Terms & Conditions

INDEPENDENT CONTRACTOR AGREEMENT CONTINUED

6. Contractor Representations and Warranties

Contractor represents and warrants to Studio and each Subsidiary that: (i) Contractor will provide the services under this Agreement in a timely and professional manner; (ii) all Works (as defined in Section 7 below) will be, at the time of delivery to Studio, free from defects in design, materials and workmanship; (iii) the Works will conform to the specifications and quality control measures of Studio, including those specified on the cut sheet and wedding plan; (iv) Contractor’s performance of this Agreement does not violate or breach any agreement between Contractor and any third parties; and (v) Contractor is the sole creator of the Works and the Works are original in all respects. Time is of the essence with respect to Contractor’s performance of this Agreement. If Contractor fails to deliver all Photo/Video Content shot during the Assignment by the date specified above, Contractor agrees to a reduction of the Assignment Fee equal to $25.00 per day. The foregoing reduction and adjustment to the Assignment Fee is made to support the administrative costs associated with late delivery; both Contractor and Studio agree that this reduction does not limit or in any manner waive other rights and remedies available to Studio (under this Agreement or applicable law) in the event of Contractor’s non-performance or breach of this Agreement. In addition, Contractor agrees that Studio may set-off and reduce from the Assignment Fee any amounts due and owing by Contractor to Studio for any reason, whether relating to this Agreement or other agreements or matters between Contractor and Studio.

7. Ownership of Photo/Video Content.

(a) Ownership of Rights. Contractor acknowledges and agrees that all works created and developed in whole or in part as a result of, or ancillary to, this Agreement, including, without limitation, all images, all photography and videography media, and other content created in connection with the Assignment, (collectively, the “Works”) will be considered “works made for hire” as that term is defined in Section 101 of the Copyright Act (17 U.S.C. §101) and all right, title and interest in such works shall be the exclusive property of Studio. In addition, Contractor hereby assigns and transfers to Studio,without any further consideration, all right, title and interest in and to the Works described in this Agreement, including but not limited to, all copyright and other intellectual property rights of any nature. Upon request, Contractor shall sign all documents necessary to confirm the exclusive ownership of Studio to all Works. In addition, Contractor shall not use (or allow any third party associated with Contractor to use) any intellectual property of Studio or the Subsidiaries, including, without limitation, any trademarks, names or logos of Studio or the Subsidiaries, in any manner whatsoever, without first obtaining written consent from Studio or the Subsidiaries. (b) Covenants Regarding Image and Video Files. In addition to all other covenants and obligations of Contractor set forthin Section 9 below, Contractor shall not “tag” (or otherwise associate with) any Works and/or images of Studio’s or a Subsidiary’s clients, event guests, vendors or venues on Facebook or any other online service or media. Except has expressly provided in subsection (c) below, Contractor is not permitted to show, display, give, sell or otherwise transfer any images or video footage taken or created by Contractor during the Assignment to Studio’s or a Subsidiary’s clients, event guests, event vendors, the event venue or representatives of the venue, or to any other third parties. If any client, guests, vendor or venue representative requests to see, display or purchase any Works, Contractor must direct such client, guest, vendor or venue representative to Studio and notify Studio of such request. (c) Request for Non-Public Use of Works. No sooner than ninety (90) days after the Assignment Date, Contractor may make a written request to Studio to use specified Works solely for Contractor’s own non-public promotional and portfolio purposes. Before using any Works for any purpose, Contractor must first obtain Studio’s written consent, which may be withheld in Studio’s sole discretion. If Studio grants consent to Contractor permitting Contractor’s usage of one or more specified Works, Contractor’s usage of the Works shall be subject to the following: (1) Studio’s consent remains revocable at all times upon written notice; (2) Contractor shall not use the Works in any manner that is disparaging, critical or negative of Studio, its clients or any other person, as determined by Studio in its sole discretion; (3) Contractor’s usage of the Works must be non-public and for the sole purpose of promoting Contractor’s business as a photographer or videographer; (4) under no circumstances shall the Works be displayed on any public website such as Yelp®, Facebook®, or any other social media site; (5) Contractor shall not use in conjunction with the Works or otherwise any intellectual property of Studio or the Subsidiaries, including, without limitation, any trademarks, names or logos of Studio or the Subsidiaries; and (6) all covenants, terms and conditions in Section 9 below continue to apply. (d) Retention and Destruction of Works. Unless Contractor obtains Studio’s specific written consent to use certain Works in compliance with subsection (c) above, Contractor shall not retain any Works beyond the specific back-up and retention requirements specified above. After (1) expiration of the back-up and retention periods specified in Section 3 above, or (2) Studio’s revokes or terminates its consent for Contractor to use certain Works as provided in subsection (c) above, whichever is later, Contractor shall immediately delete and destroy all image files, video files and any other remaining confidential or proprietary information of Studio in Contractor’s possession or control.

8. Cancellation.

(a) By Studio. Except as provided below, in the event that an Assignment is cancelled by Studio, Studio will provide notice to the Contractor as soon as practicable and Studio shall be liable for payment to Contractor in accordance with the following schedule:

1. If Studio cancels the Assignment three months in advance of the Assignment date then the Studio is responsible for payment of 25% of the Assignment Pay to Contractor.
2. If Studio cancels the Assignment two months in advance of the Assignment date then the Studio is responsible for payment of 50% of the Assignment Pay to Contractor.
3. If Studio cancels the Assignment one month in advance of the Assignment date then the Studio is responsible for payment of 75% of the Assignment Pay to Contractor.
4. If Studio cancels the Assignment two weeks or less in advance of the Assignment date then the Studio is responsible for full payment of the Assignment Pay to Contractor.

In addition, Studio reserves the right to remove the Contractor from an Assignment and cancel this Agreement without any payment by Studio to Contractor if Studio determines in its sole discretion that Contractor’s role in the Assignment jeopardizes the chances of satisfactorily completing the Assignment. Misconduct, poor performance on past assignments, failure to respond to Studio requests, and other factors as determined by Studio in its sole discretion can result in removal of Contractor from the Assignment and termination of this Agreement.

Furthermore, Studio may cancel an Assignment by reason of earthquake, hurricane, fire, flood or other casualty or due to storms, strikes, riots, explosions, acts of God, pandemics, epidemics, viral outbreaks, war, terrorism, or a similar occurrence or condition beyond Studio’s control; and, in the event of such a cancellation, no Assignment Pay or other amounts shall be due or Payable to Contractor. (b) By Contractor. In the event that Contractor cancels its services for the Assignment or terminates this Agreement for any reason, or if Contractor cannot perform the Assignment, Contractor shall provide verbal notice and written notice to the Studio as soon as practicable and Contractor shall be liable to Studio for a termination fee equal to the full Assignment Pay (“Termination Fee”). The Termination Fee is due and payable by Contractor to Studio immediately upon Contractor’s cancellation or termination of this Agreement for any reason. Studio may waive the Termination Fee in its sole discretion solely upon written request by Contractor no later than three days after Contractor’s cancellation or termination, which request much include sufficient information to establish to Studio that Contractor had a legitimate inability to perform or complete the Assignment.

9. Non-Solicitation and Non-Disclosure.

1. Contractor agrees that during the period between the date of this Agreement and the date which is twelve (12) months after Contractor ceases to perform any services for Studio or any of the Subsidiaries pursuant to this Agreement (referred to as the “Termination Date”), Contractor shall not, either individually or on behalf of any entity or business enterprise of which Contractor is an independent contractor, officer, promoter, director, shareholder, member, partner, trustee, employee or consultant to: (i) Contact in any manner any existing, prospective or past client of Studio or the Subsidiaries for whom Contractor provided services or with whom Contractor had direct contact in connection with Contractor’s services under this Agreement at any time for the purpose of soliciting or accepting the business of engagement or wedding photography services from such client; or (ii) Employ or seek to employ in any capacity or retain or seek to retain as a consultant or independent contractor any person who was employed by or served as an employee, consultant or independent contractor to Studio or the Subsidiaries during the twelve (12) month period prior to the Termination Date (as defined above); or (iii) Induce any person to terminate their employment, consulting, independent contractor or other relationship with Studio or the Subsidiaries.
2. Contractor also agrees to the non-disclosure covenants set forth in this Section 9(b). In the event of any conflict between the term and conditions of this Agreement and the terms and conditions set forth in the separate Non-Solicitation and Non-Disclosure Agreement between Contractor and Studio or a Subsidiary, the terms and conditions of this Agreement shall supersede and control. (i) As used herein, the term “Confidential Information” shall mean all information and documents of Studio or the Subsidiaries, whether in written or oral form, which Studio or a Subsidiary furnishes or otherwise discloses or causes to be furnished or disclosed to Contractor in connection with this Agreement, whether furnished or otherwise disclosed
   before, on or after the date of this Agreement, together with all other documents, records, files or data prepared by Contractor which contain or otherwise reflect or are generated from such information or documents. The “Confidential Information” shall also include, without limitation, all files, documents, images, image files, video footage, video files, business records, client names and identities, potential client names and identities, promotional materials, marketing information, manuals, pricing information, memoranda, FAQs, correspondence, and any other records, documents, writings of any kind whatsoever, and all information Contractor obtains or has access to regarding Studio’s or a Subsidiary’s clients and the clients’ events, including the details of the clients’ events and identities of guests at the clients’events. (ii) Contractor shall not, at any time during Contractor’s performance of this Agreement or any time after expiration of this Agreement or completion of Contractor’s performance of this Agreement, use in competition with Studio or the Subsidiaries in the wedding photography industry or communicate, divulge, disclose or make available to any person or entity (including, without limitation, any competitors or potential competitors of Studio or the Subsidiaries) any of Studio’s or the Subsidiaries’ Confidential Information. (iii) During Contractor’s performance of this Agreement and at all times after expiration of this Agreement and completion of Contractor’s performance of this Agreement, Contractor will treat as confidential and refrain from disclosing to any person all information Contractor obtains or has access to regarding Studio’s or the Subsidiaries’ clients and the clients’events, including the details of the clients’ events and identities of guests at the clients’ events. In addition, Contractor shall not at any time upload to the Internet (including, without limitation, websites such as YouTube® or any social media sites), share, transmit or otherwise transfer any image files, video files, information regarding or including Studio’s or the Subsidiaries’ clients, or any other content or information relating to or arising out of Contractor’s services to Studio, the Subsidiaries’ or their respective clients. (iv) At the time that Contractor ceases to perform services for Studio or upon demand by Studio (whichever is sooner), Contractor shall promptly turn over to Studio all Confidential Information. Contractor shall not copy or record in any manner whatsoever the Confidential Information, and, subject to Contractor’s back-up and retention obligations for the Photo/Video Content described in Section 3 of this Agreement, Contractor shall delete and destroy any copies or recordings of any kind whatsoever containing information derived directly or indirectly from such materials. After the back-up and retention periods specified in Section 3 of this Agreement have expired and subject to the provisions of Section 6(c) of this Agreement, Contractor shall immediately delete and destroy all Photo/Video Content and any other remaining Confidential Information in Contractor’s possession or control. (c) Contractor acknowledges that the obligations and covenants in this Section 9 shall survive the expiration of this Agreement and Contractor’s performance of services under this Agreement for the time periods set forth herein and Contractor further agrees that such time periods are reasonable to protect Studio’s and each Subsidiary’s interest in its Confidential Information and Studio’s and each Subsidiary’s relationship with the parties specified in Section 9(a). (d) In the event Contractor fails to perform any of the covenants contained in Section 9 of this Agreement, Studio and each Subsidiary, which Contractor agrees shall be a beneficiary of this Agreement, shall be authorized and entitled to obtain from any court of competent jurisdiction preliminary and permanent injunctive relief as well as an equitable accounting of any and all profits or benefits arising out of Contractor’s violation of this Agreement, which rights and remedies shall be cumulative and in addition to any other rights or remedies to which Studio or the Subsidiaries may be entitled, including the right to damages directly or indirectly sustained by Studio or the Subsidiaries. In addition, Contractor shall also reimburse Studio and each Subsidiary for all costs incurred (i) in enforcing any of Studio’s or the Subsidiaries’ rights hereunder or (ii) in connection with Contractor’s breach of any of its obligations hereunder, including, without limitation, all attorneys’ fees and court costs incurred by Studio or the Subsidiaries. (e) The covenants of Contractor contained in Section 9 of this Agreement shall be construed as an agreement,independent of any other provision of this Agreement, and the existence of any claim or cause of action of Contractor against Studio or the Subsidiaries, whether predicated on this Agreement or otherwise, shall not constitute a defense to the enforcement by Studio or the Subsidiaries of said covenants. 1. Contractor acknowledges that The Defend Trade Secrets Act may provide for certain immunity to Contractor. 18 U.S.C. §1833(b) provides that: “An individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that – (A) is made (i) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual – (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret except pursuant to court order.” Accordingly, and notwithstanding any contrary provisions in this Agreement, Contractor has the right to disclose in confidence trade secrets to Federal, State and local government officials, or to any attorney, for the sole purpose of reporting or investigating a suspected violation of law. Contractor also as the right to disclose trade secrets in a document filed in a lawsuit or other proceeding, but only if the filing is made under seal and protected from public disclosure. Company and Contractor agree that Contractor will not be retaliated against for reporting suspected violations of law in good faith. Nothing in this Agreement is intended to conflict with 18 U.S.C. §1833(b) or create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C. §1833(b).

10. Contractor’s Insurance

During the term of this Agreement, and as required by applicable law, Contractor shall maintain, at its expense, for itself and its employees, worker’s compensation insurance and unemployment insurance as required by applicable law. This Agreement does not create an employment or joint-employment relationship between Studio (or the Subsidiaries) and any of Contractor’s employees or agents. Contractor shall also maintain, at its expense, general liability insurance and professional liability insurance (or its equivalent) in an amount sufficient to cover any foreseeable damages related to its performance of this Agreement. Contractor shall make each of Orion Photo Group, LLC, George Street Photo & Video, LLC and Lily & Lime, LLC or byDesign Films, LLC an additional insured on its general liability and professional liability insurance policies for the Assignment. Contractor shall submit evidence of all such insurance coverage to Studio upon request.

11. Indemnification

Contractor shall indemnify, defend, and hold Studio and each Subsidiary harmless from and against,and shall pay all losses, costs, liabilities, damages, or expenses whatsoever, including, without limitation, reasonable attorneys’ fees and costs, costs to engage back-up photographers or videographers, and data recovery costs arising out of this Agreement or the Assignment (collectively, “Losses and Costs”), which Studio or the Subsidiaries may sustain or incur on account of (i) any injury or death to any person or damage to any property or both caused by Contractor or its employees, contractors, or agents, (ii) any breach by Contractor or its employees, contractors, or agents of the representations, warranties, covenants and other obligations in this Agreement, (iii) incomplete performance or defective work by Contractor, (iv) failure by Contractor to be at the Assignment Location(s) in accordance with this Agreement, or (v) any other acts or omissions of Contractor or its employees, contractors or agents. Without limiting the foregoing provisions, Contractor and Studio agree that Contractor’s indemnification obligations in this Agreement apply to and cover all Losses and Costs incurred by Studio or the Subsidiaries arising out of claims or demands made by Studio’s or a Subsidiary’s clients against Studio or a Subsidiary which are based on, relate to, involve or arise out of Contractor’s acts or omissions; and such Losses and Costs shall further include, without limitation, all amounts paid by Studio or a Subsidiary to settle such claims or demands, even if settled by Studio or a Subsidiary prior to or separate from a pending lawsuit or other proceeding. Additionally, Contractor acknowledges that in addition to regular damages related to a failure to perform this Agreement, Contractor will be held liable to Studio and each Subsidiary for consequential damages such as lost business opportunities, lost profits, and attorneys’ fees and costs to enforce this Agreement.

12. Waiver by Contractor.

Contractor waives any rights to recover from Studio or the Subsidiaries for any injuries that Contractor may sustain while performing services under this Agreement that are a result of or arise out of the acts of Contractor, Contractor’s employees, contractors, agents, or third parties.

13. Assignment and Delegation

Contractor may not assign or delegate any of its rights or responsibilities under this Agreement to a third party.

14. Modification of Agreement.

Any modification of this Agreement must be in writing and signed by both parties.

15. Entire Agreement; Survival of Obligations; Partial Invalidity.

This Agreement constitutes the full Agreement of the parties with respect to the Assignment. In the event of a conflict between this Agreement and the Non-Solicitation and Non-Disclosure Agreement between Contractor and Studio or a Subsidiary, the terms of this Agreement shall supersede and control. No other terms contained in any forms issued by Contractor or Contractor’s agents or representatives shall apply, whether additional or conflicting (including, but not limited to, invoice, purchase order, estimate or quotation forms). Any proposal for additional or different terms or any attempt by Contractor to vary in any degree any of the terms herein is hereby objected to and rejected. Any such proposal will be deemed a material alteration hereof, and this Agreement shall be deemed accepted by Contractor without said additional or different terms. The parties’ rights and obligations contained in Sections 1 through 7, 8, 9, 10, 11, 15, 16 and 17 of this Agreement will survive any termination or expiration of this Agreement. If any one or more of the provisions of this Agreement shall be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement and such invalid, illegal or unenforceable provision shall be reformed and construed so that it will be valid, legal and enforceable to the maximum extent permitted by law.

16. Remedies.

All rights and remedies provided in this Agreement are cumulative and not exclusive of any other rights or remedies that may be available to the parties, including, without limitation, each of the Subsidiaries, whether provided by law, equity, statute, in any other agreement between the parties or otherwise. Waiver of any term of this Agreement by either of the parties shall not be considered a continuing waiver.

17. Governing Law and Venue.

This Agreement shall be construed in accordance with the laws of the State of Illinois, without regard to the choice of law principles of the State of Illinois. Venue for any action arising under this Agreement shall be in the state or federal courts located in Cook County, Illinois, and the parties hereby waive any and all defenses they may have to such court having exclusive venue and jurisdiction over the parties in any such action. The parties hereby irrevocably and unconditionally waive any objection to the laying of venue of any action, suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in the courts of the State of Illinois or the United States of America located in Cook County, Illinois, and hereby further irrevocably and unconditionally waive and agree not to plead or claim in such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

18. Electronic Signatures.

Contractor and Studio agree that digital or electronic signatures shall be binding on the parties and sufficient to execute, negotiate and finalize this Agreement.