Tandem Stills + Motion Contributor Agreement
3621 Hayden Ave, Suite 100, Culver City, CA 90232
[email protected] , 310-597-5200
LICENSING AGREEMENT FOR USE OF STILL IMAGES AND VIDEO CLIPS
This EXCLUSIVE LICENSE AGREEMENT (hereinafter the “Agreement”) is entered into and made effective by and between the Contributor with a principal place of business listed below and Tandem Stills + Motion, Inc. (hereinafter “Agency”). (Contributor and Agency are collectively referred to hereinafter as the “Parties.”)
1.1 “EFFECTIVE DATE” of this Agreement shall be the month, day, and year first set forth below.
1.2 “CONTRIBUTOR” shall include any party that owns Trademark, Copyright or licensed still images and video clips that provides said materials to Agency for the purpose of licensing, sublicensing, promote, market, reproduce, distribute, publish, transmit, broadcast, display, exhibit, adapt, crop, modify, recast, or enhance of same.
1.3 “CONTRIBUTIONS” shall include any portion of still images, including, but not limited to, photographs, drawings, pictures, and video clips. Further, shall include any still images and video clips that are protected by Trademark or Copyright owned by the Contributor.
1.4 “WORLD” shall include the territory that Agency is allowed to license, sublicense, promote, and market Contributions, including, but not limited to any country, territory, or locale that is technically capable of receiving the Contributions as provided by Agency.
2.1 WHEREAS, Contributor is the owner of the exclusive rights to certain still images and video clips, including the titles of said Contributions that are provided to the Agency pursuant to this Agreement. Contributor shall own entire right, title, and interest in the Contributions with the right to furnish to the Agency the right to make and use derivative works based on Contributor’s Trademarks and Copyrights, or other licensing.
2.2 WHEREAS, Agency desires to manufacture or have manufactured, license, sublicense, promote, market, reproduce, distribute, publish, transmit, broadcast, display, exhibit, adapt, crop, modify, recast, or enhance Contributions, including, but without limitation, the Contributions specified in Exhibit A attached hereto and Contributor desires to grant an exclusive license to Agency to so use the Contributions therewith;
2.3 NOW, THEREFORE, in consideration of the foregoing and of the mutual promises hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto covenant and agree as follows:
3. LICENSE GRANTS
3.1 an exclusive right and license during the Term to use the Contributions throughout the World in accordance with the terms and conditions of this Agreement, providing the right to grant sublicenses, reproduce, distribute, publish, transmit, broadcast, display, exhibit, adapt, crop, modify, recast, or enhance any Contribution, alone or in combination with any other material, in any media now known or later developed, for any purpose.
3.2 COPYRIGHT LICENSE. Contributor hereby grants to Agency, and Agency accepts, an exclusive right and license during the Term to copy, use, create derivative works of and distribute copies of the Contributions throughout the World in accordance with the terms and conditions of this Agreement providing the right to grant sublicenses, reproduce, distribute, publish, transmit, broadcast, display, exhibit, adapt, crop, modify, recast, or enhance any Contribution, alone or in combination with any other material, in any media now known or later developed, for any purpose.
3.3 SUBLICENSE RIGHT. Contributor hereby grants to Agency, and Agency accepts, the right to sublicense the licenses granted under Sections 3.1 through 3.2 above (without further notification to or approval by Contributor or additional compensation) to Agency’s suppliers, which shall manufacture the Contributions and packaging for the Products only for distribution or use by Agency in accordance with the provisions of this Agreement, and to Agency’s distributors of the Contributions and Agency’s Customers for so long as Agency retains ownership of the Contributions. For purposes of this Agreement, “Customers” mean third parties who enter into agreements with Agency or its distributors for the purchase or distribution of Contributions. Further, Contributor grants Agency and sublicensee the right to use Contributor’s name and Contributions to promote, advertise, and market Agency and Agency’s services.
3.4 NO LICENSE GRANTS TO THIRD PARTIES. Contributor agrees not to grant to any third party during the Term throughout the World a right or license to use the Contributions or any product that is the same as or similar to any of the Contributions. Contributor may use any Contributions for personal, non-commercial purposes including portfolios, personal websites, exhibition, single photographer publication, and self-promotion.
3.5 RIGHTS SPECIFIC LICENSE TM . License granted to Agency during the term of this Agreement regarding any Contribution by Contributor in exchange for payment. Royalties are defined by usage, term, media, distribution, territory, and other relevant criteria as determined by Agency.
4. REPRESENTATIONS AND WARRANTIES
4.1 BY AGENCY. Agency represents, warrants and covenants, that:
(a) Agency is in good standing under the laws of the State of California.
(b) Agency has all requisite power and authority to execute and deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby, including, but not limited to using reasonable efforts to market and license accepted Contributions. Agency will represent to the best of its ability and at its sole discretion the maximum license available to Contributions.
(c) Agency does not and will not consider Contributions to be assets of Agency.
(d) The execution, delivery, and performance of this Agreement by Agency and the consummation by it of the transactions contemplated hereby has been duly and validly authorized by all necessary action on the part of Agency; and this Agreement has been duly and validly executed and delivered by Agency and constitutes a legal, valid and binding agreement of Agency enforceable against it in accordance with its terms, except to the extent that such enforceability may be limited by bankruptcy, insolvency, reorganization, or other laws and judicial decisions of general application relating to or affecting the enforcement of creditors' rights generally or by general equitable principles.
(e) Neither the execution and delivery of this Agreement by Agency nor the consummation by Agency of the transactions contemplated hereby nor compliance by Agency with any of the provisions hereof will (i) result in a material breach of or material default, or give rise to any right of termination, cancellation, or acceleration under, any of the terms, conditions or provisions of any other material agreement, license or other similar instrument or obligation to which Agency is a party, or (ii) violate any material order, judgment, writ, injunction, decree, statute, rule or regulation applicable to Agency.
4.2 BY CONTRIBUTOR. Contributor represents, warrants and covenants that:
(a) Contributor is in good standing under the laws of the State of [STATE].
(b) Contributor has all requisite power and authority to execute and deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby.
(c) Contributor is the sole, exclusive owner, or legal representative of the owner, of all Contributions.
(d) Contributor is not providing any Contributions that infringe on the rights of privacy, copyright, trademark, or other intellectual property rights, or violates any third party right.
(e) Contributor is not providing any Contributions with sales restrictions of any kind.
(f) Contributor allows Agency to exploit all rights of Contributions throughout the World in all media currently known or unknown.
(g) Contributor shall submit Contributions based on the standards and guidelines set forth by Agency.
(h) The execution, delivery and performance of this Agreement by Contributor and the consummation by it of the transactions contemplated hereby has been duly and validly authorized by all necessary action on the part of Contributor; and this Agreement has been duly and validly executed and delivered by Contributor and constitutes a legal, valid, and binding agreement of Contributor enforceable against it in accordance with its terms, except to the extent that such enforceability may be limited by bankruptcy, insolvency, reorganization or other laws and judicial decisions of general application relating to or affecting the enforcement of creditors' rights generally or by general equitable principles.
(i) Neither the execution and delivery of this Agreement by Contributor nor the consummation by it of the transactions contemplated hereby nor compliance by it with any of the provisions hereof will (i) result in a breach of or default, or give rise to any right of termination, cancellation or acceleration under, any of the terms, conditions or provisions of any other agreement, license or other similar instrument or obligation to which Contributor is a party or by which the Contributions may be bound, or (ii) violate any material order, judgment, writ, injunction, decree, statute, rule or regulation applicable to Contributor or Contributions.
(j) All Contributions are valid, are the exclusive property of Contributor (or Contributor has all the necessary rights to such property) and subsequently products will be valid and the exclusive property of Contributor, and can lawfully be used only with the express license or consent of Contributor. Use and distribution of the Contributions does not and shall not infringe on the intellectual property rights, privacy, moral, or other rights of any third party, or violate any law of unfair competition.
(k) Other than as imposed by this Agreement, all Contributions made, copied, or developed by Contributor in connection with the Contributions or related materials obtained on a basis sufficient to give effect to the ownership provisions and license terms provided generally in this Agreement, without imposing any restrictions or obligations on Agency.
5. CONTRIBUTION SUBMISSIONS
5.1 Contributions will be identified as “Rights Specific TM ” imagery.
5.2 Agency shall not accept or guarantee the storage of Contributions.
5.3 Agency shall not accept any original materials, only digital files. In the event of large submissions, Contribution may be in the form of hard-drive storage, however, Agency shall not be responsible for damage or loss of said drives or the contents therein, at any time.
5.4 All Contributions shall be digital copies of the original files.
5.5 Contributor shall delineate digitally manipulated (hereinafter “DM”) still images based on Agency guidelines, and shall mark such still images as “DM” when submitting Contributions.
5.6 Acceptance or rejection of Contributions shall be the sole discretion of Agency. Contributions shall be deemed accepted only after the Contribution has been reviewed and is publicly available for sale by Agency.
5.7 A written credit shall be listed on all accepted images. Agency shall request to the best of its ability a credit notice, where appropriate, by third party agencies and licensees. A written credit for “Tandem Stills + Motion” or “TandemStock.com” will accompany the written credit to define the source of the image.
5.8 Contributor may request Contributions to be deleted from Agency’s files after one hundred and eighty (180) days notice. This is in addition to Contributor’s rights to terminate the contract as set forth in section 8 below.
5.9 If a Contribution is deleted, whether by Contributor or by Agency, the Contribution may continue with any current licenses that were initiated prior to deletion and during ongoing negotiations.
5.10 If Contributor chooses to terminate this agreement or delete Contributions, Contributor agrees to not enter into any new agreements that will conflict with licenses already granted under this agreement until said licenses have expired.
5.11 If a Contribution is deleted from the Agency’s archives, whether by Contributor or Agency, all current licenses, that were initiated prior to deletion, shall continue until expiration or a new Agreement is made.
6.1 ROYALTY RATES.
|Tandem Stills + Motion Royalty Structure||Contributor||Agency||Third Party Agencies (Corbis, TEM, etc.)|
(for sales through TandemStock.com)
(for sales through TandemStock.com)
|Stills & Video with 3rd Party||30%||30%||40%|
|Contributor Originated Sale||75%||25%||n/a|
7. PAYMENT AND ACCOUNTING
7.1 Payment will be made monthly via direct deposit or check provided that Contributor’s cleared license funds exceed USD $250.00. If Contributor’s license funds do not exceed USD $250.00, then payment will be made as a one-time lump sum payment.
7.2 All payments will be made in U.S. Dollars. Some foreign taxes and fees may apply.
7.3 Statements of all sales activity shall be made on a monthly basis and accrued based on the percentages outlined in Section 6. A royalty statement will appear in the Photographer Dashboard when the Contributor logs at TandemStock.com. The statement shall provide details of all licenses granted to Agency of Contributors’ accepted Contributions.
7.4 Contributor’s portion of overpayment from future fees. In the event of an overpayment to Contributor, Agency is authorized to deduct the amount of overpayment from future royalties.
8. TERM AND TERMINATION
8.1 TERM. This Agreement shall continue in force and effect for an initial term of five (5) years from the Effective Date, and shall thereafter be automatically renewable for additional one (1) year terms so long as any of the licensed intellectual property is still in use by the Parties and have not been abandoned by the Parties, unless this Agreement is sooner terminated or canceled in accordance with this Section.
8.2 TERMINATION. Any Party must provide written notice sixty (60) days prior to the start of the next valid term.
8.3 EFFECT OF TERMINATION. Upon termination of this Agreement, Agency shall be allowed to continue to license any Contribution that is currently under license, for a period of two (2) years from the Effective date of this agreement. Termination shall not affect any other licenses and such licenses will continue in full force and effect pursuant to its terms.
9.1 Contributor agrees to indemnify and hold harmless Agency and its parent, their agents, licensees, assigns, successors, subsidiaries and affiliates, and the officers, directors, managers, equity holders, agents, and employees of each of them, from and against, any and all losses, costs, liabilities, judgments, damages, claims and expenses, including reasonable attorneys' fees and costs, for any breach by the Contributor for any representation, warranty, or agreement made by the Contributor in this Agreement.
10. GENERAL PROVISIONS
10.1 ENTIRE AGREEMENT. The terms and conditions contained in this Agreement constitute the entire agreement between the Parties in respect of the subject matter hereof and will supersede all previous communications, representations, or agreements, either oral or written, between the Parties with respect to the subject matter hereof.
10.2 GOVERNING L A W . This Agreement shall be construed in accordance with the laws of the State of California and applicable federal laws of the United States, without regard to the conflicts of laws rules of any jurisdiction. The Parties hereby consent to the jurisdiction and venue of the courts of the State of California, with respect to the enforcement of, or any and all actions related to, this Agreement
10.3 CAPTIONS. Captions are for convenience of reference only and will not be used for interpreting the text of the section in which they appear.
10.4 AMENDMENT. No amendment of this Agreement will be effective unless in a writing signed by the Parties.
10.5 SEVERABILITY. Any provision or condition appearing in this Agreement which is found to be unenforceable or in violation of any valid law or regulation of the United States or of any applicable jurisdiction will be deemed severable and will be deleted from this Agreement without affecting or impairing the enforceability and validity of the remaining provisions and conditions of this Agreement.
10.6 NO THIRD PARTY BENEFICIARIES. This Agreement is solely for the benefit of the Parties and no third party will have any right, interest, or claim under this Agreement.
10.7 NO EMPLOYER-EMPLOYEE RELATIONSHIP. Nothing in this agreement shall constitute the relationship of an employer and employee, a principal and agent, partnership or joint venture between Agency and Contributor. Both Contributor and Agency acknowledge that Contributor is an independent contractor, as defined by law.
10.8 COMMUNICATION. All notifications, payments, and communications shall be sent by the preferred method indicated by Contributor or via electronic mail or other forms of digital communication. All notices to be served upon Agency, in accordance with this Agreement shall be made in writing and served via electronic mail to [email protected]
10.9 CONFIDENTIALITY. Contributor realizes that the Agency has a compelling need to maintain confidentiality, and further recognizes that his/her agreement with the Agency, or his/her discussions with the Agency for such contract, will place him/her in a position of special trust and confidence with access to confidential information including but not limited to future business endeavors, marketing, financial considerations including personal finances related to revenue derived by the agency, information concerning business practices, trade secrets, product concepts, production capacity, marketing, distribution and general business practices concerning the Agency and its operations. Contributor agrees that neither he/she nor anyone operating on his/her behalf will disclose or use, in any manner, any confidential or proprietary information as outlined above concerning the Agency or its operations, unless expressly authorized to do so by the Agency in writing or expressly ordered to do so by a court of law. Contributor acknowledges that he/she has been informed that if he/she breaches this Agreement, the Agency, in addition to retaining the right to terminate Contributors agreement or contract and taking other actions available to it, may obtain preliminary and permanent court injunctions to stop the breach, and may also sue to recover from Contributor an amount equal to the damages caused by the breach and the revenues he/she or anyone operating on his/her behalf derived from the breach, together with all costs and expenses, including the attorney's fees, incurred by the Agency in taking such actions. This provision shall survive termination.