This Contributor's Agreement (this 'Agreement'), effective the date signed below (the 'Effective Date') is by and between
United States Hang Gliding & Paragliding Association (USHPA)
1685 West Uintah Street
Colorado Springs, CO 80904 USA
The Contributor (signed below)
1. Application of this Agreement. This Agreement applies to any and all article(s), photograph(s), art, and other creative works that Contributor submits to USHPA (referred to hereinafter individually as a “Work” and in the aggregate as the "Works"), and shall be effective on the date Contributor first submits the Work, even if such submission preceded the Effective Date, unless subject to a separate written agreement by and between the Contributor and USHPA.
2. Rights in the Work Granted to USHPA.
(a) Subject to subsection (b) immediately below, the Contributor grants to USHPA a perpetual, irrevocable, worldwide, royalty-free and unrestricted license to reproduce, print, copy, publish, sell, and distribute the Works throughout the world for the Non-Commercial Permitted Uses (see below). The Contributor also grants to USHPA a single-use, irrevocable, worldwide and royalty-free license to reproduce, print, copy, publish, sell, and distribute the Works throughout the world for the Commercial Permitted Uses (see below). As to any Work, the license shall commence on the date of submission. For the 3-month period immediately following submission (the "Exclusivity Period"), the license shall be exclusive to USHPA and the Contributor will neither permit the publication of nor self-publish the Work without USHPA’s prior written consent. At the conclusion of the Exclusivity Period, the license shall become non-exclusive. USHPA may sub-license those rights granted to it under this Agreement solely in order to fulfill the Non-Commercial Permitted Uses.
(b) If the Contributor has previously granted any rights in the Work to any person other than USHPA (the "Prior Rights"), then at the time the Work is submitted to USHPA, the Contributor shall disclose to USHPA in writing the material terms of the Prior Rights (e.g., exclusive or non-exclusive, the term(s) and territory(ies) of publication, dates of publication, etc.) and any further information requested by USHPA. USHPA shall have the right to accept or reject such Work. If USHPA accepts such Work, the license granted to USHPA by this Agreement shall be subject to the Prior Rights. If USHPA rejects such Work, no license shall be granted under this Agreement.
(c) If USHPA should make a derivative work of the Work, USHPA shall be the sole owner of such derivative work.
3. Non-Commercial Permitted Uses. "Non-Commercial Permitted Uses" are uses of the Work, or any part of it, for (a) the promotion and furtherance of the sport of hang gliding and paragliding and (b) the general benefit of its members. Without limiting the generality of the foregoing, the Non-Commercial Permitted Uses include publication of any Work in USHPA's magazine(s) (including archives), and other printed publications; on the USHPA web site(s); social media sites; in video recordings and other multi-media presentations, and in any and all forms of media, whether now existing or hereafter developed, that USHPA, in its sole discretion, deems appropriate for the furtherance of its mission to promote the sport. To assure a broader targeted audience for the USHPA's magazine(s), Non-Commercial Permitted Uses also includes the submission to and inclusion of the Work in article databases, for example the EBSCO host databases (whether or not USHPA generates revenue as a result of such submission or inclusion of the Work in the article database), unless at the time of submission of the Work, the Contributor specifies that the Work should not be submitted or included in any such database. Notwithstanding anything herein to the contrary, the use of the Work in any training or educational materials shall be considered a "Non-Commercial Permitted Use," regardless of whether or not such training or educational materials are sold or otherwise generate income. For purposes of Copyright Law, all Non-Commercial Permitted Uses shall be deemed to be “fair use” of the Work.
4. Commercial Permitted Uses. "Commercial Permitted Uses" are uses of the Work, or any part of it, as inclusion in a commercially sold product where the product is primarily intended to generate revenue and the revenue generation is not merely incidental to either (a) the promotion and furtherance of the sport of hang gliding and paragliding, or (b) the benefit of USHPA's members. Without limiting the generality of the foregoing, the Commercial Permitted Uses include publication of any Work in USHPA’s calendar(s), and other printed publications; and in video recordings and other multi-media presentations (whether online or offline), where such publications, recordings and/or presentations are produced by or for USHPA primarily for revenue generation purposes. For the avoidance of doubt, the use of the Work in any training or educational materials is not primarily intended to generate revenue, and shall not be deemed a commercial use, regardless of whether or not such materials actually generate revenue.
5. Right to Edit. The Contributor agrees that USHPA has the right to edit, modify, or change any submitted Work in the sole and absolute discretion of USHPA to prepare the Work for publication or other authorized use; provided that at the time of submission the Contributor may, by written instrument signed by the Contributor, indicate that the Work may not be edited without the Contributor’s prior consent.
6. Right to Use Likeness. Contributor grants USHPA the right to use, and to license others to use, Contributor's name, image, likeness and biographical information for advertising, promotion, and other exploitation of the Work and the other rights granted under this Agreement.
7. USHPA’s Discretion to Publish. Submission of a Work does not guarantee publication. Publication of a Work is at the sole and absolute discretion of USHPA.
8. Representations, Warranties, and Additional Covenants.
The Contributor represents and warrants that with each submission, as of the date of the submission:
i. the submitted Work is an original work of the Contributor; and
ii. USHPA’s use of such Work in accordance with the terms and conditions of this Agreement will not infringe upon any copyright, trademark, or trade secret, or otherwise violate any other personal proprietary rights, of any individual, company, or other entity.
The Contributor shall not during the term of this Agreement grant any right in a Work inconsistent with the rights granted to USHPA by this Agreement.
9. Indemnification. The Contributor shall defend and indemnify USHPA, its agents, employees, officers, and directors, and hold each and all of them harmless, of and from any and all claims, losses, costs, damages, liabilities, and expenses, including attorneys' fees, arising out of or in connection with (a) the Contributor's breach of any promise, representation, or warranty made by the Contributor in this Agreement or (b) any use of a Work by USHPA permitted under this Agreement.
10. Copyright. Ownership of the copyright in all Works submitted by the Contributor to USHPA remains in Contributor, subject to the rights granted by the Contributor to USHPA as set forth in this Agreement.
11. Term. This Agreement shall commence on the Effective Date and shall continue until terminated. This Agreement may be terminated upon (a) the mutual written consent of the parties hereto or (b) a material breach, provided that the non-breaching party shall provide the breaching party with 30-days written notice of the breach during which the breaching party shall have the right to cure. Furthermore, USHPA may terminate this Agreement with respect to a specific Work by notifying the Contributor in writing that USHPA relinquishes its rights in the specified Work.
12. Consideration. With regard to a Work, the Contributor may receive from USHPA consideration upon the first publication of such Work as a Commercial Permitted Use by USHPA in any form or medium as permitted by this Agreement and in accordance with the following:
(a) USHPA shall give written notice of the first publication of the Work as a Commercial Permitted Use to the Contributor of such Work promptly after publication of the Work by USHPA (the “Publication Notice”). The Publication Notice shall be accompanied by an invoice (the “USHPA Invoice”); and
(b) Upon publication, the Contributor shall have the right to:
i. receive payment of a publication fee at USHPA’s then-existing Contributor Rate Schedule; or
ii. waive payment of the publication fee, in which case such fee shall be treated as a charitable donation to USHPA.
In order to receive the publication fee, the Contributor must return the USHPA Invoice to USHPA no later than 45 days after first publication of the Work as a Commercial Permitted Use. If USHPA has not received the USHPA Invoice within such 45-day period, the Contributor shall be deemed to have waived payment of the publication fee and such fee shall be treated as a charitable donation to USHPA.
(c) For the sake of clarity, the Contributor shall not be entitled to any consideration (i) if a Work is not published, (ii) for subsequent publications and other uses (including, but not limited to, use in archived materials) of any Work after first publication as a Commercial Permitted Use, or (iii) for Non-Commercial Permitted Uses.
(d) The Contributor shall be responsible for payment of any sales, income, or similar tax related to the publication fee, and, in the event that any such tax is assessed against USHPA, the Contributor shall promptly reimburse USHPA for all such amounts paid by USHPA, plus interest and penalties.
(a) Nothing contained in this Agreement shall be deemed to create an employment, partnership, or similar relationship between the parties.
(b) All notices and other communications required or to be given under this Agreement shall be in writing and shall be given either (i) by personal delivery, (ii) by certified or registered United States mail, return receipt requested, postage prepaid, or (iii) by electronic mail, at the addresses set forth on the first page of this Agreement or such other address as a party hereto may provide.
(c) This Agreement and any additional instruments referenced herein constitute the full, entire, and integrated agreement between the parties hereto with respect to the Works and their use by USHPA. This Agreement may be amended, waived, or otherwise modified only upon the prior written consent of the parties hereto.
(d) This Agreement shall not be assignable by the Contributor without the prior written consent of USHPA; provided that this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and permitted assigns.
(e) The waiver by any party hereto of a breach of any provision or condition contained in this Agreement shall not operate or be construed as a waiver of any subsequent breach or of any other conditions hereof.
(f) This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.
(g) This Agreement shall be governed by, construed, interpreted, and enforced in accordance with the laws of the State of Colorado, except to the extent that the subject matter of this Agreement is covered by U.S. copyright laws.
(h) This Agreement supersedes all previous agreements.
(i) Both parties have read and understand this Agreement, and, by signing below, have agreed to all of its terms and conditions as of the Effective Date.