This is Agreement is between New Africa Photo Ltd , a limited liability located in Nairobi and you (hereinafter referred to as Photographer’)
This Agreement is a shrink wrap Agreement, meaning by your registration with us as a Photographer you accept the terms of this Agreement as detailed below.
The terms of this Agreement are effective (the ‘Effective Date’) on the day you Register with http://www.africanstockphoto.com
This Agreement shows that:
You as a Photographer, desires that New Africa Photo Ltd serve as Photographer’s worldwide agent to sell, license, lease, and/or distribute certain images created by Photographer (“Photographer’s Images”);
We, New Africa Photo Ltd, 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, you agree to the following:
ARTICLE I GRANT OF AUTHORITY
1.1 Photographer hereby appoints New Africa Photo Ltd 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 New Africa Photo Ltd and which New Africa Photo Ltd selects for distribution, now and in the future (the “Selected Image(s)”) . New Africa Photo Ltd 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 New Africa Photo Ltd has introduced Photographer and to whom New Africa Photo Ltd has sold Photographer’s Images.
1.3 New Africa Photo Ltd shall use its best effort 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 New Africa Photo Ltd and will not require prior consultation with Photographer. Photographer agree to grant to any third party to which New Africa Photo Ltd, sells, licenses, leases, or distributes any Selected Image the full scope of any rights sold, licensed, or leased to such third party by New Africa Photo Ltd. 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 New Africa Photo Ltd by Photographer. Nothing in this Agreement shall be construed as requiring New Africa Photo Ltd to procure a minimum number of sales, licenses, or leases of any Selected Images.
ARTICLE II TERM
This Agreement shall be effective as of the date set forth in the introductory paragraph of this Agreement and shall continue unless either party terminates the Agreement by providing notice in writing to the other party sixty (60) days before severance.
ARTICLE III SUBMISSION, ACCEPTANCE, CUSTODY, AND RETURN OF IMAGES
3.1 Photographer shall, during the term of this Agreement, submit Photographer’s Images to New Africa Photo Ltd for acceptance by New Africa Photo Ltd. New Africa Photo Ltd, in its sole discretion shall have the right to accept or not to accept, any of Photographer’s Images submitted by Photographer. New Africa Photo Ltd shall not charge Photographer, nor shall Photographer charge New Africa Photo Ltd , for New Africa Photo Ltd 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 New Africa Photo Ltd, the guidelines of which are subject to change, but which New Africa Photo Ltd shall provide in advance to Photographer. Photographer shall provide to New Africa Photo Ltd all metadata containing copyright and caption information and preferred credit information. Consistent with section 6.3, Photographer shall also provide to New Africa Photo Ltd all necessary releases from persons depicted in , or whose property is depicted in any images submitted to New Africa Photo Ltd promptly after submission of any images.
3.3 New Africa Photo Ltd 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. Notwithstanding the foregoing, New Africa Photo Ltd 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 New Africa Photo Ltd 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, New Africa Photo Ltd shall retain the right to renew or extend the terms of any license or lease for such image granted by New Africa Photo Ltd to any customer prior to the de-designation of such image under this section.
3.4.1. If New Africa Photo Ltd sells, licenses, leases, or otherwise distributes any Selected Image after Photographer recalls such image, but before New Africa Photo Ltd removes such image from its database and/or website pursuant to section 3.4, such sale, license, lease, or distribution shall be valid.
PERMISSIBLE USES OF IMAGES
4.1. Photographer grants to New Africa Photo Ltd 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 the right to reproduce, display, distribute, store, or otherwise use any Selected Image for purposes of promoting or marketing New Africa Photo Ltd’s services in any medium and and by any means during the term of this Agreement.
4.2.1. If New Africa Photo Ltd 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, New Africa Photo Ltd 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 New Africa Photo Ltd de-designates such image or Photographer recalls such image.
4.3. Photographer also grants to New Africa Photo Ltd the right to alter or distort, or to arrange for the alteration 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 New Africa Photo Ltd and such third party.
4.3.1. New Africa Photo Ltd 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 New Africa Photo Ltd to use any means or method to protect against infringement or unauthorized use of any of Photographer’s images by third parties.
4.4. New Africa Photo Ltd shall be entitled to retain one(1) copy of any of Photographer’s images submitted to New Africa Photo Ltd 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 New Africa Photo Ltd 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 Photographers 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 New Africa Photo Ltd 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.
ARTICLE V 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 New Africa Photo Ltd under this Agreements, up to 50% of the fees billed and collected by New Africa Photo Ltd.
5.2. New Africa Photo Ltd shall use reasonable efforts to collect all amounts billed by New Africa Photo Ltd pursuant to this Agreement, but Photographer shall not be entitled to receive any share of payment billed until such amount is actually received by New Africa Photo Ltd and a minimum of $40 has been credited to Photographers account.
5.3. Payments of permitted amounts owing to Photographer pursuant to this Agreement will be made by New Africa Photo Ltd as soon as is practicable after New Africa Photo Ltd 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 and shall exclusively be paid through advertised means only. In the event of a cancellation of any sale, license, or lease of any Selected Image by any of New Africa Photo Ltd’s customers after payment has been made to Photographer, Photographer authorises New Africa Photo Ltd to deduct any amount paid to Photographer from sums due to Photographer from the sale, license, or lease of other Selected Images. New Africa Photo Ltd shall also be authorized to request such repayment directly from Photographer, and Photographer agrees to reimburse New Africa Photo Ltd for any such cancelled transaction.
5.4. Except as provided in sections 5 and 7 of this Agreement, New Africa Photo Ltd 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 New Africa Photo Ltd 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.
5.5. Any agreements between New Africa Photo Ltd 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.
ARTICLE VI 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 New Africa Photo Ltd: that such images are and will be original and that no restrictions of any kind currently are or will be placed on New Africa Photo Ltd’s rights to offer such images for reproductions, 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 Photographer’s Images submitted by Photographer to New Africa Photo Ltd all necessary written releases from any and all liability released to such person’s or property’s depiction in Photographer’s Image, and that any such releases or copies thereof will be delivered to New Africa Photo Ltd promptly after submission of such Photographer’s Image to New Africa Photo Ltd.
6.4. Photographer shall indemnify, defend, and hold New Africa Photo Ltd harmless from and against any loss, expense, liability, damage, or claim, including attorney’s 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 New Africa Photo Ltd and Photographer, and that Photographer’s status is that of an independent contractor.
ARTICLE VII 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, New Africa Photo Ltd cannot and does not accept any liability whatsoever to Photographer or to Photographer’s heirs and assigns, for any loss, damage to, or unauthorized use of, any image or other materials submitted by Photographer to New Africa Photo Ltd unless such loss, damage, or unauthorized use is caused by New Africa Photo Ltd’s gross or willful negligence. Photographer acknowledges and agrees that this absolute limitation on New Africa Photo Ltd’s liability is a material condition for New Africa Photo Ltd accepting Photographer’s images, and if Photographer did not agree to this clause, New Africa Photo Ltd would not accept submission of any 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 Photographer’s Images, Photographer will have to obtain its own insurance, and that New Africa Photo Ltd 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 New Africa Photo Ltd sells, licenses, leases, or distributes Photographer’s Images, Photographer hereby grants to New Africa Photo Ltd full and complete authority to make claims, institute suits and otherwise seek recovery from any such person in the first instance and in New Africa Photo Ltd’s sole discretion. All settlements thereof shall likewise be in New Africa Photo Ltd’s sole discretion. All amounts recovered by New Africa Photo Ltd in connection with any such claims, suits, or recovery shall be allocated between Photographer and New Africa Photo Ltd as follows:
1. New Africa Photo Ltd shall first be reimbursed for all costs and expenses New Africa Photo Ltd incurs in the pursuit of any claims, suits, or recovery, including, but not limited to, legal, consulting, and collection fees incurred or paid by New Africa Photo Ltd:
2. All remaining amounts shall be apportioned sixty percent (60%) to Photographer and forty(40%) to New Africa Photo Ltd
Nothing in this section shall be construed as imposing any duty or obligation on New Africa Photo Ltd to make claims, institute suits, seek recovery, or investigate the possibility of any such claim, suit, or recovery arising from any such damage, destruction, loss, or unauthorized use of any of Photographer’s Images by any of New Africa Photo Ltd’s customers. If New Africa Photo Ltd 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 New Africa Photo Ltd.
ARTICLE VIII TERMINATION
8.1. Should either party decide to voluntarily terminate this Agreement, that party must so notify the other in writing not less than sixty (60) days prior to termination of that term.
8.2. Notwithstanding the foregoing, this Agreement may also be terminated:
1. At any time upon the mutual agreement of New Africa Photo Ltd and Photographer;
2. 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;
3. Upon written notice given by New Africa Photo Ltd in the event that New Africa Photo Ltd’s ability to sell, license, lease, or otherwise distribute Photographer’s Images becomes subject to challenge by a third party;
4. In the event New Africa Photo Ltd becomes insolvent, or seeks protection or is involuntarily forced into bankruptcy proceedings under the Kenyan Law or any similar regime in a different jurisdiction.
8.3. The termination of this contract shall not affect the validity of the sale, license, or lease of any of Photographer’s Images by New Africa Photo Ltd, 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.
8.4. If New Africa Photo Ltd 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.
ARTICLE IX LIMITATIONS ON ASSIGNMENTS
9.1. This Agreement may not be assigned by either party voluntarily or by operation of law without prior written consent of the other party, except that New Africa Photo Ltd may assign this Agreement in connection with the sale or transfer of all or substantially all of New Africa Photo Ltd’s business, provided that the purchaser or transferee agrees in writing to assume all of New Africa Photo Ltd’s obligations and liabilities to Photographer.
ARTICLE X MISCELLANEOUS PROVISIONS
The parties any shall keep confidential any information explicitly noted as confidential. The parties
may disclose such information marked as confidential under the following circumstances:
- As necessary and appropriate to the parties’ tax preparers;
- In confidence, to their respective insurers, attorneys, accountants, auditors, and financial advisors;
- Insofar as such disclosure may be necessary to enforce its terms; or
- As required under law.
Notwithstanding this provision, the parties may disclose that New Africa Photo Ltd is acting as Photographer’s agent during the term of this Agreement.
When notice is required to be given under this Agreement, it shall be considered given if
2. Mailed, or
3. Delivered by any reliable courier service
10.3. Governing Law
This Agreement shall be governed by and construed under the Kenyan Law 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 Kenyan Courts, and the parties hereby consent to the jurisdiction and any final, non-appealable judgment of such 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.
Should any provision or clause of this Agreement be determined to be non-enforceable by any Kenyan Law, that provision or clause shall be severed from this Agreement and all remaining provisions and clauses in this Agreement shall be enforceable.
The 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 New Africa Photo Ltd, 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 THEREFORE any and all who intend to be bound by the above terms, execute this Agreement by Registration on http://www.africanstockphoto.com.