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Terms & Conditions

AGENCY AGREEMENT

This Agency Agreement, dated, [insert date], is by and between Picha LLC (“Picha”), located in Maryland, United States of America, and ________________________ (“Photographer”), located at _______________________________ (“this Agreement” or “the Agreement”).

WHEREAS, Photographer desires that Picha serve as Photographer’s worldwide agent to sell, license, lease, and/or distribute certain images  created by Photographer (“Photographer’s Images”);

WHEREAS, Picha desires to serve as Photographer’s worldwide agent to sell, license, lease, or distribute certain of Photographer’s Images;
 
            NOW THEREFORE, in consideration of the mutual promises and upon the terms and conditions set forth below, the parties hereto hereby agree as follows: 
 
1.              GRANT OF AUTHORITY   
 
1.1.       Photographer hereby appoints Picha as its agent and representative, subject to the terms and conditions of this Agreement, to sell, license, lease, and otherwise distribute throughout the world any and all of Photographer’s Images, in any form, that Photographer delivers to Picha and which Picha selects for distribution, now and in the future (the “Selected Image(s)”).  Picha shall be allowed to represent itself to the world as the agent and representative of Photographer with respect to any Selected Images for the term of this Agreement and shall be allowed to use Photographer’s name, identity, and likeness in connection with the sale, license, leasing, and other distribution of any Selected Image, including for promotional and marketing purposes, in connection with this Agreement.

1.2.       Photographer shall refrain from soliciting or selling Photographer’s Images to clients to whom Picha has introduced Photographer and to whom Picha has sold Photographer’s Images.  
 
1.3.       Picha shall use its best efforts to secure sales, licenses, or leases to the Selected Images.  Photographer agrees that all negotiations, terms, and compensation concerning the sale, licensing, leasing, or other distribution or use of the Selected Images shall be solely in the discretion of Picha and will not require prior consultation with Photographer.  Photographer agrees to grant to any third party to which Picha sells, licenses, leases, or distributes any Selected Image the full scope of any rights sold, licensed, or leased to such third party by Picha. Notwithstanding the foregoing, no sale or transfer of Selected Images will take place that relinquishes Photographer’s copyright in any Selected Image unless written authorization is provided to Picha by Photographer.  Nothing in this Agreement shall be construed as requiring Picha to procure a minimum number of sales, licenses, or leases of any Selected Images.

2.              TERM

This Agreement shall be effective as of the date set forth in the introductory paragraph of this Agreement and shall continue for a period of one (1) year.  Thereafter, the Agreement shall renew itself automatically for consecutive one-year periods at each expiration date, unless either party terminates the Agreement by providing notice in writing to the other party sixty (60) days before the expiration of any one-year period.
 
3.              SUBMISSION, ACCEPTANCE, CUSTODY, AND RETURN OF IMAGES

3.1.         Photographer shall, during the term of this Agreement, submit Photographer’s Images to Picha for acceptance by Picha.  Picha, in its sole discretion, shall have the right to accept or not to accept, any of Photographer’s Images submitted by Photographer.  Picha shall not charge Photographer, nor shall Photographer charge Picha, for Picha accepting any Selected Image into its database of images.

3.2.            Any of Photographer’s Images submitted by Photographer shall be in high-resolution digital format, and/or in any format and acceptable media as specified by Picha, the guidelines of which are subject to change, but which Picha shall provide in advance to Photographer. Photographer shall provide to Picha all metadata containing copyright and caption information and preferred credit information.  Consistent with section 6.3, Photographer shall also provide to Picha all necessary releases from persons depicted in, or whose property is depicted in, any images submitted to Picha promptly after submission of any images.

3.3.            Picha shall retain the right, at its discretion, to de-designate any Selected Image as a Selected Image and to remove any such image from its database and/or website at any time and for any reason.  In such circumstances, Picha shall use reasonable efforts to return any originals of any such image to Photographer within two (2) months of such removal.  Notwithstanding the foregoing, Picha shall be allowed to retain one (1) copy of any such image for recordkeeping and/or promotional purposes, as set forth in section 4.  A de-designation of any Selected Image by Picha under this section shall not affect or otherwise invalidate any sale, license, lease, or distribution of such image that occurred prior to the de-designation of such image.  Moreover, Picha shall retain the right to renew or extend the terms of any license or lease for such image granted by Picha to any customer prior to the de-designation of such image under this section.

3.4.         Photographer may recall any Selected Image at any time by providing a written request to Picha.  In such circumstances, Picha shall use reasonable efforts to remove from its database and/or website any such image that Photographer has recalled and to return any originals of any such image to Photographer within two (2) months from Picha’s receipt of Photographer’s written request.  Notwithstanding the foregoing, Picha shall be allowed to retain one (1) copy of any such image for recordkeeping and promotional purposes, as set forth in section 4.  A recall of any Selected Image by Photographer under this section shall not affect or otherwise invalidate any sale, license, lease, or distribution of such image that occurred prior to the recall of such image.  Moreover, Picha shall retain the right to renew or extend the terms of any license or lease for such image granted by Picha to any customer prior to the recall of such image under this section.

3.4.1.     If Picha sells, licenses, leases, or otherwise distributes any Selected Image after Photographer recalls such image, but before Picha removes such image from its database and/or website pursuant to section 3.4, such sale, license, lease, or distribution shall be valid.

4.              PERMISSIBLE USES OF IMAGES

4.1.         Photographer grants to Picha the right to reproduce, display, distribute, store, or otherwise use any Selected Image, whether in printed, digital, or any other format, for purposes of, and in connection with, selling, licensing, leasing, or otherwise distributing the Selected Image during the term of this Agreement.
4.2.         Photographer also grants to Picha the right to reproduce, display, distribute, store, or otherwise use any Selected Image for purposes of promoting or marketing Picha’s services in any medium and by any means during the term of this Agreement.

4.2.1.     If Picha de-designates any Selected Image as a Selected Image, pursuant to section 3.3, or Photographer recalls any Selected Image, pursuant to section 3.4, Picha shall be allowed to continue using such image for any marketing or promotional purposes for a period of one (1) year from the date that Picha de-designates such image or Photographer recalls such image.

4.3.         Photographer also grants to Picha the right to alter or distort, or to arrange for the alteration or distortion of, any Selected Image in connection with the sale, license, lease or distribution of such Selected Image, provided the original image shall not be damaged in connection therewith.  This right shall also extend to any third party purchaser, licensee, or lessee of any Selected Image, pursuant to any terms, conditions, or agreement negotiated or reached between Picha and such third party.

4.3.1.     Picha shall also be permitted to alter or distort any Selected Image for the purpose of protecting against and/or monitoring any unauthorized reproduction, display, distribution, or use of any Selected Image, including but not limited to affixing watermarks, copyright notices, and/or other marks, symbols, or metadata, whether visible or invisible on the face of the image; altering or distorting the resolution or quality of the image when used for display or marketing purposes; and employing digital software or programs used to monitor the use or distribution of images.  Notwithstanding the foregoing, this section shall not be interpreted as requiring Picha to use any means or method to protect against infringement or unauthorized use of any of Photographer’s Images by third parties.

4.4.         Picha shall be entitled to retain one (1) copy of any of Photographer’s Images submitted to Picha by Photographer for recordkeeping purposes, notwithstanding the expiration or termination of this Agreement, or the de-designation of any Selected Image as a Selected Image by Picha or the recall of any Selected Image by Photographer, as set forth in sections 3.3 or 3.4.  Photographer acknowledges that multiple digital copies of Photographer’s Images submitted by Photographer may be made or transferred during the term of this Agreement and during the course of the parties’ relationship, given the nature of digital submissions, correspondence, and storage.  Accordingly, in no case shall Picha be liable for the inadvertent or incidental retention or storage of multiple copies of Photographer’s Images in digital format, including but not limited to cache, email, online, disc, server, cloud or other electronic or digital copies. 
 
5.              COMPENSATION

5.1.         Photographer agrees to accept, in full payment and consideration for any sale, license, or lease of any Selected Images entered into by Picha under this Agreement, forty percent (40%) of the fees billed and collected by Picha.

5.2.         Picha shall use reasonable efforts to collect all amounts billed by Picha pursuant to this Agreement, but Photographer shall not be entitled to receive any share of payment billed until such amount is actually received by Picha.

5.3.         Payments of all amounts owing to Photographer pursuant to this Agreement will be made by Picha as soon as is practicable after Picha completes any sale, license, or lease of any Selected Image, but no later than one hundred twenty (120) days after any such sale, license, or lease.  For avoidance of doubt, Picha shall not issue any payment to Photographer if no payments are due to Photographer.  In the event of a cancellation of any sale, license, or lease of any Selected Image by any of Picha’s customers after payment has been made to Photographer, Photographer authorizes Picha to deduct any amount paid to Photographer from sums due to Photographer from the sale, license, or lease of other Selected Images.  Picha shall also be authorized to request such repayment directly from Photographer, and Photographer agrees to reimburse Picha for any such cancelled transaction.

5.4.          Photographer shall retain the right to examine Picha’s books and records with respect to proceeds received by Picha in connection with the sale, license, or lease of any Selected Images once a year at Photographer’s own expense.  Such examination shall be done upon reasonable notice to Picha and will be conducted during Picha’s normal business hours.

5.5.          Except as provided in sections 5 and 7 of this Agreement, Picha shall not be responsible for or liable to Photographer for any other compensation or any expenses incurred by Photographer in creating, maintaining, or protecting any of Photographer’s Images submitted by Photographer to Picha in connection with this Agreement, nor for any state, national, international or other taxes or duties imposed on Photographer as a cost of doing business under this Agreement.

5.6.         Any agreements between Picha and Photographer to share costs for promotions or marketing of Selected Images, including, but not limited to, print catalogs, direct mail or email promotions, web banners, advertisements, and electronic catalogs and promotions will be arranged on a per project basis.

6.              REPRESENTATIONS AND WARRANTIES

6.1.         Photographer represents, warrants, and covenants that Photographer has the right to enter this Agreement and to perform all obligations under this Agreement.

6.2.         Photographer represents, warrants, and covenants that Photographer is and will be the sole creator and owner of, and holder of all intellectual property rights to, all images submitted to Picha; that such images are and will be original and that no restrictions of any kind currently are or will be placed on Picha’s rights to offer such images for reproduction, display, or use by third parties; and that such images do not and will not infringe on any statutory copyright or trademark right, common law right, proprietary right, privacy or publicity right, or any other right whatsoever of any third party, now or in the future.

6.3.         Photographer represents, warrants, and covenants that Photographer has secured from all persons depicted, or from owners of any property depicted, in each of Photographer’s Images submitted by Photographer to Picha all necessary written releases from any and all liability related to such person’s or property’s depiction in Photographer’s Image, and that any such releases or copies thereof will be delivered to Picha promptly after submission of such Photographer’s Image to Picha.

6.4.         Photographer shall indemnify, defend, and hold Picha harmless from and against any loss, expense, liability, damage or claim, including attorneys’ fees, related to  the representations, warranties, and covenants made pursuant to sections 6.1 to 6.3, including any breach thereof.

6.5.         It is understood and agreed that this Agreement does not constitute an employment contract between Picha and Photographer, and that Photographer’s status is that of an independent contractor.

7.              LOSS OR DAMAGE

7.1.         Photographer understands, acknowledges, and hereby agrees that due to the nature of the photography agency business and the large quantity of images handled, counted, filed and trafficked on a regular basis, Picha cannot and does not accept any liability whatsoever to Photographer or to Photographer’s heirs and assigns, for any loss or damage to, or unauthorized use of, any image or other materials submitted by Photographer to Picha unless such loss, damage, or unauthorized use is caused by Picha’s gross or willful negligence. Photographer acknowledges and agrees that this absolute limitation on Picha’s liability is a material condition for Picha accepting Photographer’s Images, and if Photographer did not agree to this clause, Picha would not accept submission of any of Photographer’s Images.

7.2.         Photographer understands and acknowledges that if it desires to have its images protected and/or to obtain recovery for any loss of or damage to any of Photographer’s Images, Photographer will have to obtain its own insurance, and that Picha is under no obligation to obtain any insurance in connection with this Agreement. 
  
7.3.         In the event of any damage, destruction, loss or unauthorized use of any Photographer’s Image by any person to whom Picha sells, licenses, leases, or distributes Photographer’s Images, Photographer hereby grants to Picha full and complete authority to make claims, institute suits and otherwise seek recovery from any such person in the first instance and in Picha’s sole discretion.  All settlements thereof shall likewise be in Picha’s sole discretion. All amounts recovered by Picha in connection with any such claims, suits, or recovery shall be allocated between Photographer and Picha as follows: (a) Picha shall first be reimbursed for all costs and expenses Picha incurs in the pursuit of any claims, suits, or recovery, including, but not limited to, legal, consulting, and collection fees incurred or paid by Picha; (b) all remaining amounts shall be apportioned forty percent (40%) to Photographer and sixty percent (60%) to Picha.  Nothing in this section shall be construed as imposing any duty or obligation on Picha to make claims, institute suits, seek recovery, or investigate the possibility of any such claim, suit, or recovery arising from any damage, destruction, loss, or unauthorized use of any of Photographer’s Images by any of Picha’s customers.  If Picha elects not to make a claim, institute a suit, or otherwise seek recovery under this section and  Photographer desires to pursue a claim, Photographer may do so after obtaining written consent from Picha.

8.              TERMINATION

8.1.         Subject to section 8.3, this Agreement shall not be terminated within the first one (1) year term.

8.2.         Should either party decide to voluntarily terminate this Agreement at the expiration of the first one (1) year term or any renewal thereof, that party must so notify the other in writing not less than sixty (60) days prior to the termination of that term.

8.3.         Notwithstanding the foregoing, this Agreement may also be terminated: (i) at any time upon the mutual written agreement of Picha and Photographer; (ii) in the event of a material breach of this Agreement, upon written notice by the non-breaching party, if such material breach of this Agreement remains uncured thirty (30) days after the non-breaching party provided written notice of that breach; (iii) upon written notice given by Picha in the event that Picha’s ability to sell, license, lease, or otherwise distribute Photographer’s Images becomes subject to challenge by a third party; (iv) in the event Picha becomes insolvent, or seeks protection or is involuntarily forced into bankruptcy proceedings under the U.S. Bankruptcy Code or any similar legal regime in a jurisdiction outside of the United States.  
  
8.4.         The termination of this Agreement shall not affect the validity of the sale, license, or lease of any of Photographer’s Images by Picha, or the rights conferred to any third party in connection with such sale, license, or lease, pursuant to this Agreement prior to the effective date of such termination.

8.5.         If Picha terminates its business, or its business is terminated by operation of law, including but not limited to by merger or by bankruptcy, all images and rights thereto under this Agreement shall revert to Photographer.

9.              LIMITATIONS ON ASSIGNMENT

9.1.         This Agreement may not be assigned by either party either voluntarily or by operation of law without prior written consent of the other party, except that Picha may assign this  Agreement in connection with the sale or transfer of all or substantially all of Picha’s business, provided that the purchaser or transferee agrees in writing to assume all of Picha’s obligations and liabilities to Photographer.

10.           MISCELLANEOUS PROVISIONS

10.1.      Confidentiality.  The parties shall keep this Agreement and its terms confidential, and neither party will hereafter disclose such terms in any manner whatsoever, except that the parties may disclose the terms of this Agreement: (a) as necessary and appropriate to the parties’ tax preparers; (b) in confidence, to their respective insurers, attorneys, accountants, auditors, and financial advisors; (c) insofar as such disclosure may be necessary to enforce its terms; or (d) as required under law.  Notwithstanding this provision, the parties may disclose that Picha is acting as Photographer’s agent during the term of this Agreement.

10.2.      Notice. When notice is required to be given under this Agreement, it shall be considered given if (1) e-mailed, (2) mailed, First Class, U.S. Mail, Postage Prepaid, or (3) delivered via FedEx, UPS, or other similar courier service, as follows: 
                  If to Picha, to: legal@pichastock.com 
                  If to Photographer, to: [INSERT PHOTOGRAPHER NAME/ADDRESS]

10.3.      Governing Law.  This Agreement shall be governed by and construed under the laws of the State of Maryland, United States of America, without regard to any conflict of law principles.  In the event of a dispute arising under or relating to this Agreement, the exclusive forum for any such dispute shall be the State or Federal courts in the State of Maryland, and the parties hereby consent to the jurisdiction and any final, non-appealable judgment of such State or Federal courts.  Photographer agrees to waive the limitations, provisions, or protections of any and all laws of Photographer’s place of residence, as well as any international treaties, existing now or in the future, as they may concern this Agreement.

10.4.      Severability.  Should any provision or clause of this Agreement be determined to be non-enforceable by a State or Federal court in Maryland, that provision or clause shall be severed from this Agreement, and all remaining provisions and clauses in this Agreement shall be enforceable.

10.5.      Execution.  This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument.  Faxed, scanned, emailed, and/or digital signatures shall constitute original signatures binding on the signing party.

10.6.      Parties Bound. This Agreement shall be binding on Photographer, on Picha, and on each party’s respective heirs, executors, administrators, successors, and assigns.

10.7.      Interpretation of Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.

10.8.      Entire Agreement.  This Agreement constitutes the entire Agreement between the parties, and it may not be amended or modified unless in writing and upon mutual consent of the parties.
  
 
 
IN WITNESS WHEREOF, and intending to be legally bound by the foregoing terms and conditions, the parties hereby execute this Agreement through their signatures, or the signatures of their authorized representatives, below.
 
PICHA LLC
 
 
By:__________________________
 
Name:
Title:
Date:
 
PHOTOGRAPHER
 
 
By:__________________________
 
Name:
Title:
Date:

Terms & Conditions

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