We are pleased that you have decided to upload certain audio, visual and/or audio-visual work(s) (Submission(s)) to Wai Lana for consideration in the above identified contest and for possible use by Wai Lana on its web site as well as on other Online Media (as defined herein) (the Web Site). Your submission is subject to the terms and conditions of this Audio Visual Submission Agreement (“Submission Agreement”).
In order to avoid any misunderstandings and for our mutual protection with respect to such matters, Wai Lana follows a policy of requiring persons who submit a Submission to agree to certain terms and conditions, prior to uploading a Submission.
In consideration of your use of Web Site and the publicity you and your Submission(s) may receive from the Web Site, you hereby irrevocably grant to Wai Lana and its successors, assigns and licensees, all right in and to your Submission(s), including, without limitation, the right to use, perform, copy, reproduce, transmit, exhibit, distribute, market, publicize, advertise, display and otherwise exploit (“Exploit”) your Submission(s), and excerpts, trailers, and clips thereof, including, but not limited to, cut-in, synchronized and superimposed versions thereof, in any and all languages and versions (including dubbed, titled, and narrated), and in any and all formats (e.g., QuickTime, Realplayer, Windows Media Player, etc.), over all media now known or hereafter devised, including the Internet and other secured switched packet technology and other online (wired or wireless) and/or computer assisted media (“Online Media”), and in connection therewith to use and perform any and all music, lyrics and musical compositions contained in the Submission(s) and/or recorded in the soundtrack thereof everywhere (“Territory”) in perpetuity. Assignment of the above rights to Wai Lana specifically precludes you from practicing any of the above rights or transferring these rights to others. Specifically, and without limiting the foregoing, you are precluded from placing the work on any web sites or otherwise copying, exhibiting, or distributing the work, without expressed written consent of Wai Lana. Without limiting the foregoing, Wai Lana shall have the right, but not the obligation, to Exploit the Submission(s) continuously and an unlimited number of times, to use the title of the Submission(s) (if any) and images from the Submission (s) for advertising, marketing and publicizing the Submission(s) and the Web Site in traditional off-line media, including, but not limited to print, television, theatrical motion picture and radio (“Offline Media”) and to Exploit the Submission(s) in all areas of the Web Site by allowing the Submission(s) in its/their entirety and/or excerpts of the Submission(s) to be exhibited, copied, transmitted, downloaded and/or used in conjunction with Web Site. Without limiting the foregoing, the rights granted to Wai Lana shall include the sole and exclusive right (i) to make such dubbed and titled versions of the Submission(s), and the trailers thereof, for use in any Online Media as Wai Lana deems advisable, including, but not limited to editing the Submission(s) for timing, space, content and other considerations; (ii) to permit commercial messages (including without limitation banners, frames, animations, links, etc.) to be transmitted, broadcast or telecast before, during or after the exhibition of and/or contiguous to the Submission(s), (iii) to make such changes, additions (including, but not limited to, narration), alterations, cuts, interpolations and eliminations as Wai Lana requires, including (but not limited to) changes needed to make the Submission(s) suitable for exhibition or to meet exhibition requirements (including without limitation time and length requirements and standards and practices) (iv) to use the Submission(s) and excerpts thereof to promote the Submission(s), Wai Lana and the Web Site in Off-line Media. You shall be solely responsible for the quality of the Submission(s), except for any portion thereof created by Wai Lana, if any. To the extent allowable by applicable law, you hereby waive all moral rights in connection with such works, together with any other rights that are not capable of assignment or transfer, and you authorize Wai Lana and its affiliates and designees to use such rights without limitation throughout the Territory. You agree to execute any further documentation relating to such transfer or waiver at the request of Wai Lana, failing which, Wai Lana is authorized to execute same as your attorney-in-fact.
In consideration of Wai Lana’s Exploitation of the Submission(s), it is understood and agreed that Wai Lana (and its affiliated companies, officers, agents, employees, successors, licensees and assigns) are released from any past, present or future liability (for any and all claims, whether known or unknown) with respect to the Submission(s), including, without limitation, any such liability arising out of the use or non-use thereof, or the disclosure thereof to any third party.
The submission by you of the Submission(s) does not, in whole or in part, establish or create by implication or otherwise, any relationship between Wai Lana and you not otherwise expressed herein. The relationship between you and Wai Lana established by this Submission Agreement is that of independent contractors, and nothing contained in this Submission Agreement shall be construed to give either party the power to direct and control the day-to-day activities of the other, constitute the parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking, or allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.
You further understand and agree that Wai Lana, in its sole judgment, may accept or reject the Submission(s) and shall not be obligated to you in any way with respect to such Submission(s). You acknowledge that other persons may have submitted to Wai Lana or to others, or may have made public, or may hereafter originate, submit, or make public, similar or identical material that Wai Lana has the right to use. You understand that you shall not be entitled to any compensation or claim against Wai Lana because of Wai Lana’s use of such other similar or identical material.
You hereby warrant that your Submission(s) is/are original with you and that you have the full and unconditional right to disclose the Submission(s) and grant the rights set forth herein. Except as otherwise indicated below, you also warrant that you have the entire right, title and interest in and to each of your Submission(s), and that no funds, resources or other contribution of any other person or organization were used in their conception or development.
The Submission(s) shall not contain any information that, in Wai Lana’s sole judgment, may be in bad taste or in violation of law, may constitute libel or slander, may be inconsistent with Wai Lana’s public image, may fail to meet community standards or online conduct guidelines regarding obscenity or indecency, or may tend to bring disparagement, ridicule, or scorn upon Wai Lana (such content collectively referred to herein as “Prohibited Content”). If notified of, or Wai Lana discovers, allegedly infringing, defamatory, libelous, slanderous, damaging, obscene, indecent, illegal, or offensive material, Wai Lana may (but shall not be required to) investigate the allegation and determine in its sole discretion whether to remove immediately the material forthwith. Wai Lana may, in its sole discretion, place on any Web page, or on any other graphical or non-graphical interface, an on-screen disclaimer that limits Wai Lana’s responsibility for the Submission.
Wai Lana does not represent, warrant, or guarantee that Wai Lana will Exploit any Submission in any way. If Wai Lana decides to Exploit a Submission, it may decide to remove the Submission at anytime for any reason without any liability to you. Wai Lana shall have the exclusive right to edit any Submission for any reason, including, editing for time, space and content considerations.
You shall defend, indemnify and hold Wai Lana and any of its affiliated companies, owners, principals, employees, licensees, partners, officers, directors, shareholders, agents, successors, assigns and representatives (collectively Wai Lana’s Indemnified Parties) harmless from and against all charges, claims, liabilities, damages, judgments, losses and expenses of any kind or nature whatsoever (including reasonable attorneys’ fees and costs) which may be sustained or suffered by or secured against Wai Lana or Wai Lana’s Indemnified Parties, by anyone other than you arising out of or relating to: (a) the Exploitation, display, exhibition, transmission or reproduction of any part of the Submission; (b) any negligent act, misfeasance, or nonfeasance by you or any of your agents, contractors, servants, employees, or licensees; or (c) the breach or alleged breach of your representations, warranties or agreements set forth herein. At Wai Lana’s request, you shall provide a defense for Wai Lana, and any Wai Lana’s Indemnified Parties in any such action or proceeding, actual, threatened, or potential and shall consult with Wai Lana in conducting such defense (or, at Wai Lana’s election, reimburse Wai Lana for reasonable fees and costs of Wai Lana’s own counsel).
This Submission Agreement sets forth the entire understanding between you and Wai Lana, supersedes any prior discussions or correspondence, if any. The Submission Agreement may only be amended by Wai Lana from time to time as it is posted on the Web Site at www.wailana.com and as Wai Lana may notify you. This Submission Agreement shall be deemed to have been negotiated and entered into in the State of California and shall be governed by and construed in accordance with the laws of the United States of America and of the State of California (other than their rules of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby). With respect to any suit, action or proceedings relating to this Submission Agreement, each party irrevocably submits to the jurisdiction of the courts located in California. In the event that any one or more of the provisions contained in this Submission Agreement shall be held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect the other provisions of this Submission Agreement, and this Submission Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein. If either party should waive any breach of any provision of this Submission Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.
