TERMS AND CONDITIONS
ASG MUSIC GROUP LLC., CO-OWNED AND OPERATED BY SLEEPING GIANT MEDIA LLC (TOGETHER WITH ITS AFFILIATES, SUCCESSORS, AND ASSIGNS. HEREINAFTER REFERRED TO AS “OUR”, “WE,” OR “US”) AND MADE AVAILABLE VIA THE WEBSITE WWW.REVERBNATION.COM AND RELATED PLATFORMS (THE “SITE”).
BY SUBMITTING A SUBMISSION, EACH, ARTIST OR BAND (HEREINAFTER REFFERED TO AS “YOU” or “ARTIST”) ACKNOWLEDGES AND AGREES TO THESE POINT BREAK OPPORTUNITY TERMS AND CONDITIONS (THE “AGREEMENT”), WHICH CONSTITUTE A LEGALLY BINDING AGREEMENT. IF YOU SUBMIT A SUBMISSION ACTING AS THE REPRESENTATIVE FOR ANOTHER INDIVIDUAL, BAND, OR ENTITY, YOU REPRESENT THAT YOU HAVE THE LEGAL AUTHORITY TO BIND SUCH INDIVIDUAL AND YOU GUARANTEE COMPLIANCE BY SUCH INDIVIDUAL OR ENTITY WITH THIS AGREEMENT.
DO NOT SUBMIT A SUBMISSION IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY SUBMITTING A SUBMISSION YOU SIGNIFY ACCEPTANCE OF THE FOLLOWING TERMS AND CONDITIONS:
1. OPPORTUNITY OVERVIEW: The opportunity will allow you to submit your original sound recordings, for consideration by us, to be used as source music for the end titles, main titles, or the marketing and promotion of the reimagining of the Warner Bros. Entertainment Inc. film “Point Break” (the “Film”) (collectively the “Opportunity”) which will be released on or about December 25, 2015. Subject to the eligibility requirements below, you will be allowed to submit your original sound recordings via the Site (each a “Submission”) for consideration by us. We consider Submissions at our sole and absolute discretion. We do not charge a fee to submit. This is NOT a contest, sweepstakes, lottery or other game of chance and there are no guarantees that your Submissions will be used.
2. ELIGIBILITY: This Opportunity is open only to individuals who are 18 years of age or older at the time of entry. All individuals who submit a Submission for the Opportunity must also be registered at http://www.reverbnation.com as a ReverbNation artist during the entry period. Your use of the Site and participation in the Opportunity are subject to
the Site General Terms and Conditions. Your participation in the Opportunity is also
subject to the terms of this Agreement. The following individuals are not eligible: employees, contractors, directors and officers of Alcon Sleeping Giant (ASG) Music Group, LLC, Warner Brothers Entertainment Inc., or ReverbNation, and each of their subsidiaries and affiliated companies, and the immediate family members (spouse, parent, child, sibling and spouse or "step" of each) of, and those living in the same households as, each such individual. If a band is participating in the Opportunity, each member of the band must meet the eligibility requirements.
3. SUBMISSIONS REQUIREMENTS:
A. All Submissions must be 100% original material. You may not submit any cover songs, samples, or remixes.
B. Each Submission must fully comply with the terms of this Agreement, and the Site General Terms and Conditions, in order to be considered for the Opportunity.
C. The copyright in the sound recording and the composition of each Submission must be 100% owned by you (and your band, if applicable) and solely performed by you (and your band, if applicable).
D. All owners of the copyrights in the sound recording and composition of each Submission must participate in the Opportunity and agree to the terms of this Agreement.
E. All Submissions must be free and clear of any other publishing obligations or master use obligations.
F. All Submissions must be professionally recorded and comparable in sound quality to currently acceptable industry recording standards.
G. All Submissions should be submitted in mp3 format or other accepted formats as set forth on the Site.
H. You must be able to provide wav or equivalent files and recording stems, when possible to us for final mixing processes, if selected for the Opportunity.
4. LICENSE OF TRADEMARKS AND USE OF LIKENESS: In consideration for your participation in the Opportunity, you hereby grant to us, ReverbNation, and Warner Bros. Entertainment Inc., a limited, non-exclusive, royalty-free, transferable license (the “Trademark License”), to use your logo(s), trade names, and trademarks and service marks, including the copyrights and other elements therein (collectively, “Marks”) throughout the universe on any medium now or hereafter known in connection with (a) the Opportunity, (b) the marketing, advertising, or promotion of the Opportunity, your participation therein, or your music placement in the Opportunity, and (c) the marketing, advertising, or promotion of us, ReverbNation, and Warner Bros. Entertainment Inc., and each of their collective products. You agree to provide to us, ReverbNation, and Warner Bros. Entertainment Inc. images, in mutually acceptable formats, of your trademark or service mark designs for use in connection with this Trademark License. This Trademark License shall commence upon your participation in the Opportunity and continue for a period of one (1) year after the conclusion of the Submission period for the Opportunity and thereafter shall continue until thirty (30) days after our receipt of written notice from you specifically terminating this Trademark License.
You, and each member of your band (if applicable), irrevocably grants us, ReverbNation, and Warner Bros. Entertainment Inc., and each of their affiliates, legal representatives, assigns, agents and licensees, the unconditional and perpetual right and permission to use the Artist’s name, band name (if applicable), likeness, biographical information, and photograph (collectively, "Likeness"), and/or statements regarding the Artist’s participation in this Opportunity (with or without using the Artist's name) in any and all media without limitation as to time or territory, and without additional compensation or approval from you or any other party. You waive intellectual property rights, privacy/publicity rights or other legal or moral rights that might preclude our, ReverbNation, or Warner Bros. Entertainment’s use of your Likeness or statements, and agree not to sue or assert any claim against us, ReverbNation, or Warner Bros. Entertainment Inc. for the use of Artist's Likeness or statements.
5. PUBLISHING AND MASTER USE TERMS: If your Submission is selected to be used in association with the Opportunity, the following additional provisions shall apply:
A. Publishing
1. All songs finally selected for use in the Film will be published or co-published by us.
2. If your song is used as source music within the Film and/or for the marketing of the Film you will be offered a fair market value fee and the selected song will be co-published by us on a fifty-fifty basis (50/50) in perpetuity.
3. If your song is used in the main titles or end titles of the Film you will be offered a fair market value fee and the selected song will be published by us on a one hundred percent (100%) basis in perpetuity.
4. After selection of your song, but prior to any proposed use as described above, you must enter into additional agreements with us (including a publishing agreement) in order for your song(s) to be used. Should you refuse to enter into any required additional agreements your song may be rejected.
B. Master Use
1. If your song is used within the Film and/or for Film marketing you will be offered a fair market value fee in exchange for a purchase of the Master Recording, such that the Master Recording will be owned exclusively by us.
C. Publishing Administration
us Worldwide and may be sub-published by our selected international collection companies.
2. All publishing administration collections fee shall not exceed eighteen percent (18%) in any territory and shall be deducted from total revenues received by you.
3. We shall have the full opportunity and right to use, license, register and promote the songs selected for use in the Opportunity in perpetuity, throughout the world in all media. You agree to execute and provide any other necessary agreements required to effectuate this purpose, or reasonably required for rights transfers, Performing Rights Organizations, and other rights organizations worldwide.
6. REPRESENTATIONS AND WARRANTIES:
A. You represent and warrant that you are at least 18 years of age and have the full right and authority to enter into this Agreement and to grant all licenses and rights contemplated herein on behalf of yourself or any entity or person that you claim to represent for the purposes of this Agreement.
B. You represent and warrant that:
(i) you own or control the necessary rights in order to make the grant of rights, licenses, and permissions herein, including all necessary rights and releases from each and every person, performer, or other entity or person who is named, depicted, featured, or performs in a Submission;
(ii) we, Warner Bros. Entertainment Inc., and ReverbNation shall have the right to use and exploit the Submission and other rights granted to us herein by you free from any adverse claim;
(iii) all information you provide to us in connection with the Opportunity is true, accurate, complete, and current, and you will promptly update any such information as necessary; and
(iv) without limiting the foregoing, no material provided by you in connection with the Opportunity, (a) is generally offensive or inappropriate; (b) is fraudulent, inaccurate, untrue; (c) is unlawful, would constitute a criminal offense, or would violate any local, state, national, or international law, rule, or regulation; (d) infringes the rights of a third party, including, without limitation, copyrights, trademarks, patents, trade secrets, and rights of privacy and
publicity; (e) misrepresents your affiliation with any person or entity; (f) is obscene or pornographic; or (g) is harmful to, or exploitative of, minors in any way.
7. INDEMNIFICATION: You agree to fully indemnify and hold us, Warner Bros. Entertainment Inc., ReverbNation, and each of their subsidiaries, affiliates, officers,
employees, directors, agents, contractors, co-branders, advertisers and other partners (collectively, the “Indemnified Parties”) harmless, and upon our request, defend us and/or the Indemnified Parties from and against any and all losses, liabilities, damages, costs, expenses, or demands (including reasonable attorneys’ fees and costs) due to or arising out of: (i) your participation in the Opportunity or use of the Site, including with respect to any Submission; (ii) your violation or breach of any representation, warranties, or other terms of this Agreement; (iii) your violation of any rights of any third party; and as to ReverbNation and Warner Bros. Entertainment Inc., (iv) any dispute between you and us. Without limitation, you agree to reimburse the Indemnified Parties on demand for any payments made in resolution of any liability or claim that is subject to indemnification under this Section. The Indemnified Parties shall promptly notify you of any such claim, and you may assume control of the defense of such claim with counsel subject to our reasonable approval, provided that you obtain and post an appropriate bond for our benefit, and we shall have the right in all events to participate in the defense thereof. If a claim is made we will have the right to withhold payment of any monies due to you in an amount reasonably related to the claim and potential expenses. 8. LIMITATIONS AND DISCLAIMERS: YOUR PARTICIPATION IN THE OPPORTUNITY IS AT YOUR SOLE RISK. YOU SHOULD CONSULT WITH YOU LEGAL REPRESENTATIVE PRIOR TO ENTERING THIS OPPORTUNITY. THE OPPORTUNITY IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE MAKE NO, AND EXPRESSLY DISCLAIM ANY AND ALL, WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. WE CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM THIS OPPORTUNITY.
Without limiting the foregoing:
A. We and the Indemnified Parties are not responsible or liable to you in any way as a result of any incorrect or inaccurate information in connection with the Opportunity or a Submission. You agree that ReverbNation and Warner Bros. Entertainment Inc. shall not be responsible or liable for any loss or damage of any sort incurred as the result of any dealings between you and us. If there is a dispute between you and us with respect to the Opportunity or otherwise, you understand and agree that ReverbNation and Warner Bros. Entertainment Inc. are under no obligation to become involved.
B. The Site or the Opportunity may be temporarily unavailable from time to time for maintenance or other reasons. The Indemnified Parties are not responsible for any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of the Site or the Opportunity. The Indemnified Parties are not responsible for any problems or technical malfunction of any telephone network or lines, computer online
systems, servers or providers, computer equipment or software, or the failure of email on account of technical problems or traffic congestion on the Internet or at any web site or blocking from the destination mail servers, including injury or damage to any person’s computer related to or resulting from participating or downloading materials in connection with the Opportunity.
C. Under no circumstances will the Indemnified Parties be responsible for any loss or damage, including personal injury or death, resulting from anyone’s participation in the Opportunity.
D. By submitting to the Opportunity, you hereby release us and the Indemnified Parties from claims, demands, and damages (actual and consequential) of every kind or nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to the Opportunity or your Submission. If you are a California resident, you represent that you are familiar with Section 1542 of the
California Civil Code and you hereby waive and relinquish any right and benefit to which you may have under Section 1542 to the full extent that you may lawfully do so in connection with the subject matter hereof. Section 1542 states:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
E. IN NO EVENT WILL WE AND THE INDEMNIFIED PARTIES BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR ANY LOST PROFITS OR REVENUES AS A RESULT OF YOUR PARTICIPATION IN THE OPPOTUNITY, EVEN IF WE ARE AWARE OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITATION, YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE AND THE INDEMNIFIED PARTIES SHALL NOT BE LIABLE FOR ANY DAMAGES FOR LOSS OF PROFITS, REVENUES, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SITE; OR (II) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES.
F. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT WILL THE AGGREGATE OF OUR AND THE INDEMNIFIED PARTIES’ LIABILITY FOR ANY CAUSE, LOSS, COST, DAMAGE, OR CLAIM WHATSOEVER, INCLUDING ATTORNEYS’ FEES AND COSTS AND EXPERT WITNESS FEES AND COSTS, AND REGARDLESS OF THE FORM OF THE ACTION, EXCEED TWO HUNDRED FIFTY DOLLARS ($250.00 U.S.). YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK. THIS ALLOCATION OF RISK AND THE DISCLAIMER OF WARRANTIES HEREIN
ARE A FUNDAMENTAL ELEMENT OF THIS AGREEMENT.
G. All content on the Site and materials used by us or provided by ReverbNation, Warner Bros. Entertainment Inc., or us to you in connection the Opportunity, including respective copyrights, logos, trademarks, and service marks, are our or our licensors’ proprietary property; and, except solely to the extent of our express use of such content in connection with your participation in the Opportunity, you may not modify, copy, distribute, perform, frame, reproduce, republish, download, display, post, transmit, or otherwise use such content without our prior written permission.
9. GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, U.S.A., without reference to conflicts of laws provisions and, as to matters affecting copyrights, trademarks and patents, by U.S. federal law. Those who participate in the Opportunity from other jurisdictions do so at their own volition and are responsible for compliance with local laws. Any dispute or claim arising out of, or in connection with, this Agreement shall be finally settled by binding arbitration in Raleigh, North Carolina and the then-current rules and procedures of the American Arbitration Association by one (1) arbitrator appointed by the American Arbitration Association. The arbitrator shall apply the law of the State of North Carolina, without reference to rules of conflict of law or statutory rules of arbitration, to the merits of any dispute or claim. Judgment on the award rendered by the arbitrator may be confirmed, reduced to judgment and entered in any court of competent jurisdiction. You agree that, any provision of applicable law notwithstanding, the arbitrator shall have the authority to award the prevailing party its costs and reasonable attorneys’ fees. The arbitration can resolve only your and/or our individual claims, and the arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated. In the event that the forgoing arbitration provision is held invalid or unenforceable, then any dispute with respect to this Agreement shall be brought and heard either in the North Carolina state courts. In such event, you consent to the in personam jurisdiction and venue of such courts. You agree that service of process upon you in any such action may be made if delivered in person, by courier service, by telegram, by facsimile or by first class mail, and shall be deemed effectively given upon receipt.
10. MISCELLANEOUS:
A. If any provision of this Agreement is held invalid or unenforceable, such provision shall be revised to the extent necessary to cure the invalidity or unenforceability, and the remainder of this Agreement shall continue in full force and effect. Our failure to exercise any right or provision of this Agreement shall not constitute a waiver of such right or provision. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you.
B. This Agreement does not, and shall not be deemed to, constitute a partnership or joint venture between you and us, and neither you nor we, nor your or our respective directors, officers, employees, or agents shall, by virtue of the performance of the obligations under this Agreement, be deemed to be an agent or employee of the other, and neither you nor we have the authority to bind the other under any contract, agreement, or otherwise.
