This Framework Photographer Agreement (the “Agreement”) is made as of September 23, 2019 (“Effective Date”) by and between Adrian Rudd, located at 1980 S Robertson Blvd, Los Angeles, CA 90034 (“Photographer”) and Red Bull Media House North America, Inc., a California corporation, located at 1740 Stewart St., Santa Monica, CA 90404 (“Red Bull”).
1. Services. Photographer shall provide professional services as photographer (“Services”) and deliver all related materials, including without limitation photographs, metadata, graphics, digital images, etc. (collectively, the “Deliverables”) to Red Bull as specified in a Statement of Work (the “SOW”), the form thereof is attached hereto as Exhibit A, and in accordance with “The Delivery and Meta Data Guidelines for Photographers” attached hereto as Exhibit B. Nothing contained herein obligates Red Bull to purchase any minimum amount of services hereunder.
2. Term. The term of this Agreement begins upon the Effective Date and continues in effect until terminated by either party in accordance with Section 12 of this Agreement.
3. Delivery. Photographer shall deliver all Deliverables by no later than the “Delivery Date” specified in the respective SoW. If not otherwise instructed by Red Bull in the respective SoW, Photographer shall deliver all Deliverables in accordance with “The Delivery and Meta Data Guidelines for Photographers” attached hereto as Exhibit B. The Deliverables shall not be deemed delivered unless and until accepted by Red Bull in writing (email sufficient).
4. Rights in Proceeds.
a. Red Bull shall own the Deliverables and all elements and components thereof and relating thereto, and the results and proceeds of all Services rendered hereunder in whatever stage of creation or completion (collectively the “Proceeds”); it being understood that all Proceeds are “work(s)-made-for-hire” specially commissioned for Red Bull in accordance with United States copyright law. Red Bull shall therefore own all copyrights and other intellectual property rights in and to the Proceeds and all derivative works thereof. To the extent necessary to vest all of the rights set forth in this Paragraph in Red Bull, Photographer hereby irrevocably grants, assigns, sells, transfers and sets over to Red Bull all of Photographer’s right, title and interest of every kind or nature without limitation which Photographer may have or hereafter acquire in the Proceeds and all elements and components thereof and relating thereto, including, without limitation the results and proceeds of the services of all persons and entities rendering services in connection with the Services, and any and all releases, warranties, indemnities and undertakings acquired by Photographer in connection with the Services and any and all elements and components thereof and relating thereto; it being the intention of the parties that Red Bull shall have the sole and exclusive right to distribute, exhibit, reproduce, sell, use, license, advertise and otherwise exploit the Proceeds and all rights therein in any and all means and media, whether now known or hereafter devised, throughout the universe in perpetuity. For clarification, Red Bull’s rights in the Proceeds shall extend to re-uses, copies, modifications or derivative works of any kind. All rights granted under the Agreement shall vest and hereby are vested in Red Bull immediately and shall remain perpetually vested in Red Bull, whether the Agreement expires in its normal course or is terminated in whole or in part for any reason whatsoever. Photographer hereby waives any so-called “moral rights” and any similar or analogous rights under the applicable laws of any country of the world.
b. Photographer shall be responsible for discharging any and all obligations to third parties and shall ensure that no person or entity providing services in connection with the Services hereunder shall be able to make any claim to any rights related to the Proceeds.
5. Use by Photographer. Provided Red Bull gives prior written approval in each instance (email sufficient), Photographer may make limited use of the approved Deliverables for self-promotion on Photographer’s official website www.adrianrudd.com or as may otherwise be approved by Red Bull provided such use shall not be critical of Red Bull or its athletes, events, or products. Photographer shall not sell ads against or otherwise monetize the approved Deliverables. The use of Deliverables shall be at the Photographer’s sole risk and in no event may Photographer make the Deliverables available for download or otherwise provide them to any third party. Photographer acknowledges that Red Bull may rescind its permission at any time in the event Red Bull believes in good faith that Photographer is violating the terms of this section – in such event Photographer shall immediately stop using the approved Deliverables and recall any materials.
6. Red Bull Marks. Except as provided for in Section 5 above, Photographer shall not have the right to use any of Red Bull’s or its affiliate’s trademarks, logos, service marks, symbols, trade names, or other intellectual property (collectively, the “Red Bull Marks”) for any purpose whatsoever without Red Bull’s prior written consent, which may be given or withheld by Red Bull in its sole discretion.
7. Credits. Red Bull shall use commercially reasonable efforts to identify Photographer in connection with photographs captured by Photographer with the following text: “Photo Adrian Rudd/Red Bull Content Pool.” (the “Credit”), unless a different text is specified in the respective SoW. Notwithstanding the foregoing, although Red Bull will employ commercially reasonable efforts to accord the aforementioned Credit, it cannot guarantee performance and is therefore not obliged to name Photographer in connection with every single use of the Deliverables.
8. Basic Fees; Payment. As full and complete consideration for all Services rendered, Deliverables delivered and all rights granted hereunder, Red Bull shall pay to Photographer the sum specified in the respective SOW, subject to the satisfactory completion and delivery of all Services and Deliverables specified therein, and within thirty (30) days upon Red Bull’s receipt of the respective invoice from Photographer. Photographer acknowledges that non-US residents may be subject to withholding on services performed in the US under Federal or State law. In the event that withholding of any amount is required under said rules, Photographer agrees that he/she shall only be entitled to the sums referred to in the respective SOW after deduction of any sums required under the said rules.
9. Additional Payment.
a. Additional Fee. Unless otherwise specified in the respective SoW, Red Bull will pay Photographer an additional fee in the event Red Bull and/or its affiliates displays any of the Deliverables in a size exceeding six (6) square meters (= sixty-four [64] square foot) and a manner ordinarily visible from a public place (“Large Format Use”). The amount of such additional payment will be calculated individually based on various factors such as duration of usage, geo-based usage and size.
b. Royalties; Report and Payment. Unless otherwise specified in the respective SoW, for all licenses of Deliverables by Red Bull’s affiliate Red Bull Media House GmbH (hereafter “RBMH GmbH”) to third parties against a fee, other than for the purpose of promoting Red Bull, its affiliates and/or its products, Photographer shall be entitled to receive from RBMH GmbH royalties of 40 % percent of all Net Receipts from the individual licensing of the Deliverables by RBMH GmbH to third parties against a fee (hereafter “Royalties”). “Net Receipts” means the revenues actually received by RBMH GmbH less any and all fees or costs paid or payable by RBMH GmbH in connection with the licensing of Deliverables and receipt of such revenues including, but not limited to, carrier fees, revenue splits, third party commissions, applicable taxes (withholding or other), refunds, sublicensor fees and any other fees or costs. RBMH GmbH will submit to Photographer a report of all licenses of any of the Deliverables to third parties against a fee on an annual basis, unless no Deliverables have been licensed against a fee. Upon receipt of such report Photographer will issue a valid invoice and RBMH GmbH will effect payment in due course. Amounts of less than EUR 250,00 (two hundred and fifty Euros) due per report (or an equal amount in the respective currency) may be carried forward to the next report.
c. Photographer acknowledges that RBMH GmbH is subject to Austrian tax law and that according to Austrian domestic income tax law, royalty payments to non-residents from Austrian sources are subject to Austrian withholding tax levied at source and that RBMH GmbH, acting as paying agent, is obliged to withhold and transfer this tax to the Austrian tax authorities. Photographer is therefore entitled only to the sums referred to in this Agreement after the deduction of Austrian withholding taxes. If an applicable double tax treaty exists or is concluded between Austria and the Photographer’s country of residence, RBMH GmbH shall withhold tax at the reduced rate according to such double tax treaty only if Photographer provides timely to RBMH GmbH (i.e. at the latest when rendering the invoice) the necessary documents that prove the Photographer’s eligibility for the benefits of the double tax treaty. Necessary documents shall include a certificate of residence form as defined by the Austrian Ministry of Finance (currently tax form “ZS-QU”), which shall be duly completed and signed by the Photographer. The Photographer’s residency must be certified thereon by the competent foreign tax authority. Photographer shall remain liable for all taxes (including interest and penalties) due and payable to competent tax authorities in respect of the consideration payable for the rights granted under this Agreement.
d. For avoidance of doubt, Photographer will not be entitled to an additional payment for the use of any of the Deliverables for any other purpose than mentioned in this Paragraph 9 a. and b., which may include, without limitation, the use for posters/flyers to promote an event or program, as thumbnail for a program on Red Bull platforms, on social media, for merchandising, on special edition beverage cans, or for other packaging material of the Red Bull group.
10. Wire Instruction. All payments made by Red Bull to Photographer must be wired to the following bank account:
11. Representations and Warranties. Photographer represents, warrants and covenants to Red Bull that: (i) Photographer has full power and authority to enter into this Agreement, grant the rights granted to Red Bull hereunder and perform all of its obligations hereunder; (ii) Photographer has sufficient skill and experience to perform the Services; (iii) the Services shall be performed in a professional, safe and workmanlike manner in accordance with all applicable general industry standards; (iv) Photographer has complied and will comply with all applicable laws, rules or regulations regarding the performance of Services; (v) the execution, delivery and performance of this Agreement will not violate the provisions of any agreement to which it is a party or by which it is bound; (vi) unless otherwise specified in the respective SOW, especially with respect to model releases, Photographer has secured all necessary consents, licenses, permissions, clearances, authorizations and waivers for Red Bull's unrestricted use and exploitation of the Deliverables in all media now known or hereafter devised in perpetuity throughout the universe; and (viii) any rights granted by Photographer hereunder are granted free and clear of any license, encumbrances or obligation to pay royalties to any third party.
12. Termination. Either party may terminate this Agreement without cause on thirty (30) days prior written notice. No facts or circumstances shall constitute a waiver or estoppel, or otherwise limit, Red Bull’s right to terminate this Agreement on thirty (30) days notice. Either party may immediately terminate this Agreement in the event that the other party fails to cure a material breach hereof within three (3) days of receipt of notice. Upon the expiration or termination of this Agreement, Red Bull shall have no further payment or other obligation to Photographer of any kind, except to pay to Photographer any Fees for Services actually performed as of the effective date of termination. In the event Photographer terminates this agreement while Photographer is performing under a SoW, Photographer agrees that the termination shall not be effective until satisfactory completion and delivery of all Services and Deliverables specified in said SoW.
13. Relationship of the Parties; Responsibility for Taxes. Photographer acknowledges and agrees that the relationship between Red Bull and Photographer intended to be created by this Agreement is non-exclusive and is that of client and independent contractor, and nothing herein contained shall be construed as creating a relationship of employer and employee, principal and agent, joint venture or partnership between them. Photographer shall neither act nor make any representation that it is authorized to act as an employee, agent or officer of Red Bull. Unless otherwise approved in writing, Photographer shall assume all responsibility for the hiring and supervision, and the payment of wages, expenses, and benefits to all personnel engaged with Photographer in the rendering of the Services. Photographer shall assume all obligations with respect to Federal and State income taxes, Social Security taxes, unemployment insurance premiums, workers compensation premiums, and any other non sales taxes or charges imposed by law, and any withholdings or payments that may be required by law. Photographer agrees to defend, indemnify and hold Red Bull, RBMH GmbH, and its affiliates harmless with respect to any claim or demand by any governmental agency or any other entity regarding any tax liability or financial obligation of Photographer. Photographer and its employees shall not be entitled to any of Red Bull’s benefits, including without limitation: (a) income tax withholding, (b) 401(k) or other retirement benefits, or (c) any other employee benefits.
14. Non-Union. Photographer understands that Red Bull, its parent, affiliate and subsidiary companies, are not and do not anticipate becoming, a signatory to any union or guild or other collective bargaining agreements that may be construed to relate to Photographer’s Services hereunder. Photographer therefore understands that no collective bargaining agreement grants rights separate from or supplemental to this Agreement, and Photographer is not entitled to receive any compensation other than that expressly provided for in this Agreement.
15. Confidentiality. Except as otherwise stated herein, as expressly approved in advance by Red Bull in writing or as may be expressly required by Red Bull or by applicable law, neither Photographer nor anyone retained by Photographer shall disclose or make available to any third party, including the press and media, any information concerning this Agreement, the Services, any confidential or proprietary materials to which Photographer or such persons may have gained access, or any information or data concerning any aspect of Red Bull’s operations or existing or future programming or any other non-public information Photographer may come in contact with or learn while engaged by Red Bull.
16. Waiver and Release; Limitation of Liability; Indemnification. Photographer, on behalf of Photographer, Photographer’s heirs, successors and assigns, hereby waives, discharges, releases and relinquishes any and all rights, claims, demands, suits, actions, losses, liabilities, damages (including any and all Injuries), costs and expenses, including attorneys’ fees and costs (collectively, “Losses”), that Photographer may have against Red Bull, its parent, affiliates and/or all of their respective employees, owners, agents, officers, directors, successors and assigns (the “Released Parties”), arising from or related to Photographer’s performance of the Services (including, without limitation, capturing and producing the Deliverables). The term “Injuries” shall mean bodily injury, permanent disability, illness, death, emotional trauma, property damage, property loss, and/or other physical or emotional loss or harm. Photographer voluntarily assumes all risks of Injuries that may result from performance of the Services. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES SHALL RED BULL BE LIABLE TO PHOTOGRAPHER, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY SPECIAL, INCIDENTAL, DIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT, ANY LOSS OF BUSINESS OR LOSS OF PROFITS, NOR ANY INJURY, DAMAGE OR LOSS OF LIFE. Photographer shall indemnify, defend and hold harmless the Released Parties from and against: (i) any Losses arising from or related to Photographer’s performance of the Services; (ii) Photographer’s negligence or intentional misconduct; (iii) any Losses arising from or related to Photographer’s contracts or relationships with third parties; (iv) any claims related to withholding tax in case Photographer is non-US resident; and (v) any Losses arising from or related to Photographer’s breach of any representation, warranty, covenant or obligation contained in this Agreement.
17. Miscellaneous. Waiver of any breach or failure to enforce any term of this Agreement will not be deemed a waiver of any breach or right to enforce which may thereafter occur. No waiver may be valid against any party hereto unless made in writing and signed by the party against whom enforcement of such waiver is sought and then only to the extent expressly specified therein. If any term or provision of this Agreement is found by a court of competent jurisdiction to be illegal, invalid, or otherwise unenforceable, such term or provision shall not affect the Agreement’s other terms or provisions, or the whole of this Agreement, but such term or provision shall be deemed modified to the extent necessary in the court’s opinion to render such term or provision enforceable, and the rights and obligations of the parties shall be construed and enforced accordingly, preserving to the fullest permissible extent the intent and the agreements of the parties. This Agreement constitutes the entire understanding between Photographer and Red Bull, and supersedes all prior agreements, arrangements, representations and communications (whether oral or written) regarding the subject matter contained herein. This Agreement shall be governed by, and construed in accordance with, the laws of the State of California. This Agreement may be executed and delivered, including by facsimile, in one or more counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument. This Agreement does not create, and shall not be construed as creating, any rights enforceable by any person not a party to this Agreement. The parties agree to execute and deliver such additional documents or instruments as may be necessary or appropriate to carry out the terms of this Agreement. The terms of sections of this Agreement which by their nature are intended to extend beyond termination shall survive termination of this Agreement for any reason.
Adrian Rudd
RED BULL MEDIA HOUSE NORTH AMERICA, INC.
EXHIBIT A
STATEMENT OF WORK
FOR THE FRAMEWORK PHOTOGRAPHER AGREEMENT
BY AND BETWEEN Adrian Rudd AND RED BULL MEDIA HOUSE NORTH AMERICA, INC.
DATED September 23, 2019
IF ANY TERM OF THE AGREEMENT CONFLICTS WITH ANY TERM OF THIS STATEMENT OF WORK, THE TERMS OF THE AGREEMENT SHALL SUPERSEDE AND CONTROL.
1. Services & Deliverables: Photographer shall provide professional services as photographer at the following photo shoot and deliver all photographs, metadata, graphics, digital images, etc. related thereto:
a. Photo shoot at Event/Production: Red Bull Rising Talent US 2019
b. Place of photo shoot: Woodward West, Tehachapi, CA 93561
c. Time of photo shoot: 9/24/2019 to 9/28/2019
d. Special requirements: N/A
2. Model Release:
to be obtained by Photographer
X to be obtained by Red Bull
3. Delivery Date: September 28, 2019
4. Basic Fee: USD $0.00 (plus VAT if applicable) plus approved reasonable expenses (if any)
5. Special Credit: N/A
6. No Special Provision
Adrian Rudd
RED BULL MEDIA HOUSE NORTH AMERICA, INC.
EXHIBIT B
THE DELIVERY AND META DATA GUIDELINES FOR PHOTOGRAPHERS
