1. BACKGROUND
1.1. This Agreement is between the Photography Service Provider (the “Service Provider”) and the VENDOR whose premises are being photographed the (“Business Partner”) under Portfolio service for business use.
1.2. Wellnessta Portfolio Service Provider is an independent contractor and neither the Service Provider nor any of its personnel are a Wellnessta employee or agent, but Service Provider is authorized under Wellnessta portfolio service to provide photography services to local businesses that desire to opt for the portfolio service for their business premises and services. The Business Partner will obtain all permissions necessary for Service Provider to photograph at the engagement. Service Provider has no duty to obtain permission of reception, premises, business location, buildings, properties or the other locations to operate thereon. Business Partner understands and agrees that any failure to obtain this permission resulting in fine to photographer/ Service Provide, or which prevents the Service Provider to photograph the premises/ event is not the fault, liability, or responsibility of photographer/ Service Provider. The Business Partner agrees to reimburse the Service Provider for any travel as well as meals/ lodging if necessary.
2. SERVICE FEE PAYMENT
Service Provider and Business Partner will agree on an amount for the Wellnessta Portfolio Service and related services (“Service Fee”), and the Business Partner will pay the Service Fee. After paying fee, Service Provider will fix the date and time with the business partner to take the Photographs (as defined in Clause 4 below). This fee does not include model fees if the same is required. If model is needed the cost for the same will be charged extra. Vendor will also bear travel and stay expenses
3. SERVICES AND OWNERSHIP OF PHOTOGRAPHS
3.1. In exchange for the Service Fee:
3.1.1. Service Provider will take photographs of those portions of the exterior and interior of the Business premises designated by the Business Partner as acceptable for photographing in connection with the Wellnessta Portfolio service.
3.1.2. Service Provider will use commercially reasonable efforts to ensure that the Photographs meet the Wellnessta Portfolio Service’s technical specifications.
3.1.3. Service Provider hereby assigns (or will procure he assignment of) all ownership rights, including international rights in cases applicable in the Photographs (including intellectual property rights) to the Business Partner.
3.1.4. To the extent permitted by law, Service Provider will obtain:
3.1.4.1. waivers from all of Service Provider’s personnel in respect of any “moral rights” that such personnel may have in the Photographs, including any right of attribution; and
3.1.4.2. assignments by Service Provider’s personnel to the Business of all moral rights in the Photographs.
3.1.5. Service Provider will upload the Photographs to Wellnessta for processing and use in accordance with Clause 5below.
4. TERMS GOVERNING THE UPLOADING, PROCESSING, AND USE OF PHOTOGRAPHS
4.1. Wellnessta Terms of Service.
Business Partner agrees that the uploading, processing, and use of the Photographs will be governed by Wellnessta’s standard online terms of service for such Photographs as set forth at www.wellnessta/terms or such other URL/Additional Terms as Wellnessta may designate from time to time (collectively, the “Wellnessta Terms of Service”).
4.2. Authorization to Upload Photographs to Wellnessta for Wellnessta’s use.
4.3. Business partners hereby authorizes Service Provider to upload the Photographs to Wellnessta’s or other related portal of Wellnessta and parent company on Business’ behalf and licenses the Photographs for Wellnessta’s use in accordance with the Wellnessta Terms of Service.
5. LIMITED LICENSE TO SERVICE PROVIDER
Business Partner grants Service Provider nonexclusive license to use a reasonable number of images created under this Agreement as “samples” or “portfolio copies” for Service Provider to archive examples of Service Provider’s work and to advertise or market Service Provider’s professional services.
6. TIME AND DATE OF SERVICES
After Payment for the portfolio service, Service Provider will reserve the time and date agreed upon to provide the photographic services. All Service Fees are non-refundable except as described in Clause 8 below, or unless Service Provider agrees in its sole discretion to permit a rescheduling of the services.
7. REFUNDS
Service Provider will refund all pre-paid Service Fees to the Business Partner (but will have no further liability with respect to the Agreement) if Wellnessta rejects the Photographs for failure to meet the Wellnessta portfolio technical specifications and Service Provider does not correct the failure after re-photographing the Business Partner at a mutually-agreed upon time.
8. CANCELLATION
The Business Partner agrees to be no more than 30 minutes late to appointed shoot. In the case the Business Partner does not arrive on time or cancel the shoot Service Provider will not be liable to refund Portfolio Fee. In the event Business partner cancels the appointment the deposit will be nonrefundable. If Service Provider does not appear at photography session the deposit will fully refunded to Business Partner.
9. CONFIDENTIALITY
This Agreement is confidential information. Business will not disclose or make this Agreement available to any third party except (a) Wellnessta; (b) as specifically authorized by Service Provider in writing; or (c) when compelled to do so by law if Business Partner provides reasonable prior notice to Service Provider.
10. NO WARRANTIES
In connection with this agreement, Service Provider makes no representations and, to the maximum extent permitted by law, disclaims all warranties, express or implied, regarding the photographic services or the photographs, including any warranties of merchantability or fitness for a particular purpose. Service Provider makes no representation or warranty that the photographs will ultimately be displayed by Wellnessta.
11. LIMITATIONS ON LIABILITY
11.1. Except for breaches of Confidentiality, (i) neither Party will be liable (under any theory or circumstance) for lost revenues or indirect, special, incidental, consequential, exemplary or punitive damages, and (ii) neither Party’s aggregate liability for any claim arising out of or related to this Agreement will exceed the amount of the Service Fee.
11.2. Wellnessta’s use of the photographs is governed solely by the Wellnessta Terms of Service in accordance with Clause 5 above. In no event will Wellnessta be liable to either Business Partner or Service Provider (under any theory or circumstance) for any direct or indirect, special, incidental, consequential, exemplary or punitive damages arising out of or related to this Agreement.
12. MODIFICATIONS
Any modification of this Agreement must be (a) pre-approved by Wellnessta in writing, and (b) reflected in a written agreement that is signed by both Service Provider and the Business Partner.
13. ENTIRE AGREEMENT
This Agreement incorporates the entire understanding of the parties relating to its subject and supersedes any prior or contemporaneous agreements on that subject.
14. DISPUTE RESOLUTION AND ARBITRATION
All disputes arising out of this Agreement shall be referred to arbitration under Arbitration and Conciliation Act, 1996 or any statutory modification or re-enactment thereof for the time being in force. The arbitration shall be referred to a sole arbitrator who is on the panel of the Indian Merchant Chamber. The venue of Arbitration will be Mumbai and the language of the proceedings shall be English.
15. GOVERNING LAWS AND JURISDICTION:
These Terms and Conditions are governed by and is to be construed in accordance with the laws of the Republic of India. The Courts in Mumbai shall have exclusive jurisdiction.
Attachment A
If this agreement covers multiple locations, please list out all locations below. Franchisee locations should not be included. Each applicable franchisee must enter into a separate agreement with Service Provider.