MyPhone Collection Co-exclusive Stock Contributor / Agent Agreement
CONTRACT OVERVIEW
- This is a Worldwide Co-Exclusive contract, meaning that for any images accepted into Aurora under this contract
- Contributor can license accepted images direct to clients anywhere in the world
- Aurora can license accepted images direct to clients anywhere in the world
- Aurora can distribute accepted images to sub-agents anywhere in the world
- Contributor cannot distribute accepted images, or any similar images (see contract definitions) to any other agency, picture library or archive.
- The commission split is 60/40, Aurora/Contributor, on Net License Fees (see contract definitions) received by Aurora.
- Aurora reports royalties on a monthly basis and pays on a monthly basis when the total amount of the royalty due the contributor is $200 (USD) or greater.
- Funds are paid in US Dollars (USD) by mailed check or wire transfer.
- When licensing an accepted image directly to clients, contributor must license the image as a Rights Managed image, and keep good and accurate records of all licenses granted, including specific use, territory, industry, duration of use, and end user for each and every license.
- If contributor needs to clear an exclusive license or request a sales history for an accepted image, send an email to clearances@auroraphotos.com. Contributor must reference Aurora's image ID when clearing usage or requesting sales history.
MyPhone Collection Co-exclusive Stock Contributor / Agent Agreement
Aurora Photos, 81 West Commercial Street, Suite 201, Portland, Maine 04101
PHOTOGRAPHER NAME HERE (herein after the CONTRIBUTOR) and Aurora Photos, (herein after AURORA), agree as follows:
WHEREAS, CONTRIBUTOR wishes to establish a digital archive of photographic material and other digital files and host the archive through Agent and for the archive to be searchable on the World Wide Web portion of the Internet;
WHEREAS, Agent is in the business of licensing, and sublicensing photography,
WHEREAS, CONTRIBUTOR wishes to have certain specific photographs represented co-exclusively by Agent as a Contributor of Agent in the Designated Territory of: Worldwide
1. DEFINITIONS
1.1 "Accepted Images" means an image submitted by CONTRIBUTOR to AURORA and accepted by AURORA for inclusion in its collection.
1.2 "Images" means all types of photographic images, color, black and white transparencies, prints, drawings, paintings, film footage, digital images and any and all other visual images and shall include keywords, 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 and sub-licensee commission where applicable.
1.4 "Product" means any compilations of images to promote the business of AURORA and/or to distribute and license Accepted Images, including but not limited to print and CD-Rom, DVD, Internet website and other digital online distribution system, whether now known or which may become known in the future.
1.5 "Similars" means an Image in analogue or digital form that is substantially similar to any Accepted Image and which may reasonably cause an industry professional viewing the image to believe it is the same or substantially the same image, whether in color or black and white.
1.6 "Stock Picture Library" means any stock picture company, stock film library, on-line image service, royalty free or clip art provider, or any other similar entity that is in the business of licensing, distributing, providing, selling or otherwise exploiting Images anywhere in the world.
1.7 "Third Party Licensee" means any distributor or marketing entity with which AURORA enters into a marketing or sub-licensee agreement for the promotion and licensing of Images.
1.8 "Journalistic" images means candid photographs that truthfully represent the situation taking place at the time the photograph was made; and adhere to the definition of "Journalistic" put forth in AURORA's then current submission guidelines.
1.9 "Direct International Sales" means any sale made directly by AURORA, not through a Third Party Licensee, outside the territory of North America (USA or Canada), when the billing address of the client is not within the USA or Canada.
1.10 "Designated Territory" means the country or regions where AURORA and it's Third Party Licensees conduct their primary business as defined by this agreement.
1.11 "Distribution" means the strategic utilization of Third Party Licensees for the promotion and licensing of images.
1.12 "Exclusive License" means a license to an Accepted Image where the rights are restricted to an authorized licensee within a specific territory, and/or industry, and/or medium, and/or time period, to the exclusion of any other licensee within the same parameters.
2. SUBMISSION AND ACCEPTANCE OF IMAGES
2.1 CONTRIBUTOR agrees to abide by the current AURORA submission guidelines. CONTRIBUTOR agrees that AURORA may change such guidelines upon written notice. According to such guidelines, AURORA only accepts Images stored in digital media and does not accept any original material.
2.2 AURORA may accept or reject any Images submitted to it in its sole and absolute discretion.
2.3 An Image will become an Accepted Image when it has been edited and identified as selected by Aurora editors.
2.4 Accepted Images shall at all times be and remain the exclusive property of the CONTRIBUTOR, to be used by AURORA and its Third Party Licensees, solely for the purposes described in this Agreement. The Images shall not be considered assets of AURORA in the event of a bankruptcy.
2.5.CONTRIBUTOR retains copyright in its Accepted Images. AURORA shall advise its licensees and Third Party Licensees to include a credit notice where appropriate along with the Accepted Images. Such notice may include AURORA's name as the source of the Image. Notwithstanding the above, in order to protect Images included in AURORA Products, if CONTRIBUTOR has not previously registered Images selected for AURORA PRODUCTS, Contributor grants the copyright to AURORA in Images published in Products, solely for purposes of copyright registration. Such registration shall be reassigned upon request or termination of the Agreement.
2.6 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. GRANT OF AUTHORITY
3.1 Subject to this Agreement, CONTRIBUTOR grants AURORA a worldwide, co-exclusive license, with a right to grant sublicenses, to, reproduce, distribute, publish, transmit, broadcast, display, exhibit, adapt, crop, modify, recast or enhance, any Accepted Image, alone or in combination with any other material, in any media or embodiment, now known or later developed, for any purpose. AURORA is specifically authorized to employ the services of Third Party Licensees throughout the world in its licensing efforts.
3.2 CONTRIBUTOR grants AURORA, and its Third Party Licensees, the right to use CONTRIBUTOR's name and Accepted Images to promote, advertise and market AURORA's Products and services; and CONTRIBUTOR agrees that no compensation or further consent is due for the use of Accepted Images in AURORA's Products, promotion, advertising and marketing. AURORA shall endeavor to credit the CONTRIBUTOR where practical.
3.3 CONTRIBUTOR may use any Accepted Image or Similar for personal, noncommercial purposes, for example, portfolio, exhibition, single photographer publication, personal website and self-promotion. Promotions that use an AURORA Accepted Images should reference AURORA in a standard photo credit format.
3.4 CONTRIBUTOR agrees not to supply to any other Stock Picture Library any Accepted Images or Images that are Similar to any of CONTRIBUTOR's Accepted Images. CONTRIBUTOR may market, sell and license its Accepted Images and any Similar Images directly to clients, but may not distribute, sell or license Accepted Images or Similar Images through any other Stock Picture Library.
3.5 AURORA shall have complete and sole discretion regarding the terms, conditions and pricing of Images licensed or sublicensed to third parties. AURORA shall have complete and sole discretion as to delivery methods and distribution of the Images. Notwithstanding, AURORA shall not transfer copyright in any image or grant any exclusive licenses for a period of greater than five (5) years without the CONTRIBUTOR's prior written permission.
3.6 CONTRIBUTOR grants AURORA the right, at its expense, to determine in its sole and reasonable discretion, without obligation, if, and when, any legal action shall be pursued with regard to the Accepted Images, and to defend claims and counterclaims related to the Accepted Images. AURORA shall have complete discretion regarding its choice of attorney. Settlements shall not be subject to the CONTRIBUTOR's prior approval. CONTRIBUTOR agrees to cooperate with AURORA, providing, if requested, all reasonable assistance to AURORA. CONTRIBUTOR agrees to be named in and being joined in as a party to any proceeding in connection with the prosecution or defense of any legal claim. If AURORA declines to bring a claim with 60 days, CONTRIBUTOR retains the right to bring an action in its own name, at its own expense.
3.7 CONTRIBUTOR is responsible for keeping accurate and up to date records regarding any license given by CONTRIBUTOR for any Accepted Image. Such records will include specific use, territory, industry of the end user, name of end user, and duration of use for any license given.
3.8 BEFORE either AURORA or CONTRIBUTOR grant any Exclusive License(s), either Party will consult with the other via E-mail in order to ensure that no conflicting licenses have bee issued. AURORA and CONTRIBUTOR will respond to such queries conclusively within one (1) Business Day. Should a client of either Party require a sales history of an Accepted Image, either Party will consult with the other via E-mail to inform the other Party with accurate and up to date license history of the Accepted Image.
3.8.1 Communications between AURORA and CONTRIBUTOR about Exclusive Licenses or sales history of Accepted Images will reference the Aurora image ID of the Accepted Image.
3.9 AURORA and CONTRIBUTOR acknowledge and agree that control and management of rights of Rights Managed Accepted Images, particularly in the case of an Exclusive License, is essential to the business of the Parties. The Parties agree that any breach of Exclusivity will damage the reputation of the other Party and could lead to claims and costs including: damages and compensation, legal costs, administrative costs, financial and lost opportunity costs. Therefore, if the failure of either Party to perform its responsibilities properly within this agreement causes a conflict with an Exclusive license granted by the other Party or breach of this agreement, then, without limiting any other rights or remedies available to the other Party:
3.9.1 The breaching Party will pay to the other Party any amounts that the other Party, having negotiated on a best efforts basis and acting in a commercially reasonable manner, incurs or is required to pay to other persons (including legal counsel and applicable clients) for damages, awards, settlements or costs in connection with the Exclusive License conflict(s).
3.9.2 The breaching Party will take any other steps reasonably required by the other Party to correct any damage resulting from the breach in Exclusivity.
3.10 If any Exclusive License conflict arises from a client of AURORA and a client of CONTRIBUTOR licensing the same Accepted Image or Similar for conflicting purposes, and if such conflict is the result of a timing overlap in which each Party performed its responsibilities properly within this Agreement, or the result of a breach by a client of the respective Party, then the Parties agree to cooperate with each other and their respective clients to resolve the conflict in a manner that is fair and equitable to all Parties and clients. Each party will be responsible for thier own costs of such resolution.
4. ROYALTY PAYMENT
4.1 On a monthly basis, AURORA shall remit to CONTRIBUTOR 40% percent (%) of Net License Fees received from the previous reporting period and shall provide CONTRIBUTOR with a royalty statement setting forth the licensing by AURORA of the Accepted Images during that reporting period. Payment will be made when the total amount of royalties due to CONTRIBUTOR is greater than $200 (USD). If the total amount of royalties due to CONTRIBUTOR is less than $200 (USD) payment will be held until amount due is greater than $200 (USD). Unless otherwise agreed upon in writing by both parties, all payments will be made in US dollars. Only AURORA may claim any credit for foreign taxes.
4.2 Assignments, if offered and accepted, shall be performed in accordance with, and under the terms of, the Novus Select Media-Maker / Agent Assignment Agreement.
4.3 The CONTRIBUTOR shall receive 40% percent of all amounts received by AURORA as a result of a settlement or lawsuit relating to the Images, after payment of all costs, expenses, expert witness fees and attorneys' fees.
4.4 In the event that a refund of a payment received or accrued from a third party is required, AURORA is specifically authorized to deduct the CONTRIBUTOR'S share of this overpayment from any subsequent amount due the CONTRIBUTOR.
4.5 AURORA is authorized to deduct any agreed upon production or keywording charges (if any) from CONTRIBUTOR's royalty payments and shall itemize any such deduction in the applicable royalty report.
4.6 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 AURORA 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. AURORA will continue to report to CONTRIBUTOR as set forth in Section 4.1.
4.7 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 AURORA, to have an independent audit performed of AURORA'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. This right is subject to the auditor's execution of AURORA'S current non-disclosure agreement.
5. TERM AND TERMINATION
5.1 This Agreement will begin on the Effective Date set forth above and shall last for an initial term of five (5) years. After this initial term, this Agreement will automatically be renewed for successive one (1) year terms unless and until one party notifies the other in writing of its wish to terminate this Agreement at least sixty (60) days prior to the beginning of the next term.
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, AURORA will be entitled to continue to license any Accepted Image if it is featured in a Product, for a period of three years 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, AURORA shall delete all digital files representing the Accepted Images. Notwithstanding, AURORA may retain digital files of ACCEPTED IMAGES as part of its back-up media.
6. LIMITATION OF LIABILITY
6.1 Pursuant to its submission guidelines, AURORA does not accept original film, transparencies or any other irreplaceable material ("Irreplaceable Material") and AURORA 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 AURORA be liable for any misuse of Images by third parties.
6.2 AURORA'S LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES SHALL AURORA'S LIABILITY (WHETHER IN TORT, NEGLIGENCE, CONTRACT OR OTHERWISE) FOR LOSS, DAMAGE OR MISUSE TO ANY IMAGE PROVIDED TO AURORA 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.
7. CONTRIBUTOR WARRANTIES
7.1 CONTRIBUTOR represents and warrants that:
7.1.1 CONTRIBUTOR has read and understands this agreement, and has the legal right to enter into this Agreement and perform its obligations hereunder;
7.1.2 CONTRIBUTOR is the sole and exclusive owner or the legal representative of the owner of all Accepted Images;
7.1.3 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;
7.1.4 There are no sales restrictions of any kind on any Accepted Images except those submitted in writing at time of submission or specified within this agreement;
7.1.5 The caption, copyright and all other information provided to AURORA is accurate and complete and in accordance with AURORA's then current submission guidelines. To the extent caption information supplied to clients by AURORA on any Accepted Image differs from the information supplied to AURORA by CONTRIBUTOR, the accuracy of such information shall be AURORA's sole responsibility;
7.1.6 A valid release, either model/and or property has been obtained where necessary and appropriate for each Accepted Image and the CONTRIBUTOR shall provide true copies of releases for each Accepted Image. CONTRIBUTOR shall identify the released Images according to AURORA's then current submission guidelines; and clearly identify non-released images when applicable.
7.1.7 CONTRIBUTOR agrees to submit additional Images to AURORA on a regular basis throughout the term of this Agreement.
7.1.8 Accepted Images are accurately identified as either "Journalistic" or "Manipulated" images according to AURORA's then current submission guidelines; and all Accepted Images are correctly marked as either "Journalistic" or "Manipulated" on the Aurora website.
8. AURORA WARRANTIES
8.1 AURORA represent and warrants that:
8.1.1 It has the full right and authority to execute and perform its obligations under this Agreement according to its terms.
8.1.2 It shall use commercially reasonable efforts to market and license Accepted Images.
9. INDEMNIFICATION
9.1 CONTRIBUTOR agrees to indemnify and to hold AURORA 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 AURORA 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. MISCELLANEOUS
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 AURORA shall use reasonable efforts to locate the CONTRIBUTOR in the event statements are returned unclaimed. In the event that, notwithstanding AURORA's reasonable efforts, the CONTRIBUTOR cannot be located for four (4) years, AURORA 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. AURORA 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 AURORA's prior written consent, however, CONTRIBUTOR's right to receive payment may be assigned without AURORA'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 AURORA and the CONTRIBUTOR. Both Parties hereby acknowledge that the CONTRIBUTOR is an Independent Contractor.
10.5 All statements, checks, other communications and other hard copy material shall be sent to CONTRIBUTOR by AURORA in Accordance with this Agreement by mail 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, fax, or by mail. The email, fax and postal addresses of AURORA are as set out in this Agreement. The email, fax and postal address of CONTRIBUTOR for these purposes will be such as CONTRIBUTOR may notify to AURORA from time to time. The CONTRIBUTOR and AURORA 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 State of Maine without regards to the laws regarding conflicts of law. The Parties hereby agree to submit to the exclusive jurisdiction to the Courts of federal or state court located in the State of Maine, County of Cumberland.
10.7 This Agreement, supercedes 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.
10.8 CONTRIBUTOR agrees that any and all communications between AURORA and CONTRIBUTOR and the information contained in those commumications, whether spoken, written, or electronic, are confidential and CONTRIBUTOR agrees to keep any and all such information confidential. This paragraph and agreement to confidentiality will survive the termination of this Agreement for any reason and into perpetuity.
