sell their work online. In fact, they’re so rad, they just bought FLICKR! SmugMug also has outstanding custom-print delivery and unlimited digital archival services so your images are always secure and accessible via any mobile device. Follow this link to learn more: SmugMug Affiliate Program As a SmugMug Affiliate Partner, we provide you with access to your own FREE SmugMug Portfolio Gallery where you can share and sell all the work you want Customers to see or buy.  Post work you’ve shot with us or work you’ve done on your own – anyone can view or purchase images from your gallery. Be sure to create and publish photo posts to your free SmugMug portfolio gallery; leverage your photos and reviews to market your own professional photography services in addition to the work you do with FotoGenie. By uploading or submitting content to create a free Portfolio Gallery on SmugMug, you grant Ubergram, LLC and FotoGenie (our parent companies and affiliates), a worldwide license to communicate, distribute, host, make modifications or derivative works (for the purpose of better showcasing your work and social media or print marketing), publicly display, publicly perform, publish, reproduce, store and use such content. This license grant is solely for operating, marketing, promoting and improving our individual and collective services – we cannot and will never sell your work for profit. By submitting your content, you also give other FotoGenie users, bloggers, social media influencers etc. the right to share your content via various social media platforms integrated or affiliated with FotoGenie. If FotoGenie decides in its sole determination that your conduct violates our Terms Of Service available at http://www.fotogenieapp.com/terms-of-use which are incorporated here by reference, we may remove your content or disable your use of your SmugMug Portfolio, with or without notice to you. We and SmugMug also reserve the right to brand your gallery as a “FotoGenie” partner gallery and may include FotoGenie logos or ads within the gallery to notify customers of special discounts and promotions. We nor SMugMug 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.

3.    15% Private SmugMug Gallery Discount: As a SmugMug Affiliate Partner, FotoGenie offers all Pro Lensers who sign this Agreement an exclusive discount to sign up for a private SmugMug account that we do not have access to. This is entirely private and not branded as a “FotoGenie” gallery in any way. This account can be branded any way you want. As a private gallery, 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. When you purchase a subscription to SmugMug’s services, you are required to agree to their Terms & Conditions. You may sell your work via the SmugMug platform so long as you have the legal rights to do so. FotoGenie will not be held responsible for any false claims or “implied consent” to use commercially protected images whther related to a FotoGenie shoot or not. FotoGenie is constantly working with SmugMug to improve your experience. As a result, SmugMug compensates us with commissions when we bring them new users. Our mutual goal is to ensure you have the exact tools you need to grow your business and provide the best content possible. By using FotoGenie and SmugMug together, you are creating a consistent and exceptional Customer experience.

PRO LENSER CODE OF PROFESSIONAL CONDUCT

FotoGenie is committed to fostering an environment that is respectful and free from harassment and discrimination, including on the part of Pro Lenser as Independent Contractors. FotoGenie does not tolerate harassment of or discrimination against any FotoGenie employee, client, or third-party service provider.

Your conduct may also impact FotoGenie'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 FotoGenie's Clients and their respective employees in a respectful, courteous and professional tone and demeanor, (iii) communicating with FotoGenie'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 FotoGenie's Clients, or third-party service providers, and/or (vi) not directly or indirectly soliciting any of FotoGenie's Clients for the purpose of securing additional work to the detriment of FotoGenie's business relationship with our Clients.

If you are not able to comply with FotoGenie's Code of Professional Conduct, please notify FotoGenie immediately. You agree that your violation of this Code of Professional Conduct is a material breach of the Agreement, which thereby entitles FotoGenie to terminate the Agreement immediately.

You are the “face” of FotoGenie - so please play nice!

 

Content Clearances 

Many of FotoGenie’s Customers book shoots to create proprietary commercial content specifically for the purpose of selling their business’ products and services. Most are “cool” allowing you to showcase the work you create for them so long as you’re not generating ongoing profit from those images.

However, you are solely responsible for the acquisition and payment of any and all third-party licenses, clearances, permissions, and fees required in connection with Customer content, your Free or Private SmugMug Portfolio Gallery, 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 may be compelled to verify all facts in each Deliverable so please be sure to create details records.

You're responsible for the content you create - that includes any kind of permission, fees, licenses, etc needed.

 

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 FotoGenie 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 FotoGenie 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 FotoGenie or Client ownership and use of the Deliverables, and delivery to FotoGenie 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 FotoGenie 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 FotoGenie, subject to such FotoGenie'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 FotoGenie; provided however, that you will not agree to any settlement that imposes any obligation or liability on FotoGenie without FotoGenie'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 FotoGenie online or via the mobile app, 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, FotoGenie 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 FotoGenie, provided that you have no outstanding obligations for Services to FotoGenie or Client. Upon termination of the Agreement, FotoGenie, as its sole liability, will pay you for Deliverables completed and accepted by FotoGenie. Sections 3, 4, 5, and 6 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. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. FotoGenie and you agree to submit to the exclusive jurisdiction of the state and federal courts located in the County of San Francisco, California.

This section says that we will look at California law for most questions.

 

8. Arbitration and Dispute Resolution.

8.1 The choice of law provisions contained in Section 7 of this Agreement do not apply to the arbitration clause contained in Section 8.3 of this Agreement, such arbitration clause being governed by the Federal Arbitration Act. Accordingly, and except as otherwise stated in Section 8, the interpretation of this Agreement shall be governed by California law, without regard to the choice or conflicts of law provisions of any jurisdiction. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement that are not subject to the arbitration clause contained in Section 8.3 shall be subject to the exclusive jurisdiction of the state and federal courts located in the City and County of San Francisco, California. However, neither the choice of law provision regarding the interpretation of this Agreement nor the forum selection provision is intended to create any other substantive right to non-Californians to assert claims under California law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 8.3, are only intended to specify the use of California law to interpret this Agreement and the forum for disputes asserting a breach of this Agreement, and these provisions shall not be interpreted as generally extending California law to you if you do not otherwise reside or provide services in California. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 8.3 or to any arbitrable disputes as defined therein. Instead, as described in Section 8.3, the Federal Arbitration Act shall apply to any such disputes. The failure of FotoGenie to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by FotoGenie in writing.

8.2 Arbitration Other than disputes regarding the intellectual property rights of the parties and other claims identified in Section 8.3.2, 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 8.3.

8.3 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.

8.3.1 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 it otherwise provides, 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 8.3.5 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 FotoGenie and all successors and assigns of FotoGenie, 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 FotoGenie, 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 FotoGenie 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.

8.3.2 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 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;

Claims for worker's compensation, state disability insurance and unemployment insurance benefits;

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;

Disputes & Your Intellectual Property Rights

8.3.3 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 FotoGenie; 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, FotoGenie 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, Pro Lenser, that cannot be resolved by the Customer or Third Parties involved, 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 FotoGenie, past or present, whether arising under federal, state or local statutory and/or common law.

8.3.4 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.

8.3.5 Class Action Waiver. FotoGenie 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.

Private Attorneys General Act. Notwithstanding any other provision of this Agreement or the Arbitration Provision, to the extent permitted by law, (1) You and FotoGenie 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 FotoGenie 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.

8.3.6 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.

8.3.7 Nothing in this Agreement is intended to or will preclude FotoGenie 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, FotoGenie 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.

8.3.8 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 FotoGenie’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 FotoGenie. 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 FotoGenie in writing of your desire to opt out of arbitration, which writing must be dated, signed and delivered by: (1) electronic mail to support@fotogenieapp.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:

 

Ubergram, LLC.

1185 Immokalee Road, Suite 120

Naples, FL 34110

 

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 FotoGenie 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 FotoGenie shall be bound by the arbitration terms of this Agreement in full.

8.3.9 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.

8.3.10 You and FotoGenie 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 FotoGenie agree that arbitration as explained in this Agreement provides a fair and adequate mechanism for enforcing the Parties’ statutory rights.

8.3.11 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 FotoGenie 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 FotoGenie or you is entitled to waive such compliance may waive any term and/or condition of the Agreement. No waiver by either FotoGenie 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 FotoGenie. 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: the address above. Neither FotoGenie nor you nor Client will have any liability under the Agreement by reason of any failure or delay in the performance of FotoGenie'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, FotoGenie's or Client's or your reasonable control. FotoGenie, 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 FotoGenie, 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 FotoGenie'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 FotoGenie, 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 below, you create an electronic signature to the Agreement, establishing a valid, legal contract. It’s the same thing as signing a physical document because we maintain a digital file of the submission including the entirety of the Agreement and your indicated complicity. 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.

 

Photo Shoot Assignments

These terms cover and form the basic agreement between Independent Contractor and Client/Customer with respect to the creative services to be provided by Independent Contractor to Client/Customer.

1. Scope of the Agreement The parties will agree to the budget, compensation, scope and timing of delivery for each Project, including the Deliverables (defined below), and the fees to be paid by Client to FotoGenie and Independent Contractor ("Fees") either in a written addendum to the Agreement, as posted through FotoGenie's web site, 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 limited license usage, 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 FotoGenie. Independent Contractor grants FotoGenie 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.

We ask Customers to define all aspects and expectations of your work and projects in the descriptions and messages. Our Pro Lenser Liaisons are tasked with overseeing the quality control and delivery of images to satisfy these expectations, but we rely on you to provide the best service and product possible upfront.

 

2. Staffing Independent Contractor will supervise and control its Personnel (i.e., those who work for you either as employees or subcontractors or as fellow FotoGenie Pro Lensers hired as “Assistant Shooters”) 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 FotoGenie or Client. As between FotoGenie and Independent Contractor, Independent Contractor agrees that FotoGenie has no responsibility for any wages, costs, unemployment insurance, workers' compensation insurance, and expenses of Bureau's employees and independent contractors and that FotoGenie 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 FotoGenie 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/Customer will set the ownership rights for each Project in the Project Description and in the pitch made by the Customer. If Customer requires Exclusive Rights, they must obtain them by request by emailing: support@fotogenieapp.com You, as the Independent Contractor have the right to approve or refuse the transfer of Exclusive Rights at any time. In lieu of providing Exclusive Rights, you may simply deny the assignment. Otherwise, you are bound by the Terms of Use to “share” the rights with Ubergram, LLC and the Customer until such rights are summarily released. 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 the Customer or Client for personal, private or commercial use. Customer may use the work for profit indefinitely with no restrictions on the term of license until such time the Exclusive Rights can be released or reassigned. (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. Ubergram, LLC and 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" and therefore are shared by FotoGenie/Ubergram, LLC, the Customer and you, the Independent Contractor. Exclusive Rights are not granted nor implied until purchased, licensed and assigned to an individual party.  

4. Payment a. Subject to Independent Contractor's strict compliance with the Terms of Use, Independent Contractor’s Agreement and Client’s acceptance of the Deliverables, Customer/Client will pay FotoGenie the fees for each shoot. FotoGenie will deduct its 20% commission and then pay the Independent Contractor the Fees as set forth in the assignment. Client is responsible for managing, inspecting, accepting and paying through the FotoGenie 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 FotoGenie platform upon delivery of the final Deliverable. In no case shall Independent Contractor solicit Client to deliver payment for Projects outside of the FotoGenie platform, including, but not limited to cash or credit card payment through other service providers. All payments from Client/Customer to Independent Contractor, including cancellation and pro-rata charges, are net of FotoGenie's commission (ten percent (10%) for jobs originating through your Free Portfolio Gallery page and twenty percent (20%) for jobs originating through the FotoGenie’s mobile app or website). For any Project that Client cancels or any Deliverable that Client chooses not to accept based on creative, technical, qualitative or other considerations, FotoGenie will make reasonable business efforts to collect from Client/Customer and pay to Independent Contractor (subject to FotoGenie's successful collection of fees from Client minus FotoGenie's commission structure) FotoGenie may withhold payments (i) for any item on Independent Contractor's invoice that Client/Customer 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 the Customer’s acceptance of Deliverables. If a dispute arises, we’ll try to solve it amicably and get you paid anyway. In other words, we fight for you AND the Customer to make sure both of you get a fair deal.

 

5. Exclusivity By registering and communicating with potential Clients identified through the FotoGenie web site and/or your Portfolio page, you agree to use FotoGenie to receive all payments from Clients whom you identify or who identify you through the FotoGenie web site so that FotoGenie can collect its commission. You agree to notify FotoGenie immediately if a Client attempts to pay you outside the FotoGenie web site. If payments are made or accepted outside the mobile app or website, the Customer’s ability to use FotoGenie services and your status as a Pro Lenser will be terminated immediately.

Please let us know if a client wants to pay you outside of FotoGenie. If they found you on the site, they agree to pay through FotoGenie and you agree to be paid through the site as well. This is the only way we can protect our mutual interests and promote the FotoGenie brand. So let’s keep it in the Circle of Trust! (We’re watching you, Focker!)

6. 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, digitally, 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 FotoGenie 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 FotoGenie. 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 as you would protect your own.

7. 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 FotoGenie 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.

You say you’re a pro and actually created the images you presented to us on your online portfolio? Cool. We believe you. Promises you are making to FotoGenie & Our Customers/Clients are true.

8. 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 FotoGenie 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.

Please do not use Client trademarks without permission.

 

9. Equitable Remedies In the event of any breach of the Agreement by Customer/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 – not personal or bodily harm. By accepting any Assignment, you agree that you are liable for any and all health-related accidents that may occur during or in relation to said shoot.

 

10. 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.

You promise to be responsible for your work and content.

 

11. 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 Customer/Client and you reasonable limitations on liability.

 

13. Term and Termination The term of the Agreement commences when you register with FotoGenie, 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, and 15 will survive termination of the Agreement.

This section describes the length of your relationship.

 

14. Press Release You will not issue any press release regarding the Agreement unless approved in advance by Client in writing 30 days after written notice thereof is received by the other party. Sections 3, 4, 5, 6, 8 through 13, and 15 will survive termination of the Agreement.

Please talk with Client if you want to issue a press release.

 

15. 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. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.

 

16. GDPR Regulations: All parties agree to comply with the General Data Protection Regulations that protect Customer and Independent Contractor information.

If there is anything in question, this will be mostly be done under California State Law but may be kicked back to international GDPR statutes. Bottom line, don’t use private Customer contact info to solicit new business. It may be illegal unless you get them to opt-in to commercial communications. They agree to work with FotoGenie and are protected under this Agreement and our Privacy Policy Any work you do outside FotoGenie is not protected under this Agreement.

 

17. Arbitration and Dispute Resolution

17.1 The choice of law provisions contained in Section 16 of this Agreement do not apply to the arbitration clause contained in Section 17.3 of this Agreement, such arbitration clause being governed by the Federal Arbitration Act. Accordingly, and except as otherwise stated in Section 17, the interpretation of this Agreement shall be governed by California law, without regard to the choice or conflicts of law provisions of any jurisdiction. Any disputes, actions, claims or causes of action arising out of or in connection with this Agreement that are not subject to the arbitration clause contained in Section 17.3 shall be subject to the exclusive jurisdiction of the state and federal courts located in the City and County of San Francisco, California. However, neither the choice of law provision regarding the interpretation of this Agreement nor the forum selection provision is intended to create any other substantive right to non-Californians to assert claims under California law whether that be by statute, common law, or otherwise. These provisions, and except as otherwise provided in Section 17.3, are only intended to specify the use of California law to interpret this Agreement and the forum for disputes asserting a breach of this Agreement, and these provisions shall not be interpreted as generally extending California law to you if you do not otherwise reside or provide services in California. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in Section 17.3 or to any arbitrable disputes as defined therein. Instead, as described in Section 17.3, the Federal Arbitration Act shall apply to any such disputes. The failure of FotoGenie to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by FotoGenie in writing.

17.2 Arbitration Other than disputes regarding the intellectual property rights of the parties and other claims identified in Section 17.3.2, 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 17.3.

17.3 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.

17.3.1 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 it otherwise provides, 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 17.3.5 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 FotoGenie and all successors and assigns of FotoGenie, 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 FotoGenie, 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 FotoGenie 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.

17.3.2 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 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;

Claims for worker's compensation, state disability insurance and unemployment insurance benefits;

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;

Disputes regarding FotoGenie or your intellectual property rights.

17.3.3 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 FotoGenie; 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, FotoGenie 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 FotoGenie, past or present, whether arising under federal, state or local statutory and/or common law.

17.3.4 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.

17.3.5 Class Action Waiver. FotoGenie 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.

Private Attorneys General Act. Notwithstanding any other provision of this Agreement or the Arbitration Provision, to the extent permitted by law, (1) You and FotoGenie 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 FotoGenie 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.

17.3.6 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.

17.3.7 Nothing in this Agreement is intended to or will preclude FotoGenie 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, FotoGenie 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.

17.3.8 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 FotoGenie’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 FotoGenie. 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 FotoGenie in writing of your desire to opt out of arbitration, which writing must be dated, signed and delivered by: (1) electronic mail to legal@FotoGenie.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

Ubergram, LLC.

1185 Immokalee Road, Suite 120

Naples, FL 34110

 

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 FotoGenie 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 FotoGenie shall be bound by the arbitration terms of this Agreement in full.

17.3.9 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.

17.3.10 You and FotoGenie 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 FotoGenie agree that arbitration as explained in this Agreement provides a fair and adequate mechanism for enforcing the Parties’ statutory rights.

17.3.11 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 FotoGenie 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 FotoGenie. 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, FotoGenie, Inc., 201 Mission Street, Suite 2030, San Francisco, California 94105. 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 FotoGenie, 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.

 

Acknowledgement Regarding Independent Contractor Status:  1. I am making the following voluntary statements of my own volition and without coercion, duress or undue pressure of any kind whatsoever.  2. By applying to become a FotoGenie Pro Lenser, I entered into a FotoGenie (Ubergram, LLC) Independent Contractor Agreement (the "Agreement"). As part of this Agreement, I am entering into a business relationship with Ubergram, LLC ("FotoGenie") to conduct business as an Independent Contractor/Photographer-For-Hire. I understand that nothing in the affidavit replaces, deletes or otherwise modifies any of the terms of the Agreement, and in fact is only meant to reinforce the nature of the relationship between me as an independent contractor, and FOTOGENIE, as the contracting business.  3. As part of this business relationship, I understand, acknowledge and agree that from time to time, at the sole discretion of FOTOGENIE, I might be offered temporary an potentially discrete work assignments from FOTOGENIE. Services are for professional photography only. No other services are required nor implied.   4. I understand, acknowledge and agree that the work I will be performing under the Agreement will be as an independent contractor. I further acknowledge, understand and agree that generally speaking under applicable state and federal laws an independent contractor is one who engages to perform certain services for another, according to his/her own manner, method, free from control and direction of his/her contractor in all matters connected with the performance of the service, except as to the result or product of the work. I understand and agree that these general principles apply to the business relationship I am entering into with FOTOGENIE as part of the Agreement.  5. I understand, acknowledge and agree that one of the consequences of entering into this business relationship is that under no circumstances will I be considered an employee of FOTOGENIE. I shall therefore not be entitled to any of the benefits provided by FOTOGENIE to its employees, and will not be subject to any of the policies and procedures which apply to FOTOGENIE employees, including but not limited to progressive disciplinary measures, performance evaluations and general workplace rules.  6. I understand, acknowledge and agree that I shall be solely responsible for the payment of any and all local, state and federal taxes (and the reporting thereof), which are or may be assessed in connection with payments made to me under the Agreement. I understand that FOTOGENIE will provide a 1099 tax form to me upon request for the payments which are made to me for my independent contractor work.  7. I understand, acknowledge and agree that nothing contained in the Agreement prevents me from becoming an employee or independent contractor for any other party relating to the services I provide FOTOGENIE, or otherwise. I understand that while I will be asked to coordinate the performance of my services with representatives of FOTOGENIE, the ultimate control over the performance of my duties and responsibilities shall remain solely with me and will be based on my independent discretion and decision-making. I also understand that with I will be personally and primarily responsible for providing materials, tools or other instrumentalities which I utilize as part of my work under the Agreement.  8. Liability: I understand that neither FOTOGENIE nor the Customer or Third Party who book any shoot to which I agree to complete is responsible for any damages that may occur to my camera, lighting equipment or any equipment related-thereof. No damages shall be paid by FOTOGENIE nor the Customer should any damages occur. Furthermore, as an Independent Contractor, I also acknowledge that I am responsible for carrying a current health and equipment insurance policy that covers both my gear and myself during any FOTOGENIE shoot. In no way whatsoever will I hold FOTOGENIE, the Customer or any Third Parties related to any Photo Shoot responsible for bodily injury or death or damage to myself or my equipment. I also agree to hold harmless and not liable, FOTOGENIE, the Customer and any Third Parties related to any possible Court Fees that may be incurred as a result of proceedings related to any photoshoot.   9. I have read and fully agree to all the terms set forth in the FotoGenie Shoot Cancellation Policy, Terms of Use and Privacy Statements. I acknowledge that those documents are clearly posted on the bottom of every page of both FotoGenie's websites: http://www.fotogenieprolenser.com) and/or http://www.fotogenieapp.com so that I may read them at any time. I may also request a digital copy of any of these documents by emailing fotogenie@fotogenieapp.com.   10. Finally, by signing below, I acknowledge that FotoGenie will add me to its mailing list(s). I also understand and accept that FotoGenie will correspond with me directly via email and SMS text notifications to issue new Photo Assignments and provide updates about the mobile app / online booking services. I agree to read these Assignments and Updates so that I may take full advantage of this opportunity to supplement my photography income. If, at any point, I decide I don't want to earn extra income by taking amazing photos and meeting cool new people who will become my new clients, I may UNsubscribe to FotoGenie's mailing list by clicking the link at the bottom of any email they send me.   By digitally signing/submitting my name below, I acknowledge, understand and agree that the contents of this affidavit are true and accurate to the best of my knowledge and belief. I agree not to purger myself under penalty of the full extent of the law in the state, country or province where I may perform these Services. 

 

Electronic Signatures Effective a. By clicking on the "YES, I agree!" 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 FotoGenie 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.

 

 

This Independent Contractor Agreement was last updated on July 15, 2018