SHOTBYWOMEN CONTENT SUPPLY AND DISTRIBUTION AGREEMENT
This Content Supply and Distribution Agreement (the “Agreement”) is effective as of [insert date] (the “Effective Date”) by and between:
1. FemalePerspective Ltd, with its registered office at 11 JewStreet, Brighton,England,BN11UT; and
2. [insert contributor name] of [insert contributor address](“Contributor” or “You” or “you”) (each a “Party” and collectively, the “Parties”).
As of the Effective Date, the Parties hereby agree as follows:
1. Term and Termination
The term of this Agreement (the “Term”) shall commence as of the Effective Date and continue for an initial period of 2 (two) years. Thereafter, the Agreement shall automatically renew for successive 1 (one) year periods, unless either Party provides written notice to the other Party no less than 90 (ninety) days prior to the end of the Term indicating that it does not wish for the Agreement to automatically renew at the end of such period.
In addition, either Party may terminate the Agreement immediately upon notice if the other Party: (a) breaches any material term or condition of the Agreement and, if capable of remedy, fails to remedy such breach within 60 (sixty) days of being given notice by the other Party; or (b) files a bankruptcy petition, or makes a general assignment for the benefit of creditors, or if any involuntary bankruptcy, receivership or similar proceeding is filed against the Party and is not dismissed within sixty days after filing.
2. License Grant
You hereby grant Female Perspective a worldwide right and license to distribute, market, sublicense, display, modify/edit, and in any other way make available to third parties (in whole or in part) any and all content submitted by you for representation hereunder (the “Content”). Such Content may include still images, illustrations, moving visual content (i.e. video/ film), and any type of font, audio file, or other work protected by copyright, and all associated metadata in all cases. Except where otherwise expressly agreed in writing, Female Perspective’s rights include without limitation the right to distribute and license the Content for any purpose (now known or created in the future) including but not limited to for use on websites (and other electronic formats), printed materials, broadcast platforms, exhibitions, or otherwise. Except where otherwise expressly agreed in writing, the Content may be used without limitation for advertising, promotions, graphic design, marketing within and on products, corporate communications, press articles/ releases, brochures, reports, décor, programs, films, or otherwise. Female Perspective will determine the terms and conditions applicable to all licenses of Content, and how the Content is licensed/made available. Notwithstanding, Female Perspective will not knowingly use or license the Content for uses that are pornographic, defamatory, or otherwise illegal. Female Perspective may stop marketing or licensing any Content at any time. If Female Perspective notifies you that it has permanently stopped marketing and licensing any particular Content, the Agreement will be deemed to be terminated only with regards to that Content.
When Submitting Content to Female Perspective you shall indicate whether such Content is to be represented by Female Perspective on an "exclusive" basis, a "non-exclusive" basis, or a "co-exclusive" basis.
For any Content identified as being submitted on an “exclusive” basis, such Content (and any other content that is substantially similar to such Content) may not be licensed or made available by you to any third party, unless Female Perspective has notified you that Content has been rejected or withdrawn at Female Perspective’s discretion.
For content designated as “non-exclusive”, such Content may be distributed or made available by you for any purpose and for any means at your discretion (provided that you shall notify Female Perspective of any third party distribution platforms/channels upon which such Content is made available by you).
For content designated as “co-exclusive”, such Content (and any other content that is substantially similar to such Content) may not be supplied to any third party for license, sale or distribution. For clarification, you may yourself directly license, sell or distribute such co-exclusive Content, but may not do so via any third party reseller, agency, licensor or distributor.
Notwithstanding, it is acknowledged and agreed that any Content captured on assignment for Female Perspective and/or under credentials obtained via Female Perspective must be submitted exclusively to Female Perspective on a perpetual basis. For the avoidance of doubt, Female Perspective’s rights with respect to content designated as “exclusive” shall include the right to pursue and/or settle any claims for copyright infringement with respect to such Content.
Female Perspective shall have the right to distribute and license the Content directly, or indirectly via i) any third party distributor(s) as Female Perspective may determine from time-to-time (a “Distributor”); or ii) any affiliate/subsidiary of Female Perspective. Such Distributor(s) and affiliates/subsidiaries shall have the same rights granted to Female Perspective described herein. Female Perspective shall give you advance notice in writing (including by email) of its intention to distribute/license Content via any Distributor(s), and you shall have the right “opt out” of having your Content distributed to/via any such identified Distributor(s). To opt out, you must notify Female Perspective in writing (including by email) within 30 (thirty) days of Female Perspective’s notice to you of its intention to license/distribute Content via any identified Distributor(s), it being acknowledged and agreed that if you do not notify Female Perspective in writing (including by email) of your desire to opt out within such timeframe, that such absence of notification shall be deemed as acceptance of Female Perspective’s right to license/distribute via such identified Distributor(s).
5. Submission Requirements
Female Perspective may from time-to-time provide you with certain requirements with respect to the Content which may include, for example, technical specifications, or requirements related to model and property releases. Female Perspective shall have the right to reject any Content that does not comply with such requirements.
When submitting Content to Female Perspective you shall notify Female Perspective of any restrictions or licensing conditions that should apply to such Content. Female Perspective shall ensure that such restrictions/licensing conditions are notified to each end-user of such Content in each case.
Female Perspective shall pay to you a royalty on those net license fees received by Female Perspective from those end-users to which Content is licensed hereunder or from those Distributors from their license of the Content (the “Royalties”) at the following rates:
- For Content submitted on an exclusive basis: 55% (fifty-five per cent);
- For Content submitted on a co-exclusive basis: 50% (fifty per cent); and
- For Content submitted on a non-exclusive basis: 45% (forty-five per cent).
The Royalties may be subject to the deduction of VAT (or other similar duty), bank/wire charges (if applicable) or any other deduction or withholding that Female Perspective is required by law, treaty or regulation to deduct or withhold (for example, any withholding taxes which may apply in the event of a license to an end-user located outside the UK). You expressly acknowledge and agree that for licenses issued by a Distributor, the Royalty paid to you by Female Perspective shall be calculated against the net amount received by Female Perspective (i.e. after the deduction of a royalty to the Distributor). Royalties will be paid to you by Female Perspective within 60 (sixty) days of Female Perspective’s receipt of the corresponding license fees. Under no circumstances shall Female Perspective be required to account to you for any sums which Female Perspective has not received from any end-client or Distributor, provided that Female Perspective shall use reasonable endeavours in all cases to pursue any unpaid sums. In the event that a license is cancelled after the payment of a Royalty to you, you shall re-pay to Female Perspective the amount of such Royalty without any deduction within 14 (fourteen) days of Female Perspective’s notification of such cancellation. Alternatively, at Female Perspective’s discretion, the amount to be re-paid may be offset against a future Royalty that has fallen or will fall due to you. For the avoidance of doubt, no Royalty shall be due to you for the use of any Content by Female Perspective (or a Distributor) for the purposes of marketing and/or promoting the Content and/or the Female Perspective’s business, or that of a Distributor.
Each calendar month, Female Perspective shall provide you with a report identifying each license granted with respect to the Content in the preceding month. Such report shall identify the Royalties due to you, and other information that Female Perspective reports to contributors in the ordinary course of business, which information may include, where appropriate, the rights granted and the industry of the end-user. You agree to provide your tax and other registration information to Female Perspective and to update it whenever there is a change in circumstances that could impact the taxation or delivery of your royalty payments (e.g., change of address, banking information, contact information). Female Perspective may place a hold on your royalty payment if your tax information is not provided or your registration expires or in the event that Female Perspective becomes aware that the information in your tax registration is incorrect.
9. Your Rights and Your Use Of Content
For Content submitted by you on an "exclusive" basis, either you or Female Perspective on your behalf may register the copyright in such Content with a relevant copyright authority. Nothing in this section can be construed as limiting the rights licensed to Female Perspective or indicating that this Agreement does not grant Female Perspective an exclusive license for such Content. Subject to the rights granted in this Agreement, you will retain all right, title and interest, including copyright, if any, in the Content. Upon termination of this Agreement all rights licensed to Female Perspective under this Agreement will revert back to you.
You may use Content submitted by you on an "exclusive" basis only for the purposes of documenting and promoting your work, but provided that you do so in a way that does not compete with or limit the rights granted to Female Perspective under this Agreement. You must obtain Female Perspective’s prior written content for the use of Content submitted by you on an "exclusive" basis on the cover of a self-promotional book so that Female Perspective can ensure that your use of that Content does not conflict with the rights granted to an end-user.
10. Credit and Moral Rights
You waive, to the maximum extent of all applicable law, any and all moral rights (or so called droit moral) with respect to the Content. To the extent that any such rights may not be waived, you agree not to enforce such rights against Female Perspective, Distributors or any end-users. Where you are not the owner of any moral rights, you confirm that all moral rights have been waived to this same extent or that you have obtained the same commitments not to enforce moral rights as described herein. Further, you acknowledge and accept that with respect to commercial uses it is common business practice that the creator of Content is not credited, and that Content may be modified, used in connection with sensitive topics and may be used or modified in ways that may be controversial or unflattering.
Female Perspective shall request that each end-user of Content apply a credit to the content as follows: “[Your Name]/shotbywomen” (and/or with reference to such other Female Perspective brand as Female Perspective may reasonable determine from time-to-time), but Female Perspective shall have no liability for any lack of credit.
Each Party represents and warrants to the other Party that it has the full power and authority to enter into the Agreement and perform its obligations hereunder and that it will comply with all applicable laws. In addition, you represent and warrant to Female Perspective that: (i) you are the sole and exclusive owner of the Content submitted to Female Perspective or are the authorised representative of the applicable copyright owner(s) of such Content; (ii) Content submitted to Female Perspective, will not infringe the copyright of any third party, and will not contain any matter which violates any applicable law or regulation and, if released, will not defame, violate the right of privacy or publicity, or infringe the trademark or other personal or property interests of the parties signing such release; (iii) all caption information provided by you is accurate and all copyright management information you provide with Content is accurate and complies with any requirements notified to you by Female Perspective from time-to-time; (iv) you have obtained valid model and property releases where necessary in accordance with requirements notified to you by Female Perspective from time-to-time, and you will keep the original releases and provide a copy to Female Perspective; and (v) Content submitted to Female Perspective has been shot by a female or by a person identifying as feminine-of-centre (it being acknowledged and understood that Female Perspective is intended to represent the world through the eyes of women, and to champion female artists).
You agree to defend, indemnify and hold harmless Female Perspective and its affiliates, Distributors, licensees, officers, directors, employees and agents from and against any liabilities, losses, damages, costs and expenses, including reasonable legal fees arising out of or in connection with, any actual or alleged breach by you of the terms of this Agreement or any duty, representation, or warranty contained herein, or any actual or alleged act or material omission by you. You shall have the right to assume the handling, settlement or defence of any claim or litigation. In such circumstances, Female Perspective shall cooperate in any way reasonably requested by you.
13. Limitation of Liability
Under no circumstances shall Female Perspective be liable to you or any other party or entity for any punitive, indirect, consequential, special or incidental damages arising out of or in connection with this Agreement, even if it has been advised of the possibility of such. In addition, Female Perspective shall not be liable to you under any circumstances arising out of the misuse of Content by any third party. Female Perspective shall not be liable for any loss or damage to any Content, storage device or other materials submitted to Female Perspective, and you are required to provide or maintain your own backup files for any Content submitted. You shall bear sole responsibility for obtaining and maintaining adequate insurance for protection of Content or other materials submitted to Female Perspective. If, despite the above limitations, liability is imposed on Female Perspective for any of these reasons, in no event shall Female Perspective’s liability exceed £10,000 (GBP ten thousand) in the aggregate.
14.Effect of Termination
Upon termination of this Agreement, Female Perspective shall use commercially reasonable efforts to discontinue the licensing of the Content as soon as reasonably possible, provided that Female Perspective shall have a wind-down period of 90 (ninety) days in which to process licenses. Royalties shall continue to be due to you as set out above. Any Content that has been submitted on an exclusive basis may not be exploited or licensed elsewhere during such wind-down period. You acknowledge and agree that any licenses granted in the Content prior to termination of this Agreement will remain in effect, and you shall continue to honour such licenses and not use/license any Content (or similar content) in a way that conflicts with any unexpired/surviving license.
This Agreement sets out the entire agreement between the Parties in relation to its subject matter, and expressly supersedes and cancels any and all prior agreements or understandings between the Parties (whether written or oral). This Agreement may only be amended i) in writing by way of an amendment duly executed by both Parties; or ii) by way Female Perspective issuing you notice of amendment (including by email). In the event that a court or other competent legal authority finds a provision of this Agreement to be invalid, illegal or unenforceable, the invalidity, illegality or unenforceability of such provision shall not affect the validity of enforceability of the rest of the Agreement. In such circumstances, the Parties shall in good faith consult to agree to the extent of any amendment that might be possible to make the provision valid, enforceable or legal whilst reflecting as far as possible the original intention of the Parties.
For the avoidance of doubt, the Parties acknowledge that any arrangements between them in relation to work undertaken pursuant to a specific client brief/commission shall remain outside the scope of this Agreement, and governed solely by the separate agreement between the Parties specifying such terms and conditions.
No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that right or remedy. No single or partial exercise of such remedy shall prevent or restrict the further exercise of that or any other right or remedy.
You may not assign your rights or obligations under this Agreement without the prior approval of Female Perspective, which will not be unreasonably withheld. Female Perspective may assign its rights, obligations and duties under this Agreement, in whole or in part, to any entity controlling, controlled by, or under common control with Female Perspective as part of a merger, reorganisation or sale of assets by Female Perspective.
18. Nature of Relationship
You agree that you are an independent contractor. The Parties expressly acknowledge and agree that their relationship is not one of partnership, employment, joint venture, or any other legal identity, and that Female Perspective has no obligation to find or offer employment to you. You acknowledge and agree that you shall be solely responsible for the filing of all tax returns on any income received/earned by you pursuant to this Agreement, and for the payment of any and all income taxes and charges of any similar nature raised or charged in respect of all sums due to you pursuant to this Agreement.
19. Governing Law and Jurisdiction
This Agreement will be governed in all respects by the laws of England and Wales, and the parties hereby submit to the exclusive jurisdiction of the court of England to hear any claim or controversy arising from this Agreement.
20. Personal Data Transfer
You understand and agree that information relating to you or any other person such as a model that you may provide to Female Perspective may be retained for a reasonable period, and may be transferred to, stored, accessed and used in jurisdictions worldwide whose privacy laws may be different and less protective than those of your home country. Female Perspective, as data controller and processer, may use this information in connection with the performance of this Agreement, including for contacting you, and may disclose this information as necessary to service providers, to provide the services they contract for. These third parties will have no right to use your information for secondary purposes. Any personal information you do provide may also be disclosed as part of any merger, sale of the company assets or acquisition, as well as in the unlikely event of an insolvency, bankruptcy or receivership in which event personal information would be transferred as one of the business assets of the company. Female Perspective reserves the right to disclose any information you provide in order to respond to claims or protect the rights, property or safety of itself, its related companies, Distributors and their employees, customers or the public.