TERMS & CONDITIONS

The following is a legally binding agreement (“Agreement”) between Average Joe Photo Show, LLC (“we”, “us” or “our”), and the individual or entity contributor (“you” or “your”) (collectively, the “Parties”). Capitalized and underlined words represent defined terms. This Agreement applies to all digital photographs (“Content”) that you have previously submitted and, in the future, will submit. This Agreement supersedes and cancels all previous agreements you have entered into with us.

BY SUBMITTING CONTENT, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, AS EACH MAY BE MODIFIED, AMENDED OR SUPPLEMENTED FROM TIME TO TIME BY US. WE MAY MODIFY THESE TERMS AND CONDITIONS AT ANY TIME, CHANGES TO BE EFFECTIVE WHEN POSTED. YOU ARE RESPONSIBLE FOR REVIEWING THESE TERMS AND CONDITIONS EACH TIME YOU SUBMIT CONTENT. YOU AGREE TO BE BOUND BY ALL SUCH CHANGES.

SECTION 1. RIGHTS AND ROYALTIES

1.1 License Grant to Us. You grant us a perpetual, worldwide, exclusive right to copy, reproduce, display, transmit, broadcast, modify, alter, create derivative works of and publish the whole or part of any Content that you submit to us. These rights may be exercised via any analog or digital means of communication now known or hereafter devised including without limitation via print, websites, other electronic formats, mobile devices, TV, cinema, exhibitions; and, subject to applicable laws, may be used for any purpose of any nature including without limitation for sale, commercial exploitation, advertising, publicity, promotions, graphic design, marketing within and on products, corporate communications, press articles, press releases, brochures, reports, décor, programs and films. We may sublicense or authorize certain third party distributors of our choosing (“Distributors”), anyone who visits the Average Joe Photo Show website and/or customers who purchase a print impression of Accepted Content (as defined below) from us or a Distributor (collectively, “Clients”) to exercise the rights described in this Section 1. We and/or Distributors will determine the terms and conditions of such use of Accepted Content, but will not use or license Accepted Content for uses that are defamatory, pornographic or otherwise illegal. We and Distributors may determine how Accepted Content may be displayed and may stop displaying or using it at any time. If we notify you in writing that we have permanently stopped displaying and using any particular Accepted Content, the Agreement will be deemed to be terminated only with regards to that Accepted Content.

1.2 Exhibitions and Movement of Accepted Content. When you submit Content, we will determine whether or not to accept such Content (“Accepted Content”) for possible inclusion in one or more of our current or future Content exhibitions (“Exhibitions”) made available for public display, sale and/or distribution by us or Distributors. We may reject Content that does not satisfy our criteria for an Exhibition if you exceed the twelve (12) permitted submissions of Content, if the Content is lewd, offensive or lacks artistic merit, or for any other reason we deem appropriate in our sole discretion. You will know your Content is Accepted Content if it moves into our royalty-free online Exhibition. We may subsequently move and make available Accepted Content through any other Exhibition. For Accepted Content that moves into the print Exhibition, Royalties will apply and we will notify you of the move to the print Exhibition within a reasonable time, typically within thirty (30) days of the move. At any time, we and Distributors may publish Accepted Content in composites that include Content and any other work supplied by third parties, in print, electronic, digital, audio, video, or any other form or format now known or hereafter discovered or created, and distribute, sell, and generally exploit Accepted Content, in all languages in one or more future editions including reprints, use Accepted Content to market you, your work, us, or Distributors, all of which is without payment to you. This right to publish Accepted Content is perpetual and will survive termination of this Agreement.

1.3 Royalties. We will pay you a royalty of forty percent (40%) of the amount actually received by us from the sale of printed photographs of Accepted Content that has been moved to the print Exhibition (“Royalties”). At any time in our sole discretion, we may change the number of impressions offered, the sale price, number of print Exhibition(s), duration of print Exhibition(s) and any other factor affecting the amount of Royalties potentially due you. No royalties will be paid on any Exhibition, marketing and/or other use, except as to impressions offered for sale in the print Exhibition.

1.4 Royalty Deductions. We may deduct the following amounts from the Royalties payable to you: (a) material expenses; (b) the amount of any sales tax or other taxes; (c) refunds, credits and allowances given to Clients; (d) prior overpayment of Royalties; and (e) amounts that may be deducted or withheld in accordance with the indemnification provisions of Subsection 2.2.

1.5 Payment. Within the later of sixty (60) days after the end of each of Exhibition for which Royalties are due under section 1.3 hereunder or sixty (60) days following our receipt of amounts from the sale of printed photographs of Accepted Content, we will pay you Royalties by check or other method we determine appropriate.

1.6 Use of Content by You. All Content submitted to us is on a Content exclusive basis. This means that Content submitted to us and any other content that is substantially the same (a “Similar”) may not be licensed to any third party unless we notify you in writing that such Content has been rejected. On a non-exclusive basis, you may use Accepted Content and any Similars for promoting or documenting you and your work, provided that such uses (i) consist of posting the Accepted Content on a website for viewing and downloading by users of such websites including, for example, social media websites such as Instagram and Facebook; (ii) in each case, where possible, you include a link (not deep link) to the Average Joe Photo Show homepage at www.averagejoephotoshow.com; and (iii) such uses do not compete with or limit the rights granted to us. In fact, we strongly encourage you to do so. However, Accepted Content may not be used in any print form, unless you obtain our prior written consent.

1.7 Copyright to Accepted Content and Other Works. Subject to the rights granted to us, you will retain all right, title and interest, including copyright, in all Accepted Content including when it is incorporated in a derivative work created by others. We will own all right, title and interest, including all copyrights that arise apart from the copyright in your Accepted Content, to all types of derivative works created by or for us that contain multiple items of Accepted Content and/or other Content. Either you or we on behalf of you may register the copyright in any Accepted Content with the relevant copyright authority.

1.8 Right to Control Claims. We shall have the right to determine, whether and to what extent to proceed, or not to proceed, against any third party for any unauthorized use of Accepted Content. You authorize us and Distributors at their expense the exclusive right to make, control, settle and defend any claims related to infringement of copyright in the Accepted Content and any associated intellectual property rights (“Claims”). You agree to provide reasonable cooperation to us and Distributors and not to unreasonably withhold or delay your cooperation in these Claims. We will not enter into any settlement that will compromise your ownership of the copyright in Accepted Content or that prohibits your future conduct with respect to Accepted Content without your prior written consent. If we elect not to pursue a Claim, you will have the right to pursue it.

1.9 Credit and Moral Rights. We shall use commercially reasonable efforts to credit you as the source of Accepted Content, but shall have no liability for lack of credit. For the purposes of this Agreement, “Moral Rights” means all non-transferable and non-licensable rights belonging to the original creator of Accepted Content that are automatically conferred by legislation to varying degrees in different countries, which shall include the following rights and all rights of a similar nature: (a) the right to be identified as the creator; (b) the right to object to misrepresentative modification of Accepted Content; and (c) the right to withdraw Accepted Content from the market (except pursuant to the termination provisions of this Agreement). To the extent allowed by law, you waive all your Moral Rights relating to Accepted Content. To the extent such waivers are not permitted by applicable law, you agree not to enforce such moral rights against us, Distributors or Clients. 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.

SECTION 2. REPRESENTATIONS AND WARRANTIES, INDEMNIFICATION & LIMITS ON LIABILITY

2.1 Representations and Warranties. (a) Each Party represents and warrants to each other 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; (b) you represent and warrant to us that: (i) you are either of the age of majority in your jurisdiction where you reside or you are submitting Content through a parent or guardian with the power and authority to enter into this Agreement on your behalf; (ii) you are the sole and exclusive owner of the Content submitted to us or are the authorized representative of the applicable copyright owner(s) of such Content; (iii) Content submitted to us, to the best of your knowledge after due investigation and prior to modification or re-captioning by us, 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; (iv) all caption information provided by you will be accurate; and (v) you have obtained valid model and property releases where necessary in accordance at the time of submission and you will keep the original release and provide a copy of such release(s) to us promptly upon our request and, in any event, no less than three (3) days of such request.

2.2 Indemnification. You agree to defend, indemnify and hold harmless us and our affiliates, licensees, officers, directors, employees and agents (each an “Indemnitee”) from and against any and all actual or alleged third-party claims and accompanying liabilities, losses, damages, costs and expenses, including reasonable external attorneys’ fees arising out of or in connection with, any actual or alleged breach of the Agreement by you or any duty, representation, or warranty contained herein by, or any actual or alleged act or material omission of you or your employees or agents. You may at your option defend such claim at your expense, and Indemnitee shall cooperate fully in defending or settling such claim, provided that you may not settle without Indemnitee’s prior written consent, which shall not be unreasonably withheld. You agree that we may retain any amounts due to you under the Agreement or any other agreement you may have with us to the extent we are owed any sum under this Subsection 2.2.

2.3 Limitation of Liability. WE SHALL NOT BE LIABLE FOR ANY PUNITIVE, INDIRECT, CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, EVEN WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH. IN ADDITION, WE SHALL NOT BE LIABLE TO YOU UNDER ANY CIRCUMSTANCES ARISING OUT OF THE MISUSE OF CONTENT BY ANY THIRD PARTY. WE SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE TO ANY CONTENT, STORAGE DEVICE OR OTHER MATERIALS SUBMITTED TO US, 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 US. IF, DESPITE THE ABOVE LIMITATIONS, LIABILITY IS IMPOSED ON US FOR ANY REASON, IN NO EVENT SHALL OUR LIABILITY EXCEED THE AGGREGATE AMOUNT OF THE ROYALTIES DUE YOU UNDER THIS AGREEMENT.

SECTION 3. TERMINATION AND SURVIVAL OF RIGHTS

3.1 Termination. Either Party may terminate this Agreement immediately upon notice if the other Party breaches any material term or condition of the Agreement and, if capable of remedy, fails to remedy such breach within sixty (60) days after being given notice thereof by the non-breaching Party. Also, we may terminate this agreement for any reason or no reason, immediately upon notice to you.

3.2 Effect of Termination. Upon termination and subject to our ongoing rights described in Section 1, we will use commercially reasonable efforts to inactivate digital Accepted Content in our inventory within one hundred and eighty (180) days. During the wind-down period in this Section 3.2, this Agreement will continue in effect and we may continue to use the Accepted Content in accordance with this Agreement.

3.3 Surviving Provisions. The termination of this Agreement will not affect the accrued rights and obligations of the Parties existing on the date of termination. Subsection 1.8, Subsection 1.10 and Sections 2 to 4 as may be appropriate, will survive termination of the Agreement, as will any matter arising under the Agreement either expressly or that by its nature is required to be performed or apply after the termination of this Agreement, including our residual right to continue exploiting certain Accepted Content under Section 1.

SECTION 4. MISCELLANEOUS

4.1 Entire Agreement; Severability; Waiver. The Agreement supersedes and cancels any previous agreements related to our use of Accepted Content. This Agreement constitutes the entire agreement among the Parties relating to its subject matter and may not be amended, except (a) by us in accordance with this Agreement; (b) in writing by an authorized representative of each Party; or (c) where a court or other competent legal authority finds a provision to be invalid, illegal or unenforceable (in which event such determination shall not affect any other provision in the Agreement all of which shall remain in full force and the Parties shall in good faith consult to agree 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). If a Party waives any provision of this Agreement, the waiver in such an instance shall not be deemed to be a continuing waiver, and no waiver by either Party shall prevent such Party from enforcing any and all other provisions of this Agreement.

4.2 Assignment. You may not assign your rights or obligations and under this Agreement without our prior approval, which will not be unreasonably withheld in the case of an assignment to a corporation or to a trust controlled by you or for the sole benefit of you or your immediate family. We may assign our rights, obligations and duties under this Agreement, in whole or in part, to any entity controlling, controlled by, or under common control with us as part of a merger, reorganization or sale of assets by us.

4.3 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 we have no obligation to find or offer employment to you.

4.4 Governing Law and Consent to Jurisdiction. The Agreement will be construed and enforced in accordance with the laws of the State of Connecticut, U.S.A., excluding its laws relating to conflict of laws. Any legal action or proceeding arising out of or in connection with the Agreement shall be brought exclusively in the courts of the State of Connecticut in the County of New London or of the United States of America having situs closest to the County of New London, and all parties consent to the exclusive jurisdiction of those courts, waiving any objection to the propriety or convenience of such venues. The substantially prevailing Party will be entitled to recover its reasonable legal costs. If both Parties prevail on particular claims, or defenses of a claim, then each Party will be entitled to recover its reasonable legal costs for those claims it successfully asserts or defends, and the awards will be offset.

4.5 Further Assurances. Each Party will, and will use its reasonable efforts to cause any third party to, execute and perform such further acts, deeds and documents as may from time to time be required to give full legal and practical effect to the Agreement.

4.6 Notices. Parties shall provide all notices in writing via mail and/or email. Notices to you will be sent to the current mail or email address and notices to us should be sent to: Average Joe Photo Show, LLC, P.O. Box 691, Old Lyme, Connecticut 06371, U.S.A; joe@averagejoephotoshow.com.

4.7 Confidentiality. “Confidential Information” means any information that is designated as confidential or, information that by its nature or circumstances of disclosure would reasonably lead a recipient to believe that it is confidential. A Party that receives Confidential Information (the “Receiving Party”) from the other Party (the “Disclosing Party”), agrees not to disclose such Confidential Information to any third party or use any of the Confidential Information except as necessary to perform its obligations under the Agreement. The Receiving Party agrees to return all Confidential Information to the Disclosing Party upon request. If a Receiving Party is required by a competent legal authority to disclose Confidential Information, the Receiving Party shall provide the Disclosing Party with prompt notice prior to disclosure so that the Disclosing Party may seek judicial protection. The Receiving Party may also share Confidential Information with its professional advisers under an obligation of confidentiality for the purpose of obtaining professional advice.

4.8 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 us 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. We, 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 to necessary 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. We reserve the right to disclose any information you provide in order to respond to claims or protect the rights, property or safety of us, our related companies, Distributors and our employees, customers or the public.

4.9 Submission of Content as an Authorized Representative. If and to the extent you are submitting Content to us as an authorized representative of the applicable copyright owner(s), you acknowledge and agree that (a) you will ensure that such copyright owner(s) comply with the terms of this Agreement where necessary; and (b) to the extent Royalties are paid to you in such capacity, you will be solely responsible for compensating the copyright owner(s) where applicable.

 

EFFECTIVE AS OF OCTOBER 1, 2013.