CREATOR SERVICE AGREEMENT

This Creator Service Agreement together with the SOW (s) constitutes the agreement (“Agreement”) that sets out the terms on which the Creator will provide services to Megaphone Marketing.

1.        RECITALS:

1.1.  Megaphone Marketing is engaged in the business of providing advertising services to its clients.

1.2.     Creator has represented to Megaphone Marketing that he/she is an independent digital Content creator and provides services of undertaking photoshoots/videos that meet the requirements of his/her clients in connection with advertising or marketing requirements of the clients and their respective clients.

1.3.     The Creator hereby agrees to provide the services and Megaphone Marketing agrees to accept the services as per the terms and conditions set out in this Agreement.

2.        DEFINITIONS AND INTERPRETATION

●            “Affiliate” means, in relation to either party, any of the following: (a) companies controlled by that party through management appointment or holding more than 50% of the shareholding; (b) companies controlled by companies which directly or indirectly own or control that party; and (c) any companies having entered into an affiliation agreement with that party or the above-referred companies.

●            “Client” shall mean the client of Megaphone Marketing who the end user of the Content is created by the Creator under this Agreement and shall post such Content on their accounts on social media Platform(s).

●            “Confidential Information” has the meaning set out in clause 10.1.

●            “Content” is a collection of unique one or more images, audio files, slideshows, videos and other audio-visual content.

●            “Fees” means the fees invoiced and payable by Megaphone Marketing as set out in each Statement of Work or media plan for the Services performed by the Creator under this Agreement.

●            “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks and service marks, trade names, domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, and any other intellectual property rights, in each case whether registered or unregistered and including all applications (and rights to apply) for, and the right to be granted renewals or extensions of, and rights to claim priority from, these rights and all similar or equivalent rights or forms of protections which subsist or will subsist, now or in the future, in any part of the world;

●            “Platform” refers to any of the social media platforms, including but not limited to Instagram, YouTube, Meta and/ or Tiktok.

●            “Script” shall mean the specifications including verbatim script, basis which the Creator shall create the Content for the Client. The Script shall be developed or provided by such party as specified in the Statement of Work, in one of the following manner:

●            Megaphone Marketing shall provide the Script to the Creator;

●            Creator shall create the Script basis the guidelines outlined by Megaphone Marketing. Such Script shall be approved by Megaphone Marketing in writing, before the Creator creates the Content.

●            “Services” means the Content created by the Creator to be provided to Megaphone Marketing pursuant to this Agreement, as described in each Statement of Work.

●            “Statement of Work” or “SOW” shall mean the SOW set out in Schedule 1.

●            “Territory” means worldwide.

3.   ROLE OF CREATOR

3.1.     Megaphone Marketing hereby appoints Creator on non-exclusive basis to provide, and Creator agrees to provide, the Services to Megaphone Marketing, in accordance with this Agreement and the SOW.

3.2.     Creator will provide the Services: (a) with professional care and skill; (b) in accordance with the terms of this Agreement; and (c) in accordance with the Script.

3.3.     If Megaphone Marketing requests Creator to provide services other than or in addition to the Services (“Additional Services”), the Parties agree that the Additional Services may be subject to separate terms and conditions, including commercial terms.

3.4.     The Creator shall submit the Content for review and approval of Megaphone Marketing. Megaphone Marketing at its sole discretion shall review the Content and seek modifications, corrections if required within such period mentioned in the SOW. After the receipt of approval from Megaphone Marketing, the Creator shall not modify, port, adapt, translate or create any derivative work based upon any such content and upload it anywhere without the written approval from Megaphone Marketing.

3.5.     Creator shall not copy, distribute, publicly display, sell, resell or otherwise transfer any of the Content prepared for Megaphone Marketing without a prior written approval of Megaphone Marketing.

3.6.     Creator covenants and agrees that, during the subsistence of this Agreement and post the termination of this Agreement, it shall not criticise, disparage, call into disrepute, or otherwise defame, or slander, or make any false, negative, critical statements, implied or expressed, for Megaphone Marketing or its Affiliates.

4.   Megaphone Marketing RESPONSIBILITIES

4.1.     Megaphone Marketing will cooperate with Creator in all aspects relating to the Services, including, without limitation, giving Creator clear written briefings.

5.   CONSIDERATION

5.1.     In consideration of providing the Services, Megaphone Marketing shall pay the Creator the Fees as set out in the Statement of Work. The Creator shall raise an invoice to Megaphone Marketing at the end of calendar month for the Services provided in the preceding month. Megaphone Marketing shall clear all undisputed invoices within 7 (seven) days of the receipt of the invoice from the Creator.

5.2.     The Fee stated under the SOWs is exclusive of applicable indirect taxes, levies or any stamp duty payable in respect of this Agreement.

5.3.     In the event that any invoice raised by the Creator is not in accordance with this Agreement, Megaphone Marketing shall dispute the invoice within 10 days of receipt from the Creator. The parties shall resolve such dispute in accordance with Clause 12.11 below.

6.         REPRESNETATIONS & WARRANTIES

6.1.     Each Party represents and warrants to the other that it has the necessary power and authority to enter into this Agreement, and that the performance of its obligations will not constitute a breach or otherwise violate any other Agreement or the rights of any third party arising therefrom.

6.2.     Each Party represents and warrants to the other that this Agreement constitutes valid and legally binding obligation and will be enforceable against it.

6.3.     The Creator represents and warrants that the Services and any other work performed by the Creator hereunder shall not, infringe upon any copyright, confidential information, patent, trade secret or other proprietary right, or misappropriate any trade secret, of any third-party, and that it has neither assigned nor otherwise entered into an agreement by which it purports to assign or transfer any right, title, or interest to any technology or intellectual property right that would conflict with its obligations under this Agreement.

6.4.     Creator represents and warrants that it will not use any Confidential Information of Megaphone Marketing or the Client and undertakes that none of its employees, agents and representatives will use or otherwise exploit or make copies thereof for any purpose or in any manner other than as per the terms and conditions of this Agreement.

6.5.     Creator represents and warrants that it has the expertise to perform the Services in a competent, workmanlike, and professional manner and in accordance with the highest professional standards, service level agreement and timelines thereto as agreed between the Parties and the applicable laws.

6.6.     Creator represents and warrants that the Content created is solely and exclusively for Megaphone Marketing.

6.7.     Creator presently has no interest and shall not acquire any interest which would conflict in any manner or degree with the performance of its Services hereunder. Creator further certifies that in the performance of this Agreement, no person having any such known interests shall be employed. The execution, delivery and performance of this Agreement does not and will not (i) contravene any applicable law; and (ii) conflict with, or result in breach of, or constitute a default under any other agreement.

7.         INDEMNIFICATION

7.1.     Creator agrees to indemnify and hold harmless Megaphone Marketing and its Affiliates and/or representatives against any and all costs, expenses, charges, damages, liabilities, claims, or actions incurred or suffered due to a breach by the Creator of this Agreement and/or applicable law. Parties shall not be liable under this indemnity in respect of any costs, expenses, charges, damages, liabilities, claims or actions to the extent that these are caused by direct acts or omissions of that Party and is not attributable to that Party in any manner.

8.   TERM AND TERMINATION

8.1.     The Term of this Agreement comes into effect on the Effective Date and shall remain in effect until terminated by either party in accordance with Clause 8 of this Agreement (“Term”).

8.2.     Either Party may terminate this Agreement (including all Statement(s) of Work) or the applicable Statement(s) of Work immediately on written notice to the other Party if the other Party breaches any material provision of the Agreement or any SOW.

8.3.     Either Party may terminate this Agreement or any SOW for convenience after issuing a notice of 30 days to the other party.

9.   LIABILITY

9.1.     Save in relation to the confidentiality obligations under Clause 10, to the maximum extent permitted by law, the maximum aggregate liability of either Party towards the other under or in connection with this Agreement, shall not exceed an amount equal to 100% of the Fee paid by Megaphone Marketing under this Agreement to Creator during the 12 months immediately preceding.

10. CONFIDENTIALITY

10.1.   Each Party undertakes that it will keep confidential and not at any time hereafter use or disclose to any person, except: (i) to its professional representatives and advisors who need to know the information for the performance of this Agreement; (ii) in the case of Creator only, to its Creator Affiliates or sub licensees or sub-contractors (including, without limitation, business process outsourcing services providers); or (iii) as may be required by law or any legal or regulatory authority, the terms and conditions or existence of this Agreement or any trade secrets, business ideas, market opinions, financial, technical information and/or material concerning the business or affairs of the other Party(or any other information of a confidential nature which is designated as such by such other Party) which may have or may in the future come to its knowledge(“Confidential Information”).

10.2.   Neither Party shall use Confidential Information except for the performance of or as licensed under this Agreement or make any announcement relating to this Agreement or its subject matter without the prior written approval of the other Party.

10.3.   Except as otherwise permitted by this Agreement, no Intellectual Property Rights are marked, implied or granted as Confidential Information.

10.4.   These confidentiality obligations shall not apply to any Confidential Information that: (i) is or becomes part of the public domain through no fault of the receiving Party; (ii) is known to the receiving Party prior to the disclosure by the disclosing Party without any obligation to keep such Confidential Information confidential; (iii) is required by law or any governmental or other regulatory authority to be disclosed or by the order of a court of competent jurisdiction; or (iv) is independently developed by the receiving Party without any breach of this Agreement as evidenced by written records.

11. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS

11.1.   The Creator hereby assigns to Megaphone Marketing all rights, title and interest in and to the Content created and developed by the Creator pursuant to this Agreement. Creator shall acquire no right or interest whatsoever in or to any such intellectual property rights in the Content created under this Agreement. All Content created under this Agreement will be deemed “work for hire” to the greatest extent permitted by law and will be owned solely and exclusively by Megaphone Marketing. To the extent the Content created under this Agreement does not constitute work for hire, the Creator does and will assign and transfer all intellectual property rights to Megaphone Marketing and undertake any and all steps to that extent necessary. Creator agrees to assist and cooperate with Megaphone Marketing and any person Megaphone Marketing further assigns the Content in perfecting the intellectual property rights of Megaphone Marketing to the Content created under this Agreement.

11.2.   During the existence of this Agreement and thereafter, the Creator shall not (a) assert or represent to any third party that either of them have any rights whatsoever in any intellectual property rights relating to the Content created under this Agreement, or (b) take, or permit any third party to take, any action that may limit or impair Megaphone Marketing’s sole ownership of all rights, title and interests in and to all such intellectual property rights.

11.3.   Creator will enter into written agreements and sign release (as attached hereto as Schedule 1) with Megaphone Marketing prior to performing Services (i) consistent with the provisions of this Agreement; and (ii) containing irrevocable waiver of rights with respect to the Content and consent to permit Megaphone to modify the Content in accordance with this Agreement.

11.4.   Creator hereby releases Megaphone Marketing, its representative, employees, managers, members, officers, parent companies, subsidiaries, consultants and directors, from all claims (including, without limitation, claims based upon defamation) and demands arising out of or in connection with any use, alteration, or use in any composite form of said Content, including, without limitation, all claims for invasion of privacy, infringement of right of publicity, defamation and any other personal and/or property rights.

12. GENERAL

12.1.   Unless otherwise agreed by the Parties, Creator acts in all its contracts as a principal and not as agent for Megaphone Marketing in respect of dealings with third party suppliers and shall place orders and enter into contracts with the third parties in its own name and on its own account. Nothing in this Agreement is intended to or shall operate to create a partnership or relationship of principal and agent between the Parties.

12.2.   The service of proceedings, given under or in connection with this Agreement shall be in writing (excluding email) and served by hand, prepaid first class recorded delivery or prepaid international recorded airmail to the other Party’s address. Such notice shall be deemed to have been served at the time of delivery. All other communications (including in relation to approvals, notice of termination) under this Agreement may be given via email and shall be deemed received upon sending, save in the case of manifest technical error.

12.3.   Neither Party shall be liable for any failure to perform or delay in performance of any of its obligations under this Agreement caused by circumstances beyond its reasonable control including without limitation acts of God, civil or military authority, war, riots, civil disturbances, fire, earthquake, floods, strikes, lock-outs, foreign or governmental order including orders of lock-down, quarantine, an outbreak of an epidemic, pandemic or other communicable diseases (“Force Majeure Event”). The affected Party shall use all reasonable endeavors to mitigate the effect of the Force Majeure Event. Should the Force Majeure Event continue for longer than one (1) month or such other period as the parties may have expressly agreed in the SOW affected by the Force Majeure Event, the party adversely affected shall have the option of terminating the Agreement immediately without further liability other than such liabilities as have already accrued up to the effective date of termination. In no event shall a Force Majeure Event have the effect of discharging or postponing Creator’s payment obligations under the Agreement.

12.4.   No provision of this Agreement (or any document entered into in connection with this Agreement) shall be modified or varied without the written consent of the Parties.

12.5.   No delay, failure or omission (in whole or in part) in exercising or pursuing any right or remedy under this Agreement will be construed as a waiver of that right or remedy.

12.6.   The provisions of clauses 2 (Definitions and Interpretation), 6 (Warranties), 7 (Indemnification), 9 (Liability), 10 (Confidentiality), 11 (Ownership of Intellectual Property Rights), 12 (General) and any other provision which by its very nature should survive shall survive termination or expiry of this Agreement.

12.7.   This Agreement may be signed in counterparts and by the Parties on separate counterparts, each of which when so executed shall be an original, but all counterparts shall together constitute one and the same document.

12.8.   A person who is not a party to this Agreement has no right to rely upon or enforce any term of this Agreement. For clarification of doubt, the principle of privity of contract shall be applicable to this Contract.

12.9.   This Agreement constitutes the entire agreement and understanding of the Parties relating to the subject matter of this Agreement and supersedes, in relation to such subject matter:(i) any previous agreement or understanding between the Parties; and (ii) any terms and conditions contained in a Party’s purchase order or invoice. In entering into this Agreement, the Parties have not relied on any statement, representation, warranty, understanding, undertaking, promise or assurance of any person other than as expressly set out in this Agreement.

12.10.  If any provision of this Agreement is found to be invalid or unenforceable then such invalidity or unenforceability shall not affect the other provisions of this Agreement, which will remain in full force and effect.

12.11. This Agreement is governed by and will be construed in accordance with the laws of Victoria. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of Victoria.

12.12.  No Party shall have the right to assign its rights, obligations under this Agreement to any third party, without prior written consent of the other Party.

SCHEDULE 1 

CREATOR RELEASE

For Fees as expressly provided in this Agreement or any SOW to this Agreement, and by signing this release I hereby give Megaphone Marketing and assign my permission to license the Content and to use the Content, throughout the Territory and in perpetuity, in all forms and in any media for any purpose (except pornographic or defamatory), without any restriction as to modify, reproduce, port, adapt, translate or create any derivative work based upon the Content for advertising, trade, promotion, exhibition, or any other lawful purposes. I further agree that Megaphone Marketing may use, and allow others to use, my name, voice and likeness for educational, promotion, advertising, selling and marketing purposes related to Megaphone Marketing.

I agree that the Content may be combined with other images, text, graphics, film, digital media, audio, or audio-visual works; and may be cropped, altered, or modified utilising artificial intelligence and machine learning to create realistic videos, pictures or audio, that appear real to the viewer. I agree that I have no rights to the Content, and all rights to the Content belong to Megaphone Marketing and assigns except as specifically identified in writing in the Agreement.

I acknowledge and agree that I have no further right to additional consideration or accounting, and that I will make no further claim for any reason to Megaphone Marketing and assigns including claims for libel or invasion of privacy. I acknowledge and agree that this release is binding upon my heirs and assigns. I agree that this release is irrevocable, worldwide and perpetual, and will be governed by the laws agreed in the Agreement. It is agreed that my personal information will not be made publicly available, unless agreed to in writing by me, but may only be used directly in relation to the licensing and use of the Content where necessary and may be retained as long as necessary to fulfil this purpose, including by being shared with sub-licensees/assignees of Megaphone Marketing and transferred to countries with different data protection and privacy laws where it may be stored, accessed, or used.

I represent that I am 18 years of age and have the full legal capacity to execute this release and the Agreement.