This Agreement ("Agreement") is between Hip Concepts, LLC, a Colorado limited liability company with its principal place of business at PO Box 3162, Crested Butte, CO 81224 ("Hip Concepts") and the undersigned individual or entity ("you") (collectively, the "Parties"), and includes the Commercial Terms and Standard Terms and Conditions set forth below. Capitalized and underlined words represent defined terms.
This Agreement applies to all Content (as the term is defined in Section 1.2) that you have previously submitted and, in the future, will submit, that is accepted for distribution by Hip Concepts (“Accepted Content”) for display and sale on its website, The Hip Gallery. This Agreement supersedes and cancels all previous agreements you have entered into with Hip Concepts related to the distribution of Accepted Content, other than those agreements listed in Section 4.1 which will continue to apply in relation to the Accepted Content submitted under those agreements.
This is a fairly lengthy document and it contains many important provisions that affect your rights and obligations. Once you have accepted this Agreement, it becomes a binding legal agreement between you and Hip Concepts. You should print a copy of the Agreement for your records.
Purchases by end-users from The Hip Gallery shall result in a commission paid to the Contributor. For each sale of the Contributor’s Accepted Content, Hip Concepts will pay you 50% of the sale on each; excluding tax and shipping.
PaymentHip Concepts will pay out commissions based on the following:
If your balance is under $50 and you wish to receive a check on one of these quarterly runs, you will be required to send an email no later than the last day of each quarter to email@example.com requesting payment.
The first day of the month in which you enter into this Agreement
All Content submitted to Hip Concepts is on a Content exclusive basis. This means that Content submitted to Hip Concepts and any other content that is substantially the same (a “Similar”) may not be licensed to any third party unless Hip Concepts has notified you that it has been rejected.
You may submit Content to Hip Concepts’s license models and/or Collections (as defined in Section 1.3) for which you have been approved for participation. You agree to comply with the applicable submission requirements available on the Contributor Website in effect at the time of submission, which may be amended from time to time. For creative Collections, Hip Concepts will provide you with a receipt acknowledging each submission. Hip Concepts will use commercially reasonable efforts to accept or reject Content that you submit within 30 days. Different periods for acceptance/rejection will apply to certain editorial Content and Footage, as indicated in Section 5.7 and Section 6.3 below. Hip Concepts may reject any submitted Content in its discretion. Any Content submitted from your email address and/or using a username/password issued to you shall be taken by Hip Concepts as evidence that such Content has been submitted by you.
The Term of this Agreement begins as of the Commencement Date and will continue for an initial period of 1 (one) year, with automatic renewals of successive one-year periods. You may terminate this Agreement without cause at any time by providing 90 (ninety) days written notice (subject to exceptions relating to certain editorial Content as provided in Section 5). Hip Concepts may only terminate this Agreement without cause at the end of the initial one-year period or at the end of any successive one- year period by providing 90 (ninety) days prior written notice.
STANDARD TERMS & CONDITIONS
SECTION 1. RIGHTS AND COMMISSIONS
1.1 License Grant to Hip Concepts: You grant Hip Concepts a worldwide, exclusive right to market and sublicense the right to copy, reproduce, display, transmit, broadcast, modify, alter, create derivative works of and publish the whole or part of any Content (as defined below) that you submit to Hip Concepts. 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 advertising, publicity, promotions, graphic design, marketing within and on products, corporate communications, press articles, press releases, brochures, reports, décor, programs and films. Hip Concepts may sublicense or authorize any third party distributors ("Distributors"), any customer who licenses Accepted Content from Hip Concepts or a Distributor ("Clients") and their customers to exercise the rights described in this Section 1. Hip Concepts and Distributors will determine the terms and conditions of all licenses of Accepted Content granted by them, but will not use or license Accepted Content for uses that are defamatory, pornographic or otherwise illegal and will use commercially reasonable efforts to stop any such use by Clients brought to their attention. Hip Concepts and Distributors may determine how Accepted Content may be marketed and may stop marketing or licensing it at any time. If Hip Concepts notifies you that it has permanently stopped marketing and licensing any particular Accepted Content, the Agreement will be deemed to be terminated only with regards to that Accepted Content.
1.2 Types of Content: This Agreement will apply to photographs, illustrations, or other still visual representations (the "Content").
1.3 Collections and Movement of Accepted Content: Accepted Content may be included in one or more of Hip Concepts’s current or future Content collections ("Collections") made available for licensing or distribution by Hip Concepts or Distributors. When you submit Content you will be asked to specify, where appropriate, the license model(s) through which the Content is available to be licensed. Hip Concepts will determine the Collection and may subsequently move and license Accepted Content through any other license models and/or Collections.
1.4 Reporting and PaymentOn a real-time basis, Hip Concepts will make available to you a transaction report with information related to your account history and sales of your Content. Hip Concepts will make Commission Payments quarterly, within 30 days after the end of each quarter, by electronic funds transfer. No payment will be made unless a minimum of US$36.00 (or local currency alternative) is due to you.
1.5 Aggregated Licensing. Hip Concepts may offer license models and price agreements that will make Content available for use by Clients on a high-volume basis. Accordingly, where appropriate, the amount due to you will be calculated and paid by determining the relative value of the Accepted Content compared to all other Content licensed together with it. In addition, the frequency and methodology for reporting and paying commissions may also vary in order to facilitate such high-volume licensing. In all cases, the Royalty rate applied shall be as set out in the Commercial Terms.
1.6 Marketing Use of Accepted Content. Hip Concepts and Distributors may use Accepted Content to market you, your work, or Hip Concepts, including use in composites that include Content supplied by a third party. No royalties will be paid on these marketing uses.
1.7 Right to Control Claims. Hip Concepts shall have the right to determine, using its best commercial judgment, whether and to what extent to proceed against any third party for any unauthorized use of Accepted Content. You authorize Hip Concepts 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 Hip Concepts and not to unreasonably withhold or delay your cooperation in these Claims. Hip Concepts 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. Hip Concepts will pay you Royalties on any settlements it receives from Claims. If Hip Concepts elects not to pursue a Claim, you will have the right to pursue it.
1.8 Use of Accepted Content by you. On a non-exclusive basis, you may use Accepted Content for promoting or documenting you and your work, provided that these uses do not compete with or limit the rights granted to Hip Concepts under the Agreement. You must obtain Hip Concepts’s prior written consent to use rights-managed creative or rights-managed editorial Accepted Content on the cover of a self-promotional book to ensure that your use does not conflict with any licenses that Hip Concepts may have previously issued. Also on a non-exclusive basis, you may use Accepted Content that is available for license through a royalty-free license model in connection with the sale by you of prints, t-shirts and other retail merchandise where the Accepted Content is the focus of the product, so long as you are not licensing or giving away rights to the Accepted Content for anything other than such merchandising. On an exclusive basis you may use Accepted Content and any Similars for limited edition, signed and/or numbered fine art prints (though Hip Concepts may still sell and license prints not signed or numbered).
1.9 Copyright to Accepted Content and other Works. Subject to the rights granted in this Agreement, 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. Hip Concepts 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 Hip Concepts that contain multiple items of Accepted Content and/or other Content. Either you or Hip Concepts on behalf of you may register the copyright in any Accepted Content with the relevant copyright authority.
1.10 Credit and Moral RightsFor 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 Hip Concepts, 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. Further, you acknowledge and accept that it is common business practice for commercial uses that the creator of Content is not credited and that Content may be modified.
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, including without limitation to the Foreign Corrupt Practices Act; (b) you represent and warrant to Hip Concepts that: (i) you are the sole and exclusive owner of the Content submitted to Hip Concepts or are the authorized representative of the applicable copyright owner(s) of such Content; (ii) Content submitted to Hip Concepts, to the best of your knowledge after due investigation and prior to modification or re-captioning by Hip Concepts, 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; (iii) all caption information provided by you will be accurate; (iv) you have obtained valid model and property releases where necessary in accordance with the Submission Requirements at the time of submission and you will keep the original release and provide a copy to Hip Concepts; and (v) you are not on the US Department of Treasury’s List of Specially Designated Nationals.
2.2 Duty to Obtain Proper Releases. The Contributor agrees to obtain a Model Release and Property Release in substantially the same form as those attached hereto as Exhibit A and Exhibit B, respectively, for all Accepted Content. Contributor further agrees to retain each and every Model Release and Property Release for a timeframe not shorter than ten (10) years, and to furnish a copy of the same to Hip Concepts within ten (10) days of demand by Hip Concepts to do so. Contributor agrees to be responsible for any and all damage arising from his or her failure to obtain a proper Model Release or Property Release.
2.3 Indemnification. Each party (an "Indemnitor") agrees to defend, indemnify and hold harmless the other party and its 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 the Indemnitor or any duty, representation, or warranty contained herein by, or any actual or alleged act or material omission of the Indemnitor or its employees or agents. Indemnitor may at its option defend such claim at Indemnitor’s expense, and Indemnitee shall cooperate fully in defending or settling such claim, provided that Indemnitor may not settle without Indemnitee’s prior written consent, which s hall not be unreasonably withheld. You agree that Hip Concepts may retain any amounts due to you under the Agreement or any other agreement you may have with Hip Concepts to the extent Hip Concepts is owed any sum under this Section 2.2.
2.4 Limitation of Liability. Hip Concepts shall not be liable for any punitive, indirect, consequential, special or incidental damages arising out of or in connection with the Agreement, even if it has been advised of the possibility of such. In addition, Hip Concepts shall not be liable to you under any circumstances arising out of the misuse of Content by any third party. Hip Concepts shall not be liable for any loss or damage to any Content, storage device or other materials submitted to Hip Concepts, 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 Hip Concepts. If, despite the above limitations, liability is imposed on Hip Concepts for any of these reasons, in no event shall Hip Concepts’s liability exceed US$1,000 in the aggregate.
SECTION 3. TERMINATION & SURVIVAL OF LICENSING RIGHTS
3.1 Termination. Either Party may terminate this Agreement as set forth in the Term section of the Commercial Terms. In addition, either Party may terminate the Agreement immediately upon notice if the other Party: (a) breaches any material term or condition of the Agreement and, if capable of remedy, fails to remedy such breach within 60 days after being given notice thereof by the non-breaching Party; or (b) becomes insolvent or suffers any act of insolvency. Also, if Hip Concepts altogether ceases to accept Content from you for any reason other than failure to comply with the Submission Requirements, you may terminate the Agreement, which will terminate 60 days following the date of your notice of termination.
3.2 Effect of Termination. Upon termination, Hip Concepts will use commercially reasonable efforts in relation to all Accepted Content subject to termination to: (a) inactivate digital Accepted Content in its inventory within 90 days; and (b) upon your written request made by within 1 year of termination, either (i) return to you any analog format Accepted Content within 3 years; or (ii) provide you with a digital copy of any analog format Accepted Content that is irretrievable or otherwise damaged (normal wear excepted). During all wind-down periods under Section 3.2(a), Hip Concepts may continue to process licenses of the Accepted Content so long as Hip Concepts pays commissions to you as required under this Agreement and you may not exploit the Accepted Content elsewhere during this time.
3.3 Survival of Unexpired Licenses. Following termination of the Agreement, all unexpired licenses of Accepted Content will remain in effect and you shall not license any Accepted Content (or Similars) in a way that conflicts with any unexpired exclusive licenses identified in your past Sales Reports. Hip Concepts will have a one-time only (or up to five times only in the case of licenses for educational uses) right to renew unexpired licenses on substantially the same terms, provided that there is no break in the licensing period.
3.4 Surviving Provisions. The termination of this Agreement will not affect the accrued rights and obligations of the Parties existing at the date of termination. Sections 1.13, 1.14, 2 to 6 and the Commercial Terms 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 Term of the Agreement, including the residual right of Hip Concepts to continue exploiting certain Accepted Content taken at an Editorial Event and certain Footage under Section 5.5 and Section 6.2, respectively.
SECTION 4. MISCELLANEOUS
4.1 Entire Agreement; Severability; Waiver. The Agreement supersedes and cancels any previous agreements related to the distribution of Accepted Content other than agreements which govern Content submitted by Image Partners of Hip Concepts. This Agreement constitutes the entire agreement among the Parties relating to its subject matter and may not be amended, except (a) via the Rate Card described in the Commercial Terms; (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 the prior approval of Hip Concepts, which will not be unreasonably withheld and shall never be 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. Hip Concepts may assign its rights, obligations and duties under this Agreement, in whole or in part, to any entity controlling, controlled by, or under common control with Hip Concepts as part of a merger, reorganization or sale of assets by Hip Concepts.
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 Hip Concepts has no obligation to find or offer employment to you.
4.4 Governing Law and Arbitration. The Agreement will be construed and enforced in accordance with the laws of the State of Colorado, excluding its laws relating to conflict of laws. Any dispute arising out of or in connection with the Agreement shall be subject to mediation prior to the initiation of litigation. If such mediation is unsuccessful, the dispute will be settled before a single arbitrator under the Commercial Rules of the American Arbitration Association (“AAA”) or International Chamber of Commerce (“ICC”) in Denver, Colorado. 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 NoticesParties 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 Hip Concepts should be sent to: Hip Concepts, LLC; PO Box 3162; Crested Butte, Colorado 81224 U.S.A.; Phone: 970-633-0447; email: firstname.lastname@example.org.
4.7 Audit Rights. You may employ a certified accountant or licensed financial advisor to audit payments made to you during the previous 36 months, at your expense unless the audit reveals that Hip Concepts has underpaid you by more than 10%, in which case Hip Concepts will reimburse you for the actual and reasonable auditor’s fees. If an underpayment is discovered in an audit, Hip Concepts will correct the books and records. In the event that an audit reveals any overpayment to you, you agree that Hip Concepts may deduct the overpayment from your earnings.
4.8 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. Confidential Information of Hip Concepts includes art direction and information posted on the Contributor Website as well as any username/password issued to you to access the Contributor Website and any other restricted online areas. Confidential Information of you includes your earnings. 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.
4.9 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 Hip Concepts 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. Hip Concepts, 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. Hip Concepts reserves the right to disclose any information you provide in order to respond to claims or protect the rights, property or safety of itself, its related companies and their employees, customers or the public.
4.10 Submission of Content as an Authorized Representative. If and to the extent you are submitting Content to Hip Concepts 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.