In consideration of my new or continued contractual relationship with Kapturly, LLC, a Utah corporation, its subsidiaries, affiliates, predecessors, successors or assigns (together the “Company”), and for other consideration, the receipt and sufficiency of which are hereby acknowledged, I agree to the following terms and conditions under this agreement (the “Agreement”):
1. Independent Contractor and At-Will Employment. I understand and acknowledge that I am an independent contractor with the Company and that the scope of my relationship with the Company is to act as a photographer or videographer for individuals and parties (the “Customer” or “Customers”) in connection with special events for the Customers, such as weddings and anniversaries.
I acknowledge that nothing in this agreement constitutes or creates an employment agreement or employee-employer relationship between me and the Company. I further acknowledge and agree that my contractual relationship with the Company is for an unspecified duration and constitutes an “at-will” relationship with the Company. I understand that any representation to the contrary is unauthorized and is not valid unless obtained in writing and signed by an authorized agent of the Company. I acknowledge that this relationship may be terminated at any time, with or without good cause or for any or no cause, at the option either of the Company or myself, with or without notice.
2. Assignment, Ownership, and Release of Media Rights. In exchange for this contractual relationship and other good and valuable consideration, the receipt and sufficiency of which I hereby acknowledge, I give Company my permission for the use and publicity of any and all media—including without limitation photographs, videos, visual representations, sound recordings, and written documents and information—I capture or produce for a Customer event or otherwise in furtherance of this Agreement (the “Media”).
(a) Consent to Use Media. I hereby irrevocably permit, authorize, grant, and license Company and its affiliates, successors, and assigns, and their respective licensees, advertising agencies, promotion agencies, and fulfillment agencies, and the employees, officers, directors, and agents of each and all of them (the “Authorized Persons”), the rights to display, publicly perform, exhibit, transmit, broadcast, reproduce, record, photograph, digitize, modify, alter, edit, adapt, create derivative works, exploit, sell, rent, license, otherwise use, and permit others to use my Media and all materials created by or on behalf of Company that incorporate any of the foregoing (collectively, the “Materials”) in perpetuity throughout the universe in any medium or format whatsoever now existing or hereafter created, on any platform, and for advertising, public relations, publicity, packaging, and promotion of Company and its affiliates and their businesses, products, and services, without further consent from or royalty, payment, or other compensation to me except as otherwise expressly provided in this Agreement.
(b) Ownership of Materials. Company shall own all rights, including copyright, in the Materials. I hereby irrevocably transfer, assign, and otherwise convey to Company my entire right, title, and interest, if any, in and to the Materials and all copyrights and other intellectual property rights in the Materials arising in any jurisdiction throughout the universe in perpetuity, including all registration, renewal, and reversion rights, and the right to sue to enforce such copyrights against infringers. I acknowledge and agree that I have no right to review or approve Materials before they are used by Company, and that Company has no liability to me for any editing or alteration of the Materials or for any distortion or other effects resulting from Company’s editing, alteration, or use of the Materials, or Company’s presentation of me. Any credit or other acknowledgment of me, if any, shall be determined by Company in Company’s sole discretion. Company has no obligation to create or use the Materials or to exercise any rights given by this Agreement.
Notwithstanding the foregoing, I understand that I shall retain all ownership rights in the Media that I capture for a Customer event. Moreover, I understand and acknowledge that I may reproduce the Materials in print and electronic formats, post the Materials on social media and elsewhere, and otherwise display and share the Materials without offending this Agreement.
(c) Release of Claims. To the fullest extent permitted by applicable law, I hereby irrevocably waive all legal and equitable rights relating to all liabilities, claims, demands, actions, suits, damages, and expenses, including but not limited to claims for copyright or trademark infringement, infringement of moral rights, libel, defamation, invasion of any rights of privacy (including intrusion, false light, public disclosure of private facts, and misappropriation of name or likeness), violation of rights of publicity, physical or emotional injury or distress, or any similar claim or cause of action in tort, contract, or any other legal theory, now known or hereafter known in any jurisdiction throughout the world (collectively, the “Claims”), arising directly or indirectly from the Authorized Persons’ exercise of their rights under this Agreement or the production, exhibition, exploitation, advertising, promotion, or other use of the Materials, and whether resulting in whole or in part from the negligence of Company or any other person, and I hereby covenant not to make or bring any such Claim against any Authorized Persons and forever release and discharge the Authorized Persons from liability under such Claims. I understand that the Company is relying on this Agreement and will incur significant expense in reliance on this Agreement, and I agree that this Agreement cannot be terminated, rescinded, or modified, in whole or in part.
(d) Delivery of Media. I herein acknowledge and agree to deliver any and all Media to the Company within 48 hours of completion of the Customer’s event(s) in the Media’s raw, native format. I further understand and agree that I will not deliver unedited Media or Materials to the Customer without the prior written consent of the Company. I acknowledge that violation of any of the terms of this subpart 2 represents grounds for termination and that the Company may, among other remedies, refuse to pay me for my services until I have fully complied with all such terms.
3. Fulfillment of Obligations and Services. I understand and acknowledge that I am solely responsible for my services, including maintenance and production of all equipment utilized to capture and produce Media. In the event that I require partners, subcontractors, affiliates, or other contractors or employees, I shall be fully and solely responsible for their payment and conduct. I understand and acknowledge that damage to or loss of equipment in connection with Customer may occur and, unless caused by the Company, is no way the fault or liability of the Company.
I further acknowledge and agree that all Customer events which I book or accept in connection with my relationship with the Company become my sole responsibility to fulfill. If, for any reason, I am unable to honor a Customer booking, it is my responsibility to seek out and secure adequate replacement services for the Customer event, and that my failure to timely and fully do so may result in a $100 fee or the actual damages incurred by my failure, whichever is higher.
4. Compensation and Refunds. I understand and acknowledge that my compensation by Company is contingent on satisfactory performance of my services, including the creation, delivery, and release of Media as described above. I acknowledge that I will be paid no later than 30 days after submitting an invoice to the Company. I further acknowledge and agree that, under the Company’s published guarantees to the Customers, Customers may be entitled to full refunds if canceled within 48 hours of booking or at least 28 days prior to their first event.
5. Tips, Travel Expenses, and Other Fees: I acknowledge and agree that all tips, additional fees for travel, additional hours and locations, or other fees incurred between myself and the Customer after the final invoice between the Company and the Customer has been issued (typically ten days prior to the Customer event) shall be my responsibility to invoice and collect. If, for whatever reason, the Customer bills the Company for these services, I acknowledge and agree that the Company will pay these fees at the rates agreed herein.
6. Termination of Relationship. I acknowledge and agree that, prior to my termination of my relationship with the Company, I will provide notice of my intent to terminate to the Company in writing at least 30 days prior to termination. I further agree that, in the event of my termination, whether by own choice or otherwise, I will either fulfill all Customer events already booked and accepted by me, or will undertake any and all reasonable efforts to find replacement services for such events. I further acknowledge and agree that my failure—whether by refusal or otherwise—to fulfill the terms of this provision may subject me to a fee of $100 per Customer event impacted by my termination.
7. Representations. I agree to execute any proper oath or verify any proper document required to carry out the terms of this Agreement. I represent that my performance of all the terms of this Agreement will not breach any agreement to keep in confidence proprietary information acquired by me in confidence or in trust prior to my employment by or consultation with the Company. I have not entered into, and I agree I will not enter into, any oral or written agreement in conflict herewith.
8. Liability Waiver. To the furthest extent provided by law, I acknowledge and agree that I will be solely responsible for my own welfare and safety, as well as the welfare and safety of this in my employ, in connection with Customer events and the services I provide to Customers and the Company. I acknowledge and understand that, unless actually caused by the Company, any damages I or my affiliates incur in connection with Customer events are not the fault or liability of the Company. I further agree that in no circumstances shall the Company be liable for any damages caused by me or my affiliates at or in connection with Customer events and herein agree to indemnify and hold harmless the Company in all such circumstances.
9. Force Majeure. I agree and acknowledge that the Company will not be liable for non-performance or failures occurring as a result of any events that are beyond the reasonable control of the Company, including without limitation fire, telecommunications or internet failure, pandemic, power failure, equipment failure, employment strife, riot, war, terrorist attack, non-performance of third party suppliers or affiliates, acts of God such as storm or lightning damage, or other causes over which the Company has no reasonable control.
10. General Provisions.
(a) Governing Law; Consent to Personal Jurisdiction. This Agreement will be governed by the laws of the state of Delaware without regard for conflicts of laws principles.I hereby expressly consent to the exclusive personal jurisdiction of the state and federal courts located in Delaware for any lawsuit filed there against me by the Company arising from or relating to this Agreement.
(b) Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Company and me relating to the subject matter herein and supersedes all prior discussions between us. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless in writing signed by the party to be charged. Any subsequent change or changes in my duties, salary or compensation will not affect the validity or scope of this Agreement.
(c) Other Agreements. In the event of any direct conflict between any term of this Agreement and any term of any other agreement executed by me, the terms of this Agreement shall control. If I signed or sign any other agreement(s) relating to or arising from my relationship with the company, all provisions of such agreement(s) that do not directly conflict with a provision of this Agreement shall not be affected, modified or superseded by this Agreement, but rather shall remain fully enforceable according to their terms.
(d) Severability. If one or more of the provisions in this Agreement are deemed void by law, then the remaining provisions will continue in full force and effect, and, with respect to the covenant not to compete in Section 8, the court is hereby authorized to reduce the duration or geographic scope of such covenant as may be required so that in its reduced form the provision is enforceable to the fullest extent of the law.
(e) Survival. My obligations under this Agreement shall survive the termination of my relationship with the Company and shall thereafter be enforceable whether or not such termination is claimed or found to be wrongful or to constitute or result in a breach of any contract or of any other duty owed or claimed to be owed to me by the Company or any Company employee, agent or contractor.
(f) Successors and Assigns. This Agreement will be binding upon my heirs, executors, administrators and other legal representatives and will be for the benefit of the Company, its successors, and its assigns.
(g) Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent and no rules of strict construction will be applied against either party.
(h) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be enforceable, and all of which together shall constitute one agreement.
11. Acknowledgment. I acknowledge and agree to each of the following items:
(a) I am executing this Agreement voluntarily and without any duress or undue influence by the Company or anyone else; and
(b) I have carefully read this Agreement. I have asked any questions needed for me to understand the terms, consequences and binding effect of this Agreement and fully understand them; and
(c) I sought the advice of an attorney of my choice if I wanted to before signing this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth above.