Smiler Photographer Terms
Provided by Smiler B.V.
Last update: November 2024
We are Smiler B.V., a company with two main activities:
Smiler wishes to collaborate with you in both capacities, offering you opportunities to provide photography services facilitated by Smiler and supporting your independent photography business. The Photographer agrees to these terms as laid out in this document. In the terms below, we will address you either as “you” or “Photographer.”
PART A - Terms and Conditions for the Bookings Activity
1.1 Agreement: the agreement between Smiler and Photographer for the Bookings Activity, regarding the provision of the Services by Photographer performed on behalf of Smiler, including specific agreements regarding the Assignment. These Terms are inseparably linked to and form an integral part of the Agreement.
1.2 Confidential Information: all information, written or oral, that is explicitly regarded as confidential by Smiler and/or Photographer or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure. This includes, but is not limited to, personal data of Smiler’s customers (including photos), the terms and conditions of the Agreement as well as business and marketing plans, technology and technical information, product plans and designs, and business processes of a Party.
1.3 Consumer(s): natural person(s) that wish to be photographed at the venue of Partner.
1.4 Margin: gross revenue minus i) costs of the Products sold including manufacturing costs and any additional costs incurred in preparing the Products for commercial sale, ii) fees of intermediate parties offering coupons that can be redeemed on the Smiler platform for photoshoots (“Intermediate Parties”), iii) shipping costs and iv) any applicable taxes, including VAT.
1.5 Partner: any entity, business, or individual, including but not limited to venue operators, event managers, tour operators, and experience coordinators, where Photographer can offer the Services to Consumers on behalf of Smiler.
1.6Photographer: A self-employed professional, sole proprietor, or company that provides the Services to Smiler for their own account and risk. The Photographer must have all necessary tax registrations, licenses, and permits required under the applicable laws of their jurisdiction, including, where applicable, a VAT number or equivalent tax registration.
1.7 Platform: the Smiler platform, provided by Smiler, made available via a mobile and web app (www.joinsmiler.com), and extends to all means of communication, including but not limited to, phone conversations and emails. 1.8 Prices: the retail prices for which the Products connected to the Seat will be offered to the Consumers.
1.9 Product: the photos taken during photoshoots which can, in various forms, be purchased or be delivered from Smiler by the Consumer.
1.10 Seat: a seat for a specific date and time when the Photographer can perform the photoshoot at Partner’s location.
1.11 Services: the services rendered by Photographer concerning the performance of photoshoots at venues of Partners.
1.12 Terms: these Smiler Photographer Terms.
2.1 Smiler wishes to issue Assignments (defined below) to you as Photographer in your capacity as a self-employed professional, whereby Smiler does not have an obligation to collect, keep and/or pay payroll taxes.
3.1 Publication: Smiler will publish Seats on the Platform, including the Prices and Fees and any other special terms that apply to the Seat.
3.2 Availability: Photographer shall indicate for which Seats they are available to perform the Services by claiming a Seat through the Platform.
3.3 Confirmation: Smiler shall confirm at least […] before the Seat starts whether the Photographer is booked for the specific Seat. In such case, Smiler gives Photographer the assignment to provide the Services to Smiler by offering photoshoots to Consumers on the day of the Seat at the venue of the Partner (the “Assignment”).
3.4 Smiler has the right to alter, postpone or cancel the Assignment, prior to the start date of the Assignment, should Smiler’s Partner do the same.
3.5 Photographer shall perform the Assignment with all due skill and care, in a good and workmanlike manner and otherwise in line with best practice within its industry.
3.6 Photographer is obliged to comply with timely and responsible instruction regarding the result of the Assignment. Photographer shall, where possible, take into account reasonable wishes of Smiler when executing the Assignment, provided that, in Photographer's opinion, this is conducive to proper execution of the Assignment. Smiler has expressly no control over the activities of Photographer. Photographer is therefore free to carry out the Services at its own discretion and without the supervision or direction of Smiler.
3.7 You are free to have the Assignment performed in whole or in part by third parties, at your own expense and risk and on the condition that the Assignment has not started yet. Before the replacement effectuates, you shall inform Smiler about the person that shall perform the work on your behalf. In the event of a replacement, Photographer remains fully responsible towards Smiler for the quality of the Services and compliance with this Agreement, the Assignment, and any other agreements made.
3.8 Photographer shall provide the Services in conformity with Smiler’s applicable policies and codes of conduct, including the Smiler Cancellation Policy [link] and the Code of Conduct [link]. Such policies and codes of conduct will be provided by Smiler prior to the start date of (part of) Photographer’s first Assignment for Smiler.
3.9 When performing the Services at the venue of a Partner, Photographer will abide by Partner's applicable policies and codes of conduct. Such policies and codes of conduct will be provided by Smiler and/or the Partner to Photographer prior to the start date of (part of) the relevant Assignment.
3.10 If at any time you foresee that you will be unable to perform the obligations relating to the Assignment, you must notify Smiler immediately.
3.11 Smiler expressly agrees that Photographer may also perform activities for other clients during the Agreement.
3.12 Photographer shall only work a maximum of 660 hours annually for Smiler. It is the responsibility of Photographer not to exceed this maximum.
4.1 The Agreement shall commence on the starting date as indicated in the Agreement. In the event such a starting date is not indicated in the Agreement, the Agreement starts on the date it is concluded.
4.2 The Agreement is concluded for an indefinite period of time, unless agreed to otherwise in writing. If the Agreement is expressly limited in time, the Agreement will terminate automatically upon completion of such time.
4.3 The Agreement may be terminated by Smiler and/or Photographer in writing subject to a three (3) months’ notice.
4.4 Termination by Smiler is possible with immediate effect and without being liable for damages in case you do not meet (part of) your obligations under the Agreement, in case of gross negligence or willful misconduct conducted by you, and in case of (a strong presumption of) bankruptcy, (provisional) moratorium, a private agreement with creditors, liquidation and/or cease of your business.
5.1 Photographer will receive a Fee (the “Fee”) that may consist of either a percentage of the Margin realized and collected by the sale of Products related to photoshoots conducted during the Assignment by Photographer, a fixed fee, or a combination thereof, as agreed upon between the Photographer and Smiler.
5.2 Smiler may assume the Fee is inclusive of all local taxes in the jurisdiction of the Photographer. If local taxes do apply to the Fee, these will be for account of Photographer.
5.3 Photographer invoices Smiler for the Fee. Parties agree to apply a self-billing arrangement with the following invoicing procedure:
5.4 The procedure of invoicing is performed by Smiler on Photographer’s behalf. Photographer remains responsible for the correctness and completeness of the Invoice.
5.5 [Before being able to invoice via the self-billing arrangement, Smiler may request Photographer to sign a deed of transfer regarding Intellectual Property Rights and/or waiver of Moral Rights.]
5.6 If Photographer received a Fee that is subsequently refunded by Smiler to a Consumer, charged back by a Consumer, or that Smiler otherwise fails to effectively collect, Photographer shall refund such (part of a) Fee to Smiler upon request. Smiler may offset these payments against future payable Fee(s).
6.1 Smiler cannot be held liable for (direct) damages suffered by Photographer as a result of the execution of the Agreement, unless in case of willful misconduct or gross negligence by Smiler.
6.2 Smiler’s liability for indirect damages, including consequential damages, lost profits, lost savings, and loss due to business interruption, is excluded.
6.3 If Smiler is liable, its liability shall be limited to an amount equal to the Fee paid to Photographer over the previous 12 months.
6.4 Photographer shall indemnify, defend, and hold harmless Smiler from claims, demands, losses, damages, lawsuits, judgments, or costs arising from the Photographer’s Services, violation of the Agreement, or infringement of intellectual property rights.
7.1 Photographer guarantees that they are properly and sufficiently insured for liabilities and damages. Upon Smiler's request, Photographer will provide Smiler with a copy of insurance policies.
8.1 All Confidential Information exchanged within the Agreement will remain undisclosed to third parties.
8.2 Confidential Information may only be used or disclosed as necessary for the Agreement’s execution.
8.3 Exceptions to confidentiality apply to information that is public knowledge or disclosed by law.
9.1 Parties shall comply with relevant privacy legislation, including the GDPR.
9.2 Photographer shall abide by Smiler’s privacy and data protection policies when providing the Services.
9.3 Photographer represents and warrants that any necessary consents will be obtained from the subjects of the photographs prior to taking any photos, particularly in cases where the photoshoot has not been directly booked by the Consumer (e.g., when it is included as part of a broader tour, event or activity). The Photographer further ensures that such consent complies with applicable data protection laws and includes permission for the intended use of the photographs as outlined by Smiler.
10.1 All intellectual property rights vested in the Products or arising from the Assignment are held exclusively by Smiler. Photographer agrees to transfer these rights to Smiler upon request.
10.2 Photographer waives all Moral Rights arising from the Products, the Assignment, or any other results thereof.
10.3 Photographer authorizes Smiler to take action against infringement of these rights.
10.4 Photographer shall not sell, distribute, or otherwise provide the Products to third parties without prior written permission from Smiler.
11.1 During the term of the Agreement and for one year thereafter, Photographer may not solicit any employees, Photographers, suppliers, clients, or Partners of Smiler.
12.1 Smiler reserves the right to modify or replace these Terms when necessary.
12.2 Each Party may assign their rights and obligations arising from the Agreement.
12.3 Photographer waives the right to invoke suspension or settlement in respect of Smiler.
12.4 If any provision is deemed invalid or unenforceable, the remainder of the Terms remains valid.
13.1 These Terms shall be governed by and construed in accordance with the laws of the Netherlands.
13.2 Disputes arising in connection with these Terms shall be exclusively submitted to the competent court of Amsterdam, unless settled amicably.
PART B - SaaS Activity, Providing Tools for Photographers
These Terms and Conditions govern your access to and use of the Smiler platform ("Platform"), owned and operated by Smiler.
In addition to these Terms and Conditions, your access to, and use of the Platform and services is also governed by the applicable terms found on our website, including without limitation, the Privacy policy, which describes how we collect, use and disclose your personal information; the User Generated Content terms; Community Guidelines; and Smiler’s other applicable Smiler standards and policies.
Collectively, we refer to these Terms and Conditions and the other terms as the “Terms.”
By creating an account or logging in to the Platform, you ("Photographer") agree to be bound by these Terms. If you do not agree, you must not use the Platform.
1.1. Eligibility: You must be at least 18 years old or the age of majority in your jurisdiction to use the Platform.
1.2. Account Information: You agree to provide accurate and complete information during registration and to update your account as necessary.
1.3. Account Responsibility: You are responsible for maintaining the confidentiality of your account credentials and for all activities that occur under your account.
2.1. The Platform provides tools to help you manage your photography business, including but not limited to, booking management, payment processing, and delivery of final products to your clients.
2.2. Smiler acts as a service provider to facilitate your business operations but does not employ you or act as an agent, partner, or joint venturer.
3.1. Photographer Content Ownership: As a Photographer, you retain all rights, title, and interest in the photos, videos, and other materials ("Content") you create and deliver through the Platform.
3.2. License to Smiler: By using the Platform to upload or deliver Content, you grant Smiler a royalty-free, worldwide, non-exclusive license to use, reproduce, display, distribute, and promote your Content for the following purposes:
3.3. Content Restrictions: You represent and warrant that you own all rights to the Content you upload or that you have obtained all necessary permissions to grant the license described above. Smiler reserves the right to remove Content that violates applicable laws or third-party rights.
4.1. Smiler retains all rights, title, and interest in and to the Platform, including but not limited to software, trademarks, logos, and other proprietary materials ("Smiler IP").
4.2. You agree not to copy, modify, distribute, sell, or lease any part of the Smiler IP without prior written consent.
4.3. Any suggestions, ideas, or feedback you provide to Smiler regarding the Platform may be used by Smiler without any obligation to you.
5.1. The Platform may facilitate payments between you and your clients. Smiler does not guarantee payment from your clients and is not responsible for chargebacks, disputes, or payment failures.
5.2. Smiler may charge service fees for the use of the Platform. Such fees will be disclosed to you before they are applied.
6.1. To the maximum extent permitted by law, Smiler shall not be liable for indirect, incidental, special, consequential, or punitive damages, or any loss of profits or revenues, whether incurred directly or indirectly, or any loss of data, use, goodwill, or other intangible losses.
6.2. Smiler's total liability for any claim related to the Platform shall not exceed the fees you have paid to Smiler in the past six months.
7.1. You may terminate your account at any time by providing written notice to Smiler.
7.2. Smiler may suspend or terminate your account if you breach these Terms or if Smiler determines your use of the Platform poses a risk to other users or the operation of the Platform.
Your use of the Platform is subject to Smiler’s Privacy Policy, which governs the collection, use, and sharing of your personal information.
9.1. Governing Law
These Terms are governed by and construed in accordance with the laws of the Netherlands, without regard to its conflict of law principles.
9.2. Arbitration
Any disputes, controversies, or claims arising out of or in connection with these Terms, including their formation, interpretation, performance, or termination, shall first be resolved through binding arbitration administered by the Netherlands Arbitration Institute (NAI) in accordance with its rules.
9.3. Exclusions from Arbitration
Notwithstanding the foregoing, either party retains the right to seek interim or injunctive relief in a court of law to prevent or stop an actual or threatened breach of these Terms related to intellectual property, confidentiality, or other proprietary rights.
9.4. Exclusive Jurisdiction
If arbitration is not possible or is deemed unenforceable by a competent authority, any disputes shall be submitted to the exclusive jurisdiction of the courts of the Netherlands.
9.5. Costs of Arbitration
Unless otherwise determined by the arbitrator, each party shall bear its own legal fees and costs associated with arbitration, and the parties shall equally share the costs of the arbitration proceedings.
9.6. Good Faith Efforts
Before initiating arbitration, the parties agree to make reasonable, good faith efforts to resolve the dispute amicably, including through negotiation or mediation, if agreed upon by both parties.
10.1. Smiler may update these Terms from time to time. You will be notified of material changes, and your continued use of the Platform after such notice constitutes acceptance of the updated Terms.
10.2. If any provision of these Terms is found to be invalid or unenforceable, the remaining provisions will remain in full force and effect.
Acknowledgment:
By creating an account or logging in, you acknowledge that you have read, understood, and agree to these Terms.
Contact Information:
For questions or concerns about these Terms, contact us at hello@smiler.co.
