CUSTOM CONTENT APPEARANCE RELEASE, ASSUMPTION OF RISK AND ARBITRATION PROVISION
THIS IS A LEGAL DOCUMENT AFFECTING YOUR RIGHTS AND RESPONSIBILITIES PLEASE READ IT CAREFULLY BEFORE SIGNING
1.In exchange for allowing me to participate in a charity event on Thursday, May 26, 2016, entitled “TODAY Show Tour de RedNose” (“Program”), I hereby irrevocably grant NBCUniversal Media, LLC , its licensees, contractors, successors and assigns, and each of their respective parents, subsidiaries, and affiliates, and each of their respective officers, directors, shareholders, employees, agents, representatives, successors, licensees and assigns (collectively, the “Company”) the irrevocable, perpetual right to use my name, likeness, photograph, voice, dialogue, sounds, biographical information, personal characteristics and/or other personal identification (collectively, the “Footage and Materials”), whether in writing, audio, photograph and/or video, in and in connection with the development, production, distribution and/or exploitation of the Program or any commercial advertising, promotional and/or marketing of the Program or Company and in any promotional materials thereof (together with the Footage and Materials, collectively referred to herein as the “Custom Content”), throughout the universe at any time, in any and all media now known or hereafter devised. Company shall have the right to edit, delete, dub and fictionalize the Custom Content as Company sees fit in Company’s sole discretion and shall be able to exhibit or otherwise exploit the Custom Content in any manner whatsoever. I hereby expressly waive any right that I may have to approve the Custom Content or its use, in whole or in part, including, without limitation, my rights of publicity. I acknowledge and agree that Company is under no obligation to use the Custom Content in any manner. Neither Company, nor anyone else associated with the Custom Content has made any promises to me with regard to the Custom Content or its use thereof.
2.Company shall have and own all rights in and to the Custom Content. I acknowledge and agree that all Custom Content created ofme shall be deemed “works made for hire” for Company under the copyright laws of the United States and other jurisdictions and shall be the sole and exclusive property of Company. In the event any Custom Content, in whole or in part, is deemed not to be Company’s “work made for hire,” I hereby irrevocably assign, transfer, sell and convey to Company all right, title and interest in and to the Custom Content, including, without limitation, any material recorded or otherwise collected of me by Company prior to me notifying Company that I wish to discontinue my participation in the production.
3.I understand that my participation is this Program requires me to engage in a demonstration of riding a stationary bike forapproximately thirty minutes. I understand that this is a physically strenuous activity and I assume all risk associated with this activity. I represent that it is an activity in which I routinely engage. I understand that my participation in this activity is voluntary and that I may stop participation at any time. If I feel that my participation is no longer safe, or if I feel uncomfortable at all, I will stop participating.
4.I acknowledge that my participation in the Program may expose me to risks, known and unknown, including, without limitation,bodily or personal injury, including, without limitation, injury that may be fatal. I further acknowledge that my participation in the Program is voluntary and nothing requires me to participate in the Program. By signing below, I acknowledge that the above risks have been explained to me fully and I understand them. I also acknowledge that I was advised to discuss the Program with my physician. I certify that I am over the age of eighteen (18), in good physical health and able to participate in the Program. I further certify that I do not suffer from any known disability or condition that would prevent or limit my participation in the Program.
5.I understand that my services for the Custom Content are not covered by any collective bargaining agreement. I acknowledge that Iam a volunteer and that I shall not be deemed to be an employee of Company, nor shall I be entitled to the benefits provided by Company to its employees. I agree not to make any commercial or any other use of the fact that I appeared in the Custom Content or that Company used the Footage and Materials in any way.
6.I understand that it may be a federal offense, unless disclosed to Company prior to exhibition, if any, to do any of the following: (a)give or agree to give any member of the production staff and anyone associated in any manner with the program or any representative of Company any portion of anything of value to arrange my appearance in the Custom Content, or (b) accept or agree to accept anything of value to promote any product, service or venture on the air or to use any prepared material containing such a promotion. I represent and warrant that I gave nothing of value nor did I agree to give anything of value to anyone so I could be in the Custom Content. I understand and agree that I shall not mention or “plug” any product, service, venture or thing in the Custom Content whatsoever unless I am specifically directed by Company to do so. I shall notify Company immediately if any person attempts or has attempted to induce me to do anything in violation of the foregoing or which is in any way dishonest.
7.RELEASE, AGREEMENT NOT TO SUE AND INDEMNITY. To the maximum extent permitted by law, I agree that I willnever sue Company and any sponsor of the event or Program or the affiliates, licensees, agents, owners, officers, directors, employees, advertisers or contractors of each of them, or the venue owner or operator/manager of the facility arising from my participation in the Program or any aspect of any event that is in connection with the Program or Company’s use of the Custom Content or for any cause of action based on any of the Released Claims (as defined below). To the maximum extent permitted by law, I, on behalf of myself and my heirs, executors, agents, successors and assigns, hereby release, hold harmless, and forever discharge Company and any station or network that exhibits the Custom Content and their respective parents, subsidiaries, affiliates, assigns and licensees, and each of the foregoing entities’ officers, directors, employees, representatives and agents (collectively, the “Released Parties”), from any and all claims, actions, damages, losses, liabilities, costs, expenses, injuries or causes of action whatsoever (including, but not limited to, athletic eligibility and/or reasonable outside attorneys’ fees and court costs, whether or not in connection with litigation) that in any way are caused by, arise out of or result from this agreement, the Program, the creation of, and my appearance in, the Custom Content, or the broadcast or other exhibition of the Custom Content, on any legal theory whatsoever (including, but not limited to, personal injury, property damage, wrongful death, loss of services, rights of privacy and publicity, defamation, or false light) (collectively, the “Released Claims”). I will defend, indemnify and hold the Released Parties harmless from any and all such claims, actions, damages, losses, liabilities, costs, expenses, injuries or causes of action, as well as all those that are in any way caused by, arise out of or result from any breach or alleged breach by me of this agreement.
2 IF APPLICABLE: To the maximum extent permitted by law, I waive any and all rights I may have under Section 1542 of the Civil Code of California, and every like provision in any foreign jurisdiction. Section 1542 provides as follows:
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.
8.MEDIATION AND ARBITRATION. (A) The parties agree that if any controversy, dispute or claim between the partiescannot be settled through direct discussions, they shall endeavor first to settle the issue by mediation administered by JAMS under its applicable rules. IF THE CONFLICT IS NOT OTHERWISE RESOLVED THROUGH DIRECT DISCUSSIONS OR MEDIATION, THE PARTIES AGREE THAT ALL CONTROVERSIES, DISPUTES OR CLAIMS, INCLUDING, WITHOUT LIMITATION, THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO ARBITRATE, SHALL BE RESOLVED BY FINAL AND BINDING CONFIDENTIAL ARBITRATION ADMINISTERED BY JAMS IN ACCORDANCE WITH ITS STREAMLINED ARBITRATION RULES AND PROCEDURES OR SUBSEQUENT VERSIONS THEREOF, AS MODIFIED BY THIS AGREEMENT, INCLUDING THE OPTIONAL APPEAL PROCEDURE (THE “JAMS RULES”, AVAILABLE AT WWW.JAMSADR.COM, INCLUDING, WITHOUT LIMITATION, THE RULE PROVIDING THAT EACH PARTY SHALL PAY PRO RATA ITS SHARE OF JAMS FEES AND EXPENSES, AND THE RULES PROVIDING FOR LIMITED DISCOVERY AND OTHER EXCHANGE OF INFORMATION). THE JAMS RULES FOR SELECTION OF AN ARBITRATOR SHALL BE FOLLOWED, EXCEPT THAT THE ARBITRATOR SHALL BE AN EXPERIENCED ENTERTAINMENT AND/OR LABOR OR EMPLOYMENT ARBITRATOR LICENSED TO PRACTICE LAW IN NEW YORK OR A RETIRED JUDGE. ALL PROCEEDINGS BROUGHT PURSUANT TO THIS PARAGRAPH WILL BE CONDUCTED IN NEW YORK COUNTY. THE PARTIES AGREE THAT THE REMEDY FOR ANY CLAIM BROUGHT PURSUANT TO THIS AGREEMENT SHALL BE LIMITED TO ACTUAL DAMAGES, AND IN NO EVENT SHALL ANY PARTY BE ENTITLED TO RECOVER PUNITIVE OR EXEMPLARY DAMAGES OR TO RESCIND THIS AGREEMENT OR SEEK INJUNCTIVE OR ANY OTHER EQUITABLE RELIEF. THE ARBITRATOR SHALL NOT HAVE THE AUTHORITY TO GRANT ANY REMEDIES THE PARTIES HAVE WAIVED. UPON CONCLUSION OF ANY ARBITRATION PROCEEDINGS HEREUNDER, THE ARBITRATOR SHALL RENDER FINDINGS OF FACT AND CONCLUSIONS OF LAW IN A WRITTEN OPINION SETTING FORTH THE BASIS AND REASONS FOR ANY DECISION HE OR SHE HAS REACHED AND SHALL DELIVER SUCH DOCUMENTS TO EACH PARTY TO THE AGREEMENT ALONG WITH A SIGNED COPY OF THE AWARD.
(B) This agreement shall be interpreted under and governed by the internal, substantive laws of the State of New York without regard to the conflicts of law provisions thereof. To the extent that the arbitration provisions of this agreement are not enforced or court proceedings are otherwise required, commenced or maintained, the parties submit to the in personam jurisdiction of the federal and state courts located in New York County, New York, and waive any objections that they may have as to jurisdiction or venue in any such courts.
(C) If any portion of the dispute resolution mechanism set forth in this paragraph 8 is found to be invalid, illegal or unenforceable for any reason, that portion shall be severed from the rest and shall not affect the parties’ agreement to resolve all controversies and claims through mediation and arbitration.
9.Company may assign its rights and/or delegate its obligations under this Agreement in whole or in part to any person, firm, orcorporation. I may not assign any of my rights or delegate any of my obligations under this Agreement. Any attempted or purported assignment or delegation by me in violation of the foregoing sentence shall be null and void.
10.This Agreement may be executed by original, facsimile, or electronic signatures, and in counterparts, each of which shall be deemedan original, and all of which, together, shall constitute a single instrument.
11.This agreement constitutes the complete and binding agreement between Company and me, and it supersedes all prior understandingsand communications, both oral and written, with respect to its subject matter. No representations or warranties have been made other than those expressly set forth herein. Any signed copy of this Agreement delivered by facsimile or electronic transmission shall for all purposes be treated as if it had been delivered containing my original signature, and shall be binding upon me in the same manner as though an original signed copy had been delivered. The illegality, invalidity or unenforceability of any provision of this agreement shall in no way affect the validity or enforceability of any of the remainder of this agreement, which shall be enforced to the maximum extent permitted by law. This agreement cannot be terminated, rescinded or amended, except by a written agreement signed by both Company and me. NBCUniversal Media, LLC is an intended third party beneficiary of terms applicable to Company under this Agreement, including, without limitation, the rights granted to Company hereunder and the indemnification terms applicable to Company hereunder.
I UNDERSTAND THAT I AM GIVING UP CERTAIN LEGAL RIGHTS UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, MY RIGHT TO FILE A LAWSUIT IN COURT WITH RESPECT TO ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT. I ALSO UNDERSTAND THAT I HAVE HAD AN OPPORTUNITY TO REVIEW THIS AGREEMENT WITH AN ATTORNEY OF MY CHOICE OR I HAVE WAIVED MY RIGHT TO DO SO.