Last Updated: 26 AUG 2022
These Laetro Creative Terms (the “Terms”, and together with any Project Agreement in which these Terms are referenced, the “Agreement”), are entered into between Laetro Inc. (“Laetro”) and the creator indicated on the Project Agreement (“Creative”). Capitalized terms used but not defined in these Terms have the meanings given to those terms in the Project Agreement. Each of Laetro and Creative may be referred to in this Agreement individually as a “Party” or collectively as the “Parties”.
Generally. Subject to the terms and conditions of this Agreement, Creative will create the artwork, illustration, photograph, text, movie, animation, audio, concepts, or other work or material (collectively, the “Content”) for the project described in the Project Agreement (the “Project”), that meets the Project descriptions and requirements specified in the Project Agreement (the “Project Requirements”) for the client indicated on the Project Agreement (the “Client”).
Project Team. The team of people who work on the Project will be: (i) Client, (ii) the Project Manager, and (iii) one or more creators (including Creative) (the “Project Team”). The Client is a third-party that has hired Laetro to assemble the Project Team and deliver assets for a Project. The “Project Manager” is a Laetro employee that liaises with the Client to define the Project and manages the delivery of assets for the Project. Creative agrees to keep the Project Manager apprised of the status of the services described in Section 1.1 or Objectives in the Project Agreement (the “Services”), and agrees to answer any questions the Project Manager may reasonably ask regarding the Services or the performance thereof.
Materials. Except as otherwise specified on the Project Agreement or agreed in writing by Laetro, Creative will be responsible for and supply all necessary equipment, materials and other resources required to perform the Services and create the Content.
Performance Standard. Creative will diligently perform the Services in accordance with the Project Agreement. Except to the extent specified in the Project Agreement, the Services may not be subcontracted or delegated by Creative to any third-party without Laetro’s prior written consent. Without limiting the foregoing, Creative will remain responsible for the performance of the Services under this Agreement, notwithstanding any such delegation.
Original Work. Except: (i) to the extent specified on the Project Agreement; (ii) for work created by other creators who are working on the Project, and only to the extent the Services require Creative to make use of, add to, modify, or prepare derivative works of such works; or (iii) for work provided or made available to Creative by or on behalf of the Client for the express purpose of inclusion in the Content or use in connection with the Services ((i) through (iii) collectively the “Permitted Third-Party Works”), Creative may not use in the Content any images, photos, videos, works or other materials that are not Creative’s own original work. Creative represents and warrants that the Content (excluding the Permitted Third-Party Works) are and will be Creative’s own original work of authorship.
2. DELIVERY; ACCEPTANCE. Creative will use its best efforts to create and deliver the Content on or before the corresponding due dates specified on the Project Agreement. Time is of the essence for the performance of the Services by Creative. Following delivery of the Content to the Client, the Client will be permitted to review the Content. In the event Laetro or Client determine, in their sole discretion, that the Content was deficient or failed to meet the Project Requirements, Creative agrees to revise the disputed Content and redeliver revised Content to the Client addressing the identified deficiencies or failures to meet the Project Requirements within the stated delivery parameters delineated by Laetro and/or Client. The redelivered Content will be subject to review by the Client as described above.
3. HOURS, FEES AND PAYMENT.
Hourly Rate and Reporting. Subject to the remainder of this Section 3, the Services will be charged to the Client on an hourly basis at the rate specified on the Project Agreement (“Hourly Rate”). Creative agrees to use the hourly tracking tool on the Project’s page in the Payment Portal to keep an accurate record of the amount of time spent performing the Services and will report such time on a daily basis (“Reported Hours”), in accordance with Laetro’s instructions.
Pause. The Project Manager can, in their sole discretion and at any time, Pause a Creative. This removes the Creative's ability to add hours to new dates for a given Project. Creative agrees that, should they be Paused by the Project Manager, Creative will only add hours for previous allowable days that they have actually worked.
Checkin Gates. The Project Manager may specify one or more checkpoints for Creative throughout the Project (a “Checkin Gate”) defined by a number of hours. A Checkin Gate is automatically triggered when Creative works up to the number of hours defined in the Checkin Gate. In order for Creative to log more hours for the Project, the Project Manager must first approve further work and can, in their sole discretion, choose to decline that approval. In the event that the Project Manager declines to approve further work on the Project, Creative agrees to stop performing the Services with respect to the Project. Creative will not continue performing the Services with respect to the Project until Creative receives written confirmation from Laetro to continue performance of the Services. Creative may not report and will not be compensated for any time spent performing the Services for the Project during the time period between triggering a Checkin Gate and receiving such written confirmation.
Service Cap. The Project Agreement may specify one or more service caps for a given task for the Project or the Project overall (“Service Cap”). Creative will immediately stop performing the applicable Services and notify the Project Manager in writing in the event the total aggregate amounts paid and payable to Creative for the Project meet or exceed the Service Cap. Creative will not resume performing the applicable Services until it receives written confirmation from the Project Manager that the Service Cap has been increased. Increased Service Caps may come with additional Checkin Gates. If the Project Manager notifies Creative that the Service Cap will not be increased, Creative agrees to promptly deliver any work in progress for the Project to Client. For the avoidance of doubt, Creative will not be compensated for any time spent performing the Services during the time period between reaching the Service Cap and receipt of the Project Manager’s confirmation that the Service Cap has been increased.
Audit. Creative will maintain complete and accurate records regarding the performance of the Services and number of hours worked, and upon reasonable prior notice from Laetro, provide Laetro with a copy of such records for the purpose of verifying the accuracy of the Reported Hours. In the event such records reveal an overpayment to Creative, Creative agrees to return to Laetro any such overpayment, and Laetro may, in its sole discretion, suspend or remove Creative from the Project and any other Project that Creative may be performing services for.
Payment. Subject to Sections 3.2 and 3.3, Creative may request payment for Reported Hours through the portal available at laetro.com/earnings (the “Payment Portal”). Payments may be made through one or more of Laetro’s approved third-party providers. Creative may be required to create and maintain an account with such third-party providers in order to receive payment through the Payment Portal, and Creative’s receipt of payment through such third-party provider may be subject to additional terms, located at www.laetro.com/payment-provider-terms. Creative is responsible for all taxes imposed upon such fees or otherwise associated with the performance of the Services. Notwithstanding the foregoing, Laetro may offset any amounts payable to Creative against amounts owed by Creative to Laetro.
Refunds and Offset. In the event Laetro agrees to provide a Client with a refund for amounts paid in connection with Creative’s Content, Creative agrees to refund to Laetro any amounts paid by Laetro to Creative for such Content. Laetro reserves the right to offset any amounts owed by Creative to Laetro against amounts owed by Laetro to Creative (whether or not arising under this Agreement).
4. INTELLECTUAL PROPERTY
Rights in Content. Creative acknowledges that the Content is made and paid for by the Client. For the purposes of this Section, “Assignee” means: (a) Laetro, if the agreement between Laetro and the Client assumes that Laetro will, or requires Laetro to, assign to the Client the intellectual property rights in or to the Content, or (b) Client, in all other cases. Accordingly, but subject to the license grant in Section 4.2, Creative hereby assigns (and agrees to assign) to the Assignee all right, title and interest in and to the Content. The foregoing assignment includes all rights of attribution, paternity, integrity, modification, disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as “moral rights”, “artist’s rights”, “droit moral”, or the like, including but not limited to any rights Creative may have under the Visual Arts Rights Act (U.S.C. Section 106A), the California Art Preservation Act (California Civil Code Section 987) or other applicable law or regulation (collectively, “Moral Rights”). To the extent that Moral Rights cannot be assigned under applicable law, then to the extent permitted under applicable law. Creative hereby expressly and forever waives and agrees not to enforce any and all Moral Rights, including without limitation, any limitation on subsequent modification. If the Assignee is Client, Creative agrees that the Client will be an express third-party beneficiary with respect to this Section 4.1, and will have the ability to enforce this Section as if the Client were a party to these Terms. Creative agrees to assist Laetro or its designee in every proper way to effectuate the foregoing assignment. If Laetro is unable, because of Creative’s unavailability, incapacity, unwillingness, or for any other reason, to secure Creative’s signature with respect to the Content to apply for or pursue any application for copyright or other registrations for the Content, then Creative hereby irrevocably designates Laetro and its duly authorized officers and agents as Creative’s agent and attorney in fact, to act for and on Creative’s behalf and stead to execute and file any such applications and to do all other lawfully permitted acts to further the copyright or other registrations with the same legal force and effect as if executed by Creative. This power of attorney shall be deemed coupled with an interest and shall be irrevocable.
License to Laetro. Creative hereby grants to Laetro a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify and distribute the Content in whole or in part, in any media formats and through any media channels now known or hereafter developed, and use or exploit your content in any manner without restriction.
Use of Content. Laetro will notify Creative whether Creative is permitted or prohibited from using the Content in Creative’s portfolios (including, but not limited, an online portfolio of Creative’s works) (“Portfolio”). Following the earlier of Creative’s receipt of written notice from Laetro permitting such use, and 6 months after completion of the Project, if Laetro did not notify Creative prohibiting such use during those 6 months, Creative may use the Content solely in Creative’s Portfolio. Subject to the foregoing, Creative will not use the Content or any portion of the Content (including any drafts, rough cuts or other prior versions of the Content for any purpose other than as required to perform the Services. If Laetro notifies Creative that Creative is prohibited from using the Content in Creative’s Portfolio, Creative agrees that Creative must obtain permission directly from the Client to use the Content in Creative’s Portfolio. For the avoidance of doubt, in no event may Creative use Client’s name (except to the extent Client’s name is a part of the Content) without Client’s prior written consent.
5. TERM AND TERMINATION
Term. This Agreement will be effective as of the date Creative and Laetro accept the Project Agreement, and unless terminated earlier in accordance with its terms, will continue until Creative has completed the Project.
Termination. Laetro may terminate this Agreement: (a) upon notice to Creative in the event Creative breaches the terms of this Agreement and fails to cure such breach within 5 days of receiving notice of such breach; (b) immediately upon notice to Creative if Laetro or the Client terminates the Project; or (c) for convenience upon at least 5 days’ prior written notice.
Effect of Termination. Upon termination or expiration of this Agreement, the Project Agreement will terminate, and Creative will immediately stop performing the Services and promptly provide to Laetro and Client a copy of the Content (including any work in progress), without retaining any copies. Creative will further delete any Confidential Information it has in its possession or control, without retaining any copies. Creative will certify its compliance with this Section to Laetro in writing. Further, Sections 3.4, 3.6, 4, 5.3, 6.3, 7, 8, 9, 10 and 11 will survive any termination or expiration or this Agreement.
6. REPRESENTATIONS AND WARRANTIES.
Binding Obligation. Creative represents and warrants that this Agreement constitutes a valid and binding obligation of Creative that is enforceable in accordance with its terms.
Role and Performance. Creative represents that the Creative has the necessary skills and competencies, if any, that are specified in the Project Agreement, and warrants that the Services must be performed in a competent, professional and workmanlike manner by qualified personnel in accordance with applicable laws.
Content Warranties. Creative represents and warrants that neither the Content (excluding the Permitted Third-Party Works) nor Client’s or Laetro’s use or exploitation thereof will infringe upon or misappropriate the intellectual property rights or other rights of any third-party, and that Creative has the rights necessary to make the assignment and grant the licenses in Section 4.
7. INDEMNIFICATION. Creative will indemnify, defend and hold harmless Laetro, Client and their respective directors, officers, employees, agents, successors and assigns (the “Laetro Entities”) from and against all taxes, losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with Creative’s breach of this Agreement, any actual or alleged infringement or misappropriation of a third-party’s intellectual property rights or other rights by Creative or the Content, or any dispute or issue between Creative and any third-party or the Client. Laetro reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Creative (without limiting Creative’s indemnification obligations with respect to that matter), and in that case, Creative agrees to cooperate with Laetro’s defense of those claims. Any settlement permitted hereunder shall not impose any financial or other obligation and/or liability on Laetro Entities (except for a monetary payment that is fully indemnified hereunder), impair any right of the Laetro Entities, or contain any stipulation, omission or acknowledgement of wrongdoing on the part of the Laetro Entities without the Laetro Entities’ prior written consent in its sole discretion.
Definition. “Confidential Information” means any nonpublic information that relates to the Project and any proprietary information, trade secrets, and knowhow of Laetro or the Client that are disclosed to Creative or its agents, directly or indirectly, in writing, orally, or by inspection or observation of tangible items. Confidential Information includes images, videos, audio, and any other works and information generated by Creative in the performance of the Services. Confidential Information is the sole property of Laetro or the Client, as applicable.
Exceptions. Confidential Information does not include any information that Creative can demonstrate: (a) was publicly known and made generally available in the public domain before Laetro or the Client disclosed the information to Creative, (b) became publicly known and made generally available, after disclosure to Creative by Laetro or the Client, through no wrongful action or inaction of Creative or others who were under confidentiality obligations, (c) was in Creative’s possession, without confidentiality restrictions, at the time of disclosure by Laetro or the Client, as shown by Creative’s files and records, or (d) was independently developed without use of or reference to the Confidential Information.
Nondisclosure and Nonuse. Creative will not, during and after the term of this Agreement, disclose the Confidential Information to any third-party or use the Confidential Information for any purpose other than to the limited extent necessary to perform the Services. Creative agrees to use best efforts to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information. Without limiting the foregoing, Creative will take at least those measures that Creative takes to protect Creative’s own most highly confidential information (but in any event no less than reasonable care) including, but not limited to, requiring any third-party that Creative provides with access to Confidential Information to execute a nondisclosure agreement containing terms that are substantially similar to the terms contained in this Agreement. Creative will not make any copies of Confidential Information except to the extent reasonably necessary to perform the Services, and will reproduce Laetro’s proprietary rights notices on all approved copies, if any. Creative will not reverse engineer, disassemble, or decompile any drafts, samples, or content that embodies Laetro’s Confidential Information.
Remedies. Creative agrees that Client may enforce the terms of this Section against Creative as an express third-party beneficiary, and that any violation or threatened violation of this Section 8 by Creative may cause irreparable injury to Laetro or the Client, entitling Laetro or the Client, as applicable, to seek injunctive relief in addition to all other legal remedies.
9. LIMITATION OF LIABILITY
Disclaimer of Consequential Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE LAETRO ENTITIES BE LIABLE TO CREATOR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT OR CREATOR’S PARTICIPATION IN THE PROJECT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY LAETRO ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
Cap on Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE LAETRO ENTITIES TO CREATOR FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT, CREATOR’S PARTICIPATION IN THE PROJECT, CREATOR’S DEALINGS WITH THE CLIENT OR OTHERWISE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (a) THE AMOUNT PAID BY LAETRO TO CREATOR FOR THE SERVICES DURING THE 6 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO THE CLAIM OR (b) US$100.
Failure of Essential Purpose. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 9 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
10. DISPUTE RESOLUTION AND ARBITRATION. Any dispute or claim arising out of or in connection with this Agreement or breach thereof, shall be finally settled by binding arbitration in Santa Clara County, California, administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures by one arbitrator appointed in accordance with said rules. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, either Party may apply to any court of competent jurisdiction for injunctive relief without breach of this Section.
Independent Contractor. Nothing herein will create any partnership, joint venture, or similar relationship between the Parties.
Complete Agreement. Except as otherwise agreed by the Parties in writing, this Agreement (together with all attachments hereto) is the final and complete expression of all agreements between the Parties and supersede any previous or contemporaneous negotiations, orders, communications or agreements with respect to the subject matter hereof. Any exhibits or attachments hereto are specifically made a part of this Agreement and incorporated herein by reference.
Counterpart. This Agreement may be executed in any number of counterparts, each of which counterparts, when executed or delivered, will be deemed to be an original, and all of which taken together will constitute one and the same instrument.
Waiver; Amendment; Modification. No term or provision hereof will be considered waived by a Party, and no breach excused by a Party, unless such waiver or consent is in writing and signed by an authorized representative of such Party. The waiver by a Party of, or consent by a Party to, a breach of any provision of this Agreement by the other Party, will not constitute, operate or be construed as a waiver of, consent to, or excuse of any other or subsequent breach by a Party. This Agreement may be amended or modified only by an agreement in writing signed by an authorized representative of each Party.
Assignment; Subcontractors. Laetro may freely assign this Agreement and any of its rights or obligations hereunder without Creative’s prior written consent. Creative may not assign, subcontract or delegate this agreement or any of its rights or obligations under this Agreement without Laetro’s prior written consent. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of each party and their respective successors and permitted assigns.
Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, without reference to its choice of law rules. Except as specified in Section 10, the Parties agree that any action arising out of or in connection with this Agreement will be heard in the federal, state, or local courts in Santa Clara County, California, and each Party hereby irrevocably consents to the exclusive jurisdiction and venue of these courts.
Enforceability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, (a) such provision will be deemed amended to achieve as nearly as possible the same economic effect as the original provision, and (b) the legality, validity and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby.
Notices. All notices required under this Agreement will be provided in writing and will be considered received if delivered or sent by personal delivery, reputable courier, facsimile, e-mail, or both certified and regular mail: (a) if to Laetro, to Laetro, Inc., Attention: Legal Department, 266 Mercy Street, Mountain View, CA 94041, [email protected], or (b) if to Creative, to the address or email address that Laetro then has on file for Creative. Either Party may change its address for notices by providing the other Party written notice of the same in accordance with this Section.