PHOTOGRAPHER AGREEMENT

This is a Photographer Agreement ("Agreement") by and between Pixopolitan Inc. ("Company") and the photographer submitting photographs (the “Photographer”), dated as the date Photographer accepts these terms.

WHEREAS Company owns the website pixopolitan.us and offers certain photographs and other materials for sale on its website, pixopolitan.us (the “Service”) and,

WHEREAS Photographer desires and has been selected by the Company to provide exclusively to the Company digital copies of photographs (“Content”) for sale on the Service per the terms hereunder.

NOW THEREFORE, for and in consideration of the mutual promises and covenants set forth herein, by clicking “Accept” at the end of this Agreement, Photographer agrees, and Company acknowledges and accepts, as follows:

1. Term. This Agreement shall be effective as of the date the Photographer accepts this agreement by clicking “Agree” and shall continue for a term of three (3) years unless terminated earlier. Thereafter, the Agreement shall renew automatically for successive one- year terms unless terminated in writing by either party (electronic communication okay) at least (30) days prior to the expiration of the then-current term.

2. Payment. The Photographer shall be entitled to payment upon completion of a sale of Content attributable to Photographer. During the initial term, the remuneration owing to Photographer upon sale of the Content shall be as set forth in Attachment A. Fees shall be set during each applicable renewal term, but may be adjusted prior to the commencement of any renewal term upon written notice delivered to the Photographer. Each party shall be responsible for any income and other taxes required under applicable laws arising out of monies received by each of them pursuant to this Agreement.

3. Service and Content. The Photographer may submit Content to the Company every fifteen (15) days. The Company shall have sole discretion over which Content it chooses to display publicly or make available for sale on the Service. The Company shall notify the Photographer by email immediately prior to posting approved Content to the Service. Content will be available in the following formats: Classic (16x12” / 20x16”), medium (24x16” / 24x24”), large (36x24” / 32x32”), giant (48x32” / 40x40”) and collector (48x48” / 60x40”). Each format corresponds to the following limited amount of copies to be reproduced.

-“classic” : unlimited copies -“medium”: 500 copies

-“large”: 300 copies -“giant”: 150 copies -“collector” 50 copies

Photographer understands and acknowledges that his or her Content will be sold in the foregoing limited quantities. In addition, each product sold is numbered and accompanied by a certificate of authenticity mentioning the title of the work, its description and if necessary the name of the photograph.

4. Intellectual Property Rights.

a. Rights to the Service. Pursuant to the terms of this Agreement, Company grants Photographer a nonexclusive, nontransferable license, for the duration of this Agreement, to access the Service solely in accordance with the provisions hereunder. Photographer shall not, and shall not attempt to, lend, rent, sublicense, lease or use the Service as marketing material or advertisement for himself or herself or otherwise for a third party. As between Company and Photographer, all right, title and interest in and to the Service including but not limited to any software, systems, processors, hardware, equipment, creative designs relating to the Service (other than the Photographer Content, as defined herein), any data generated by the use of the Service, any feedback it receives from the use of the Service, along with any and all intellectual property rights related thereto or otherwise developed or used by Company in connection with the installation of such Service is and shall remain the exclusive property of Company. All other rights with respect to the Service whether now existing or which may hereafter come into existence, which are not expressly granted to Photographer herein, are reserved for Company. Photographer shall not modify or create derivative works of the Service or any content posted thereon unless such content belongs to Photographer. Photographer shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Service or documentation therefor, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. Photographer shall not remove, obscure, or alter Company’ copyright notices, trademark notices, or other proprietary rights notices affixed to or contained within the Service or documentation.

b. Rights to Content. Photographer shall maintain all right, title and interest to any Content attributable to Photographer and made available for purchase on the Service. Photographer shall have sole responsibility for the ownership, legality and appropriateness of such Content. Notwithstanding anything set forth herein, Photographer hereby grants to Company an exclusive, worldwide, fully transferable

license, right and privilege, for the duration of this Agreement, to publish, represent and promote the Content on the Service and to reproduce, adapt, or incorporate any such Content in final products and reproduce, adapt, modify, distribute, import and sell the Content to the Company’s purchasing customers.

5. Warranties. Photographer represents and warrants that he or she owns or has lawfully acquired all right, title and interest in and to the Content and has not licensed any rights to the Content to any other parties. Each party warrants to the other that it has all necessary right, power and authority to enter into this Agreement and to perform the acts required by such party hereunder; its execution of this Agreement does not violate any other agreement by which it is bound; and its performance of its obligations hereunder will comply with all applicable laws, rules and regulations.

6. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY HAS NOT AND SHALL NOT BE DEEMED TO HAVE MADE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO THE CONDITION, MERCHANTABILITY, NON-INFRINGEMENT, DESIGN, OPERATION OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICE. COMPANY DOES NOT WARRANT THAT USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.

7. LIABILITY LIMITATION. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR TORT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY EVENT, THE LIABILITY OF EACH PARTY FOR ANY LOSS OR DAMAGES DIRECTLY OR INDIRECTLY SUFFERED BY SUCH PARTY AS A RESULT OF THE USE OF THE SERVICE OR ANY FAILURE, ACT, OMISSION OR BREACH OF THIS AGREEMENT BY COMPANY SHALL NOT EXCEED THE AGGREGATE FEES PAID OR OTHERWISE DUE TO PHOTOGRAPHER DURING THE CALENDAR MONTHS IN WHICH THE DAMAGES WERE INCURRED.

8. Infringement. Should the Content or any part thereof become, or in Company’s reasonable opinion be likely to become, the subject of a claim of infringement or misappropriation, Photographer shall have the right, at Photographer’s sole option and expense, (a) to procure for Company the right to continue using the Content, (b) to replace or modify the Content with a non-infringing version of substantially equivalent design and look, or (c) obtain the return of the Content in exchange for a refund of amounts paid during the prior three (3) months and thereupon immediately terminate this Agreement.

  1. Indemnification.

    a. Photographer agrees to indemnify, defend, and hold harmless Company (including Company’s affiliates, successors, officers, directors, employees and representatives) against and from any and all actions, causes of action, claims, demands, costs, liabilities, expenses (including reasonable attorneys’ fees and court costs) and damages arising out of or in connection with any claim that the Content infringes a third party’s intellectual property rights. Photographer shall have no liability or obligation to Company hereunder for any infringement based upon or arising out of (i) the use of other than a current, unaltered version of the Content, (ii) any use of the Content for other than its intended purpose, or (iii) modifications, improvements and derivative works of the Content created by or on behalf of Company.

    b. In connection with any claim or action described in this Section, Company (i) will give the Photographer prompt written notice of the claim, (ii) will cooperate with the Photographer (at the Photographer’s expense) in connection with the defense and settlement of the claim, and (iii) will permit the Photographer to control the defense and settlement of the claim, provided that the Photographer may not settle the claim without the Company’s prior written consent (which will not be unreasonably withheld). Further, the Company (at its cost) may participate in the defense and settlement of the claim.

  2. Irreparable Harm. Photographer acknowledges that any breach or violation of Section 4

or 5 above will cause irreparable harm to Company and that damages are not an adequate remedy. Photographer therefore agrees that Company shall be entitled to seek and obtain a court order enjoining, prohibiting and restraining Photographer from the continuance of any such violation, in addition to any monetary damages which might occur by reason of a violation of the Sections of this Agreement identified above or any other remedies at law or in equity, including without limitation specific performance, and that in any such action, Photographer will not raise as a defense the argument that an adequate remedy for such breach exists at law. The posting of a bond shall not be required for any injunction to be issued in accord with this Section.

11. Governing Law. This Agreement shall be governed and interpreted in accordance with the laws of the Commonwealth of Massachusetts, United States of America without regard to principles of conflict of laws. The parties consent to jurisdiction and venue before the federal and state courts of the Commonwealth of Massachusetts and agree that any suit arising from this Agreement shall be brought in Middlesex County or Suffolk County, Massachusetts.

12. Waiver Of Jury Trial. The parties hereby agree to waive their respective rights to a jury trial of any claim or cause of action related to or arising out of this Agreement. The scope of the waiver is intended to be all encompassing of any and all disputes that may be filed in any court and that relate to the subject matter herein, including without limitation, contract claims, tort claims, breach of duty claims, and all other common law and statutory claims. The parties each acknowledge that the waiver is a material inducement for each party to enter into a business relationship, that each party has already relied on the waiver in entering into this Agreement and that each will continue to rely on the waiver in their related future dealings. Each party further warrants and represents that each has had the opportunity to have legal counsel review the waiver. The waiver is irrevocable, meaning that it may not be modified either orally or in writing, and the waiver shall apply to any subsequent amendments, renewals, supplements or modifications to this Agreement. In the event of litigation, this Agreement may be filed as written consent to a trial by court.

13. Termination Due To Insolvency. If either party: (a) commences or becomes the subject of any case or proceeding under the bankruptcy, insolvency or equivalent laws of any country; (b) has appointed for it or for any substantial part of its property a court-appointed receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official; (c) makes an assignment for the benefit of its creditors; (d) defaults on any secured obligation; (e) fails generally to pay its debts as they become due; or (f) takes corporate action in furtherance of any of the foregoing (collectively, herein referred to as "Events of Insolvency"), then, in each case, the party experiencing such an Event of Insolvency shall immediately give notice of such event to the other party. Whether or not such notice is given, the other party shall have the right, to the fullest extent permitted under applicable law, following the occurrence of any Event of Insolvency and without prejudice to any other rights it may have, at any time thereafter to terminate this Agreement, effective immediately upon giving notice to the party experiencing such an Event of Insolvency.

14. Termination In The Event Of A Material Breach. In addition to the specific termination provisions of this Agreement, either party may terminate this Agreement at any time in the event of a material breach of the terms herein by the other party, if such party shall fail to cure such material breach within fifteen (15) days of written notice of such breach.

15. Effect Of Termination. Upon termination of this Agreement pursuant to Sections 13 and 14 hereunder: (a) the licenses granted in Section 4 above shall immediately terminate; (b) all rights granted herein shall automatically revert to the applicable party; (c) Photographer shall immediately cease and desist from using the Service; and (c) Company shall immediately pay all amounts due to Photographer pursuant to this Agreement.

16. Waiver Of Breach. A breach of any provision of this Agreement may only be waived in writing (electronic communications accepted) and the waiver of such breach shall not operate or be construed as a waiver of any subsequent breach.

17. Severability. If any provision of this Agreement should, for any reason, be held invalid or unenforceable in any respect, the remainder of this Agreement shall be enforced to the full extent permitted by law. A court of competent jurisdiction is hereby empowered to modify the invalid or unenforceable provision to make it valid and enforceable.

18. Assignment & Transfer. The Company may freely assign and/or transfer its rights and obligations under this Agreement in connection with a sale of its business as a whole or substantially all of the assets of its business. The parties shall not otherwise assign or transfer this Agreement without the express prior written consent of the other, such consent not to be unreasonably withheld.

19. Bind & Benefit. This Agreement shall bind and benefit the successors and permitted assigns of the parties.

20. Notice & Delivery. Under this Agreement, communications to the Company shall be sent to Pixopolitan, Inc. at:
185 ALEWIFE BROOK PARKWAY 410, CAMBRIDGE MA 02138 or support@pixopolitan.us or as may otherwise be agreed to in writing. Communications to Photographer shall be sent to the mailing and email address on file with the Company in connection with the Photographer’s profile.

21. Entire Agreement. This Agreement, along with the Terms of Use [http://www.pixopolitan.us/content/19-terms-of-use] incorporated herein by reference, contains the entire agreement between the parties as to the subject hereof. In the case of conflict between this Agreement and the Terms of Use, the terms of this Agreement shall prevail. This Agreement supersedes all prior oral and written agreements between the parties as to the subject hereof. This Agreement may not be modified or amended except by writing.

 

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ATTACHMENT A

Fees

Fees. The standard remuneration due to Photographer upon sale to a client of the Content is: Ten percent (10%) of the actual sale price (not including tax) charged to the customer on the Service.

Example number 1 : For a copy of a work invoiced at $100, the Photographer will receive $10. Example number 2 : For a copy of a work regularly priced at $100, but sold for a sale price of $80, the Photographer will receive $8.

For each sale of Content attributable to Photographer, Company will make a payment by wire transfer to the Photographer’s bank account on file with the Company, or as otherwise agreed by the parties. This will happen four (4) times per year 30 days following the end of each trimester. In addition, the Photographer may at any point request the transfer of all or part of the accrued payment owing to Photographer to its bank account.

 


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