INDEPENDENT CONTRACTOR AGREEMENT
THIS INDEPENDENT CONTRACTOR AGREEMENT (“Agreement”) is entered into this ░░░░░ day of ░░░░░ [MONTH], ░░░░░ [YEAR] between ((brand.name)), a ░░░░░ [STATE] Corporation (hereinafter referred to as “Studio” ), with a principal business address at ░░░░░ [STUDIO ADDRESS], and ((contact.name)), an individual (hereinafter referred to as “Contractor”), whose address is ((contact.address1)) ((contact.address2)), with regard to the following facts and understandings.
Contractor is a ░░░░░ [STATE] resident, engaged in the business of providing photography services as a contractor in the State of ░░░░░.
Studio is a ░░░░░ [STATE] business engaged in the business of providing photography services for projects, jobs, events and/or other special occasions.
NOW, THEREFORE, in consideration of the mutual promises and conditions contained herein, the parties agree as follows:
Duration of Term. This Agreement shall be effective from the date first listed above until completion of the Services, as applicable, unless sooner terminated by either party in accordance with the terms and conditions of this Agreement (“Term”). This Agreement is terminable by either party at any time, with or without cause, effective upon notice to the other party. If Studio exercises its right to terminate the Agreement, any obligation it may otherwise have under this Agreement shall cease immediately, except that Studio shall be obligated to compensate Contractor for work performed up to the time of termination. Additionally, this Agreement shall automatically terminate upon Contractor’s death. In such event, Studio shall be obligated to pay Contractor’s estate or beneficiaries only the accrued but unpaid compensation due as of the date of death.
Agreement to Provide Services. Contractor agrees to provide contract photography services to Studio, as Studio and Contractor may agree during the term of this Contract on an as needed basis. Contractor will perform the services, as more particularly described on Exhibit A, for Studio as an independent contractor (the “Services”). The Services have been specially ordered and commissioned by Studio. To the extent the Services include materials subject to copyright, Contractor agrees that the Services are done as “work made for hire” as that term is defined under U.S. copyright law, and that as a result, Studio will own all copyrights in the Services. Contractor will perform such services in a diligent and workmanlike manner and in accordance with the schedule, if any, set forth in Exhibit A. The content, style, form and format of any work product of the Services shall be completely satisfactory to Studio and shall be consistent with Studio’s standards.
Contract Amount. In consideration for the services to be performed by Contractor, Studio agrees to pay Contractor Contract rates for Contractor’s services. This amount shall be determined on a case by case basis, and varies based on the nature and contents of the job. Studio will pay said Contract amount to Contractor only on Contractor’s completion of each assignment as set forth in Exhibit A.
Payments to Contractor. Payments will be made by direct deposit or check within thirty (30) business days of Contractor’s submission of final invoice. If Studio fails to remit payment within said time frame, Contractor may file a claim for arbitration as provided below and may, in addition to all other rights and in Contractor’s sole discretion, terminate this Contract.
Independent Contractor Status. It is the express intent of the parties that Contractor is and shall be an independent contractor and not an employee, agent, joint venturer, or partner of Studio. Nothing in this Contract shall be interpreted or construed as creating or establishing the relationship of employer and employee between Studio and Contractor or any agent of either Studio or Contractor to the other. All Services shall be performed only by Contractor and Contractor's employees. Under no circumstances shall Contractor, or any of Contractor's employees, look to Studio as his/her employer, or as a partner, agent or principal. Neither Contractor, nor any of Contractor's employees, shall be entitled to any benefits accorded to Studio's employees, including without limitation worker's compensation, disability insurance, vacation or sick pay. Contractor shall be responsible for providing, at Contractor's expense, and in Contractor's name, unemployment, disability, worker's compensation and other insurance, as well as licenses and permits usual or necessary for conducting the Services as required by law.
Taxes. Contractor agrees that, as an independent contractor, Studio is not responsible for withholding taxes from monies paid to Contractor for Contractor’s services or for payment of employment taxes which might be related to the working relationship between Studio and Contractor if Contractor were not an independent contractor. Such taxes include, without limitation, taxes payable by Contractor for state and federal income taxes, federal insurance contribution taxes, unemployment insurance taxes, and state disability insurance taxes. Contractor agrees to indemnify and hold harmless Studio for any payments that may be made by Studio, whether voluntarily or involuntarily, for any taxes which Contractor fails to pay.
Non-Exclusivity. Studio acknowledges and agrees that Contractor shall have the right to engage in separate independent photography services and shall have the right to be retained as a photographer or to provide photography services to any other person or entity so long as such services do not impair or affect contract services required hereunder.
Professional Standards. Contractor shall conduct business in a manner and in all respects consistent with all applicable laws and professional standards and shall conduct himself in accordance with all applicable value and ethics of the photography industry. Studio agrees that it will in no way interfere with Contractor’s professional and ethical obligations noted herein.
Contractor’s Discretion. Contractor, in his sole discretion, shall determine the method, details, and means of performing all photography services provided on behalf of Studio. This shall include, but not be limited to, providing photography services as assigned by Studio, in accordance with Contractor’s own professional judgment. Studio shall not have any right to control or determine such means and/or methods used by Contractor.
Place of Performance. Contractor agrees to perform the above-described services at various locations for Studio’s clients and at the direction of Studio’s clients who have scheduled the services.
Submission of Works. In order to meet requirements of clients, Contractor agrees to submit all works created pursuant to this Contract to Studio no later than one (1) business day after completion of the assignment. If work is not submitted within five (5) business days without notification of need for extension and approvals of extension of time, Studio, at Studio’s discretion, shall deduct $░░░░░ from Contractor’s Contract amounts. This is not in the form of a penalty but Studio will incur costs due to Contractor’s delay in providing photographs and images to Studio. Said damages which Studio may sustain are difficult to ascertain. Therefore, Studio and Contractor agree that the amount specified herein shall reimburse Studio for such costs, expenses and damages. If Contractor fails to meet the timelines set forth herein or otherwise fails to accept jobs assigned by Studio, Studio, in addition to all other rights and in Client’s sole discretion, may terminate this Contract.
Tools and Instrumentalities. Contractor shall supply his own cameras, tools and instrumentalities required to perform the routine services required under this Contract, except as follows:
When Contractor performs photography services pursuant to this Contract at Studio’s principal place of business, Contractor shall be permitted to use Studio’s tools, equipment, and other items available at such location as necessary to perform such photography services.
Contractor shall have access to Studio’s server for the purpose of editing and storing photographic images created by Contractor pursuant to this Contract.
Liability Insurance. Contractor agrees to maintain a liability policy of at least $1 Million Dollars in liability coverage to cover any negligent acts committed by Contractor and/or his employees during the performance of any duties under this Contract.
Client Files. Any client files, photographs, images, information and records created by, compiled or added to by Contractor under the terms of this Contract are and shall remain the sole property of Studio. Contractor shall have no right or interest in such client files, photographs, images, information or records.
Studio Property. All materials, including without limitation documents, drawings, drafts, notes, designs, computer media, electronic files and lists, including all additions to, deletions from, alterations of, and revisions in the foregoing (together the “Materials”), which are furnished to Contractor by Studio or which are developed in the process of performing the Services, or embody or relate to the Services, the Studio Information or the Innovations (as defined below), are the property of Studio, and shall be returned by Contractor to Studio promptly at Studio's request together with any copies thereof, and in any event promptly upon expiration or termination of this Agreement for any reason. Contractor is granted no rights in or to such Materials, the Studio Information or the Innovations, except as necessary to fulfill its obligations under this Agreement. Contractor shall not use or disclose the Materials, Studio Information or Innovations to any third party.
Prior Knowledge and Relationships.
Other Commitments. Except as disclosed to Studio prior to entering into this Agreement, Contractor has no other agreements, relationships or commitments to any other person or entity which conflict with Contractor's obligations to Studio under this Agreement. Contractor agrees not to enter into any agreement, either written or oral, in conflict with this Agreement.
Assignment of Contractor's Inventions and Copyrights.
Assignment. Contractor hereby assigns all right, title and interest, including all copyright, patents, and any other intellectual property rights, in and to the work product Contractor creates for the Studio under this Agreement, including, all photographic works created by Contractor pursuant to this Contract which would be considered works made for hire, as defined by U.S. Copyright Law. Contractor hereby assigns and agrees to assign to Studio, without royalty or any other consideration except as expressly set forth herein, all worldwide right, title and interest Contractor may have or acquire in and to (i) all Materials; (ii) all Innovations (iii) all worldwide patents, patent applications, copyrights, trade secrets rights and other intellectual property rights in any Innovations; and (iv) any and all “moral rights” or right of “droit moral” (collectively “Moral Rights”), that Contractor may have in or with respect to any Innovations. To the extent any Moral Rights are not assignable, Contractor waives, disclaims and agrees that Contractor will not enforce such Moral Rights. Contractor agrees that such assignment shall extend to all languages and including the right to make translations of the Materials and Innovations. Additionally, Contractor agrees, at no charge to Studio, but at Studio's sole expense, to sign and deliver to Studio (either during or subsequent to Contractor's performance of the Services) such documents as Studio considers desirable to evidence the assignment of all rights of Contractor, if any, described above to Studio and Studio's ownership of such rights and to do any lawful act and to sign and deliver to Studio any document necessary to apply for, register, prosecute or enforce any patent, copyright or other right or protection relating to any Innovations in any country of the world. Contractor hereby irrevocably designates and appoints the Studio as Contractor’s agent and attorney-in-fact for the limited purpose of prosecuting, issuance or enforcement of this provision with same force and effect as if executed and delivered by the Contractor.
Usage of Images by Studio
Studio shall have the right to use any images Photographer creates for the purposes of promotion, advertising, and marketing, without the requirement of attributing said images to Photographer. However, if the Studio submits images for entry into a peer-based professional competition, Studio shall give Photographer proper attribution in the submission and Studio and Photographer shall mutually agree as to the proper credit on a case-by-case basis based on the respective requirements of the competition.
Representations and Warranties. Contractor represents and warrants to Studio that (a) Contractor has full power and authority to enter into this Agreement including all rights necessary to make the foregoing assignments to Studio; that in performing under the Agreement; (b) Contractor will not violate the terms of any agreement with any third party; and (c) the Services and any work product thereof are the original work of Contractor, do not and will not infringe upon, violate or misappropriate any patent, copyright, trade secret, trademark, contract, or any other publicity right, privacy right, or proprietary right of any third party. Contractor shall defend, indemnify and hold Studio and its successors, assigns and licensees harmless from any and all claims, actions and proceedings, and the resulting losses, damages, costs and expenses (including reasonable attorneys' fees) arising from any claim, action or proceeding based upon or in any way related to Contractor's, or Contractor’s employees, breach or alleged breach of any representation, warranty or covenant in this Agreement, and/or from the acts or omissions of Contractor or Contractor’s employees.
Nondisclosure. Contractor, during the term of this Contract, will have access to and become acquainted with files, client lists, records, documents, brochures, and vendor lists (collectively referred to as “Confidential Information”) that are owned by Studio and that are regularly used in the operation of Studio’s business. Confidential information shall not include information which (a) was lawfully possessed by the Contractor prior to receiving Confidential Information; (b) becomes known by Contractor from a third-party source not under an obligation to maintain confidentiality; (c) is generally known by the public through no fault or of or failure to act by Contractor inconsistent with the obligations under this Contract; or (d) is or has been independently developed by Contractor without violation of the terms of this Contract. Contractor agrees that at all times during or subsequent to the performance of services pursuant to this Contract, Contractor will keep confidential and not divulge, communicate, or use Confidential Information, except to the extent necessary to perform services pursuant to this contract. All confidential information and equipment not owned or created by Contractor and relating to the business of Studio shall remain the exclusive property of Studio and shall not be removed from Studio’s control under any circumstances whatsoever, without the prior written consent of Studio.
Trade Secrets and Other Confidential Information. (1) As used in this Agreement, the term “Confidential Information” shall mean and include all information or material not generally known by non-Studio personnel which (i) gives the Studio some competitive business advantage or the opportunity of obtaining such advantage or the disclosure of which could be detrimental to the interests of the Studio; or (ii) is owned by the Studio or in which the Studio has an interest (including information conceived or developed in whole or in part by the Contractor); or (iii) is either (A) marked “Confidential Information,” “Proprietary Information” or other similar marking, (B) known by the Contractor to be considered confidential and proprietary by the Studio or (C) from all the relevant circumstances should reasonably be assumed by the Contractor to be confidential and proprietary to the Studio. (2) Confidential Information includes, but is not limited to, the following types of information and other information of a similar nature (whether or not reduced to writing): the terms and conditions of this Agreement, trade secrets, file data, documentation, specifications, flowcharts, research, marketing techniques and materials, marketing and development plans, computer software and software concepts, computer hardware and concepts, blueprints, usernames, passwords, pricing policies, commission and fee policies, business plans, information relating in any way to the identity or other characteristics (whether financial or otherwise) of any client, customer, supplier, partner, joint venturer or any other party with whom the Studio has a contractual relationship and/or other contact of the Studio (including, without limitation, the identity of any managers, members, officers, agents, employees, or owners of any of the foregoing), agreements, negotiations, financial information and projections, employee files and all other information relating in any way to the business of the Studio and/or its clients and customers. (3) Confidential Information also includes any information described above which the Studio obtains from another party and which the Studio treats as proprietary or designates as Confidential Information, whether or not owned or developed by the Studio.
Treatment of Confidential Information. The Contractor hereby acknowledges and agrees that, in connection with his independent contractor agreement, the Contractor will receive, prepare, create, use, observe, possess, control or otherwise acquire certain Confidential Information. The Contractor hereby agrees (i) to maintain all such Confidential Information in strict confidence (ii) not, whether directly or indirectly, to reveal, report, publish or disclose any such Confidential Information to any person, firm or other entity not expressly authorized by the Studio in writing to receive such Confidential Information, and (iii) not to use, whether directly or indirectly, any such Confidential Information in any way other than for the direct benefit of the Studio.
Enforcement by Injunction. The Contractor hereby acknowledges and agrees that the subject matter of this Agreement and all Confidential Information are unique, that the services of the Studio embodied in the Studio’s methods and techniques and the Studio’s list of clients, customers and other contacts constitute the trade secrets and are valuable assets of the Studio, that any violation would cause irreparable injury to the Studio and that monetary damages would not provide an adequate remedy to the Studio. Therefore, the Contractor hereby agrees that if he breaches, or threatens to commit a breach, of any of the restrictive provisions of this Section, the Studio will have the following rights and remedies, each of which will be independent of the other and severally enforceable, and all of which will be in addition to, and not in lieu of, any other rights and remedies available to the Studio, whether at law, in equity, pursuant to this Agreement or otherwise: (1) The right and remedy to have each of the restrictive provisions set forth in this Section specifically enforced by any arbitrator or court having equity jurisdiction, all without the need to post a bond or any other security or to prove any amount of actual damage or that money damages would not provide an adequate remedy; and (2) The right and remedy to require the Contractor (i) to account for and pay over to the Studio all compensation, profits, monies, accruals, increments or other benefits derived or received by the Contractor or any other party deriving such benefits (whether directly or indirectly) as a result of any such breach or threatened breach of the foregoing; and (ii) to indemnify the Studio, its managers, members, officers, employees, agents, attorneys, successors and assigns against any other losses, damages (including special and consequential damages), costs and expenses, including actual attorneys’ fees and court costs, which may be incurred by it and which result from or arise out of any such breach or threatened breach of the foregoing.
Employee and Customer Solicitation. The Contractor hereby agrees not to, whether directly or indirectly, either for himself or for any other person, firm or other entity, call upon or solicit or attempt to call upon or solicit for the purpose of diverting or taking away any of the Studio’s customers, suppliers, vendors, employees, sales representatives, clients or business, including, without limitation, those customers, suppliers, vendors or clients upon whom the Contractor called or with whom the Contractor only became acquainted while rendering services to customers or clients of the Studio or otherwise while engaged in any way in the Studio’s business, and all employees of the Studio. This provision shall not apply to Persons with whom the Contractor was acquainted with prior to entering this Agreement. Upon the Contractor’s breach of any of the foregoing, in addition to any other rights and remedies which may be available to the Studio, whether pursuant to this Agreement, at law, in equity or otherwise, the Studio shall have all of the rights and remedies set forth herein.
Indemnity. Each Party shall hold harmless, and indemnify the other Party and its directors, officers, agents and employees against any and all loss, liability, damage, or expense, including any direct, indirect or consequential loss, liability, damage, or expense, but not including attorneys’ fees unless awarded by a court of competent jurisdiction, for injury to persons, including employees of either Party, and damage to property, including property of either Party, arising out of or in connection with intentional, wilful, wanton, reckless or negligent conduct regarding the services provided by the other pursuant to this Agreement. However, neither Party shall be indemnified hereunder for any loss, liability, damage, or expense resulting from its sole negligence or willful misconduct.
Notice. Whenever, under the terms of this Contract, notice is required or permitted to be given by one party to the other party, such notice shall be in writing and shall be deemed to have been sufficiently given if (i) sent by any nationally recognized overnight courier service that provides receipted delivery service, delivery charges prepaid, return receipt requested, or (ii) sent by the United States Mail, priority mail, in a properly stamped envelope, certified or registered mail, return receipt requested, address to the party to whom it is given. Any written notice shall be deemed effective upon the date of delivery (or the date of refusal to accept delivery) as indicated on the return receipt, or forty-eight (48) hours after mailing, as the case may be.
Arbitration. If any dispute, controversy or claim arises between Studio and Contractor with respect to this Contract or any future amendment in any respect, and they are unable to negotiate an acceptable solution, Studio and Contractor agree that they will submit the matter to a binding arbitration before Judicial Arbitration and Mediation Services (“JAMS”), in accordance with the applicable rules promulgated by JAMS as permitted by the laws of the State in which this agreement was executed. The prevailing party in such arbitration shall be awarded, in addition to costs, reasonable attorney's fees as fixed by the arbitrator(s). Full rights of discovery, including the right to depose Studio and/or Contractor, shall be allowed in the course of such arbitration. The decision of the arbitrator will be final and non appealable and may be enforced according to the laws of the State in which this agreement was executed. However, if the disputed amount is less than the maximum limit allowable for Small Claims Court, arbitration of the dispute may not be required. In such case, the parties may subject their claims to the jurisdiction of the Small Claims Court in the County in which this agreement was executed for resolution of the dispute.
Assignability. This Contract is not assignable. No assignment of work pursuant to this Contract is assignable to a third party without the express written consent of Studio.
Sole and Only Agreement. This Contract contains the entire understanding between the parties with respect to the subject matter and supersedes any and all other prior written Contracts and understandings (whether oral or written) between the parties. No amendment or modification of this Contract shall be effective unless executed in writing by both parties.
Attorney's Fees. Should any litigation be commenced between the parties to this Agreement, concerning any provision of this Agreement or the rights and obligations of any party, the party prevailing in such litigation shall be entitled, to a reasonable sum as and for his attorney's fees in such litigation which shall be determined by the Court in such litigation or in a separate action brought for that purpose.
Governing Law. This Contract shall be governed by and interpreted under the laws of the State of ░░░░░ [STATE].
Waiver. No waiver of any default by any party or parties to this Contract shall be implied from any omission by a party or parties to any action on account of such default. If such default persists or is repeated, no express waiver shall affect any default other than the default specified in the express waiver, and that only for the time and to the extent therein stated.
Binding Effect of Agreement. This Contract shall be binding upon and inure to the benefit of each of the parties and their respective heirs, successors and permitted assigns.
Article Headings. All article headings set forth in the Agreement are intended for convenience only and shall not control or affect the meaning, construction or effect of this Agreement or any of the provisions thereof.
Severability. If any provision of this Contract shall be declared invalid or unenforceable, such provision shall be deemed eliminated from this Contract, and all remaining provisions shall continue in full force and effect.
Covenant of Further Assurances. Each party shall execute and deliver such other documents and take such other action as may be reasonably necessary to consummate the transactions contemplated by this Agreement.
Remedies Cumulative. All rights and remedies provided for in this Agreement are cumulative and not exclusive of any other rights or remedies that may be available to a party, whether provided by law, equity, or statute, under any other agreement between the parties, or otherwise.
Compliance with Laws. Nothing contained in this Agreement will be construed to require the commission of any act contrary to law, and whenever there is a conflict between this Agreement and any present or future statute, law, ordinance, or regulation contrary to which the parties have no legal right to contract, the latter will prevail, but in such event the term, condition, or provision of this Agreement affected will be curtailed and limited only to the extent necessary to bring it within the requirement of the law, provided that such construction is consistent with the intent of the parties as expressed in this Agreement.
Gender. As used in this Agreement, the masculine, feminine, or neuter gender, and the singular or plural number, will be deemed to include the others whenever the context so indicates.
No Third Party Benefit. Nothing in this Agreement, whether express or implied, is intended to confer third-party beneficiary status or to otherwise confer any rights or remedies on any third person or entity.
Construction; Representation by Counsel. Contractor represents that Contractor has been advised to seek independent counsel with respect to his rights and obligations under this Agreement, and that Contractor has had the opportunity to do so before executing this Agreement. This Agreement is to be construed and interpreted in accordance with the plain meaning of its language. Neither party is to receive the benefit of any rule of construction providing that an ambiguity should be construed against the drafter of this Agreement.
Execution and Counterparts. The parties may execute this Agreement in any number of counterparts, each of which is to be deemed an original, and all of which together are to constitute one and the same instrument. Signatures delivered by facsimile or electronic means will have the same force, validity, and effect as original signatures.
Freedom to Enter into Agreement. Contractor hereby represents and warrants that Contractor is free to enter into this Agreement and that Contractor has not made and will not make any agreement or commitment that conflicts with this Agreement or that might interfere with Contractor’s ability to fully perform his obligations under this Agreement.
In consideration for the services to be performed by Contractor, Studio agrees to pay Contractor Contract rates for Contractor’s services as follows:
Weddings & Events where Contractor is “Primary Photographer”: $░░░░░/hr
Weddings & Events where Contractor is “Second Shooter”: $░░░░░/hr
Studio will pay said Contract amount to Contractor only on Contractor’s completion of each assignment. Contractor shall invoice Studio for contract amount.
The parties have executed this Contract on the date first shown above