5. Ownership. As between the Parties, Company retains all intellectual property rights, including copyrights in and to the Deliverables and Materials. The Parties agree that if Client is engaging in a virtual photo shoot session, Client shall personally record the video footage (the “Client Recorded Materials”) and shall not utilize any third party to do so. The Client Recorded Materials shall be considered work made for hire (as defined under the US Copyright Act of 1998, as amended) Copyright Act of in favor of Company and shall vest initially with and in perpetuity with Company. Client hereby assigns, transfer and quitclaims all rights, title and interest in and to the Client Recorded Materials to Company. Under no circumstances shall the Client Recorded Materials be considered joints work made for hire or similar designation. Client shall execute all documents and perform all acts reasonably necessary to perfect Company’s rights hereunder. To the extent that Client is unable or unwilling to effect the foregoing, Client hereby irrevocably appoints Company as its power of attorney to effect the foregoing, and such power shall be deemed coupled with an interest. Upon payment of all amounts due hereunder, Company grants to Client a limited, non-exclusive, non-sub-licensable and non-transferable right to use, display and crop the Deliverables solely for personal use and depiction alongside Client’s professional biography. All depictions of the Deliverables shall contain the following copyright attribution: “Copyright © [Insert Year of Creation] Brio Five, LLC. All Rights Reserved.”
6. Portfolio License; Credit. Client hereby grants to Company the non-exclusive, royalty free, non-transferable, perpetual, worldwide right and license to use, reproduce, and publicly display in all media all Deliverables, solely as a part of Company’s portfolio in connection with Company’s marketing and promotional activities. Client agrees to allow Company to list Client as a customer in its marketing activities.
7. Limitation of Liability. IN NO EVENT SHALL Company BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR SPECIAL DAMAGES, WHETHER BY COMMON LAW OR STATUTE, ARISING HEREFROM OR RELATED HERETO IN ANY CAUSES OF ACTION OF ANY KIND, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Company’S TOTAL LIABILITY TO CLIENT FOR EVERY REASON SHALL BE LIMITED TO THE AGGREGATE AMOUNT OF FEES ACTUALLY PAID BY CLIENT TO Company PURSUANT HERETO. Any claims by client against company shall be made within one (1) year of the time the claim arose.
8. Release. To the maximum extent permitted by law, Client, on behalf of himself/herself and Client’s heirs, executors, agents, successors and assigns, hereby release, hold harmless, and forever discharge agrees to release, discharge and waive any and all claims, actions, damages, losses, liabilities, costs, expenses, injuries or causes of action whatsoever (collectively, the “Released Claims") against Company, its licensees, affiliates or assignees, and each of their respective officers, directors, owners, employees and agents (collectively, the “Released Parties"), related to or arising from Company: (a) use of the Materials or Client’s Likeness, (b) arising out of or result from this Agreement, (c) Client’s participation or in any advertisements thereof, Client’s presence at or travel to any location in connection with Client’s participation, or the broadcast or other exhibition of the Materials, Client’s Likeness, or any advertisements, on any legal theory whatsoever (including, but not limited to, personal injury, rights of privacy and publicity, defamation, or false light), regardless of whether caused by the negligence or willful misconduct of the Released Parties. In addition, Client understands that participation in any photo session with Company, including, without limitation personal injury, property damage and death is at Client’s sole risk.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, I WAIVE ANY AND ALL RIGHTS I MAY HAVE UNDER SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND EVERY LIKE PROVISION IN ANY FOREIGN JURISDICTION. SECTION 1542 PROVIDES AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
9. Term. The “Term” of this Agreement shall commence on the Effective Date and expire upon completion of the Services or earlier termination. Either Party may terminate this Agreement for breach, which has not been cured within ten (10) days’ of receiving written notice thereof. Company may terminate this Agreement for convenience, upon fifteen (15) days’ prior written notice to Client and a refund of all advanced Fees paid by Client. Sections 2 through 13 shall survive termination or expiration of this Agreement.
10. Confidentiality. Client shall keep in STRICTEST CONFIDENCE and shall not disclose to any third party at any time (i.e., prior to, during, or after the photo shoot) any information or materials of any kind, including without limitation, any information or materials concerning or relating to Company, the terms of this Agreement, the business of Company, any program or projects produced by Company, including, without limitation, any information concerning or relating to the Company’s location, Company events or the outcome of any event in the Company, that Client reads, hears or otherwise acquires or learns in connection with or as a result of Client’s participation in any Company organized event or photo session (collectively, the “Confidential Information"). Client acknowledges and agrees that the Confidential Information is confidential and the exclusive property of Company and shall not disclose the same without Company’s prior written consent in each case, which consent may be withheld in its sole discretion. Confidential Information shall not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by Company; (ii) becomes publicly known and made generally available after disclosure by Company to Client through no action or inaction of Client; (iii) is already in the possession of Client at the time of disclosure by Company as shown by Client’s files and records immediately prior to the time of such disclosure; (iv) is obtained by Client from a third party without a breach of such third party’s duty of confidentiality; or (vi) is required by law to be disclosed by Client, provided that Client gives the Company prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure. Client acknowledge that any breach by me of any of the confidentiality provisions of this agreement would cause Company irreparable injury and damage that cannot be reasonably or adequately compensated by damages in an action at law, and, therefore, Client hereby expressly agrees that Company and any affiliates shall be entitled to injunctive and other equitable relief (without posting any bond) to prevent and/or cure any breach or threatened breach of the confidentiality provisions of this agreement by Company.
11. Indemnification. Client will defend, indemnify and hold harmless the Released Parties against any and all claims, actions, damages, liabilities, losses, costs and expenses (including, without limitation, attorneys’ fees) that in any way arise out of or result from Client’s breach of any of the warranties, obligations or covenants set forth in this Agreement. Client will control the defense of any third-party claims with counsel selected by Client, which is approved in writing by Company (such approval not to be unreasonably withheld). Client shall not settle any third-party claims without Company’s prior written consent.
12. Limitation of Remedies. Client acknowledges and agrees that compensatory (not punitive or consequential) monetary damages are sufficient to compensate Client for Company’s breach of this Agreement or any other act or omission giving rise to liability, and that Client shall not be entitled to seek injunctive or other equitable relief. Client agrees that he/she will have neither the right to rescind or terminate this Agreement or any rights granted to Company hereunder, nor the right to enjoin the production, exhibition, or other exploitation of the Materials, Deliverables, Client’s Recorded Materials or Client’s Likeness as permitted herein.
13. General Provisions. The sole relationship between Company and Client shall be that of independent contractors with no rights of partnership, agency, or representation. Nothing express or implied herein shall confer upon any third party any rights, remedies, obligations, or liabilities. This Agreement constitutes the entire agreement between Company and Client with respect to the subject matter hereof and supersedes all prior understandings, communications, and agreements between them, written or oral, regarding such subject matter. This Agreement shall not be modified, nor shall any provision hereof be waived or amended, except by a written amendment duly executed by Company and Client. A waiver of any provision hereof with respect to one event shall not be construed as continuing, or as a bar to or waiver of any right or remedy as to subsequent events. If any provision hereof shall be held to be invalid or unenforceable, then such provision shall be reformed to the extent necessary to make such provision valid and enforceable when so applied. This Agreement shall be construed in accordance with the laws of the State of California applicable to contracts entered into and wholly to be performed therein, without regard to conflicts of laws provisions. There are no third-party beneficiaries to Company’s performance of its obligations under this Agreement Notwithstanding any other terms and conditions hereof, in the event that Company is materially unable to perform any of its obligations hereunder because of severe weather, natural disasters, Acts of God, riots, wars, pandemic, governmental action, or other event of force majeure beyond Company’s control, then Company shall, upon written notice to Client, be relieved from its performance of such obligations to the extent, and for the duration, that such performance is prevented by such events. Client shall not have the right to assign this Agreement or any rights hereunder to any third party; Company may freely assign or delegate any rights or obligations under this Agreement. The Parties hereby irrevocably consent to the state and federal courts in Los Angeles, California as the sole and exclusive jurisdiction to adjudicate any disputes arising between the parties under this Agreement. Any written notices to be given hereunder shall be delivered via U.S. Mail, express courier, confirmed facsimile, or confirmed email, to such locations, telephone numbers, and addresses as each of Company and Client shall notify the other from time to time. A facsimile or digitally executed copy hereof shall be deemed to be an original.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be effective as of the Effective Date listed above.
“COMPANY” BRIO FIVE, LLC By: Sandy Grigsby, Founder