This contract is between EPHOTOS (herein after the THE AGENT) and yourself (herein after the CONTRIBUTOR)
CONTRIBUTOR wishes to establish a digital archive of photographic material via digital files and host the archive through THE AGENT and for the archive to be searchable on the World Wide Web portion of the Internet via the website: www.EPHOTOS.com
THE AGENT is in the business of licensing, and sublicensing photography, CONTRIBUTOR wishes to have certain specific photographs represented by THE AGENT worldwide as a Contributor of THE AGENT.
1.1 "Accepted Images" means an image submitted by CONTRIBUTOR to THE AGENT
1.2 "Images" means all types of photographic digital images, color, black and white and shall include hashtags, descriptions and captions associated therewith.
1.3 "Net License Fees" shall be defined as the gross license fees after deduction of reasonable currency conversion costs, sales, use or any other taxes or duties, bank transfer fees where applicable.
1.4 "Third Party Licensee" means any distributor or marketing entity with which THE AGENT enters into a marketing or sub-licensee agreement for the promotion and licensing of Images.
2.1 CONTRIBUTOR agrees to abide by THE AGENT's current submission guidelines. CONTRIBUTOR accepts that THE AGENT may change such guidelines. THE AGENT only accepts Images stored in digital media and does not accept any original material.
2.2 CONTRIBUTOR retains copyright in its Accepted Images. THE AGENT shall advise its licensees and Third Party Licensees to include a credit notice where appropriate along with the Accepted Images. Such notice may include THE AGENT's name (EPHOTOS) as the source of the Image.
2.3 CONTRIBUTOR waives all "moral rights" for all Accepted Images and all similar rights existing under the applicable law of any jurisdiction in which any Accepted Image is sold or sublicensed.
3. CONTRIBUTOR grants THE AGENT, the right to use CONTRIBUTOR's name and Accepted Images to promote, advertise and market THE AGENT's Products and services; and CONTRIBUTOR agrees that no compensation or further consent is due for the use of Accepted Images in THE AGENT's Products, promotion, advertising and marketing. THE AGENT shall endeavor to credit the CONTRIBUTOR where practicable.
4.1 On a monthly basis, THE AGENT shall remit to CONTRIBUTOR 80% percent (%) of Net License Fees received from the previous reporting period and shall provide CONTRIBUTOR with a royalty statement setting forth the licensing by THE AGENT during that reporting period. Unless otherwise agreed upon in writing by both parties, all payments will be made in USD. Only THE AGENT may claim any credit for foreign taxes.
4.2 The CONTRIBUTOR shall receive 80% percent of the net amounts received by THE AGENT as a result of a settlement or lawsuit relating to the Images, after payment of all costs, expenses, expert witness fees and attorneys' fees.
4.3 All sales statements provided by THE AGENT will be sent to the CONTRIBUTOR by email. Payments will only be made directly to the CONTRIBUTOR's Bank account or PayPal account. No payments will be issued by check.
4.4 In the event that a refund of a payment received or accrued from a third party is required, THE AGENT is specifically authorized to deduct the CONTRIBUTOR'S share of this overpayment from any subsequent amount due the CONTRIBUTOR.
4.5 The CONTRIBUTOR acknowledges clients may use or reuse, or be billed for subsequent reuse of Accepted Images after Termination of the Agreement. Accordingly, CONTRIBUTOR specifically agrees that THE AGENT has the non-exclusive right to license and retain its commission for such use or re-use of any Accepted Images which might take place after this Agreement terminates. THE AGENT will continue to report to CONTRIBUTOR as set forth in Section 4.1.
4.6 CONTRIBUTOR has the right, once during any 12 month period, at his or her expense, upon at least two weeks written notice and during regular business hours, at a location and time approved by THE AGENT, to have an independent audit performed of THE AGENT's books and records solely as they pertain to the CONTRIBUTOR's Images within the two year period prior to the audit. Such audit shall be conducted by an individual or firm experienced in royalty audits.
5.1 This Agreement will begin upon upload into the EPHOTOS system and shall last for an initial term of One (1) year. After this initial term, this Agreement will automatically be renewed for successive one (1) year terms unless and until one party notifies the other of its wish to terminate this Agreement
5.2 If either party commits a material breach of this Agreement, the non-breaching party may terminate this Agreement within sixty (60) days written notice if the breaching party fails to remedy the breach within such sixty (60) days after receiving notice of the breach.
5.3 Regardless of Termination of this Agreement, THE AGENT will be entitled to continue to license any Image if it is featured in a Product, for a period of one (1) year from the date of first inclusion in its Product. Termination will not affect any licenses with respect to Images granted to any licensee, such licenses will continue in full force and effect according to its terms.
5.4 Within a reasonable time after termination or expiration of this agreement, THE AGENT shall delete all digital files.
6.1 Pursuant to its submission guidelines, THE AGENT does not accept original film, transparencies or any other irreplaceable material ("Irreplaceable Material") and THE AGENT shall not be liable for any failure to return any Irreplaceable Material or for damage to any of CONTRIBUTOR'S Images, whether arising from negligence, breach of contract or otherwise, except for acts of gross and willful negligence. Nor shall THE AGENT be liable for any misuse of Images by third parties.
6.2 THE AGENT LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES SHALL THE AGENT's LIABILITY (WHETHER IN TORT, NEGLIGENCE, CONTRACT OR OTHERWISE) FOR LOSS, DAMAGE OR MISUSE TO ANY IMAGE PROVIDED TO EPHOTOS EXCEED $100 PER IMAGE OR THE AGGREGATE OF $10,000, REGARDLESS OF THE NUMBER OF CLAIMS. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, EXCEPT FOR LIABILITY TO THIRD PARTIES ARISING UNDER SECTION 6 HEREOF, NEITHER PARTY SHALL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
CONTRIBUTOR represents and warrants that:
7.1 CONTRIBUTOR has read and understands this agreement, and has the legal right to enter into this Agreement and perform its obligations hereunder.
7.2 CONTRIBUTOR is the sole and exclusive owner or the legal representative of the owner of all Images being made available for licensing via EPHOTOS.
7.3 To the best of CONTRIBUTOR's knowledge, no Accepted Image infringes on the rights of privacy or publicity, rights of any statutory or common law copyright, trademark or other intellectual property rights, defames any third party, or violates any other third party right.
7.4 There are no sales restrictions of any kind on any Accepted Images except those agreed upon at time of submission.
7.5 The caption, metadata, copyright and all other information provided to THE AGENT is accurate and complete and in accordance with THE AGENT's then current submission guidelines. To the extent caption information supplied to clients by THE AGENT on any Accepted Image differs from the information supplied to THE AGENT by CONTRIBUTOR, the accuracy of such information shall be THE AGENT's sole responsibility.
THE AGENT represents and warrants that:
8.1 It has the full right and authority to execute and perform its obligations under this Agreement according to its terms.
8.2 It shall use commercially reasonable efforts to market and license Accepted Images.
9.1 CONTRIBUTOR agrees to indemnify and to hold THE AGENT and its officers, directors, employees and agents harmless from any claims, liabilities, losses and damages (including reasonable attorney's fees and expenses) arising from any breach of any representation or warranty, any failure to perform any covenant or agreement hereunder.
9.2 THE AGENT agrees to indemnify and hold CONTRIBUTOR harmless from any claims, liabilities, losses and damages (including reasonable attorney's fees and expenses) arising from any breach of any representation or warranty, any failure to perform any covenant or agreement hereunder.
10.1 In the event the CONTRIBUTOR dies, his or her executors, administrators, heirs, successors and assigns shall be bound by the terms of this Agreement and shall receive the payments which would otherwise be due to the CONTRIBUTOR.
10.2 THE AGENT shall use reasonable efforts to locate the CONTRIBUTOR in the event statements are returned unclaimed. In the event that, notwithstanding THE AGENT's reasonable efforts, the CONTRIBUTOR cannot be located for four (4) years, THE AGENT shall have the right to retain all royalties due.
10.3 This Agreement shall be binding upon and shall inure to the benefit of the Parties' heirs, executors, administrators, successors, and permitted assigns. THE AGENT may assign its rights and obligations under this Agreement upon written notice to CONTRIBUTOR. CONTRIBUTOR's obligations hereunder are personal and may be assigned only with THE AGENT's prior written consent, however, CONTRIBUTOR's right to receive payment may be assigned without THE AGENT's prior consent.
10.4 Nothing in this Agreement will constitute the relationship of an employer and employee, a principal agent, partnership or a joint venture between THE AGENT and the CONTRIBUTOR. Both Parties hereby acknowledge that the CONTRIBUTOR is an Independent Contractor.
10.5 All statements, other communications and other hard copy material shall be sent to CONTRIBUTOR by THE AGENT in Accordance with this Agreement by either mail or email to the CONTRIBUTOR's address set out in this Agreement. All notices to be served in accordance with this Agreement may be served by email, or by mail. The email and postal addresses of THE AGENT are as set out in this Agreement. The email, and postal address of the CONTRIBUTOR for these purposes will be such as CONTRIBUTOR may notify to THE AGENT from time to time. The CONTRIBUTOR and THE AGENT agree to notify each other promptly of any change in their address for the purpose of notification pursuant of this Agreement.
10.6 This Agreement shall be interpreted in accordance with the Laws of the United States without regards to the laws regarding conflicts of law. The Parties hereby agree to submit to the exclusive jurisdiction to the Courts of the United States.
10.7 This Agreement, supersede all prior agreements and understanding, whether written or oral, incorporates the entire understanding of the parties concerning the subject matter contained herein and may not be modified and amended except by a separate writing signed by or on behalf of both parties.