THESE MEDIA DISTRIBUTION TERMS are entered into by and between You and Raishbrook Media Group, LLC (“RMG News”), a California Limited Liability Company, and cover any images, artwork, audio, video or other content (“Media”) You provide or have provided in the past to RMG News or any predecessor in interest to RMG News.
A. You wish to syndicate certain Media and offer them for publication or display in or one or more electronic and print publications, news and entertainment services, Internet web sites, television programs, radio shows and other platforms (collectively, “Media Outlets”).
B. RMG News, among other things, serves as a syndicator distributing newsworthy Media to Media Outlets.
C. You and RMG News each desire that RMG News distribute the Media commercially to Media Outlets for issuance and/or reproduction via print, broadcast, or other mechanical or electronic means (“Publication”) subject to all applicable Terms.
In consideration of the foregoing recitals and the mutual covenants, promises and agreements set forth herein, the Parties agree as follows:
1. Distribution Rights:
1.1 License: You grant RMG News the right to license, distribute and place the Media for Publication in Media Outlets for all territories that You specify. Unless otherwise agreed to by You and RMG News, the rights granted to RMG News hereunder are exclusive with respect to all Media submitted by You. You represent and warrant that (i) You are the sole owner of the Media You submit or that You have all rights and permissions needed to license it to RMG News and that (ii) Your performance hereunder will not violate any agreement or obligation between You and any third party. You further represent and warrant that the Media is original and does not infringe on, violate or misappropriate the statutory copyright or common law rights of privacy, publicity, or moral rights of any third party or violate any other applicable law, rule or regulation. You further agree that RMG News shall have the right to freely assign the rights granted to RMG News under these Terms.
1.2 Placement Efforts: RMG News shall have sole control and discretion over which Media are offered for Publication, the timing of any offers, the price charged and the Media Outlets to be solicited.
1.3 “Splitting Sets,” Confidentiality: With respect to the Media for which RMG News is granted an exclusive license, You agree that for so long as RMG News retains the exclusive rights in and to the Media, You shall not supply such Media or Similars of such Media to any other Media Outlet. As used in this Agreement, “Similar” means a photographic image (or a series of photographic images resulting from a photographic session), footage, representation or likeness in analog or digital form, whose principal elements are depicted in a way that, when compared side by side to Media, would cause a reasonable person to believe they are substantially the same or in the case of a photographic session, would reasonably be considered as a part of the session due to the client commissioning the assignment or due to similarity in subject matter or depicted person(s). You further agree not to disclose or otherwise reveal the contents or subject matter depicted in the Media for which RMG News is granted an exclusive license or any part thereof to any other Media Outlet without express, written consent from RMG News. You represent and warrant that You have not already disclosed and/or revealed such contents or subject matter depicted in Media for which RMG News is granted an exclusive license to any other Media Outlet prior to submitting them to RMG News.
1.4 Promoting and Testing Media: RMG News may market and promote the Media in a variety of ways, including, without limitation, web sites, in print, and via other media, as well as online galleries, electronic mail, press releases, trade shows and other types of advertising directly or via third parties including without limitation social networks. Such promotion shall be limited to circumstances where RMG News reasonably believes the promotion may result in increased revenue for contributors. For the purpose of such promotions, you grant RMG News and its licensees the limited right to use Media in promotional print, digital, and online materials and promotional products as described herein and to use your name, image, likeness, and trademarks in such promotions. Additionally, these rights include the right to use Media as necessary to test or evaluate any technologies, systems, or processes that RMG News or its Affiliates, service providers, representatives, resellers, or customers may use to fulfill the obligations and exercise any rights granted hereunder. No compensation will be due to you for the use of Media in such limited promotional, evaluation or test uses.
1.5 Proofs of Concepts: From time to time, as RMG News explores new ways to drive revenues, RMG News may engage with third parties to develop proof of concept applications or other revenue streams. You grant RMG News and its licensees the right to use Media for the purpose of developing and evaluating these proof of concept applications and revenue streams, and no compensation will be due to You for such development and evaluation use of Media, including for customer beta trials; provided, however, that royalties shall be paid upon commercial rollout of these applications or revenue streams and provided further that development and evaluation shall not exceed one year in duration.
2. RMG News’s Rights and Obligations:
2.1 Ownership: RMG News acknowledges and agrees that the rights granted hereunder, including the right to assign and to sublicense the Media to Media Outlets for the purpose of licensing, distributing and placing the Media for Publication, does not confer any ownership rights in or to such Media.
2.2 Rights Protection: RMG News shall have no affirmative duty to monitor third parties’ use of Your Media. However, wherever commercially feasible, RMG News will assist in investigating and assist with reasonable enforcement efforts to help curtail any such unauthorized uses or infringements. Any recovery, after payment of all costs and expenses including without limitation attorneys’ fees and collection costs shall be treated as Revenue and You shall receive the appropriate royalty as has been allocated in Your most recent agreement with RMG News.
2.3 Bylines: RMG News shall require all Media Outlets to which it licenses, distributes or places for Publication any Media to use the byline “………/RMG News”. You agree that RMG News is entitled, in addition to the above-referenced byline, to place a copyright notice in substantially the following form: “© You [Date].”
3.1 Share Allocation: For Media licensed under the standard model, You will receive fifty percent (50%) of all Net Revenues derived from any licensing, distribution or placement for Publication of the Media, whether as fees, royalties or otherwise. For purposes of this Agreement, “Net Revenues” represents the total proceeds actually received by RMG News from any third party to which Media are licensed, distributed or placed for Publication, less any VAT and other taxes, subagents’ fees, production costs, and costs of collection.
3.2 Reporting: RMG News will provide to You reports of all licensing activity of Media submitted by You. The length of time between your first submission and the first report depends upon when the first license occurs.
3.3 Payment: RMG News cannot compensate You unless and until it has actually collected money from the buyer for Your Media. On the 15th of each month, payments are sent out for the previous month’s collections. If no Net Revenues are received by RMG News in any particular month, no payments will be made.
3.4 Withholding Payments: Notwithstanding the above, RMG News will not remit any royalty payments to You, and may not make Your Media available for customer licensing, until you have completed all aspects of the contributor registration process, including any tax registrations. You agree to update your tax registration and other registration information whenever there is a change in circumstances that could impact the taxation or delivery of Your royalty payments (i.e. changes of address, banking information, contact information, etc.) or upon RMG News’s request. RMG News may place a “hold” on Your royalty payments at such time that your tax registrations expire or in the event that RMG News becomes aware that the information in your tax registrations is incorrect (i.e. due to change in address, etc.).
4. Term and Termination:
4.1 Term: This Agreement commences on the Effective Date and lasts for an initial term of three (3) years, subject to the Survival Period set forth below. Upon expiration of the initial term, this Agreement will renew for additional twelve (12) month terms unless terminated by either party by written notice upon at least 30 days written notice prior to the anniversary date of the Effective Date. Except for termination due to RMG News’s breach for non-payment, RMG News may continue to exercise the license rights granted herein for all Media for the three (3) year period after termination or expiration (“Survival Period”), subject to all other relevant terms and conditions of this Agreement. Notwithstanding anything to the contrary, all Media submitted to RMG News on an exclusive basis will remain exclusive during the Survival Period.
4.2 Termination for Breach: Following a breach of this Agreement during its term, the non-breaching party may terminate this Agreement upon sixty (60) days written notice if the breaching party fails to cure the breach within such sixty (60) day period (except in the case of a bona-fide dispute regarding amounts due).
4.3 Effect of Termination: RMG News will, wherever feasible, notify subagents of the termination of Your relationship with RMG News. However you acknowledge that RMG News cannot prevent the licensing activity of subagents. RMG News shall compensate You in the manner described in Section 3 above if and to the extent that RMG News is paid for any subsequent licensing.
5. Limitation of Liability: NOTWITHSTANDING ANYTHING IN RMG NEWS’ WEBSITE TERMS & CONDITIONS TO THE CONTRARY, YOU AGREE THAT RMG NEWS IS NOT LIABLE FOR ANY LOSS OR DAMAGE TO MEDIA SUBMITTED TO RMG NEWS INCLUDING THE MEDIUM OR DEVICE ON WHICH THE MEDIA IS SUBMITTED OR STORED (“PHYSICAL MEDIA”) AND YOU ARE REQUIRED TO PROVIDE OR MAINTAIN YOUR OWN BACKUP FILES FOR ANY MEDIA SUBMITTED TO RMG NEWS. UNDER NO CIRCUMSTANCES SHALL RMG NEWS’ LIABILITY (WHETHER IN TORT, NEGLIGENCE, CONTRACT, OR OTHERWISE) FOR LOSS OR DAMAGE TO ANY MEDIA (INCLUDING WITHOUT LIMITATION ANALOG MEDIA) OR PHYSICAL MEDIA PROVIDED TO RMG NEWS BY YOU EXCEED $100 PER ITEM OF MEDIA OR THE AGGREGATE OF $10,000, REGARDLESS OF THE NUMBER OF CLAIMS. IF THESE AMOUNTS ARE NOT ADEQUATE TO COVER THE VALUE OF YOUR MEDIA OR PHYSICAL MEDIA, YOU SHALL BEAR SOLE RESPONSIBILITY FOR OBTAINING AND MAINTAINING ADEQUATE INSURANCE FOR PROTECTION OF THE MEDIA OR PHYSICAL MEDIA PROVIDED TO RMG NEWS. NO ACTION, REGARDLESS OF FORM, MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER THE DATE OF THE ALLEGED LOSS OR DAMAGE.
FOR ANY CLAIM UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION RMG NEWS’S UNIVERSAL TERMS), AND INCLUDING WITHOUT LIMITATION ANY CLAIM SUBJECT TO AN INDEMNIFICATION OBLIGATION, RMG NEWS SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES, AND RMG NEWS’ LIABILITY (WHETHER IN TORT, NEGLIGENCE, CONTRACT, OR OTHERWISE) FOR ANY SUCH CLAIM SHALL NOT EXCEED $10,000, EVEN IF RMG NEWS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU ACKNOWLEDGE THAT RMG NEWS WILL NOT BE RESPONSIBLE FOR MISUSE OF MEDIA BY ITS LICENSEES OR THEIR END-USERS.
6. Arbitration. All disputes which arise under this Agreement or in connection with the Network and which are not resolved within thirty (30) days following the delivery by one party to the other of a written notice describing the dispute shall be resolved by binding arbitration under the rules of the American Arbitration Association before a single arbitrator in Los Angeles, California. The decision of the arbitrator shall be final and binding on the parties, and judgment thereon shall be entered in a court of competent jurisdiction. YOU ACKNOWLEDGE AND AGREE THAT BY CONSENTING TO THIS AGREEMENT, YOU ARE CONSENTING TO BINDING ARBITRATION OF ALL DISPUTES HEREUNDER, AND THAT IN ARBITRATION, YOU SHALL NOT HAVE A RIGHT TO A JURY TRIAL OR TO JOIN IN A CLASS ACTION, SHALL HAVE LIMITED DISCOVERY RIGHTS, AND SHALL HAVE VERY LIMITED RIGHTS OF APPEAL FROM THE DECISION OF THE ARBITRATOR.
7.1 Independent Contractor: You operate an independent business apart from RMG News. Nothing in this Agreement creates a partnership, employer-employee relationship, or a joint venture between You and RMG News. You are solely responsible for obtaining and maintaining all applicable business licenses and insurance, and for timely payment of all income, payroll, and employment-related taxes, including without limitation all unemployment, workers compensation, income tax withholding, social security, and any other taxes or public charges of any nature whatsoever.
7.2 Assignment: Your obligations hereunder are personal and may not be assigned without RMG News’ prior written consent, not unreasonably withheld if assigned to a bona-fide legal entity organized and acting solely on Your or Your heirs’ behalf. RMG News may assign its rights and obligations under this Agreement to any RMG News affiliate or to any surviving party as part of a corporate reorganization, consolidation, merger, or sale without your consent and without any notice to you. This Agreement shall be binding upon and shall inure to the benefit of the parties’ heirs, executors, administrators, successors, and permitted assigns.
7.3 Entire Agreement; Modifications; Notices: This Agreement, all attachments and other documents that are incorporated herein by reference, incorporates the entire understanding of the parties concerning the subject matter contained herein. Any and all prior agreements, oral or written, between the parties concerning the subject matter contained herein are hereby terminated, superseded, and are of no further force or effect. This Agreement will not be modified except by written agreement signed by both parties. All notices and other communications which are required in this Agreement shall be in writing, via mail service to the addresses set forth below, or to such other address as either party shall have specified by notice in writing to the other party. Notices shall be deemed given ten (10) business days after the date of mailing.
Raishbrook Media Group, LLC:
578 Washington Blvd, Ste. 863
Marina del Rey, CA 90292
7.4 Interpretation: The headings and numbering shall not be considered or given effect in construing this Agreement. This Agreement shall not be interpreted against the party causing this agreement to be drafted. The English language version of this Agreement shall be used for interpretation of this Agreement, and any foreign language translations of this Agreement are provided by RMG News solely for convenience, and will not be used in the case of any dispute.
Last revision date: February 15th, 2014.