Partner photographer general terms and conditions of approval and collaboration
MYPHOTOAGENCY – a major player in corporate photography and publisher of the web platform available at the URL www.myphotoagency.com carries out photo shoots in Europe on behalf of its clients.
In this context, MYPHOTOAGENCY brings together a large community of professional photographers, who – once they are registered on the Website and have become members of the community (the “Web Community”), selected and approved by MYPHOTOAGENCY – can access and respond to the photo shoot offers put online by MYPHOTOAGENCY’s clients on the Website, and then, if applicable, through Purchase Orders, carry out these services, in the name and on behalf of MYPHOTOAGENCY.
These PPGTC supplement the General Terms and Conditions of Use (“GTCU”) of the Website, of which the provisions which are not amended by the PPGTC are fully applicable with respect to the use of the Website.
Please attentively read these Partner Photographer General Terms and Conditions of Approval and Collaboration (“PPGTC”) applicable to professional photographers who have created their Photographer Profile in accordance with the GTCU (the “Photographers”) and have received the approval of MYPHOTOAGENCY (the “Partners”).
Before accepting the PPGTC, the Photographer declares (i) that he/she was able to request from MYPHOTOAGENCY the necessary information in order to understand, in particular, the terms of collaboration within the framework of the partnership; (ii) that he/she has carefully read these PPGTC and the GTCU in force; (iii) that he/she has fulfilled the prerequisites defined in the GTCU, and in particular, that he/she has significant experience as a professional photographer and is acting as a professional within the context hereof. In this context, the Photographer declares to adhere to these PPGTC in full knowledge of the facts.
MYPHOTOAGENCY recommends that the Photographer keep a printed version of the applicable PPGTC at the time of his/her acceptance of the PPGTC, and in general, of all the contractual documents defined below.
ARTICLE 1: DEFINITIONS
Each term beginning with a capital letter has the meaning indicated in its definition below or in the applicable GTCU, whether in the singular or plural:
Purchase Order: refers to the Client Offer selected for the Service, accepted by the Partner via the Photographer Profile under the terms and conditions stipulated in Article 6 and designating MYPHOTOAGENCY and the Partner as contracting entities.
Specifications: refers to the document prepared by MYPHOTOAGENCY based on the needs and requirements expressed by each Client concerned, made available to the Partners in their Photographer Profile, defining the instructions to be followed when performing the associated Service, if applicable, and which the Partner is deemed to have accepted without reservation.
Client: refers to MYPHOTOAGENCY’s client, the recipient of the Service listed on the Purchase Order.
General Terms and Conditions of Use / GTCU: refers to the general terms and conditions of use of the Website as available at the URL: https://www.myphotoagency.com/sites/default/files/Allgemeine-Geschaftsbedingungen-Myphotoagency.pdf
Partner Photographer General Terms and Conditions of Approval and Collaboration / PPGTC: refers to this document.
Contract: refers to the PPGTC, the GTCU, the Purchase Orders, if any, as well as any possible amendments, in the order of priority defined in Article 2.
Client Offer: refers to the Client’s Service offer validated and sent by MYPHOTOAGENCY, for acceptance by one of the eligible Partners via their Photographer Profile, according to the terms and conditions stipulated in Article 6, and including in particular information relating to the Scope of the Service, the Photo Shoot reference number, information relating to the Client (address, desired Photo Shoot dates and times, and specific instructions, if applicable), the number of photos required and the price of the Service.
MYPHOTOAGENCY: refers to MYPHOTOAGENCY, a Simplified Joint-Stock Company with a share capital of 299,880.00 euros whose registered office is located at 13 rue Jean Jacques Rousseau 75001 Paris, registered in the Paris Trade and Companies Register under number B 753 406 016.
Partner: refers to the Photographer who has obtained the approval of MYPHOTOAGENCY under the terms and conditions provided for in Article 4 for the purpose of performing Services in the name and on behalf of MYPHOTOAGENCY.
Scope: refers to the description of a Service, in particular its purpose, the place where the associated Photo Shoot is to be carried out, the desired time periods for the execution of the Photo Shoot, the execution timeframe (if applicable), the maximum number of Photographs and their technical characteristics (format, resolution, etc.) to be taken during the said Service, as defined in the Specifications or on the corresponding Client Offer, if applicable.
Photographer: refers to the photographer, a natural person or legal entity acting in the capacity of a professional who has created his/her Photographer Profile according to the terms of the GTCU, an applicant for Partner approval or, where applicable, a Partner.
Photographs: refers to the photographs from the Photo Shoots.
Client Platform: refers to the web platform or mobile application, allowing the Client to order Photo Shoots and retrieve Photographs, available at the URL: www.myphotoagency.de/nameoftheclient.
Personal Data Management Policy: refers to the document describing MYPHOTOAGENCY’s policy on the protection of personal data available on the Website at the URL:
Service: refers to the performance of any Photo Shoot by the Partner in the name and on behalf of MYPHOTOAGENCY, including the provision on the Client Platform of the resulting Photographs, under the corresponding Purchase Order.
Photographer Profile: refers to the Photographer’s personal account accessible on the Website, and in particular allowing the Photographer who has obtained the approval of MYPHOTOAGENCY’s Partner to access Client Offers, accept Purchase Orders, plan any Services with the corresponding Client and make the resulting Photographs available to the latter.
Photo Shoot: refers to professional photo shoots carried out for a Purchase Order.
Website: refers to the website accessible via the Internet at the URL: www.myphotoagency.de
ARTICLE 2: CONTRACTUAL DOCUMENTS
The Contract is composed of the documents defined and classified below in descending order of priority, the preceding document taking precedence over the next in the event of a contradiction; it being understood that in the event that two documents of the same rank are contradictory, the most recent one prevails:
- any Purchase Order;
- these PPGTC and any amendments thereto;
- the Personal Data Management Policy;
- the GTCU.
ARTICLE 3: PURPOSE OF THE CONTRACT
The purpose of the Contract is to define the terms and conditions (i) for MYPHOTOAGENCY to approve the Photographer as a Partner, and (ii) for MYPHOTOAGENCY and the Partner to collaborate within the framework of their non-exclusive partnership, and in particular the terms for ordering and performing the Services.
MYPHOTOAGENCY is not bound by any obligation with regard to Photographers, in particular with regard to their possible Partner approval and/or the number of approvals granted; it being understood that the Partners do not benefit from any exclusivity of any kind. In any event, Partner approval does not imply any commitment on the part of MYPHOTOAGENCY to any minimum amount of Services.
ARTICLE 4: TERMS AND CONDITIONS OF APPROVAL OF THE PHOTOGRAPHER BY MYPHOTOAGENCY
MYPHOTOAGENCY selectively chooses its Photographers.
Only Photographers with a significant portfolio and experience in MYPHOTOAGENCY’s areas of activity are eligible for Partner status.
The selection of Partners is left to MYPHOTOAGENCY’s free discretion according to any possible interviews and the following criteria, the list of which is not exhaustive:
- the quality of the photographs presented during the creation of the Photographer Profile in accordance with the provisions of the GTCU;
- the Photographer’s compatibility with MYPHOTOAGENCY’s working methodology as described in particular in the Specifications;
- the use of quality equipment that meets MYPHOTOAGENCY standards (such as: wide-angle lens, tripod).
In exceptional circumstances, MYPHOTOAGENCY may issue or withdraw its approval after an initial test assignment.
As soon as the Photographer becomes a Partner, he/she may be entrusted with the provision of Services through the Client Platform, in the name and on behalf of MYPHOTOAGENCY.
In order to avoid any ambiguity, it is specified that MYPHOTOAGENCY freely chooses its Partners, and compliance with the selection criteria does not mean that a Photographer will be given Partner status.
In the event that the Photographer is approved by MYPHOTOAGENCY, he/she undertakes to provide several supporting documents and additional information and in particular, without this being exhaustive, proof of registration of less than three (3) months in the Trade and Companies Register or the Trade Register and a certificate of up-to-date payments from the social contribution agencies URSSAF or RSI. These documents must be updated throughout the collaboration with MYPHOTOAGENCY.
Similarly, the Photographer, who certifies that he/she has taken out professional liability insurance covering all of his/her activities arising, where applicable, from the execution of the Contract, undertakes to provide MYPHOTOAGENCY, at the latter’s request, with all supporting documents or certificates, in particular relating to the nature of the risks covered and the payment of the premiums. Any amendment, suspension or termination of this insurance for any reason whatsoever must be notified without delay to MYPHOTOAGENCY.
ARTICLE 5 – COLLABORATION BETWEEN THE PARTIES
The Parties acknowledge that the success of the Contract requires – in addition to the good faith execution of the Contract by each of them – active, close and regular communication. The Parties shall communicate mainly by e-mail and/or telephone in the context of the performance of the Services.
In the event of a difficulty in performing the Contract, each of the Parties undertakes to inform the other Party as soon as they become aware of it.
ARTICLE 6 – TERMS OF EXECUTION OF THE PARTNERSHIP: ALLOCATION OF A CLIENT OFFER; PURCHASE ORDERS AND PERFORMANCE OF SERVICES
6.1 Client Offers are transmitted by MYPHOTOAGENCY by e-mail, text message notification and on the Professional Profiles of all Partners with the field of expertise required by these offers, and whose professional address is located within a radius of thirty (30) kilometres from the place of performance of the Service.
6.2 Whenever a Partner meets the criteria referred to in Article 6.1, these Client Offers may be notified to him/her and he/she may accept them at his/her sole discretion via his/her Professional Profile. Each Client Offer is allocated to a Partner on a “first come, first served” basis, with the accepted Client Offers then acting as Purchase Orders for the corresponding Service, between the Partner and MYPHOTOAGENCY.
By accepting a Purchase Order, the Partner agrees to perform the corresponding Service in the name and on behalf of MYPHOTOAGENCY, in accordance with the terms and conditions of the Contract and in strict compliance with the applicable Scope and in particular the Specifications, as well as any MYPHOTOAGENCY directives and instructions, if applicable. The Partner expressly acknowledges that MYPHOTOAGENCY is the only party with whom he/she enters into a contract for the purpose of executing it, and that it alone will communicate to the Clients any confirmation of performance of the Service and any related invoices.
6.3 The Partner undertakes to contact the Client within twenty-four (24) hours of acceptance of the Client Offer for the purpose of planning his/her assignment. He/she also undertakes to stick to the dates and times agreed with the Client and to act professionally and courteously towards them, in all circumstances.
In the event that the Client cannot be contacted, the Partner undertakes to notify MYPHOTOAGENCY without delay.
6.4 Once the Photo Shoot corresponding to the Service has been completed, the Partner transfers the resulting Photographs via the dedicated section of his/her Photographer Profile within a maximum period of twenty-four (24) hours, unless otherwise specified on the Purchase Order.
6.5 The Partner freely organises their time within the framework of the performance of the Services, in compliance with the Scope and more generally with the Contract. The latter shall, at his/her own expense, implement the appropriate means to ensure the perfect performance of the Services in compliance with the Scope. In this context, the Partner shall define, under his/her responsibility, the resources, tools, methods and means of execution necessary for the performance of the Services.
6.6 The Partner undertakes to (i) request any information he/she deems useful for the performance of the Services and (ii) notify MYPHOTOAGENCY in writing as soon as he/she becomes aware of any element, event, act likely to affect the proper performance of his/her obligations under the Contract, in particular, in the event of bad weather preventing the proper performance of a Service or in the event of a personal constraint.
6.7 During the collaboration and for the proper performance of certain Services, the Partner may be required to use specific equipment provided by MYPHOTOAGENCY. The Partner undertakes to return the said equipment at MYPHOTOAGENCY’s first request, in the same working condition as at the time of its supply, and to use the latter only for the purposes of the Contract.
6.8 The Photographs will be received by MYPHOTOAGENCY in order to verify, in particular, their compliance with the Scope.
If necessary, MYPHOTOAGENCY will communicate in writing to the Partner its reservations and observations. The Partner shall then immediately proceed, at his/her own expense, with the corrections of the Photographs or with a new Photo Shoot in accordance with the recommendations of MYPHOTOAGENCY and within the timeframe set by the latter, which may not exceed two (2) days. The corrected Photographs will be made available via the Partner’s Photographer Profile and subject to the same conditions of receipt described in this Article 6.8.
In any event, no acceptance may be deemed tacitly granted. Only the absence of any reservations in the activity report relating to the Photographs taken during the previous month and referred to in Article 12, duly signed by an authorised representative of MYPHOTOAGENCY, shall constitute receipt.
ARTICLE 7 – GENERAL OBLIGATIONS OF THE PARTNER
The Partner undertakes in particular to:
- set up all of the necessary equipment and hire the necessary human resources to carry out the Services;
- provide Services in accordance with the specifications of their Scope and in accordance with good practices;
- behave in a loyal manner towards MYPHOTOAGENCY;
- not damage the brand image and reputation of MYPHOTOAGENCY and in particular not to denigrate it;
- inform MYPHOTOAGENCY of any change in his/her organisation, and in particular of any change likely to affect the execution of the Contract and/or the performance of all or part of the Services, in particular in the event of annual closure, transfer of the business and/or collective proceedings.
ARTICLE 8 – STATISTICS AND RIGHT OF CONTROL
8.1 The Partner acknowledges and accepts that in order to best satisfy the Clients, MYPHOTOAGENCY is likely to carry out statistical monitoring, in particular by conducting satisfaction surveys through questionnaires sent to Clients at the end of the Services.
8.2 The Partner acknowledges that MYPHOTOAGENCY and/or any third party designated by MYPHOTOAGENCY has (have) a right to monitor the Services. In particular, as soon as a Client communicates a complaint to MYPHOTOAGENCY, the latter and/or the designated third party may/can carry out any inspection in order to verify the result of the Services performed and their compliance with the Partner’s contractual obligations and the corresponding Scope. At the end of each inspection, MYPHOTOAGENCY will send the Partner a detailed report, describing any shortcomings that may have given rise to a complaint.
In the event that the number of claims exceeds five percent (5%) of the total number of Services performed by the Partner during a consecutive period of three (3) months, MYPHOTOAGENCY shall be entitled to terminate the Contract under the conditions provided for in Article 20.2.3.
ARTICLE 9 – REFERENCES
During the term of the Contract, each Party authorises the other Party to use its name and logo as a commercial reference, in particular on their websites, provided that they inform the other Party in advance, do not distort them (in particular by modifying and/or adapting them) and do not associate them with names and/or logos of third parties which may damage their image.
ARTICLE 10 – INTELLECTUAL PROPERTY
10.1 Client Platform
Subject to the Photographer’s rights to his/her personal data and to the Photographs transmitted during the creation of his/her Photographer Profile (including his/her profile photo) and on which the Partner consents, by express agreement, to MYPHOTOAGENCY’s right to use, represent and reproduce these exclusively as part of its service offer, MYPHOTOAGENCY and/or its licensors is/are the owner(s) of all property rights relating to the Client Platform – in particular and without limitation – rights relating to applications, software, trademarks, illustrations, documentation and/or any materials.
With the exception of data that cannot be appropriated, the database related to MYPHOTOAGENCY’s activity and the data it contains are the exclusive property of MYPHOTOAGENCY.
10.3 Trademarks and other intellectual property rights
Subject to the trademarks and other distinctive signs communicated, where applicable, by the Photographer for the purpose of reproduction, in particular in the Client Platform, the Contract does not include any license or right to the trademarks and other distinctive signs of either Party or any intellectual property rights. In general, any use of a trademark or intellectual property right of one of the Parties, not expressly authorised under the Contract, is subject to the express prior authorisation of the other Party.
10.4 Photographs taken as part of the Services
10.4.1 Subject to the Partner’s moral rights – and any third party elements included in the Photographs (model(s), trademarks, logos, rights on photographed goods, etc.) which are the property of their respective owners, for which the Partner guarantees to hold the rights necessary to exploit the rights assigned to the Photographs under the terms of the Contract – the economic rights relating to the Photographs and the ownership of the related medium are assigned to MYPHOTOAGENCY for Web, print and press media and for a period of fifteen (15) years from the date of the assignment as defined below.
By express agreement, the transfer price of the economic rights of each Photograph corresponds to the price indicated in the Purchase Order concerned. In this context, the Partner expressly waives any claim to a corresponding share in the profits resulting from the exploitation of the Photographs and the rights assigned.
10.4.2 The assignment of the economic rights relating to the Photographs includes:
- the right of reproduction, including (i) the right to fix, have fixed, reproduce, have reproduced, have reproduced, save, have saved by any known or unknown technical means on the date the Contract is signed, on any known or unknown Web, print and press media on the date the Contract is signed, in any format, using any aspect ratios, images and videos in black and white or in colour of all or part of the Photographs; (ii) the right to establish or have established, to exploit or to have exploited, in such number as MYPHOTOAGENCY deems appropriate, all or part of the Photographs on all Web, print and press media, in all formats and by all known or unknown methods on the day the Contract is signed; (iii) the right to release or have released and to exploit or have exploited the Photographs, on all media as specified above, by all electronic communication networks and more generally, by all means of making all or part of the Photographs available to the public, known or unknown at the date the Contract is signed; (iv) the right to reproduce the Photographs as well as to store them, with a view to their transfer or distribution on all Web, print and press media and by all technological methods and processes;
- the right of representation, including in particular (i) the right to represent the Photographs or have them represented to the public in whole or in part, by any means of web, print and press media existing or unknown at the date the Contract is signed; (ii) the right to authorise the public presentation of the Photographs in any promotional event;
- provided that the Partner’s moral rights are not infringed, the right of adaptation, including in particular (i) the right to retouch and/or modify the digital files delivered, if necessary; (ii) the right to use any process for the representation or digitized reproduction of all or part of the Photographs, in a linear or interactive mode, allowing the complete reconstitution of the Photographs or by fragments, alone or integrated with other audio-visual, computer, telematic or any other element whatever its form and content;
- the right of use, including in particular the right to make any use and exploit the Photographs for the needs of its own activity or for the benefit of third parties, for any reason whatsoever, and in particular for internal and/or external communication purposes, on the above-mentioned media;
- the right to commercialise, including in particular the right to distribute all or part of the Photographs free of charge or against payment, and to commercialize in any way whatsoever, in isolation or integrated with other products and/or services. In this respect, the Partner accepts that any logos and/or trademarks and/or texts may be embedded in the Photographs, in particular for advertising by MYPHOTOAGENCY;
- To assign, in whole or in part to any assignees of its choice, all and exclusive economic rights relating to the Photographs assigned under this article.
The aforementioned assignment shall take effect, as and when the Photographs are taken for the Services and in consideration of payment of the price mentioned on the corresponding Purchase Order, by MYPHOTOAGENCY.
The assignment will expressly benefit all existing or future subsidiaries of MYPHOTOAGENCY.
10.4.3 As a consequence of the transfer of ownership referred to in Articles 10.4.1 to 10.4.2, MYPHOTOAGENCY shall have the free and complete disposal of the Photographs in accordance with the foregoing terms and conditions, in particular for the duration and scope of the rights assigned; it being specified that the assignment referred to in the Contract shall not entail any obligation for MYPHOTOAGENCY to exploit them.
10.4.4 MYPHOTOAGENCY may, if it so wishes, take, on its own behalf or on behalf of any third party authorised by it, any title of intellectual property to the Photographs, in accordance with the procedure it deems most appropriate; the Partner undertakes to carry out any act and sign any document necessary or required thereafter to consolidate MYPHOTOAGENCY’s rights over the Photographs, directly or indirectly.
ARTICLE 11 – DECLARATIONS, GUARANTEES
11.1 Each Party represents and warrants that (i) the signing and execution of the Contract does not infringe the rights of third parties and in particular the terms of a contract to which they are a party, and (ii) they comply with and ensure the compliance of their employees and, where applicable, their subcontractors, with applicable laws, regulations, licenses and regulatory authorisations and professional practices.
11.2 Notwithstanding the foregoing, as provided in the GTCU, and unless otherwise provided for in the Contract, the Website is made available to the Photographer “as is” and without warranty of any kind. By express agreement, the unavailability and/or operational disruptions of the Website and/or the Client Platform may not give rise to the payment of any compensation of any kind whatsoever to the Photographer.
11.3 The Partner shall take all the care and diligence necessary for the performance of the Services, and shall comply with the best practices of his/her profession. The Partner undertakes, at the end of a performance commitment, to provide Services in compliance with his/her commitments defined under the Contract and in particular the Purchase Orders.
11.4 The Photographer guarantees that all the information and content he/she provides, in particular when creating his/her Photographer Profile, are in accordance with reality and the legislation in force, that they correspond to an effective and available offer of services, that he/she has all the necessary rights on the data provided to MYPHOTOAGENCY, and that the information he/she has transmitted or will transmit to MYPHOTOAGENCY is accurate and provided in good faith.
11.5 The Photographer undertakes to defend MYPHOTOAGENCY at his/her own expense against any allegation of infringement of an intellectual property right and/or any infringement of the rights of a third party (in particular any infringement of the image rights of third parties), provided that he/she has been promptly notified in writing of the existence of such allegation, and that the Photographer was put in charge of the defence and any negotiations for an agreement. The Photographer shall bear the cost of any damages to which MYPHOTOAGENCY may be condemned as a result of an act of counterfeiting and/or unfair competition and/or an infringement of the image right, as well as any compensation and costs of any kind incurred in order to ensure his/her/their defence, including lawyers’ fees.
ARTICLE 12 – ACTIVITY REPORTS
On the 1st of each month, each Party shall send by e-mail to the other Party:
(i) For MYPHOTOAGENCY:
- a monthly summary of the number of Services performed and delivered during the previous month and including the amount of sums that the Partner is entitled to receive; as such, without prejudice to any deduction that may subsequently be made in respect of any sums due by the Partner to MYPHOTOAGENCY pursuant to the Contract, in particular under the following paragraph;
- the status of claims relating to all Services performed and, where applicable, the amounts reimbursed to Clients, at the end of these claims.
(ii) For the Partner:
- the status of cancellations and complaints from Clients, accompanied by operational information, if applicable.
ARTICLE 13 – FINANCIAL TERMS AND CONDITIONS
The Partner is remunerated by MYPHOTOAGENCY for each Service performed in accordance with the corresponding Purchase Order, as stipulated in Article 6 of the PPGTC. The Partner’s total remuneration varies according to the MYPHOTOAGENCY rate schedule available on the Website, and in particular according to the number of Photo Shoots done and delivered to MYPHOTOAGENCY by the Partner for the Services during the month in question.
The price of the Service is global and definitive. It includes the remuneration related to the assignment of the copyrights relating to the Photographs taken in connection with the Service, in accordance with Article 10 of the PPGTC.
- Invoicing, payment
The Partner shall send MYPHOTOAGENCY a monthly invoice corresponding to the amount indicated in the monthly summary for the previous month, sent by MYPHOTOAGENCY as stipulated in Article 12 (i).
Payment of the invoice sent by the Partner to MYPHOTOAGENCY is made within a maximum period of thirty (30) days, upon receipt of the invoice, by bank transfer to the bank details specified on the Photographer Profile.
13.3 Payment incidents
Failure to pay the sums due by MYPHOTOAGENCY when due shall automatically result in the Partner invoicing default interest on the amount of the sums due at a rate equal to three (3) times the legal interest rate in force as from the due date of the corresponding invoice, as well as the payment of a fixed compensation for collection costs of an amount of forty (40) euros in accordance with the provisions of Sections L.441-6 and D.441-5 of the French Commercial Code.
13.4 Professional costs
The Partner alone shall bear all professional and related costs related to its activity under the Contract. By express agreement, the payment of all connection and communication costs necessary to access the Website as well as all costs resulting from the use of the said Website remains the responsibility of the Partner. Similarly, MYPHOTOAGENCY shall not be liable for travel and other expenses related to the performance of any Services.
ARTICLE 14 – LIABILITY
By the nature of its activity, MYPHOTOAGENCY can only be bound by an obligation of means.
Consequently, MYPHOTOAGENCY is not bound by any obligation with regard to the results of the partnership covered by the Contract, and in particular the development of the Partner’s activities as a result of the Contract.
The Partner performing, where applicable, Services in the name and on behalf of MYPHOTOAGENCY as a service provider exercising his/her profession independently of MYPHOTOAGENCY, being neither the employee nor the agent, he/she undertakes to defend at all times and compensate MYPHOTOAGENCY for all costs, damages that may be claimed from the latter as a result of claims by Clients or third parties against MYPHOTOAGENCY in connection with incidents, acts or negligence committed during or in connection with the performance of the Services.
In addition, and notwithstanding the foregoing, the Parties expressly agree that in the event of a claim being made on MYPHOTOAGENCY’s liability, whatever the nature and/or basis of the action may be:
- only direct damages are likely to give rise to compensation;
- any indirect, consequential and/or incidental damages and in particular interruption of the Website, commercial damages, loss of customers, any disruption of business, loss of brand image, suffered by the Partner and/or by a third party, shall not entitle the Partner and/or a third party to compensation, even if MYPHOTOAGENCY was informed of such damages;
- MYPHOTOAGENCY’s liability shall be limited, regardless of the nature and legal basis of any action brought against it, to the net amount received by MYPHOTOAGENCY under the Contract during the last three (3) months preceding the event in question.
The Partner acknowledges that the limitations and exclusions of liability defined in the Contract reflect the distribution of risks under the Contract and the economic balance required by the Parties on the one hand and that the terms and conditions of the Contract, in particular the financial terms and conditions, would have been substantially different without these limitations and exclusions on the other hand and that they will remain in force, even in the event of termination of the Contract or its cancellation.
In any event, the Parties expressly agree that any action for liability against MYPHOTOAGENCY is time-barred at the end of a period of twelve (12) months from the event giving rise to the damage in question.
ARTICLE 15 – CONFIDENTIALITY
Each Party shall treat as strictly confidential all data, information or knowledge in any form, nature or medium whatsoever that they may come to know in connection with the Contract, including the terms and conditions of the Contract (the “Confidential Information”), and they undertake not to communicate or disclose the Confidential Information to third parties. By express agreement, the Partner undertakes to treat the Photographs and all information concerning the Clients and Specifications, as Confidential Information of MYPHOTOAGENCY, as well as the commercial methods of MYPHOTOAGENCY of which he/she may have knowledge within the framework of the Contract.
The Parties may only communicate Confidential Information to persons authorised to know it exclusively for the purposes of the execution of the Contract and who agree to abide by the provisions of the Contract. Each Party undertakes to have each of the above-mentioned persons sign a confidentiality agreement containing provisions equivalent to those of this Article 15.
Each Party undertakes to immediately and expressly inform the other Party of any fact or circumstance of which they become aware concerning any unauthorised possession or use of such information.
Information, documents and/or tools that (i) were in the public domain at the time of their disclosure or have fallen into the public domain without breach of these provisions of this Article, (ii) result from knowledge of the other Party, without breach of this confidentiality obligation, or are obtained from a third party not subject to a confidentiality agreement, and/or (iii) must be disclosed pursuant to a judicial or administrative decision and to which the Parties are subject, are not considered Confidential Information.
The undertaking provided for in this article shall take effect upon acceptance of the PPGTC by the Photographer and shall end five (5) years after termination of the Contract regardless of the reason, with the exception of MYPHOTOAGENCY’s Confidential Information relating to its intellectual property, for which the obligation of confidentiality shall remain applicable for the entire duration of the rights relating thereto.
In the event of a failure by the Partner to comply with the obligations referred to in this Article, the Partner shall pay MYPHOTOAGENCY compensation in the amount of two thousand (2,000) euros for each breach, without prejudice to any damages to which MYPHOTOAGENCY may be entitled and any measure it may take under the Contract, including termination of the Contract pursuant to the provisions of Article 20.2.3.
ARTICLE 16 – PERSONAL DATA – APPLICABLE REGULATIONS AND PROFESSIONAL PRACTICES
16.1 The Parties undertake, as far as they are concerned, to comply with all the laws and regulations in force applicable to the protection of personal data, in particular the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, (hereinafter referred to as the “GDPR”) and the Act called the “Data Protection Act” in its current version. MYPHOTOAGENCY’s Personal Data Management Policy is fully applicable to the Contract.
16.2 More generally, the Parties undertake to comply with all legal and regulatory requirements as well as the applicable professional practices. The Parties shall each be personally responsible for all questions and obligations inherent to their status and professional activities, in particular concerning the registration of their companies and the declarations to be made to the authorised administrations and bodies. Each Party shall ensure that, by act or omission, they do not place the other Party in a situation that violates applicable laws and regulations.
ARTICLE 17 – STAFF
The Partner’s staff and agents, if any, shall remain under his/her exclusive control and responsibility and shall remain subject to the legal and contractual labour provisions applicable within the entity that employs them. In particular, the Partner declares that (i) his/her staff members are duly employed with regard to labour legislation, and that he/she has fulfilled his/her corresponding tax and social obligations, and (ii) he/she is in compliance with the regulations on illegal work. As such, he/she undertakes to provide MYPHOTOAGENCY, at the latter’s request, with the documents listed in Article D 8222-5 of the French Labour Code as well as any other document whose delivery will have been made mandatory by legal or regulatory texts.
In the event that the Partner uses subcontractors, the Partner undertakes to have them sign a document stipulating that they are required to comply with applicable labour law regulations.
ARTICLE 18 – ECONOMIC DEPENDENCE
The Partner is required to immediately inform MYPHOTOAGENCY of any risk of economic dependence. In this case, the Parties may jointly study possible management measures. In any case, and in particular in the event of early termination of the Contract, MYPHOTOAGENCY may not be held liable, for any reason whatsoever, on the basis of economic dependence.
ARTICLE 19 – NON-COMPETITION
The Partner must not allow any misunderstandings to persist as to the fact that the Services are performed in the name and on behalf of MYPHOTOAGENCY.
During the entire duration of the Contract and for a period of one (1) year from its termination for any reason whatsoever, the Partner expressly undertakes not to carry out any Photo Shoots for the Clients.
Similarly, the Partner undertakes not to market the Photographs and/or works derived from them directly or indirectly, and/or to use the Photographs for purposes other than the performance of the Services within the strict framework of the Contract.
By express agreement, the Partner undertakes, if contacted directly by a Client, to notify MYPHOTOAGENCY without delay, by e-mail.
In the event of a failure by the Partner to comply with the obligations referred to in this Article, the Partner shall pay MYPHOTOAGENCY compensation in the amount of two thousand (2,000) euros for each breach, without prejudice to any damages to which MYPHOTOAGENCY may be entitled and any measure it may take under the Contract, including termination of the Contract pursuant to the provisions of Article 20.2.3.
ARTICLE 20 – DURATION, TERMINATION, END-OF-CONTRACT EFFECTS
The Contract shall come into force upon acceptance of the PPGTC by the Photographer – subject to his/her approval as a Partner – and shall remain in force for a period of one (1) year, unless terminated early in accordance with the terms of Article 20.2.
At the end of the current contractual period, the Contract will be tacitly renewed for a period of one (1) year unless pre-terminated at least three (3) months before the end of the current annual period by MYPHOTOAGENCY notifying the Partner by e-mail at the address indicated on the Photographer Profile, or by the Partner notifying MYPHOTOAGENCY under the terms of Article 20.2.1 of the Contract.
20.2.1 Notwithstanding the foregoing, each Party may notify the other Party of the termination of the Contract, at any time and without reason, by registered letter with acknowledgement of receipt, giving one (1) month’s notice following the registered letter with acknowledgement of receipt.
20.2.2 In the event of a breach by one of the Parties of any of its contractual obligations, not remedied, where applicable, within fifteen (15) days of receipt of the registered letter with acknowledgement of receipt notifying the breach in question, the other Party may claim termination of the Contract.
20.2.3 Notwithstanding the foregoing and in addition to the case of the withdrawal of approval referred to in Article 4, MYPHOTOAGENCY may notify the withdrawal of the Partner’s approval and the termination of the Contract at any time by registered letter with acknowledgement of receipt, without notice and without further formality, in the event that: (i) a breach of the Partner’s obligations of confidentiality and/or non-competition as stipulated in Articles 15 and 19 is noted; (ii) the rate of Client complaints exceeds the five percent (5%) threshold for a period of three (3) months; (iii) MYPHOTOAGENCY has found a manifest breach of public policy or the rights of third parties by the Photographer, or learns that the Photographer has given it incorrect information; (iv) the Partner no longer meets the administrative eligibility conditions stipulated in the Contract; (v) in the event of a change of control of the Photographer and/or; (vi) the Photographer is subject to a safeguard procedure, receivership or liquidation proceedings unless the receiver or liquidator decides to maintain the current contracts, as stipulated in Articles L.622-13 and L.641-11-1 of the French Commercial Code.
20.3 End-of-Contract Effects/Services
At the end of the Contract for any reason whatsoever:
- the Partner undertakes to immediately return to MYPHOTOAGENCY any items and documentation in his/her possession or control, in any form whatsoever, provided by MYPHOTOAGENCY, as well as any copies made thereof;
- each of the Parties shall cease all use of the trademarks and logos of the other Party.
In addition, in the event of early termination of a Service and/or at the end of the Contract, the Parties agree that, unless otherwise provided for in the Contract:
- the Partner undertakes to complete the performance of the Services under the current Purchase Orders, unless otherwise instructed in writing by MYPHOTOAGENCY;
- MYPHOTOAGENCY will invoice and pay the Partner the amounts due to the Partner for the Services not yet remunerated, in accordance with the terms of the Contract;
- the Partner will pay MYPHOTOAGENCY any amount due under the Contract, if any.
Finally, Articles 8.2, 10, 11, 13, 14, 15, 16, 17, 18, 19, 20, 23, 24 and all provisions intended to persist shall remain in force at the end of the termination of the Contract, for the duration necessary for them to have the effect provided for.
ARTICLE 21 – INDEPENDENCE OF THE PARTIES
By entering into the Contract, the Parties declare that they do not intend to create any company or legal entity together and that any form of “affectio societatis” or any sharing of profit/loss is formally excluded.
By express agreement and in order to avoid any ambiguity, the Partner acknowledges that his/her business relationship with MYPHOTOAGENCY is a relationship between two independent and autonomous economic actors, free from any relationship of dependence and/or subordination and/or representation of one Party by the other. Nothing in the Contract creates or is considered as creating an employer-employee relationship between MYPHOTOAGENCY and the Partner.
ARTICLE 22 – ASSIGNMENT, TRANSFER AND SUBCONTRACTING
The Photographer understands and acknowledges that this Contract is entered into “intuitu personae”. In this sense, the Contract is with the Photographer personally. Consequently, the Photographer shall not assign, subcontract and/or otherwise transfer the rights and obligations arising from the Contract without the prior written consent of MYPHOTOAGENCY. In any event, the Photographer shall remain solely responsible for the performance of the obligations related to the Services and, in general, for his/her obligations under the Contract.
By express agreement, MYPHOTOAGENCY may assign and/or otherwise transfer its rights and obligations under the Contract to any third party of its choice, subject to the assignee taking over its commitments. MYPHOTOAGENCY shall then be released from any liability towards the Photographer under the Contract, as from the date of written notification of the operation in question to the Photographer, and cannot be held jointly and severally liable for the execution of the Contract by the assignee.
The Photographer expressly authorises MYPHOTOAGENCY to subcontract the execution of all or part of its contractual obligations to any third party of its choice, it being specified that MYPHOTOAGENCY shall then be solely liable to the Photographer for all obligations resulting from the Contract.
ARTICLE 23 – GENERAL PROVISIONS
23.1 The Contract constitutes the entire agreement entered into between the Parties. It prevails over any previous or contemporary verbal or written stipulations having the same purpose as the Contract.
23.2 The Contract may only be amended by an amendment (which may not be a pre-printed contract or general terms and conditions form) signed by a duly authorised representative of each Party.
23.3 If one or more of the provisions of the Contract are held to be invalid or declared invalid pursuant to a law, regulation or following a final decision of a competent court, the Parties agree to consult each other to find an acceptable solution in the spirit of the Contract. All other provisions retain their full force and scope, unless the very purpose of the Contract is thereby removed.
23.4 If one of the Parties makes a claim late or does not claim a breach by the other Party, it shall not constitute a future waiver of the breach in question being claimed. Any waiver shall be enforceable only if it has been expressed by an amendment, in accordance with the conditions of Article 23.2 above.
23.5 The Parties shall not be held liable in the event of a failure to fulfil their obligations resulting from a case of force majeure as defined in Article 1218 of the French Civil Code. The occurrence of a case of force majeure shall, as a first step, automatically suspend the execution of the Contract. However, if a case of force majeure prevents the execution of the Contract for a period of more than thirty (30) days, either Party may request the termination of the Contract by registered letter with acknowledgement of receipt, ipso jure and without the need to complete any legal formalities. If the impediment is definitive, the Contract is then automatically terminated, and the Parties are released from their obligations in accordance with the provisions of Articles 1351 and 1351-1 of the French Civil Code.
23.6 Unless otherwise provided for in the Contract, computer files, data, messages and registers stored in the computer systems of each Party shall be admitted as proof of communications between them, provided that the Party from which they originate can be identified and that they are established and stored under conditions such as to guarantee their integrity. Notwithstanding the provisions of this paragraph, the notifications provided for between the Parties by the Contract shall be made by registered letter with acknowledgement of receipt.
23.7 The Contract is written in French. If the Contract were to be translated, only the French version would be binding on the Parties. In addition, all communications, notifications made or delivered under the Contract shall be made in French.
ARTICLE 24 – DISPUTES AND APPLICABLE LAW
The Contract is governed by French law. In the event of any difficulty arising from pre-contractual relations or linked to the validity, execution or interpretation of the Contract, the Parties shall give priority to seeking a solution out of court. In the absence of settlement out of court, any dispute will be submitted to the French courts, to which jurisdiction is expressly conferred, even in the event of summary proceedings, multiple defendants or a guarantee claim.