The application ("Application") the applicant completed on-line is for selection of a reality-based competition television show (the "Program") which is being produced solely for entertainment purposes. The Program is produced by Matt Kunitz Productions ("Producer").
REPRESENTATIONS, WARRANTIES, ACKNOWLEDGEMENTS, CONSENTS AND RELEASES AND DISPUTE AND ARBITRATION PROVISIONS:
1. In consideration for my possible appearance in the television program with the current working title "MK Project" ("Program") and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, I, the undersigned, hereby grant to the Matt Kunitz Productions ("Producer"), the other Producer Parties, and any television network, streaming service, broadcaster, platform or exhibitor of the Program (collectively, "Network"), each of their respective successors, licensees and assigns, and each of their respective parent, subsidiary and affiliated entities and sponsors and their respective officers, directors, employees and designees (all of the foregoing collectively, "Releasees"), the following:
a. The absolute and irrevocable right and permission (but not the obligation) to interview me, audition me, photograph, film, tape and otherwise visually, audio-visually and/or by audio means record me and/or my voice by any method whatsoever in connection with the Program, and the auditioning and casting for the Program ("Casting").
b. All rights of every kind and character whatsoever in perpetuity throughout the universe in and to (i) any and all footage, tapes and/or other recordings taped, filmed, photographed, recorded and/or otherwise produced hereunder and in any performances or actions made by me, (ii) material supplied by me (whether written, spoken, sung, or otherwise expressed by me) and information given by me in any and all forms and documents I submit to Producer and/or the Network and/or that was captured on any such footage, tapes, and/or recordings, and (iii) all of the results and proceeds thereof (collectively, (i), (ii) and (iii) shall be referred to as the "Material"). The Material shall be owned by Producer who shall use it for internal casting purposes and possibly for telecast or other exhibition as part of the Program, to advertise and promote the Program, and for such other uses as Producer may determine in their sole discretion. In the event I contribute to the recording of any interviews through an electronic device or forward any of the Materials captured by me or a person under my control, all such materials are to be treated as a work-made for hire as a contribution to an audio visual work by all parties for the benefit of Producer, and further, for clarity and for the good and valuable consideration set forth herein I expressly assign to Producer and relinquish all right, title and interest in and to all such Materials any right I might otherwise have thereto.
c. The absolute and irrevocable right and permission (but not the obligation) to use my name, voice, likeness, biography and personal attributes ("Likeness") in connection with Casting and the Program and the advertising, promotion, marketing and distribution thereof, and for the Network's institutional purposes.
d. The right to edit, dub, subtract from, add to, modify or juxtapose the Material and Likeness in any manner and to combine the Material and Likeness with any other material. I understand, acknowledge and agree that Producer shall have no obligation to use any of the Material or Likeness in or in connection with the Program.
e. For the avoidance of doubt and notwithstanding the provisions of any posted policies, I expressly grant Producer and Network the right to access and use my Likeness and all Materials provided by me in connection with the Program and for consideration of my participation in the Program and other productions in which Producer and/or the Network are associated and I further agree to be contacted by Producer and/or the Network or a Network designee in connection with such other productions. I agree and understand that the preceding is deemed a grant of these express rights to Producer and the Network, and otherwise does not change the terms of the privacy provisions and other terms set forth on the Application Website.
2. I grant the rights herein whether or not I am selected to participate as a participant in the Program in any manner whatsoever.
3. I hereby represent and warrant that: (a) I have the right to grant the rights granted hereunder; (b) I have the right to grant this release; (c) the consent of no other person, firm, corporation or other entity is required to enable Releasees to use the Material and Likeness as described herein; (d) the Releasees' use of the Material and Likeness hereunder will not violate the rights of any third party; (e) the Releasees shall have the right to use the Material free and clear of any claims for any compensation; (f) I have answered all questions in the Application honestly and accurately and I acknowledge that if any of the information included in the Application is found to be false, that this will be grounds for my dismissal from the Program participant selection process and/or from the Program, if selected; (g) Producer reserves the right to change any of the eligibility requirements at any time; and (h) all decisions by the Producer concerning the selection of the participants is final and not subject to challenge or appeal.
4. Without the express prior written consent of Producer and Network, I shall not at any time, reveal, report, publish or disclose (or authorize or allow any other party to do so) any information or trade secrets obtained or learned by me about the Program whether during the application and selection process or otherwise, including, without limitation, any information concerning or relating to the concept and/or format of the Program, the production of the Program, the participants and content of and events contained in the Program or the outcome of the Program, and/or any information concerning or relating to the Producer Parties, or their respective business practices (collectively, "Confidential Information"). This confidentiality obligation shall remain in place whether or not I am selected to participate in the Program, and shall continue both during and after my participation in the participant selection process, and, if I am selected as a participant, my participation in the Program. I further agree that any Confidential Information of which I become aware will only be used for the express and exclusive purposes for which Producer and Network have instructed me to use the Confidential Information.
5. I acknowledge that Producer, and the other Releasees have no obligation to me whatsoever. Without in any way limiting the foregoing, I acknowledge and agree that Producer is not under any obligation to select me to participate in the participant selection process or in the Program. I further acknowledge that the selection of participants for the Program will include subjective factors to be determined by the Producer Parties and/or Network in its/their sole and absolute discretion and that any decisions made by them are final and not subject to appeal by me. I understand that I will not be paid any money or given any other goods or services for granting the rights listed in this agreement or for participating in the Program and that the consideration for this agreement is Producer's consideration of me to appear in the Program and the opportunity to possibly win the Program prize (if any) and that such opportunity is good, sufficient and valuable. I acknowledge that my participation in the Program is voluntary and does not constitute employment by Producer. I further understand and acknowledge that Producer is under no obligation to arrange for exhibition of the Program.
6. I hereby authorize Producer and any person or entity designated by Producer to investigate, access and collect information about me, about any of the statements made in the Application, any supporting documents and any other documents that I have signed or provided or do sign or provide in connection with my Application to be selected as a participant in the Program, or any other written or oral statements that I may make in connection therewith. Without limiting the foregoing, I irrevocably authorize Producer and any person or entity designated by Producer to secure information about me and my experiences from my current and former employers, associates, friends, family members, educational institutions, government agencies, credit reporting agencies, any branch of the military, and any references I have provided, and I irrevocably authorize such parties to provide information concerning me. I hereby unconditionally and irrevocably release and forever discharge the Producer, the persons or entities designated by Producer, and all Releasees, from any and all liability arising out of or in connection with any such investigation. I specifically authorize investigation of my employment records, medical records (and I agree to execute any "HIPAA" release requirements authorizing such disclosures, or similar form with respect to countries outside the United States to the extent there is such equivalent), and government records, including but not limited to motor vehicle records, criminal records, civil records, military records, and credit and consumer report. I acknowledge and agree that any such information obtained by Producer or by any person or entity designated by Producer may be used for purposes of selecting participants in the Program or in the course of producing the Program, and may be described or otherwise related in and in connection with the Program, in and in connection with another program, and in and in connection with any advertising, promotion or publicity for the Program or other program.
7. To the maximum extent permitted by law, I hereby release the Releasees, and each of them, from any and all claims, actions, causes of action, suits, damages, liabilities, losses, costs and expenses of any kind or nature (including, without limitation, attorneys' fees) arising out of, resulting from, or in connection with the application process for the Program as described herein; and the development, production, editing, exploitation, distribution, exhibition, advertising and/or promotion of the Program or my appearance on the Program, the failure of any of them to select me as a participant, any failure to telecast or exhibit the Program, or the exercise by any of the Releasees or any other individual or entity of any rights granted by me under this agreement, on any legal theory whatsoever (including, without limitation, personal injury, property damage, wrongful death, rights of privacy and/or publicity, false light, trespass, intrusion, defamation, intentional or negligent infliction of emotional distress, products liability, breach of contract, breach of any statutory or other duty of care owed under applicable laws, infringement of copyright, consequential damages, and loss of earnings or potential earnings).
8. I acknowledge that there is a possibility that after the execution of this agreement and release, I may discover facts or incur or suffer claims which were unknown or unsuspected at the time this agreement was executed and which, if known by me at that time, may have materially affected my decision to execute this agreement and release. I acknowledge and agree that by reason of this release, and the release of liability contained in the preceding paragraph, I am assuming any risk of such unknown facts and such unknown and unsuspected claims. I have been advised of the existence of Section 1542 of the California Civil Code, which provides:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."
Notwithstanding Section 1542 of the California Civil Code (or similar laws of any other relevant jurisdiction(s)), this release shall constitute a full release of liability in accordance with its terms. I knowingly and voluntarily waive the provisions of Section 1542, as well as any other statute, law or rule of similar effect, and acknowledge and agree that this waiver is an essential and material term of this release and that without such waiver, Producer would not have accepted this release or the Application.
9. I acknowledge and agree that Network is an intended third party beneficiary of this agreement, provided that Network shall have no obligations or liabilities hereunder whatsoever.
10. Without limiting the foregoing, any provision of this agreement and release that is invalid, illegal, or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective only to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provision of this agreement invalid, illegal or unenforceable in any other jurisdiction. Producer may freely assign, in whole or in part, any of their rights or obligations under this agreement. I may not assign or delegate any of my rights and obligations under this agreement; any purported assignment shall be null and void. IN EXECUTING AND ENTERING INTO THIS AGREEMENT AND RELEASE, I ACKNOWELDGE THAT I AM NOT RELYING ON ANY STATEMENT, PROMISE OR REPRESENTATION, ORAL OR WRITTEN, THAT IS NOT EXPRESSLY CONTAINED IN THIS AGREEMENT AND RELEASE. This agreement and release includes the entire agreement between Producer and me regarding the subject matter hereof and may only be amended or modified by written document signed by Producer and me (other than matters with respect to which Producer retains the discretion to determine as expressly provided herein).
11. In the event of a claimed breach of this agreement by any of the Producer Parties, the Network, or any other party, if any, I acknowledge that any potential damage that I may suffer is not irreparable and that an award of monetary damages would be sufficient relief. Accordingly, I agree that I shall not have the right to terminate this agreement or to seek or obtain any form of injunctive or equitable relief in connection with the Program or the development, production, distribution or exhibition thereof. I acknowledge that the rights granted hereunder by me are unique; that a breach of this agreement by me would cause any of the Producer Parties and/or Network to suffer irreparable damage; and that each of them and their respective successors, licensees and assigns, including but not limited to Network, shall have the right to injunctive or equitable relief and all other available remedies in the event of a breach hereof by me.
12. This agreement shall be deemed to be entered into in Los Angeles County, California, United States of America and shall be governed by and interpreted in accordance with the laws of the State of California and the United States applicable to agreements executed and fully carried out within California, excluding its conflict of laws provisions.
13. Producer and/or Network on the one hand, and I on the other hand (each a "Party" and collectively, the "Parties"), agree that any and all controversies, claims or disputes (a) arising out of or relating to my application for, casting in and/or my participation in any aspect of the Program (including without limitation the production, distribution, promotion or other exploitation thereof), (b) arising out of or relating to this Agreement and/or (c) the conduct of the Parties hereunder or in connection herewith ("Dispute") will be the subject of good faith negotiation. If after good faith negotiation the Dispute is not resolved, and either Party wishes to pursue the matter further, the Parties agree that the Dispute will be submitted to final and binding arbitration at the Los Angeles office of JAMS, or its successor ("JAMS"), pursuant to the procedure set forth below. The arbitration will be initiated and conducted according to either the JAMS Streamlined (for claims under $250,000) or the JAMS Comprehensive (for claims over $250,000) Arbitration Rules and Procedures, except as modified herein, in effect at the time the request for arbitration is made (the "Arbitration Rules"). The Arbitration Rules are available for review at https://www.jamsadr.com/adr-rules-procedures/ and the Parties acknowledge that the Arbitration Rules are publicly available. The Parties agree that a Dispute will include the determination of the scope or applicability of this agreement to arbitrate and the arbitrability of the Dispute, including but not limited to any claim of waiver. The arbitration will be conducted before a single neutral arbitrator appointed in accordance with the Arbitration Rules. Unless the Parties agree otherwise, the neutral arbitrator will be a former or retired judge or justice of any California state or federal court with substantial experience in matters involving the entertainment industry, who is affiliated with JAMS. The arbitrator will follow California law in adjudicating the Dispute. The arbitrator will provide a detailed written statement of decision which will be part of the arbitration award. The arbitrator's award will be final and binding except to the extent that limited judicial review is permitted by applicable law. The Parties are to share the arbitration costs and the arbitrator's fees equally. Each Party will remain responsible for its own attorneys' fees. The Parties waive the right to seek punitive damages and the arbitrator will have no authority to award such damages. All arbitration proceedings will be closed to the public and confidential, and all records relating thereto will be permanently sealed. Neither the Parties nor the arbitrator will disclose the existence, content, testimony, evidence or results of the arbitration, except as necessary to comply with legal, statutory or regulatory requirements. Before making any such disclosure, a Party will give written notice to all other Parties and will afford such Parties a reasonable opportunity to protect their interests. If either Party refuses to perform any or all of its obligations under the final arbitration award within thirty (30) days of such award being rendered, then the other Party may confirm or enforce the final award in any court of competent jurisdiction in Los Angeles County. All Parties consent to the personal jurisdiction of the state and federal courts located in Los Angeles County for purposes of confirming or enforcing any arbitration award. This clause will not preclude the Parties from seeking provisional remedies in aid of arbitration from a court of competent jurisdiction in Los Angeles County. Notwithstanding any other choice of law provision in this Agreement, the United States' Federal Arbitration Act shall provide the substantive governing law for the interpretation and enforcement of this arbitration provision and for review for legal error, confirmation, correction or vacatur of the arbitrator's final award made pursuant to the provisions of this arbitration provision.
ACCORDINGLY, I UNDERSTAND THAT I AM GIVING UP MY RIGHT TO HAVE ANY DISPUTE BETWEEN PRODUCER AND/OR NETWORK ON THE ONE HAND, AND I, ON THE OTHER HAND, RESOLVED IN A COURT OF LAW AND I AGREE THAT THE ARBITRATOR'S RULING IN THE ARBITRATION SHALL BE FINAL AND BINDING AND NOT SUBJECT TO APPEAL OR CHALLENGE.
I acknowledge that Producer's receipt of this Application, is Producer's express agreement to this Representations, Warranties, Acknowledgements, Consents And Releases And Dispute Resolution and Arbitration Provisions and that both Producer and I shall be bound hereto.