LAST UPDATED: 03/30/2023
This Agreement applies to all Assets (as the term is defined in Section 1.1) that you submit to us and that we accept for distribution.
All Assets submitted to us is on an exclusive basis. This means that Assets submitted to us and any other Asset that is substantially the same (a “Similar Asset”) may not be licensed to any third party, or otherwise commercially exploited during the Term.
We will pay you royalties (“Royalties”) based on the Licensed Fees (as defined in Section 2.3) we receive at the following rate: 20% for all Assets.
The term (“Term”) of this Agreement begins on the Start Date and will continue for an initial period of 1 year, with automatic renewals of successive one-year periods, unless terminated earlier in accordance with Section 4.1.
Standard Terms & Conditions
1. Submission of Assets
1.1 Assets: This Agreement will apply to all Assets that you submit to us for distribution (“Asset”), including the following types of Assets: (a) photographs and other still visual representations (“Still Image(s)”); (b) moving visual Asset in any form including, film, video tape and digital files (“Footage”); and (c) other work(s) you submit to us that is/are protected by copyright, in all cases, generated by any means and in any format or medium, including any reproductions and any modifications and derivative works thereof. Unless we have advised you that a particular Asset has been rejected, these terms will apply to all Assets submitted.
1.2 Delivery/Acceptance: You agree to comply with the applicable Asset Requirements (as defined in Section 1.3). We may amend the Asset Requirements from time to time. We will use commercially reasonable efforts to accept or reject the Asset you submit within 30 days. We may reject any Asset submitted by you at our discretion. Any Asset submitted from your email or through your Cleared Candid account will be deemed as having been submitted by you.
1.3 Asset Requirements: The following apply to each Asset you submit:
a.) All Assets must be uploaded via the contributor application located at https://family.clearedcandids.com.
b.) You must be the owner or the rights holder of each Asset you submit.
c.) Every person whose likeness appears in the Asset (each, a “model”) will need to execute a Cleared Candids Publicity Release, or other appropriate release which provides rights equivalent to those listed in the Cleared Candids Publicity Release (the “Release”).
1.4 Publicity Release Procedures:
a.) Once an Asset is uploaded, our artificial intelligence application will assess the Asset’s quality and will perform a scan of all human faces depicted in the Asset. We also individually review each Asset to ensure all faces have been scanned by our artificial intelligence system. You will then be asked to identify each face so that our system can create a record for each model.
b.) You will be asked to provide a description of each model and your relationship to them (for example, self, child under 18, a relative, a deceased relative, a deceased non-relative, or a friend).
c.) For all models requiring a Release, we will additionally request that you provide contact information for the model (email address or mobile phone). This contact information will be used to send the model a request to fill out and digitally sign the Release, which must be agreed to in order for us to list the Asset.
d.) Models will be provided the option to “approve all future releases” that will auto-create a model clearance form using their previously entered information. This is helpful for families, because often a parent or sibling will simply want to give a blanket clearance approval to the contributor. From then on, any face of that model will have its model clearance form automatically generated. This is an OPTIONAL setting, and models can choose to approve each face request individually.
e.) Once every model has signed the Release, the Asset will move into our final legal review process. Once our team confirms all faces have a signed model release, the photo is then listed for sale on our site. All information pertaining to every face is saved in our database, along with the completed model clearance form, signatures, term agreement checkbox and date signed.
2. Grant of License
2.1 License Grant. You grant us a worldwide, non-exclusive right to market and sublicense the right to copy, use, reproduce, distribute, redistribute, sublicense, publish, republish, upload, post, transmit, broadcast, crop, modify, alter, create derivative works of, package, repackage, produce and sell prints or similar image products, or publicly perform or display the Asset to prospective licensees in any and all media now in existence or that may in the future be introduced. We may authorize any customer who sublicenses the Asset from us (“Sublicensee”) to exercise any of the rights described in this Section 2.1. We will determine the terms and conditions of all sublicenses for the Assets granted by us but will not use or license any Asset for uses that are defamatory, pornographic or otherwise illegal and will use commercially reasonable efforts to stop any such use by Sublicensees brought to our attention. We will determine how any Asset may be marketed and may stop marketing or licensing it at any time. If we notify you that we have permanently stopped marketing and licensing any particular Asset, the Agreement will be deemed to be terminated only with regard to that Asset.
2.2 Copyright to Assets. The Parties agree that all rights, including title and copyright, in and to the Asset will be retained by you, and no title or copyright is transferred or granted in any way to us or any third party except as provided in this Agreement.
2.3 Publicity Rights of Individuals Depicted in Assets. All necessary model, publicity and property releases must be secured for all individuals or real property(ies) depicted in any Asset, and must be submitted to us together with any Asset you wish to license. The required release forms can be completed through our contributor application at family.clearedcandids.com.
2.4 Moral Rights. For the purposes of this Agreement, “Moral Rights” means all non-transferable and non-licensable rights belonging to the original creator of the Asset 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 the Asset; and (c) the right to withdraw the Asset 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 the Asset(s). To the extent such waivers are not permitted by applicable law, you agree not to enforce such moral rights against us or our Sublicensees. 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 Asset is not credited and that Asset may be modified.
2.5 Marketing Use of Asset. You further grant to us the right to use the Asset for our own marketing purposes, including use in composites that include other assets supplied by third parties, in any media, including in our social media properties. No royalties will be paid on these marketing uses.
2.6 Right to Control Claims. We will have the right to determine, using our best commercial judgment, whether and to what extent to proceed against any third party for any unauthorized use of an Asset. You authorize us at our expense the exclusive right to make, control, settle and defend any claims related to infringement of copyright in the Asset and any associated intellectual property rights (“Claims”). You agree to provide reasonable cooperation to us and not to unreasonably withhold or delay your cooperation in these Claims. We will not enter into any settlement that will compromise your ownership of the copyright in any Asset or that prohibits your future conduct with respect to any Asset without your prior written consent. We will pay you Royalties on any settlements we receive from Claims. If we elect not to pursue a Claim, you will have the right to pursue it.
3. Royalties & Payment Terms
3.1 Pricing; Discounts; Collections: It is fully within our discretion to set pricing for each Asset that we license, and whether to provide promotional offers or discounts to our customers. Assets may be included in one or more of our collections (“Collections”) made available for licensing by us to Sublicensees. In the event we sublicense the Asset as part of a Collection, the revenue attributable to the Asset, for the purposes of calculating the Royalties owed to you, will be calculated as a prorated percentage of the list prices for each product included in such Collection.
3.2 Royalties. Royalties in the amount(s) set forth in the table above (“Royalties”) are paid to you based upon the License Fees we receive for your Assets. “License Fees” means (a) the amount charged by us to each of our Sublicensees for use of your Asset(s); and (b) the amount recovered from a third-party infringer in connection with a Claim related to your Asset(s) (as defined in Section 2.9). In all cases, the following deductions will be made from the License Fees before Royalties are calculated: any (i) applicable VAT, duty, levy or impost of any nature required to be withheld, deducted or paid by us from any current or future sums due to you by any law, regulation, or treaty (excluding: (a) any taxes on our net profits; and (b) any withholding taxes imposed on remittances to us from countries outside of the US); and (ii) unauthorized use detection/enforcement fees and expenses.
3.3 Royalty Deductions. We may deduct the following amounts from the Royalties payable to you (collectively, the “Royalty Deductions”): (a) cancellations, partial refunds or other sales incentive rebates in respect of a sublicense where the original sale has been reported in a current or past sales report (“Sales Report”) including where due to a fraudulent transaction; (b) overpayment of Royalties in a prior Royalty period; and (d) amounts that may be deducted or withheld in accordance with the Section 3.2. Indemnification. We will notify you of any Royalty Deductions in a Sales Report before deducting amounts from payments to you.
3.4 Reporting and Payment. Within 30 days after the end of each calendar month in which any licensing or sales of the Asset took place (the “Sales Month”), we will make available to you a Sales Report for transactions reported during the Sales Month. The Sales Report will state the Royalties due to you, any Royalty Deductions and will also include the following information for the Asset(s): (a) the invoice number or transaction identifier and date; and (b) where appropriate, the rights granted by under a sublicense. We will make Royalty Payments within 30 days after the end of each Sales Month, by check or electronic funds transfer. No payment will be made unless a minimum of US$100.00 (or local currency alternative), after Royalty Deductions, is due to you. We will make our Sales Reports available through the contributor application located at https://family.clearedcandids.com.
4. Representations & Warranties, Indemnification & Limits on Liability
4.1 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; (b) you represent and warrant to us that: (i) you are the sole and exclusive owner of the Asset submitted to us or are the authorized representative of the applicable copyright owner(s) of such Asset; (ii) the Asset(s), to the best of your knowledge after due investigation and prior to modification us, 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; and (iii) you have obtained valid model or property releases where necessary and you will keep the original release and provide a copy to us.
4.2 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 shall not be unreasonably withheld. You agree that we may retain any amounts due to you under the Agreement or any other agreement you may have with us to the extent we are owed any sum under this Section 3.2.
4.3 Limitation of Liability. Neither party will be liable for any punitive, indirect, consequential, special or incidental damages arising out of or in connection with the Agreement, even if they have been advised of the possibility of such. In addition, we will not be liable to you under any circumstances arising out of the misuse of any Asset by any third party. We will not be liable for any loss or damage to any Asset, storage device or other materials submitted to us, and you are required to provide or maintain your own backup files for any Asset submitted. You shall bear sole responsibility for obtaining and maintaining adequate insurance for protection of the Asset. If, despite the above limitations, liability is imposed on us for any of these reasons, in no event will our liability exceed US $1,000 in the aggregate.
4.4 No liability for breach by Sublicensee. You acknowledge and agree that we cannot guarantee that a Sublicensee will not use the Asset in a manner that is not contemplated in this Agreement. Therefore, you agree that notwithstanding any rights you may have to pursue a Sublicensee, and to the fullest extent permitted under applicable law, we will have no liability to you or any person claiming through you for any breach by a Sublicensee of the terms of any agreement respecting any Asset.
5. Termination & Survival of Licensing Rights
5.1 Termination. Either Party may terminate this Agreement upon mutual written agreement at any time, or without cause at any time by providing 60 days written notice. 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 30 days after being given notice thereof by the non-breaching Party; or (b) becomes insolvent or suffers any act of insolvency.
5.2 Effect of Termination. Except for unexpired licenses under Section 6.3, upon termination, the grant of authority given to us under this Agreement will cease and we will use commercially reasonable efforts to: (a) inactivate any digital Asset in our inventory within 60 days (the “Wind Down Period”); and (b) upon your written request, either (i) return to you any analog format Asset within 3 months; or (ii) provide you with a digital copy of any analog format Asset that is irretrievable or otherwise damaged (normal wear excepted). During the Wind Down Period under this Section 4.2(a), we may continue to process licenses of the Asset so long as we pay Royalties to you as required under this Agreement.
5.3 Survival of Unexpired Licenses. You acknowledge that an Asset may be licensed by a Sublicensee for incorporation into a film or television production. Once incorporated, the Asset may not be withdrawn. Therefore, following termination of the Agreement, all unexpired sublicenses of the Asset will remain in effect. We will continue to pay all Royalties, if any, to you as required under this Agreement.
5.4 Surviving Provisions. The termination of this Agreement will not affect the accrued rights and obligations of the Parties existing at the date of termination. 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 will survive termination.
6. Additional Terms & Conditions
6.1 Passwords. You acknowledge and agree that you will be responsible for each and every access or use of the Cleared Candids contributor enrollment website, Cleared Candids’ contributor site or any other upload website, tool or application that occurs in conjunction with your account and such passwords. Cleared Candids shall have no liability or responsibility to monitor the provision of Content under your login and password.
6.2 Entire Agreement; Severability; Waiver. The Agreement supersedes and cancels any previous agreements related to the distribution of Asset(s). This Agreement constitutes the entire agreement among the Parties relating to its subject matter and may not be amended unless in writing by an authorized representative of each Party or 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.
6.3 Governing Law and Arbitration. The Agreement will be construed and enforced in accordance with the laws of the state of Massachusetts, excluding its conflict of laws rules. Any dispute arising out of or in connection with the Agreement shall be settled before a single arbitrator under the Commercial Rules of the American Arbitration Association (“AAA”) or International Chamber of Commerce (“ICC”) in: Berkshire, County, Massachusetts. 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.
6.4 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.
6.5 Notices. Parties 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 Us will be directed to: 50 Meridian St #456 SMB#43759 Boston, MA 02128; email: firstname.lastname@example.org.
6.6 Audit Rights. You may audit payments made to you during the previous 36 months, at your expense, unless the audit reveals that we have underpaid you by more than 25%, in which case we will reimburse you for the actual and reasonable auditor’s fees. We will honor one audit request per calendar year, upon 60 days’ notice. If an underpayment is discovered in an audit, we will correct the books and records, and will pay any amounts due (subject to any applicable Royalty Deductions) within 30 days after the amount due is finally determined. In the event that an audit reveals any overpayment to you, you agree that we may deduct the overpayment from your earnings.
6.7 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, and 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.
6.8 No Agency. Nothing contained in this Agreement will be deemed or construed as creating a joint venture or partnership between the Parties. The Parties are, and at all times will continue to be, independent contractors.
6.9 Merger or Acquisition. You acknowledge and agree that in the event we (or substantially all of our assets) are acquired by or merged with a third party or if we acquire a third party (or substantially all its assets), the entity that results from that transaction shall succeed to all of the rights and obligations of the Company under this Agreement with the same effect as if the new entity had originally been a party hereunder.
6.10 Personal Data Transfer. You understand and agree that information relating to you or any other person that you may provide to us 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. We, as data controller and processor, 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 we 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. We reserve the right to disclose any information you provide in order to respond to claims or protect the rights, property or safety of our employees, customers or the public.
6.11 Authorized Representative. If and to the extent you are submitting an Asset to us 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.