JAPANDROIDS – USER CONTENT SUBMISSION
Terms and Conditions
Effective Date: August 31, 2020
In consideration for Japandroids Recording, Inc. and their exclusive licensee, Anti, a division of Epitaph, a California corporation (hereinafter collectively “Japandroids” or “we” “our”, or “us”), permitting any and all users (“you” or “Participant”) to submit their videos or other audio-visual content (collectively, “User Content”) as part of the Japandroids’ forthcoming video production (the “Production”), you agree to these Japandroids User Content Submission Terms and Conditions (the “Terms”). With this grant of rights and permissions to Japandroids to use your User Content in connection with the Production, you are entering into a binding agreement (the “Agreement”) with Japandroids on the terms set forth below:
1. Rights in Your User Content:
With respect to all User Content that you submit to us, you represent and warrant that the material is either fully original to you or that you have all the necessary rights, licenses, permissions, clearances and consents needed from third parties in order for you to submit your User Content (including, but not limited to, all copyright and right of publicity and privacy rights in connection with any and all people, places, locations or otherwise which appear in the Use Content) for you to comply with the terms of this Agreement. Your User Content may not contain any visible logos, phrases, or trademarks that belong to third parties. You will not use any User Content that was created, is owned, or is controlled by any third party and pass it off as your own; this includes any content that you might have found elsewhere on the Internet or obtained from another source not your own. If anyone contributes to your User Content or has, or may have, any rights to your User Content, or if anyone appears in the User Content, then you must also have their written permission to submit such User Content to Japandroids. For example, if someone has taken a video of you and your friend, and you submit that video to Japandroids as your User Content, then you must obtain your friend’s and the videographer’s permission to do so. We may require, at any time, proof of the permissions referred to above in a written form acceptable to us. Failure to provide such proof may lead to, among other things, such User Content being removed from the Production. For purposes of certainty, other than Participant’s own User Content, Participant may not make any commercial, or any other, use of User Content submitted to the Production without Japandroids’ prior written approval.
2. Participant’s Grant of a Non-Exclusive License to Japandroids for Use of User Content and Name and Likeness Rights:
Participants retain ownership of his/her User Content, and grant Japandroids a non-exclusive license as further detailed below. As consideration for participation in the Production, upon Participant’s submission of User Content, Participants irrevocably grant to Japandroids, and each of its licensees (specifically including Anti, a division of Epitaph, a California corporation), sublicensees, successors and assigns, the non-exclusive, perpetual, irrevocable, royalty-free, no-cost license and right to use and otherwise exploit Participant’s User Content, and all code, content, and other materials submitted with, associated with, and/or depicted therein, in whole or in part, in any manner or medium now or hereafter known or devised (including, without limitation, CDs, streaming media, film, television, videocassettes, print, interactive devices, mobile media, Internet and on-line systems), throughout the universe and in any and all languages, including, without limitation, the right to display, reproduce, record, perform, exhibit, distribute, copy, edit, change, modify, add to, subtract from, re-title, use portions thereof (including, without limitation only the audio or visual portions of the User Content) and adapt the same, to combine it with other material and to otherwise use and exploit it, commercially or otherwise. Japandroids and its successors, assigns, licensees and sublicensees (which sublicensees may, include, without limitation, other Participants), will have the right to make unlimited derivative works therefrom, to assign or transfer any or all such rights and to grant unlimited, multiple-level sublicenses with no obligations to you, whether financial, credit, approval of changes or otherwise. Without limiting the forgoing, Japandroids will have the right to use all intellectual property contributed by Participant to User Content, including, without limitation, the characters, stylistic elements, and all other images depicted therein, in any merchandising, advertising, marketing, promotion or for any other commercial or non-commercial purpose with no financial or other obligations to Participants. Participants hereby forever waive and relinquish all so-called “moral rights (droit moral)” now or hereafter recognized. Participants also irrevocably grant Japandroids the right to use their name, voice, likeness and biographical material in connection with the Production and User Content, and derivative works thereof, including, without limitation, in credits (which said credit(s), if any, will be at Japandroids’ sole discretion), advertising, publicity and exploitational material. Participants agree that neither Japandroids nor its or their agents shall be responsible for return or preservation of User Content submitted or any elements thereof. In addition, Participants acknowledge and agree that Japandroids shall have the sole discretion in determining the extent and manner of the use of the User Content, and all elements thereof, in whole or in part, and that Japandroids is not obligated in any way to use or exploit the User Content or anything else granted herein or any portion thereof in any medium or any manner.
3. Representations and Warranties; Indemnity:
Participant hereby represents and warrants that their User Content: (i) is wholly original with Participant or that Participant maintains all the necessary rights, licenses, clearances, permissions and consents needed from third parties in order to submit the User Content to Japandroids for Japandroids’ use for advertising and all other commercial or non-commercial purposes as set forth herein; (ii) is not a copy or imitation of any other material; (iii) will not infringe or violate any right whatsoever, including, without limitation, any personal rights (e.g., defamation, privacy, false light, moral right, etc.) or any property rights (e.g., copyright, trademark, right to ideas, etc.) of any person or entity whether appearing in the User Content or otherwise; and (iv) is not the subject of any threatened or pending litigation, claim or dispute that might give rise to litigation, which adversely affects or in any way prejudices, impairs or diminishes the rights granted hereunder or the value thereof. Participant further represents and warrants that he or she has the right to execute and fully perform these Terms and that Participant is of the age of majority in their state of residence (which is eighteen (18) in most states but is nineteen (19) in Alabama and Nebraska and twenty-one (21) in Mississippi). Participant agrees to sign, and/or cause any third parties to sign when applicable, and deliver to Japandroids such documents as Japandroids or Japandroids’ licensees or assigns may reasonably require to effectuate the rights and obligations granted in these Terms. Participant will defend, indemnify and hold Japandroids and Anti, a division of Epitaph a California corporation, and each of their respective successors, assigns and licensees, harmless from and against: (a) any and all claims, costs, injuries, losses and damages including court costs and/or attorney fees related to or arising from any breach by Participant of these Terms; and (b) any and all third party claims, to the extent relating to or arising from any breach of any representation, warranty or covenant made by Participant in these Terms. Participant further represents and warrants that there are no performing rights societies or collective bargaining organizations, unions or guilds that has jurisdiction over any User Content.
4. Governing Law, Jurisdiction, No Class Actions and Waiver of Injunctive Relief:
A. Governing Law/Jurisdiction. THESE TERMS AND THE INTERPRETATION OF THESE TERMS WILL BE DEEMED ENTERED INTO IN THE STATRE OF CALIFORNIA AND GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO ITS CONFLICTS OF LAWS PRINCIPLES AND SPECIFICALLY WILL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. ANY ACTION BASED ON OR ARISING OUT OF THIS AGREEMENT SHALL BE BROUGHT IN A COURT OF COMPETENT JURISDICTION IN THE COUNTY OF LOS ANGELES, STATE OF CALIFORNIA OR IN A FEDERAL DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA IN LOS ANGELES, CALIFORNIA. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE WITH RESPECT TO THE PRODUCTION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.
B. Arbitration. You and we agree that, to the fullest extent permitted by applicable law, any controversy or claim in connection with or related to the Production or these Terms not otherwise resolved between you and Japandroids will be settled solely by binding arbitration by a single neutral arbitrator who is a lawyer or retired judge in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), administered in accordance with the AAA’s Supplementary Procedures for Consumer-Related Disputes; provided, however, that any issues relating to Japandroids’ intellectual property rights, including any such rights Japandroids claims that may be in dispute, shall only be subject to arbitration if Japandroids’ attorney or legal representative agrees in writing to have such subject to arbitration. If a party submits the dispute to formal arbitration hereunder and the AAA is unwilling or unable to set a hearing date within forty-five (45) days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”), using its streamlined Arbitration Rules and Procedures, or any other mutually agreeable arbitration administration service. In arbitration, there is no judge or jury and review is limited. However, just as a court would, the arbitrator must honor the terms and conditions in these Terms and can award the prevailing party(ies) damages and other relief. You and we each further agree that any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration or other proceedings with any claim or controversy of any other party; provided, however, that if for any reason any court or arbitrator holds that this restriction is unconscionable or unenforceable, then our agreement to arbitrate does not apply and the dispute must be brought in court. If an in-person hearing is required, the arbitration hearing will be conducted in Los Angeles County, California (unless prohibited by applicable law) and judgment on the arbitration award may be entered into any court having jurisdiction of it. The parties will pay the administrative and arbitrator’s fees in accordance with the applicable arbitration rules; provided, however, if applicable law requires Japandroids to pay a greater portion of such fees in order for the arbitration provision to be enforceable, Japandroids shall have the discretion to elect to pay such fees and proceed to arbitration. You can obtain procedures, rules, and fee information from the AAA at 1-800-778-7879 or www.adr.org and from JAMS at (949) 224-1810 or http://www.jamsadr.com. Discovery shall be permitted pursuant to the applicable arbitration rules. The arbitrator’s award will consist of a written statement stating the disposition of each claim, and will provide a statement of the essential findings and conclusions on which the award is based. The award shall be enforceable by any court with jurisdiction over the parties.
C. No Class Actions. To the fullest extent permitted by applicable law, you agree that any and all disputes, claims and causes of action you may have in connection with or related to the Production or these Terms will be resolved individually, without resort to any form of class action.
D. Waiver of Injunctive Relief. IF YOU CLAIM THAT YOU HAVE INCURRED ANY LOSS, DAMAGES, OR INJURIES IN CONNECTION WITH YOUR PARTICIPATION IN THE PRODUCTION, THEN THE LOSSES, DAMAGES, AND INJURIES WILL NOT BE IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION OR TO OTHER EQUITABLE RELIEF OF ANY KIND. THIS MEANS THAT, IN CONNECTION WITH YOUR CLAIM, YOU AGREE THAT YOU WILL NOT SEEK, AND THAT YOU WILL NOT BE PERMITTED TO OBTAIN, ANY COURT OR OTHER ACTION THAT MAY INTERFERE WITH OR PREVENT THE DEVELOPMENT OR EXPLOITATION OF ANY PRODUCTION, WEBSITE, PAGE, CONTENT, PRODUCT, SERVICE, OR OTHER INTELLECTUAL PROPERTY OWNED, LICENSED, USED OR CONTROLLED BY JAPANDROIDS OR A LICENSEE OF JAPANDROIDS.
5. Severability; Interpretation:
If any provision of these Terms is for any reason deemed invalid, unlawful, void, or unenforceable by a court or arbitrator of competent jurisdiction, then that provision will be deemed severable from these Terms, and the invalidity of the provision will not affect the validity or enforceability of the remainder of these Terms (which will remain in full force and effect). To the extent permitted by applicable law, you agree to waive, and you hereby waive, any applicable statutory and common law that may permit a contract to be construed against the drafter.