Engelhardt & Co., LLC is a California Limited Liability Company that does business in the blogging, marketing and consulting verticals, and owns an eCommerce boutique known as LAYLA JAMES (hereinafter “LAYLA JAMES” or “we” or “us”).
LAYLA JAMES enters into this MASTER SERVICES AGREEMENT (hereinafter “MSA”) with the undersigned model or influencer (hereinafter the “Talent”) and any agent of Talent who creates images and other works governed by this MSA (“Photographer”). LAYLA JAMES, the Talent, and the Photographer may also be referred to as the parties.
This MSA sets forth the terms of the parties’ independent contractor relationship, which will govern all executed Statements of Work (“SOW”) between the parties, and serve as a photo and model release for any images or other works created. By signing any SOW which incorporates these terms, Talent and Photographer enter into a binding contract with LAYLA JAMES and grant LAYLA JAMES all rights and interests defined within this MSA.
In consideration of the rights to use images, promotions, marketing material, and any other deliverables generated by the Talent under any SOW (hereinafter the “Content”), LAYLA JAMES shall make Payment to the Talent as detailed below.
TALENT AND PHOTOGRAPHER ARE INDEPENDENT CONTRACTORS
The undersigned Talent is an independent contractor, and neither Talent nor Talent’s employees, agents or representatives shall be deemed employees of LAYLA JAMES. In Talent’s capacity as an independent contractor, Talent agrees and represents, and LAYLA JAMES agrees, that Talent has the right to perform services for others during the term of this MSA. In addition, Talent’s performance under this MSA or any fully executed SOW is within Talent’s sole and exclusive right to control, and for Talent to direct the means, manner, and method by which the Content or any other deliverables will be created, including location, starting and stopping times. Talent shall furnish all materials and incur all costs and expenses required to create the Content called for under any SOW. This includes the hiring and management of photographer(s) or other individuals involved in the Talent’s work.
With respect to any deliverables identified in a SOW, Talent specifically grants permission to LAYLA JAMES to edit, alter, distort, or otherwise use the Content, in whole or in part, in conjunction with other images, graphics, text and sound in any way whatsoever and without restrictions, at the sole discretion of LAYLA JAMES. Permission herein granted is absolute and final and shall not be subject to further inspection or approval by Talent at any stage in the use of the Content.
LAYLA JAMES shall pay Talent the payment amounts listed in any fully executed SOW, by PayPal, within fourteen (14) days of completion of all deliverables identified. Unless expressly noted otherwise in a SOW, all amounts listed are in US Dollars. To the extent the SOW identifies that Talent shall receive clothing items, LAYLA JAMES shall provide those items as-is, without warranty, with shipping costs included, to Talent’s address as identified in the SOW.
Consistent with the parties’ independent contractor relationship, LAYLA JAMES will not withhold FICA (Social Security and Medicare taxes) from any payments made to Talent, or make FICA payments on Talent’s behalf, or state or federal unemployment compensation contributions on Talent’s behalf, or withhold state or federal income tax from Talent’s payments. Talent shall pay all taxes incurred while performing services under this MSA—including all applicable income taxes and, if Talent is not a corporation, self-employment (Social Security) taxes. Upon demand, Talent shall provide LAYLA JAMES with proof that such payments have been made. Upon request, Talent agrees to provide W9 form(s) to LAYLA JAMES, and LAYLA JAMES agrees to provide 1099 form(s) to Talent.
Nothing in this MSA shall confer or transfer ownership of any copyright, trademark, trade secret, or other intellectual property rights protected by U.S. Copyright Law if: (a) owned by either party prior to entering into this MSA; or (b) developed independently by either party and unrelated to this MSA or any SOW.
By signing an SOW and providing Content, Talent expressly agrees that it grants to LAYLA JAMES a perpetual, irrevocable, worldwide, royalty-free license to use any Content (including but not limited to images, names, likenesses, hashtags, marketing statements, slogans, filters, effects) in whole or in part (hereinafter the “License”), to be used by LAYLA JAMES in its sole discretion.
Any permission granted to LAYLA JAMES shall extend to and bind the Talent’s successors, legal representatives, heirs, licensees and assigns (including any photographer that assists Talent in completion of SOW deliverables) and shall be irrevocable and perpetual without any further or additional claim for compensation by Talent. Any rights not granted by this License shall remain the intellectual property of the Talent. This License covers all Content furnished by Talent, even to the extent the Content is later modified.
LIMITATION OF LIABILITY
IN NO CASE SHALL ENGELHARDT & CO., LLC, OUR DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, INTERNS, SUPPLIERS, SERVICE PROVIDERS OR LICENSORS BE LIABLE FOR ANY INJURY, LOSS, CLAIM, OR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, ANY VIOLATION OF A RIGHT OF PRIVACY, ANY COPYRIGHT INFRINGEMENT, CLAIM OF DEFAMATION, FALSE LIGHT, LIBEL, SLANDER, LOST PROFITS, LOST REVENUE, LOST SAVINGS, REPLACEMENT COSTS, OR ANY SIMILAR DAMAGES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING FROM THIS MSA, ANY SOW, OR ANY CONTENT PRODUCED IN CONNECTION WITH THIS MSA, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO THIS MSA, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE, MANIPULATION, COPYING, REPURPOSING, OR REPRODUCTION OF THE CONTENT OR ANY CONTENT (OR IMAGE) POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE BY LAYLA JAMES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
The Talent agrees to indemnify, defend and hold Engelhardt & Co., LLC and our parent, subsidiaries, affiliates, partners, officers, directors, agents, contractors, licensors, service providers, subcontractors, suppliers, interns and employees, harmless from any claim or demand, including but not limited to claims of a breach of this MSA, a breach of any SOW, a claim of copyright infringement, or any defamation claim, including reasonable attorneys’ fees, whether or not made by any third-party arising out of performance any SOW or this MSA, including but not limited to the Content, or the violation of any law or the rights of a third-party.
In the event that any provision of this MSA or any SOW is determined to be unlawful, void or unenforceable, the parties intend that such provision shall nonetheless be modified so that it is enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from this MSA or any SOW, such determination shall not affect the validity and enforceability of any other remaining provisions or remaining parts thereof.
TERM & TERMINATION
The obligations and liabilities of the Parties incurred prior to the termination date shall survive the termination of this MSA for all purposes. Likewise, all interests and rights conferred between the Parties shall survive the termination of this MSA.
All remaining terms in this MSA are effective unless and until this MSA is terminated by either of the Parties, for any reason, including convenience, by providing written notice to the other party. Upon either party’s receipt of notice of termination, both parties expressly agree that they shall stop all work immediately, and not perform any further or incur any further expense, because the parties understand that funds for any work performed after receipt of notice of termination shall not be considered earned.
If in LAYLA JAMES’ sole judgment the Talent fails, or is suspected to have failed, to comply with any term or provision of this MSA, or in the alternative, if LAYLA JAMES in its sole discretion no longer believes engaging the Talent is in the best interests of the LAYLA JAMES brand, we also may terminate this MSA at any time without providing any advanced notice.
The failure of LAYLA JAMES or its affiliates to exercise or enforce any right or provision of this MSA, or violation by any of the Parties, shall not constitute a waiver of such right or provision. This MSA and the terms of any fully executed SOW constitutes the entire agreement between the Parties, superseding any prior or contemporaneous agreement, communications and proposals, whether oral or written. The Parties agree that due to their relatively equivalent bargaining power in this transaction, negotiated at arms’ length between bloggers, any ambiguities in the interpretation of this MSA shall not be construed against the drafting party.
GOVERNING LAW AND PREVAILING PARTY
This MSA and any modification thereto, and any SOW governed by these terms, shall be governed by and construed in accordance with the laws of the State of California. Any action brought in connection with this MSA shall be irrevocably subject to the exclusive jurisdiction of the State of California, where venue must exclusively be laid within the state and federal courts of San Diego County. To the extent any action is brought outside of the agreed upon jurisdiction or venue, and that action is dismissed, the party that did not initially file that action shall be deemed the prevailing party, and the prevailing party shall be entitled to recover from the non-prevailing party all costs and expenses associated with such proceedings, including reasonable attorney’s fees.
COUNTERPARTS AND ELECTRONIC SIGNATURES
Any SOW governed by this MSA may be executed in counterparts, and may be executed by way of facsimile or electronic signature, and if so, shall be considered an original copy. This MSA shall be effective on the earliest of the dates listed on any fully executed SOW.