USER CONTENT SUBMISSION AGREEMENT
Last Updated: 10.29.20
PLEASE READ THIS USER CONTENT SUBMISSION AGREEMENT (THE “AGREEMENT”) CAREFULLY. BY CLICKING “I ACCEPT” BELOW YOU (ALSO REFERRED TO HEREIN AS “AUTHOR”) ACKNOWLEDGE THAT YOU UNDERSTAND THE TERMS OF THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS HEREOF. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS SET FORTH HEREIN, THEN YOU MUST NOT UPLOAD OR SUBMIT AUDIOVISUAL CONTENT (THE “CONTENT”) TO BOOKCLUB, INC. (“BOOKCLUB”) OR HTTPS://WWW.BOOKCLUB.COM (THE “SITE”). NOTWITHSTANDING ANYTHING TO THE CONTRARY, IF YOU UPLOAD OR OTHERWISE SUBMIT CONTENT TO BOOKCLUB OR THE SITE, YOU SHALL BE DEEMED TO HAVE ACCEPTED AND AGREED TO THE TERMS HEREOF, TO THE EXCLUSION OF ALL OTHER TERMS.
- Content; Author’s Appearance and Materials. Author acknowledges and agrees that, as further set forth in this Agreement, BookClub and its designees and licensees, may use and exploit the Content and Author’s Appearance and Materials (as defined below) for BookClub’s business purposes, including for and related to BookClub, the Content, the Works (as defined below), and the Site. As used herein: (i) “Author’s Appearance and Materials” means, together with Author’s Likeness (as defined below), any separate content or rights (e.g., text, testimonials, biographical information, profiles, photos, videos, music compositions, sound recordings, artwork, etc.) incorporated in the Content or that Author otherwise provides to or designates for use by BookClub, including any Excerpts, Titles, Covert Art and Talking Guides (each as defined below), (ii) “Author’s Likeness” means Author’s appearance, performance, name, voice, likeness, image, caricatures, nicknames, signature, mannerisms, traits, speech, phrases, and other unique personal characteristics, (iii) “Cover Art” means any cover designs or other artwork associated with the Works (as defined below), (iv) “Excerpts” means any applicable excerpts, quotations or passages from the Works, (v) “Permissions” means all third-party and other rights, licenses, permissions, clearances, approvals, consents, releases, and any other authorizations required to use, display, perform, transmit, reproduce, modify, publish, distribute and otherwise exploit and commercialize the Content and Author’s Appearance and Materials as contemplated by this Agreement or necessary to enable BookClub to exercise the rights granted to it under this Agreement, including any necessary licenses, permissions, clearances, approvals, consents, releases other authorizations (a) from literary publishers, agents, co-writers, record labels, performing rights organizations or music publishers, third-party talent and similar persons as may be required, (b) from third parties for the use of any images, trademarks, service marks, logos, artwork, locations, buildings, names, likenesses, or other content, materials, music, or services, and (c) from any organizations or other entities as may be required, (vi) “Talking Guides” means any talking guides, questions/answers (Q&A), lines of questioning, or scripted materials prepared (in whole or in part) by Author or any third party and used by Author and used in connection with the Content, (vii) “Titles” means the title(s) of any of Works, and (viii) “Works” means any literary or other works of authorship referenced in the Content.
- Ownership; License; Permissions. As between the parties hereto, Author shall be considered the author and the sole and exclusive owner of all right, title and interest in and to the Content and Author’s Appearance and Materials and any intellectual property rights therein. Author hereby grants to BookClub a worldwide, irrevocable, perpetual, fully-paid up, royalty-free, transferable right and license, with rights to sublicense, to use, reproduce, publish, republish, distribute, create derivative works of, publicly perform, publicly display and digitally transmit, commercialize and otherwise exploit the Content and Author’s Appearance and Materials in connection therewith for BookClub’s business purposes (including in connection with BookClub’s products and services), in any forum or media now known or hereafter devised, including, without limitation, television, film, radio, and the internet, however displayed, and in all types and forms of advertising, marketing, and promotion for and related thereto. The foregoing license shall be exclusive with respect to the Content and non-exclusive with respect to Author’s Appearance and Materials. Accordingly, Author agrees that he/she shall not have any right to use the Content without BookClub’s prior written consent in each case. BookClub shall have the right, on its own and through authorized third parties, to change, alter, revise, edit, add to or subtract from the Content and Author’s Appearance and Materials therein in BookClub’s sole discretion, as well as the right to combine the Content and Author’s Appearance and Materials therein (in whole or in part) with properties, material or other content furnished or created by others, provide that such edits or combinations do not have a material adverse effect on the Content and Author’s Appearance and Materials, and to use the Content and Author’s Appearance and Materials therein as contemplated by this Agreement without any approvals or review by Author or any compensation. Author hereby knowingly, voluntarily, and irrevocably waives, and shall cause any other rights holders to waive, any and all rights Author or such rights holders may now or hereafter have in any jurisdiction to so-called “moral rights” or rights of droit moral (collectively, “Moral Rights”) with respect to the Content. To the extent this waiver is not permitted by applicable law, Author hereby agrees not to enforce its Moral Rights against BookClub or its assignees, licensees, designees, or transferees. Unless otherwise expressly agreed in a signed writing by BookClub, Author shall be solely responsible, at his/her sole cost and expense, for obtaining all Permissions, and shall provide executed copies of any Permissions to BookClub upon its reasonable request. All rights granted to BookClub are coupled with an interest and shall irrevocably vest in BookClub immediately without reservation, condition or limitation and shall remain vested.
- Representations and Warranties; Indemnification. Author represents, warrants and covenants that (i) Author has all necessary rights and authorizations to grant the rights and licenses herein, (ii) the execution of this Agreement and the performance by Author of his/her obligations hereunder do not and will not violate or cause a breach of any other agreement or obligation to which Author is a party or by which it is bound, and no approval or other action by any other entity or person is required in connection herewith, (iii) Author is not and will not become a signatory to any guild, union, or other collective bargaining agreement where the same does currently or in the future would affect, require or implicate any action, fee or obligation with respect to the use, commercialization or exploitation of the Content or Author’s Appearance and Materials as contemplated by this Agreement, and this Agreement, the Content, and Author’s Appearance and Materials, and the rights granted hereunder and the exploitation of the same, are not and will not be subject to any such guild, union, or other collective bargaining agreement, (iii) the Content, Author’s Appearance and Materials, and the use and exploitation thereof as contemplated herein, do not, and will not, defame or violate any right (including without limitation copyright, trademark, trade secret, patent, or privacy or publicity rights) of, or conflict with, of any person, entity or estate, (iv) the Content and any other material furnished by Author in connection is or will be wholly original to Author, is not and will not be copied in whole or in part or based upon any other work, and has not been and, except as expressly permitted hereunder, will not be exploited in any manner or medium other than by BookClub, (v) Author has obtained all Permissions needed in order to enable BookClub to exercise the rights granted to it under this Agreement, including, without limitation, by obtaining any and all rights necessary for BookClub’s use and exploitation of applicable Cover Art, Excerpts, Talking Guides and Titles, in connection with the Content, (vi) Author shall produce and provide the Content in a professional and workmanlike manner in accordance with generally recognized industry standards, and (vii) Author has not, and will not (nor will any third party), grant a license to exploit the Content to any other person or entity. Author will defend, indemnify and hold the Released Entities (as defined below) harmless from and against all claims, demands and suits and any related liabilities and expenses (including reasonable attorney’s fees) to the extent arising out of (a) Author’s breach of this Agreement, including Author’s breach of any of the foregoing representations and warranties, (b) infringement or other violation of any intellectual property or other personal or proprietary rights of any person or entity resulting from the Content, Author’s Appearance and Materials, or use or exploitation thereof as contemplated this Agreement, (c) Author’s acts or omissions in connection with this Agreement, including any bodily injury, death of any person, or damage to real, personal, tangible or intangible property resulting therefrom, or (d) any violation of law by Author in connection with this Agreement.
- Release. Author agrees that he/she will make no claim of any kind against BookClub or any of its direct or indirect parents, affiliates, subsidiaries, licensees, invitees, designees, successors and assigns, and each of their officers, directors, shareholders, members, managers, employees, agents and representatives (collectively, the “Released Entities”) as a result of any of the uses described, or the exercise of any rights granted, herein, and Author irrevocably and unconditionally waives and releases, and will defend, indemnify and hold harmless, the Released Entities from and against any and all claims arising out of the Content (including the production thereof and participation therein), Author’s Appearance and Materials, and any of the uses described, or the exercise of any rights granted, herein, including, without limitation, any claims of intellectual property infringement, invasion of privacy, infringement of right of publicity, implied or false endorsement, defamation (including libel and slander), unauthorized use of name and likeness, infliction of emotional distress, and any other personal, proprietary and/or property rights of any kind or nature, relating to the Content, Author’s Appearance and Materials, or the exploitation thereof. To the maximum extent permitted by law, Author hereby waives any and all rights he/she may have under Section 1542 of the Civil Code of California, and every like provision in any foreign, federal, state or local 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.”
- Limitation of Liability. BOOKCLUB SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF BOOKCLUB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN.
- Infringers. Author shall promptly notify BookClub in writing with reasonable detail of any actual, suspected, or threatened infringement of the Content. With respect to any of the matters listed in this Section, BookClub has the first right, in its discretion, to enforce its rights in the Content, including to bring action with respect to any claims and proceedings. Notwithstanding the foregoing, if BookClub decides not to proceed with such action, upon request by Author and written consent by BookClub (not to be unreasonably withheld), Author may bring or take any such action as he/she determines is necessary in his/her reasonable discretion to halt any such infringement and to control the conduct of such enforcement action, including settlement (provided that any such action or settlement by Author does not impair or conflict with, in whole or in part, any right of BookClub under this Agreement). The party taking action against any claim or proceeding in accordance with this Section (the "Enforcing Party") shall be responsible for the expenses of such enforcement action, including attorneys' fees, and the other party shall provide such assistance as may be reasonably requested by the Enforcing Party, at the Enforcing Party's expense, in connection with any such enforcement action (including being joined as a party to such action as necessary to establish standing). Any monetary recovery resulting from such enforcement action must first be used to pay the legal expenses of the Enforcing Party and then to reimburse any legal expenses incurred by the other party in cooperating in such action as requested by the Enforcing Party, and any remaining amounts will be apportioned in accordance with each party's corresponding share of expenses for such action.
By clicking “I accept” below, Author hereby acknowledges and agrees to the terms of this Agreement, which shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement