Contributor Agreement
This CONTRIBUTOR AGREEMENT (“Agreement”) is made as of the Effective Date by and between Knot Stock, Inc. (“Knot Stock”), a Florida corporation located at P.O. Box 551337 Jacksonville, Florida 32255, and you, ad an individual or entity that are contributing images to Knot Stock, Inc. (“Photographer”).
Witnesseth
WHEREAS, the Photographer is a photographer who has created and owns stock photography; and
WHEREAS, Knot Stock, desires to market, distribute, and sublicense such work using an online and print imaging catalog; and
WHEREAS, the Photographer desires to grant Knot Stock the rights to market, distribute, and sublicense its stock photography pursuant to the terms described in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter set forth and other valuable considerations, the parties hereto agree as follows:
SECTION 1 RECITAL AND DEFINITIONS
1.1 Recitals: The above recitals and identification of parties are true and correct.
1.2 Definitions: The following definitions shall apply:
(1) Effective Date: The term “Effective Date” shall mean the date Photographer accepts this Agreement by registering with or accessing and using the Site.
(2) License Fees: The term “License Fees” shall mean 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.
(3) Photographs: The term “Photographs” shall mean the photographs created by the Photographer that are submitted to Knot Stock in connection with this Agreement, including (without limitation), photographs in transparencies, negatives, print, or digital format, photographs of the same subject taken in the same manner (“Similar”), and duplicates of a Photograph (“Dupes”).
(4) Subcontractors: The term “Subcontractors” shall mean contractors of Knot Stock who market, license, and distribute stock photography, including (without limitation) stock picture companies, stock film libraries, on-line image services, royalty free or clip art providers, or any other similar entity.
(5) Site: The term “Site” shall mean that certain stock photo websites located on the World Wide Web and http://www.knotstock.com, or other domain name controlled by Knot Stock as may be determined by Knot Stock from time to time.
(6) Users: The term “Users” shall mean end-users of the Site who have the opportunity to sublicense the Photographs from Knot Stock.
SECTION 2 SCOPE OF LICENSE
2.1 Submission: During the term of this Agreement, Photographer shall, from time to time and on a reasonably regular basis, submit Photographers to Knot Stock for the purpose set forth in this Agreement. Knot Stock shall have the right to accept or reject such photographs as it determines in its sole discretion. In the event that Knot Stock rejects and Photographs, Knot Stock shall return such Photographs to the Photographer. Knot Stock shall have no liability with respect to loss or damage of Photograph submitted by Photographer, except to the extent such loss or damage is due to Knot Stock gross or willful negligence. In any event, Knot Stock's liability arising out of such loss or damage shall be limited to one hundred ($100.00) dollars.
2.2 License: With respect to Photographers accepted by Knot Stock pursuant to Paragraph 2.1, Photographs herby grants Knot Stock a non-exclusive, perpetual, world-wide license to the Photographs to: (1) use, display, publish, transmit, adapt, modify, recast, enhance, and create derivative works of the Photographs, alone or in combination with any other material, in any media or embodiment, now known or later developed, in connection with the Site or promotion of the Photographs; (2) market and sublicense the Photographs directly to Users; and (3) engage Subcontractors to market and sublicense the Photographs to customers of such Subcontractors. For the purpose of this Agreement, Photographer grants Knot Stock the rights to the Photographs in any form, whether negative, transparency or digital format, in whole or in part, without restriction, subject to the terms of this Agreement. For purposes of this Agreement, digital format shall include all rights in the digitized form of works that can be encoded, stored, and retrieved from such media as computer disks, CD-ROM, computer database, and network servers.
2.3 Sublicense: Knot Stock shall use commercially reasonable efforts to sublicense the Photographs to Users. Knot Stock may sublicense and deliver Photographs to Users in any form, including (without limitation) print, transparencies, negatives, or other physical media, digital format, or other electronic media accessible through computer disks, CD-ROM, computer databases, and network servers, as determined in the exclusive discretion of Knot Stock. Knot Stock shall have the sole and exclusive discretion to determine the terms, conditions, and pricing of Photographs sublicensed to Users. Knot Stock shall have the right to sublicense the Photographs as part of a royalty-free offering, whether online, as a CD-ROM, or by any other method whatsoever. For the purpose of demonstrations, sample stock, or to the home office or personal use markets, Knot Stock shall have the right to sublicense the Photographs royalty-free and at no charge to Users.
2.4 Subcontractor: Knot Stock shall have the right to engage Subcontractors to sublicense the Photographs to customers of such Subcontractor, as determined in the exclusive discretion of Knot Stock. In the event Knot Stock engages Subcontractors, Knot Stock shall require all Subcontractors to observe the restrictions on use of the Photographs pursuant to this Agreement.
2.5 Retention of Rights: Notwithstanding anything to the contrary, Photographer shall have the right to market the Photographs directly or through other contractors. This Agreement shall not apply to an assignment of the Photographs. All Photographs shall remain the property of the Photographer, including Dupes made by any party. In the event that Knot Stock has the opportunity to obtain an assignment of title to a Photograph whether to Knot Stock or a third party, Knot Stock shall offer the assignment to the Photographer, who shall have the right to accept or reject the assignment in its sole discretion. In the event the Photographer wishes to assign title to a Photograph to Knot Stock, the Photographer and Knot Stock shall negotiate a mutually acceptable assignment agreement at that time.
2.6 Photo Assignment: In the event that Knot Stock chooses to offer a photo assignment for the Photographer to create stock for Knot Stock, the Photographer shall have the right to accept or reject the photo assignment. If the Photographer accepts the photo assignment, the Photographer and Knot Stock shall negotiate a mutually acceptable agreement at that time.
2.7 Promotion: The Photographer hereby consents to the use, without change, the Photographs in brochures, advertisements, and other promotions of Knot Stock reasonably designed to enhance the marketing of the Photographs, and the Photographer further consents to the use of his or her name, portrait, or picture in connection with the promotion and advertising of the Photographs, provided such use is dignified and consistent with the Photographer's reputation.
SECTION 3 FEES
3.1 Royalty: Knot Stock shall pay Photographer a royalty fee equal to fifty (x%) percent of License Fees actually received by Knot Stock from Users arising out of the sublicense of Photographs t Users directly from Knot Stock. Knot Stock shall pay Photographer a royalty fee equal to fifty (x%) of License Fees received by a Subcontractor arising out of the sublicense of Photographs to Subcontractor's customers; provided however that Knot Stock is in receipt of such License Fees from the Subcontractor. License Fees from Users shall exclude payments from holding fees, and interest on late payments. Knot Stock shall pay Photographer the royalty fee on a quarterly basis.
3.2 Refund: In the event that a refund of a License Fee to User is required, Knot Stock shall have the right to deduct the amount of such refund from Photographer's royalty fee from any subsequent amounts due to Photographer.
3.3 Expenses: The Photographer shall be responsible for all direct costs and expenses incurred by Photographer in connection with this Agreement. Knot Stock shall be responsible for all direct costs and expenses incurred by Knot Stock in connection with this Agreement. Direct costs shall include (without limitation) postage, freight, telephone, travel, per diem, material, scanning, and reproduction costs.
SECTION 4 Intellectual Property and warranties
4.1 Ownership and Title: Title to the Photographs, including (without limitation) and Similars and Dupes, including any and all ownership rights to patents, copyrights, tradmarks and trade secrets in connection therewith shall be the exclusive property of Photographer.
4.2 Copyright Notice: The Photographer shall place copyright notice on all Photographs. Knot Stock shall ensure that all such copyright notices in the Photographer's name are included on the Photographs as displayed on the Site. Such copyright notice in the Photographer's name may be removed from the Photographs upon Knot Stock sublicensing the Photographs to Users, provided that such User agrees to a stock photo license agreement with Knot Stock containing restrictions on use of the Photographs, in a form determined by Knot Stock in its commercially reasonable discretion. Without limiting the forgoing, Knot Stock shall have the right maintain copyright notice in the name of Knot Stock on the Site.
4.3 Model and Property Releases: When submitting the Photographs, the Photographer shall indicate which Photographs have a model or property releases, and, if requested by Knot Stock, shall provide copies of the releases to Knot Stock. If the Photographer does not indicate the existence of a model or property release or if Photographer allows use beyond the scope of a model or property release, Photographer assumes full responsibility for use of the Photograph that may violate the rights of any third party.
4.4 Warranty: The Photographer hereby represents and warrants that Photographer is the sole creator of the Photographs and owns all rights, title, and interest in and to the Photographs. The Photographer represents and warrants that use of the Photographs by Knot Stock shall not infringe upon or violate any patent, copyright, trade secret or rights, literary property, or the rights of privacy, libel, or other right of any third party. The Photographer represents and warrants that Photographer is authorized to license the Photograph to Knot Stock as provided under this Agreement.
4.5 Indemnification: The Photographer shall defend, indemnify and hold Knot Stock and its offers, directors, employees, and agents harmless from and against any and all claims, damages, liability, costs and expenses, including reasonable attorney fees, arising from any claim or action by a third party that: (i) the Photographs infringe any proprietary right of such third party; (ii) Photographer is in violation of Section 4.3 of this Agreement; or (iii) Photographer is in violation of Section 4.4 of this Agreement. The Photographer shall defend and settle at its sole expense all suits or proceedings arising in connection with any such claim. Knot Stock hereby agrees to notify Photographer following receipt of any such claim and provide Photographer with necessary assistance and information reasonably requested by Photographer, for which Photographer shall reimburse Knot Stock for all assistance and information. The Photographer shall have no obligation to indemnify Knot Stock with respect to materials inserted in the Photograph by a party other than the Photographer.
4.6 Limitation of Damages: Neither party shall be liable to the other party under this Agreement or in connection with the Photographs for any lost profits, consequential, exemplary, incidental or punitive damages, regardless of the form of action, whether in contract or in tort, including negligence, and regardless of whether such party has been advised of the possibility of such damages in advance or whether such damages are reasonably foreseeable. Except liability arising out of Section 4.5 notwithstanding anything to the contrary, the liability of either party for any reason and for any cause of action whatsoever in connection with this Agreement shall be limited to the amount of money received by the Photographer from Knot Stock under this Agreement.
SECTION 5 TERM OF AGREEMENT
5.1 Term: This Agreement shall be valid for a period of time commencing on the Effective Date and continuing until this Agreement is terminated or cancelled as provided herein. This Agreement shall only be terminated or canceled as provided under section 4.
5.2 Termination: Either party may terminate this Agreement for convenience upon providing fifteen (15) days advance termination notice to the other party.
5.3 Cancellation: If a party violates its obligations under this Agreement, the other party may cancel this Agreement by sending a written cancellation notice describing the noncompliance to the non-complying party. Upon receiving the cancellation notice describing the noncompliance, the non-complying party shall have thirty (30) days from the date of such notice to cure any such noncompliance or begin curing such noncompliance in good faith. If such noncompliance is not cured within the required thirty (3) day period, or if the noncompliance cannot be cured within such thirty (3) day period and such party does not make a good faith effort to begin curing such noncompliance with the thirty (30) day period, the party providing cancellation notice shall hace the right to cancel this Agreement as of the thirty-first (31st) day after the date of the cancellation notice.
5.4 Return of Materials: Within a reasonable time following termination or cancellation of this Agreement, Knot Stock shall return the original Photographs to Photographer and shall destroy any and all copies of the Photographs in the possession or control of Knot Stock and Knot Stock shall pay Photographer all amounts accrued for sublicense of the Photographs to Users prior to termination or cancellation. Notwithstanding the foregoing, upon termination or cancellation of this Agreement, Knot Stock shall be entitled to use any Photograph featured in Knot Stock's brochures, advertisements, and other promotions of Knot Stock for a period of one year from the date of termination or cancellation.
5.5 Effect: Termination or cancellation of this Agreement shall not affect any sublicenses granted to Users with respect to Photographers sublicensed prior to termination or cancellation of this Agreement, and such sublicenses shall continue in full force and effect in accordance with its terms.
SECTION 6 GENERAL
6.1 Entire Agreement: This Agreement contains the entire understanding of the parties relating to the Photographers and supersedes all precious verbal and written agreements relating to the Photographs.
6.2 Amendments: An amendment or modification of this Agreement shall be void unless such amendment or modification is in writing signed by the parties hereto.
6.3 Severability: If a provision of this Agreement is rendered invalid, the remaining provisions shall remain in full force and effect.
6.4 Captions: The headings and captions of this Agreement are inserted for convenience of reference and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph, or provision.
6.5 Relationship: Nothing herein shall be construed as creating a partnership, and employment relationship, or an agency relationship between the parties. The relationship of the parties hereunder is that of independent contractors. Each party shall maintain its separate identity.
6.6 Notice: Notice to Knot Stock shall be in writing and shall be deemed delivered in person when delivered by hand, by commercial delivery service or mailed postage prepaid by Certified or Registered Mail -- Return Receipt Requested -- to the person and address designated below for Knot Stock. Notice to Photographer shall be in writing and deemed delivered when delivered by electronic mail delivery to the electronic mail address provided by Photographer during Photographer's registration on the Site. Notice shall be deemed given on the date of receipt -- as evidenced in the case of electronic mail delivery by the date on the notice, in the case of commercial delivery by delivery confirmation, or in the case of Certified or Registered Mail by Return Receipt.
Address
Knot Stock
P.O. Box 517
McNeill, MS 39475
6.7 Governing Law: This Agreement shall be governed by the laws of the State of Florida without regard to any rules of conflict and choice of laws that required the application of laws of other jurisdiction; and venue is in Duval County, Florida.
6.8 Arbitration: Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association in the City of Jacksonville, Florida. Three qualified arbitrators shall be appointed in accordance with the Commercial Arbitration Rules of the American Arbitration Association and this Agreement. Such qualified arbitrators shall be members of the Florida Bar and shall have at least five (5) years of experience in intellectual property law matters. The arbitration award shall be in writing and shall include findings of fact and conclusions of law. Each party shall pay an equal share be in writing and shall include findings of fact and conclusions of law. Each party shall pay an equal share of the fees and expenses of the arbitrators and administrative fees and expenses of the arbitration.
6.9 Litigation Expenses: In the event of litigation or arbitration arising out of this Agreement, each party shall pay its own costs and expenses of litigation or arbitration (excluding fees and expenses of Arbitrators and administrative fees and expenses of arbitration, which shall be shared by the parties).
6.10 Waiver: Waiver of a breach of this Agreement shall not constitute a waiver of any other breach. Failure to enforce any provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision.
6.11 Assignments: Any and all assignments of rights hereunder shall be void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, successors and permitted assigns.
6.12 Continuation: The terms and provisions of Sections 1, 4.1, 4.3, 4.4, 4.5, 4.6, 5.4, 5.5, and 6 shall survive termination and cancellation of this Agreement.
PLEASE READ THE CONTRIBUTOR AGREEMENT. USE OF KNOT STOCK'S WEBSITE IS SUBJECT TO REGISTRATION AND ACCEPTANCE OF THE CONTRIBUTOR AGREEMENT. THE CONTRIBUTOR AGREEMENT IS A LEGAL DOCUMENT BETWEEN YOU ("THE PHOTOGRAPHER") AND KNOT STOCK, INC. STATING THE TERMS AND CONDITIONS UNDER WHICH YOU MAY ACCESS, USE AND CONTRIBUTE WORK TO THE SITE. BY PLACING A CHECK ON THE CHECK BOX TO ACCEPT CONTRIBUTOR AGREEMENT, YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THE CONTRIBUTOR AGREEMENT AND YOU AGREE TO BE BOUND BY THE TERMS SET FORTH IN THE CONTRIBUTOR AGREEMENT. IF YOU DO NOT AGREE WITH THE CONTRIBUTOR AGREEMENT, YOU WILL NOT BE ALLOWED TO USE OR ACCESS THE SITE.