Stock Agency Agreement
AGREEMENT, entered into as of this ____________________ day of ______________________, 20_____, between __________________________________________, located at ____________________________________ (hereinafter referred to as the "Agency"), and _____________________________________________________, located at __________________________________________________________ (hereinafter referred to as the "Photographer").
WHEREAS, the Photographer is a professional photographer who has created and owns stock photography; and
WHEREAS, the Agency is familiar with the stock photography of the Photographer and wishes to represent such work; and
WHEREAS, the parties wish to have said representation performed subject to the mutual obligations, covenants, and conditions herein.
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:
1. Submission and Acceptance of Photographs. The Photographer shall, from time to time during the term of this Agreement, submit his or her photography (hereinafter referred to as the "Photographs") to the Agency which shall have the right to accept such photographs as it chooses and shall return any photographs not accepted to the Photographer within _____ days of receipt by the Agency. Photographs are defined to include "Similars," which are shots of the same subject taken in the same manner, and "Dupes," which are duplicates of a photograph. All Photographs shall remain the property of the Photographer, including Dupes made by any party.
2. Scope of Agency. With respect to Photographs accepted by the Agency pursuant to Paragraph 1, the Agency shall have the right to license certain limited rights as follows:
(A) The Agency shall market directly in the following countries ____________________________________ ___________________________________________________________________________________________ (B) The Agency may market through the Subagents listed for the following countries____________ ______________________________________________________________________________________________________________________________________________________________________________________ Additional Subagents may be added from time to time by the written agreement of the parties. The Agency shall not treat as Subagents other offices of the Agency, whether located in the United States or abroad.
(C) The Agency shall license nonexclusive rights only in the Photographs and shall do so at its own discretion. If the Agency wishes to license exclusive rights, it shall request the Photographer’s permission which shall be obtained in writing.
(D) The Agency shall obtain the Photographer’s written approval for any license of a Photograph for $_________ or less.
(E) The Photographer may market the Photographs directly but shall not, during the term of this Agreement, market through any other agent or representative in the territories listed in (A) and (B).
(F) This Agreement shall not apply to assignment photography. In the event that the Agency has the opportunity to obtain any assignment for the Photographer, it shall offer that assignment to the Photographer who shall be free to accept or reject the assignment. In the event the Photographer wishes to accept the assignment, the Photographer and Agency shall negotiate a mutually acceptable Assignment Agency Agreement at that time.
(G) The Agency shall use its best efforts to license the Photographs on behalf of the Photographer and obtain the best possible licensing fees.
(H) The Agency shall require all Subagents to act in accordance with the Agency’s obligations pursuant to this Agreement.
(I) Electronic rights are [ ] outside the scope of this agency contract [ ] covered by this agency contract insofar as the sale of such rights is incidental to the sale of nonelectronic rights [ ] covered by this agency contract. For purposes of this agreement, electronic rights are defined as rights in the digitized form of works that can beencoded, stored, and retrieved from such media as computer disks, CD-ROM, computer databases, and network servers.
3. Files and Catalogs. All Photographs accepted by the Agency shall be kept in the Agency’s files. In the event that the Agency wishes to include one or more Photographs in a catalog, the Agency shall obtain the Photographer’s written approval.
4. Captions. The Photographer shall place captions on the Photographs. These captions shall provide as much information regarding the subject matter of the Photographs as can reasonably be expected under industry standards. The Agency shall be responsible to convey accurate caption information to its subagents and clients.
5. Copyright Notice. The Photographer shall place copyright notice on all Photographs. If the Photographer does not place such notice on any of the Photographs, the Agency is authorized and required to do so. Copyright notice in the Photographer’s name shall appear on all Photographs licensed by the Agency.
6. Model and Property Releases. When delivering the Photographs, the Photographer shall indicate which Photographs have model or property releases, and, if requested by the Agency, shall give copies of the releases to the Agency. If the Photographer does not indicate the existence of a model or property release, if the Agency allows uses beyond the scope of a model or property release, or if the Agency fails to convey accurate caption information as required by Paragraph 4, the Agency assumes full responsibility for uses of the Photograph that may violate the rights of any parties and indemnifies the Photographer against any resulting claims, damages, and expenses (including but not limited to court costs and reasonable attorney’s fees).
7. Duplicates. The Photographer [ ] does [ ] does not authorize the Agency to create dupes of the Photographs. If the Agency is authorized to create dupes, clients of the Agency shall not be allowed to make dupes without the Photographer’s written approval. All duplicates, whether created by the Photographer, the Agency, a subagent, or any other party, shall be the property of the Photographer and, as stated in Paragraph 1, are included within the definition of Photographs.
8. Duty of Care. The Agency shall exercise reasonable care of the Photographs. The Photographer acknowledges that the Agency shall not be required to insure the Photographs.
9. Expenses. The Photographer shall not pay any expenses to the Agency, unless such expenses are specified here or written approval is given by the Photographer at a later date.
[ ] Dupes __________________________________________________________________________
[ ] Catalogs _________________________________________________________________________
[ ] Other ____________________________________________________________________________
Any such expenses shall be charged against payments due under Paragraph 10. Any amount of expenses which cannot be recouped in this manner shall be waived by the Agency.
10. Payments. The Agency shall hold in trust in a separate escrow account all payments due to the Photographer until payment is made. For Photographs sold from the Agency’s files, the Photographer shall receive fifty (50%) percent of gross billings. For Photographs sold from the Agency’s catalogs, the Photographer shall receive ____ (___%) percent of gross billings. For Photographs sold by subagents, the Photographer shall receive fifty (50%) percent of the gross billings received by the Agency. Gross billings shall be defined to include all payments from licensings, holding fees, and interest on late payments, but shall not include service fees. Gross billings shall be reduced by actual bad debts and the reasonable cost of currency conversions. Volume discounts shall be allowed only as follows _____________________________________________________________. The Agency shall make all payments due the Photographer at the time of giving the accountings required by Paragraph 11.
11. Accountings. Commencing as of the date of this Agreement, the Agency shall report every ____ months to the Photographer. The report shall be given by the _____ day of the following month after the close of the period accounted for. The accounting shall show for that period each Photograph licensed, the client, the license of rights, the date of receipt of payment, the gross billing, and any reductions in the gross billing.
12. Right of Inspection. The Photographer shall, upon the giving of written notice, have the right to inspect the Agency’s books of account to verify the accountings. If errors in any such accounting are found to be to the Photographer’s disadvantage and represent more than five (5%) percent of the payment to the Photographer pursuant to the said accounting, the cost of inspection shall be paid by the Agency which shall immediately remit to the Photographer all payments due plus interest at the current prime rate.
13. Term. The term shall be _____ years from the date of entering into this Agreement. Sixty (60) days prior to the end of the initial or any subsequent term the Agency shall notify the Photographer if it wishes to renew for an additional term of _____ years. If the Photographer does not reject such additional term by written notice to the Agency prior to the end of the present term, in which case this Agreement shall terminate, then such additional term shall be subject to the terms and conditions of this Agreement.
14. Termination. The Photographer shall have the right to terminate this Agreement by written notice: (1) if the Agency fails to make payments pursuant to Paragraph 10; (2) if the Agency fails to give statements of account pursuant to Paragraph 11; (3) if the Agency otherwise defaults in its obligations hereunder and does not, within ten (10) days of receiving notice from the Photographer, cure such default; (4) if the Agency fails to generate $_____ of gross receipts during any twelve-month period; or (5) by rejecting the Agency’s offer given sixty (60) days prior to the end of a term to continue for an additional term, in which case the termination shall be as of the last day of the existing term. The Photographer’s personal representative shall have the right to terminate this Agreement by written notice in the event of the Photographer’s death or incompetency. This Agreement shall automatically terminate in the event of the Agency’s insolvency, filing of a petition in bankruptcy or for reorganization, assignment of assets for the benefit of creditors, or appointment of a trustee or similar custodian for all or part of the Agency’s property. In the event of termination of the Agreement, the Agency shall immediately cease its licensing activities and all Photographs shall be returned as provided in Paragraph 15.
15. Retrieval of Photographs. The Agency shall file and maintain the Photographs indexed by the Photographer’s name so that any Photograph may be located within ______ days of Photographer’s request and returned to the Photographer within ______ days of such request. In the event of termination pursuant to Paragraph 14, the Agency shall return the Photographs within ______ months for Photographs in the files of the Agency and ______ months for Photographs in the possession of clients of the Agency. The Photographer shall have access to the Photographs at the Agency during regular working hours upon the giving of reasonable notice and may retrieve such Photographs as the Agency has failed to return in a timely manner. During the term of this Agreement, the Photographer shall have the right to retrieve the Photographs for purposes including but not limited to self-promotion and exhibitions. If the Agency is unable to return Photographs held by clients within the specified time period after termination, it shall continue its efforts and, in addition, give the Photographer a list of the Photographs showing the name and address of the client in possession of the Photographs.
16. Warranty and Indemnity. The Photographer warrants and represents that he or she is the sole creator of the Work and owns all rights to be licensed by the Agency under this Agreement, that the Work does not infringe any other person’s copyrights or rights of literary property, nor, to his or her knowledge, does it violate the rights of privacy of, or libel, other persons. The Photographer agrees to indemnify the Agency against any final judgment for damages (after all appeals have been exhausted) in any lawsuit based on an actual breach of the foregoing warranties. In addition, the Photographer shall pay the Agency’s reasonable costs and attorney’s fees incurred in defending such a lawsuit, unless the Photographer chooses to retain his or her own attorney to defend such lawsuit. The Photographer makes no warranties and shall have no obligation to indemnify the Agency with respect to materials inserted in the Work by a party other than the Photographer. Notwithstanding any of the foregoing, in no event shall the Photographer’s liability under this Paragraph exceed $________ or ________ percent of sums payable to the Photographer under this Agreement, whichever is the lesser. In the event a lawsuit is brought which may result in the Photographer having breached his or her warranties under this Paragraph, the Agency shall have the right to withhold and place in an escrow account ______ percent of sums payable to the Photographer pursuant to Paragraph 10, but in no event may said withholding exceed the damages alleged in the complaint.
17. Litigation. In the event of the loss, damage, or infringement of any of the Photographs accepted by the Agency, the Agency and the Photographer shall have the right to sue jointly and, after deducting the expenses of bringing suit, to share equally in any recovery. If the Photographer chooses not to join in the suit, the Agency may proceed and, after deducting all the expenses of bringing the suit, any recovery shall be shared equally between the
parties. If the Agency chooses not to join in the suit, the Photographer may proceed and, after deducting all the expenses of bringing the suit, any recovery shall be shared: ________ percent to the Photographer and ________ percent to the Agency.
18. Relationship of Parties. The Photographer and Agency are independent contractors and nothing contained herein shall be construed to be inconsistent with this independent contractor relationship.
19. Promotion. The Photographer consents to the use without charge of the Photographs in brochures, advertisements, and other promotions of the Agency 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.
20.Arbitration. All disputes arising under this Agreement shall be submitted to binding arbitration before ________________________________ in the following location ______________________________________ and shall be settled in accordance with the rules of the American Arbitration Association. Judgment upon the arbitration award may be entered in any court having jurisdiction thereof.
21. Assignment. This Agreement may not be assigned by either party without the written consent of the other party hereto, except that the Photographer shall retain the right to assign payments due hereunder without obtaining the Agency’s consent.
22. Notice. Where written notice is required hereunder, it may be given by use of certified mail, return receipt requested, addressed to the Photographer or Agency at the addresses given at the beginning of this Agreement. Said addresses for notice may be changed by giving written notice of any new address to the other party.
23. Miscellany. This Agreement shall be binding on the parties and their respective heirs, representatives, administrators, successors and assigns. This Agreement constitutes the entire understanding between the parties. Its terms can be modified only by an instrument in writing signed by both parties. Any waiver of a breach or default hereunder shall not be deemed a waiver of a subsequent breach or default of either the same provision or any other provision of this Agreement. This Agreement shall be governed by the laws of the State of_________.
Photographer ____________________________ Agency __________________________________________
Authorized Signatory, Title
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