As Triune Films and Ground Control (“Company”) has agreed to review certain visual and audio works, ideas, proposals, formats, stories, suggestions and/or materials (collectively and/or, as applicable, described herein as the “Material”) submitted or presented by me to an executive of Company (“Company Exec”) described on the attached Exhibit A, I understand that by submitting my short film I agree to the following terms and conditions:
I am submitting the Material to the Company and, at Company’s sole discretion, to carry on certain discussions with the Company in connection with the Material. I understand and acknowledge that because of Company’s position in the entertainment industry, Company and Company’s parent, subsidiaries, affiliated entities, successors and assigns and transferees, and each of their respective officers, employees and agents (individually and collectively, the “Company Group”) receive numerous submissions or presentations of written and oral ideas, proposals, formats, stories, suggestions, materials and the like for feature films and/or television programs and/or other creative uses. I further acknowledge and agree that I am submitting or presenting the Material to Company voluntarily, with the knowledge that Company would refuse to accept or consider the Material unless I agreed to every provision set forth in this Release. I further understand and acknowledge that no confidential or fiduciary relationship now exists between us, and that no such relationship is established by this Release or by my submission or presentation of the Material to Company.
I represent and warrant that I am the author of and the sole and exclusive owner of the Material and of all rights in and to the Material, and that I have full power and authority to submit or present the Material to Company on the terms and conditions herein, each and all of which shall be binding on me and on my agents, successors, heirs and assigns. This Release shall inure to Company’s benefit and to the benefit of the Company Group. I acknowledge that the Material was not a commissioned presentation.
I understand and agree that Company has numerous projects in development and I understand and agree that Company can use its own material, stories, ideas, proposals and the like (“Elements”) without any obligation whatsoever to me and without payment whatsoever to me, which Elements (a) are part of a concept Company already had under consideration or in development at the time of my submission or presentation, or (b) have been made public by anyone at the time of my submission or presentation, or (c) are in the public domain or otherwise would be freely usable by a third person as a member of the general public, or (d) are not protected by federal copyright law, or (e) were or may be obtained by Company from other sources, including Company’s own employees or associates or those of third parties independently of my creation, whether before or after the date of my submission of the Material. Company is always free to use, as any third party could, any parts of the Material, if any, which are not unique, novel, original, or concrete so as to be entitled to intellectual property protection under the law or are not fixed in a tangible means of expression. I hereby release and agree not to bring any claims or actions against Company or the Company Group on the basis of or related to Company’s use of any Elements or any parts of the Material that Company is free to use without any obligation or payment to me for the reasons described in this Paragraph 3.
Subject to Paragraph 3 above, Company agrees that if Company wishes to use the Material in a work distributed, exhibited, or released to the public, Company will negotiate with me in good faith concerning the appropriate payment for such use or contemplated use. In no event shall any such agreement be implied, and no obligation of any kind on Company’s part to me or any other person, firm or corporation is assumed by Company or the Company Group, or may be implied against Company or the Company Group, in connection with the submission or presentation of the Material in the absence of a written agreement.
Notwithstanding the foregoing, as set forth in Paragraph 3 above, I understand that Company has access to, may create or may have created Elements (e.g., material, stories, ideas, proposals and the like) which may be substantially similar or identical to the Material and I agree that I am not entitled to any compensation if Company uses material, stories, ideas, proposals and the like that was independently created by or on behalf of Company, or that came to Company from any source other than me, whether before or after the date of my submission or presentation. I agree that, in any dispute arising from any alleged use of the Material, I undertake the entire burden of proof of originality (e.g. proving that Company did not independently create the alleged similar materials or obtain them from a source other than me), access, copying and all other elements necessary to establish Company’s liability, and agree that my submission or presentation of the Material shall in no event give rise to a presumption or inference of copying or taking, or to a presumption or inference that anyone at Company, other than the particular Company Exec to whom the Material is being submitted or presented, had access to the Material; and I further agree that, should I bring any action against Company (including without limitation for wrongful appropriation of the Material or any part thereof), my sole remedy against Company shall be limited to an arbitration for damages, if any (which shall in no event, under any theory, exceed the fair market value of the Material on the date hereof, as determined by customary practice in the motion picture industry); and that I shall in no event be entitled to an injunction or any other equitable relief. I further agree that, as a condition precedent to any such action, I will give Company written notice, stating the particulars in complete detail; and that any such action shall be, and is hereby forever waived and barred, unless duly filed by me within six (6) months after Company’s first public release or use of the Material, or thirty (30) days after Company notifies me in writing that Company denies liability to me, whichever is earlier.
In agreeing to the provisions of this Release, including, the preceding paragraph, I understand that I may be waiving rights with respect to claims that are at this time unknown or unsuspected, and in accordance with such waiver, I hereby acknowledge that I have read and understand, and hereby expressly waive the benefits of Section 1542 of the Civil Code of California, which provides as follows:
“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.”
I hereby acknowledge Company is under no obligation to use the Material in any manner. I hereby agree that neither my submission or presentation, or Company’s review, of the Material pursuant to this Release constitutes or creates an implied-in-fact or implied-in-law contract, even if there exists an industry custom or practice to the contrary. I release Company from such obligation and/or all liability if the Material is lost, misplaced, stolen or destroyed.
I HEREBY ACKNOWLEDGE THAT THE INTERNAL SUBSTANTIVE LAWS (AS DISTINGUISHED FROM THE CHOICE OF LAW RULES) OF THE STATE OF CALIFORNIA AND THE UNITED STATES OF AMERICA APPLICABLE TO CONTRACTS MADE AND PERFORMED ENTIRELY IN CALIFORNIA SHALL GOVERN (I) THE VALIDITY AND INTERPRETATION OF THIS RELEASE, (II) THE PERFORMANCE BY ME AND COMPANY OF OUR RESPECTIVE OBLIGATIONS HEREUNDER, AND (III) ALL OTHER CAUSES OF ACTION (WHETHER SOUNDING IN CONTRACT OR IN TORT) ARISING OUT OF OR RELATING TO THIS RELEASE.
I agree that any and all disputes between me and Company (including, without limitation, any disputes relating to any of the matters referred to in (i), (ii) or (iii), above) shall be submitted to binding arbitration, before a single arbitrator, who shall be an attorney with not less than ten (10) years practice devoted primarily to the motion picture industry or a retired judge and shall be mutually agreed upon by Company and me (or if we are unable to agree, the arbitrator shall be appointed by the arbitration service). The arbitration shall take place in Los Angeles, California and shall be conducted, except as otherwise provided herein or as agreed by the parties, in accordance with the rules of JAMS. The arbitrator shall be bound by the substantive rules of law imposed by the statutory case law of the United States and the State of California and the terms of this Release and shall not have the jurisdiction to alter this Release or to award punitive, exemplary or consequential damages. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award as set forth hereinabove. The fact that there is a dispute between the parties that is the subject of an arbitration shall also be confidential and neither party shall disclose, report, reveal, gossip or speculate about any arbitration, by any means including without limitation by e-mail, social media, blogging or tweeting.
No oral representations of any kind have been made to me, and this Release states our entire understanding with reference to the subject matter hereof. I acknowledge that I have had an opportunity to consult with counsel of my choice. I acknowledge that I have had the opportunity to review this Release and, consequently, the drafting of this Release will not be construed against either party. Any modification or waiver of any of the provisions of this Release must be in writing signed by both of us.
By submitting my material, I accept the terms and conditions set forth in this Release.