Recitals
A. SMP IMAGES wishes to obtain certain rights to reproduce photographic images owned by the Photographer through digital electronic technology on disks or similar technology ("Products").
B. The Photographer wishes to license such rights to SMP IMAGES for the consideration and under the terms and conditions described below.
Agreement
SMP IMAGES and Photographer agree to the following:
1. Solicitation and Offer of Images. From time to time during the term of this Agreement, SMP IMAGES will solicit from Photographer, or Photographer's authorized agent, photographic images of a type or types which SMP IMAGES deems appropriate for inclusion in proposed Products. Images that are selected by SMP IMAGES during the term of this Agreement for inclusion in one or more Products shall be referred to here as "Selected Images."
2. License Grant. Photographer hereby grants to SMP IMAGES, for the duration of this contract, a worldwide, perpetual, and irrevocable license to:
a) put Selected Images into digital electronic form;
b) reproduce and manufacture, or have reproduced and manufactured, Products containing Selected Images;
c) market, distribute, and sublicense to end users Products containing Selected Images;
d) modify and retouch Selected Images;
e) combine Selected Images with other images or software as SMP IMAGES determines to create Products;
f) reproduce Selected Images in any other manner or product to promote Products;
g) grant to end users of Products rights to reproduce Selected Images in any manner or Product.
Such license shall be exclusive with respect to Products. Photographer agrees not to use or license any images which are substantially similar to Selected Images for the uses set forth above. Photographer agrees not to license images which are substantially similar to any other stock photography or like agency.
Photographer agrees to designate images as Royalty Free (RF) (multiple use) or Rights Controlled (RC) (single use). If Photographer does not designate Royalty Free or Rights Controlled use, then SMP IMAGES managers shall make such determination. Images that are sold as Royalty Free can not be sold as Rights Controlled in the future.
3. License Fees. In full consideration for the license rights granted by Photographer in this Agreement, SMP IMAGES shall pay to Photographer a license fee equal to a percentage of the royalties received by SMP IMAGES from any sub-licensee for each Product which contains Photographer's Selected Images. The amount of the license fee shall be calculated as follows:
With respect to all royalty payments received by SMP IMAGES for a Product, Photographer shall receive an amount equal to fifty percent (50%) of such royalty payments times a fraction, the numerator of which shall be the number of Photographer's Selected Images reproduced in such Product and the denominator of which shall be the total number of licensed images of all photographers reproduced in such Product.
All payments to Photographer shall be made on a quarterly basis on or before the fifteenth (15th) day of the month following the day that SMP IMAGES receives royalty payments from any sub-licensee, at which time Photographer shall also receive an accounting setting forth the royalties received by SMP IMAGES for any Product in which Photographer's Selected Images appear. Photographer may audit the records of SMP IMAGES with respect to revenues relating to any Product in which Photographer's Selected Images appear at any time during normal business hours after reasonable notice. Any Photographer requested audit will be at Photographer’s expense with a mutually agreed agent.
4. Use of Images. Photographer acknowledges and agrees that end users who acquire Products will have substantial freedom to use and reproduce Selected Images, with or without Photographer's name, and Photographer releases SMP IMAGES from any liability in connection with such use or reproduction.
5. Representations and Warranties of Photographer. Photographer represents and warrants to SMP IMAGES and to its sub-licensees that Photographer is the sole and exclusive owner of the selected images and of the right to license the selected images;
Photographer has sufficient rights to enter into this Agreement and to perform Photographer's obligations hereunder; no rights have been granted by Photographer to any third party inconsistent with those rights granted to SMP IMAGES hereunder;
The Selected Images are the original work of Photographer and do not infringe the copyrights, trademarks, rights of privacy or other legal rights of, or defame, any third party; and Photographer has obtained and will provide all necessary written model and other releases for the Selected Images.
6. Indemnification. Photographer agrees to indemnify, and hold SMP IMAGES and its sub-licensees, as well as their successors, officers, directors, and employees, harmless from any and all actions, causes, of action claims, demands, costs, liabilities, expenses and damages arising out of or in connection with any claim that the Selected Images furnished by the Photographer under the Agreement constitute an infringement of any copyright or any legal right of any third party.
7. Copyright. The Selected Images are licensed, not sold, to SMP IMAGES and the Selected Images are owned by Photographer and are subject to protection by Australian copyright and other laws and international treaty provisions. SMP IMAGES shall not acquire any rights, titles, or interest in or to said Selected Images other than set forth in this assignment. Photographer agrees to place a valid copyright notice on all materials submitted to SMP IMAGES.
8. Selected Images. All images submitted to SMP IMAGES by the Artist (Photographer) will be removed from SMP IMAGES at the conclusion of this agreement. We request that all Artists (Photographers) keep a copy of all images (original files) submitted in the case that SMP IMAGES needs to recall selected images for reprocessing.
9. Advertising and Promotion. Photographer understands that advertising and promotion are essential to the success of SMP IMAGES, and that due to the high cost of catalogues, advertising, and promotion, SMP IMAGES cannot carry the financial burden by itself. From time to time, and only after SMP IMAGES obtains agreement from Photographer, Photographer agrees to contribute to SMP IMAGES advertising, promotion, and catalogue projects. SMP IMAGES shall have the right to market Selected Images for promotion in advertising materials and on the Internet for a period of ten (10) years. Photographer agrees to allow SMP IMAGES to use any image for advertising and promotion of SMP IMAGES without compensation or commissions otherwise granted to Photographer.
10. Sublicense. SMP IMAGES may sublicense the rights granted to SMP IMAGES under this Agreement to any sublicensee without the prior consent of Photographer. This Agreement may be assigned by SMP IMAGES and may be assigned by Photographer only in the event Photographer obtains SMP IMAGES prior written approval. Where appropriate, SMP IMAGES shall have the sole right to determine lease fees. In the event of cancellation of use or return of lost images by an SMP IMAGES client after payment has been made to Photographer, Photographer authorizes SMP IMAGES to deduct from Photographer’s future sales the amount paid to Photographer for the cancelled usage or loss.
11. Binding Agreement. This Agreement shall be binding upon Photographer, SMP IMAGES and their respective heirs, executors, administrators, successors, and assigns. In the event of Photographer's death, his or her estate or heirs or successors shall be bound by the terms and conditions of this Agreement. Photographer's estate shall be entitled to receive payment payable to Photographer under this Agreement upon providing SMP IMAGES with proper written authority to receive such payments.
12. Loss or Damage. In the event of loss, damage, destruction, or unauthorized use of Selected Images by SMP IMAGES clients, Photographer hereby grants SMP IMAGES full and complete authority to make all claims or institute a lawsuit in Photographer's name. All settlements shall be at SMP IMAGES’ discretion. Photographer and SMP IMAGES shall split 50/50 any settlement received. SMP IMAGES cannot accept any liability for loss or damage to Selected Images while in SMP IMAGES’ possession or not.
13. Amendments. This Agreement incorporates the entire understanding of the parties and may not be amended, modified, or changed in any respect unless the change is reduced to writing and signed by both parties.
14. Term. This Agreement shall commence as of the date shown below and shall continue for a period of five (5) years. This Agreement shall be automatically renewed for an additional three year period thereafter unless terminated in writing with a minimum of sixty (60) days prior to the expiration date of any five (5) year period.
Termination of the Agreement shall have no affect whatsoever upon the license granted hereunder or the obligation of SMP IMAGES to continue paying license fees with respect to Selected Images.
15. Participation. Photographer agrees that his or her participation is essential to the success in editorial photography. Therefore photographer agrees to submit new images for edit on a regular basis. If in the opinion of SMP IMAGES’ key personnel, Photographer is not participating sufficiently to make the relationship between Photographer and SMP IMAGES profitable, then SMP IMAGES shall have the option of terminating this contract by giving Photographer ninety (90) days written notice. SMP IMAGES will remove Photographer’s Selected Images in accordance with the terms of this Agreement.
16. Confidentiality. Photographer agrees to keep confidential all information relating to the production, marketing and sales or products which is disclosed by SMP IMAGES to Photographer in connection with this Agreement.
17. Limited Agency. The parties hereto acknowledge that this Agreement is one of representation only and does not constitute an employment agreement that SMP IMAGES is acting in the limited capacity of an independently retained agent on Photographer’s behalf.
18. Notice. All notices shall be in writing and addressed to the parties at the address set forth on the signature page of the Agreement or at such other address as the parties may hereafter specify in writing.
19. This contract supersedes all previous contracts that may have been signed between SMP IMAGES and Photographer.
20. SUBMISSION OF IMAGES. As a contributing photographer with SMP IMAGES, you agree that you have read and understood the following requirements:
a) You must provide valid details as required in the ‘photographers particulars’ form. Failure to do so will result in the termination of the agreement between SMP IMAGES and Photographer.
b) All images that contain a recognisable person or people must have a signed model release. You do not need to submit the model release with your image but you must make it available to SMP IMAGES if requested.
c) You must make available to SMP IMAGES on request, a property release for images that require one.
d) You agree not to upload images that contain trademarks, copyrighted materials or objects and that your images do not infringe copyright and/or the intellectual property rights of others in any way.
e) Uploaded Images must be a minimum of (2700 x 2700) pixels @ 300 dpi. Approx 1.5 Mb file size.
f) Completing the ‘photographers particulars’ form as a photographer indicates that you have read and understood and agree to these requirements.
21. SMP IMAGES reserves the right to reject files based on the following reasons: Snapshots; Poor lighting and poor contrast; Harsh light and shadows; Poor focus; Digital Noise and Grain; Poor lacklustre colour and colour distortion; Compression Artefacts; Poor isolation and cropping; Up sampling; Poor Composition; Inappropriate Title or Description; Unacceptable Keywords; Copyright / Trademark Infringement or Risk; Adult Content unsuitable for SMP IMAGES; Profane or Violent Images
22. As a contributing photographer with SMP IMAGES, you agree that you have read and understood all the above terms and conditions.