This Material Submission Terms (this “Agreement”) is a binding, legal agreement between you (“You” or “Your”) and New Space Enterprises, LLC, a Delaware limited liability company (the “Company”), that sets forth the terms pursuant to which You may submit Materials (as defined below) to Company via the websites currently located at https://myoneblackfriend.com and https://myfirstblackboyfriend.com (collectively, the “Website”) for potential use and exploitation, in whole or in part, in and in connection with inter alia, one or any or all of the following, pursuant to the terms and conditions contained herein: (a) on the Website or any other website owned by Company or any affiliate or licensee; (b) in one or more book(s) (individually and collectively, the “Book”); (c) in and in connection with one or more feature film, television, digital and/or other audio, visual, or audio-visual project(s) and/or production(s) of any kind (individually and collectively, the “Ancillary Project(s)”); and/or (d) any promotion, marking, or advertising for any of the foregoing (collectively, the “Project”).
This Agreement includes, and hereby incorporates by reference, our Privacy Policy, Online Terms of Use, and other guidelines, terms and conditions that Company may post on the Website or otherwise present to You from time to time (“Additional Terms”). In the event of any conflict between the body of this Agreement and any Additional Terms, the body of this Agreement will control with respect to any conflict regarding submission or use of Materials, and the applicable Additional Terms will control with respect to any other conflict.
BY SUBMITTING ANY MATERIALS TO COMPANY, YOU UNDERSTAND AND AGREE THAT YOU ARE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE NOT ELIGIBLE TO ENTER INTO THIS AGREEMENT, OR DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN YOU DO NOT HAVE OUR PERMISSION TO SUBMIT ANY MATERIALS TO US.
BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU AND COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THESE TERMS. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY.
NOW, THEREFORE, for good and valuable consideration, including, without limitation, the opportunity for the Materials to be considered by Company to be potentially included in the Project, the receipt and sufficiency of which is hereby acknowledged and agreed, You and Company agree to the foregoing and as follows:
1. Eligibility: In order to submit Materials to Company and enter into this Agreement, You must be eighteen (18) years old and You must be fully able and competent to enter into and comply with all of the terms and conditions set forth in this Agreement. By accepting this Agreement and submitting any Materials hereunder, You represent, warrant and covenant that You meet the eligibility requirements described above and have not been previously suspended or denied permission to submit any Materials by Company.
2. Assignment: You hereby irrevocably assign, transfer, and convey to Company all right, title, and interest in and to all the materials You submit through the Website or otherwise provide to Company, including, but not limited to, all content, concepts, stories, messages, text, ideas, feedback, suggestions, photographs, materials, or other information, and all elements thereof (including, without limitation, all contents thereof, all present and future adaptations and versions thereof, and all copyright and all other intellectual property rights therein and thereto and all extensions and renewals thereof) and all ancillary, subsidiary and derivative rights therein and thereto, including, without limitation, books, publishing, feature film, television, streaming, digital and all other audiovisual mediums, screenplay, teleplay, novelization and comic book publishing rights, advertising/publicity rights, radio and podcast rights, merchandising and commercial tie-up rights, theme park rights, broadcast rights, music and soundtrack album rights, derivative use rights, live stage rights including any derivative works or modifications thereof, and all intellectual property rights therein and thereto (collectively, the “Materials”) and, if applicable, any Additional Materials (as defined below). You further understand and agree that, in connection with Your assignment of Materials, You also grant Company personality and publicity rights to use Your name and likeness and any other personal information that You submit on this Website or otherwise provide to Company in connection with the Project, as further described below in Paragraph 8. If You do not receive notice from Company that Company has elected to use the Materials within seven (7) years after you submit the Materials, You can provide to Company a written request for a reversion of the rights to the Materials.
3. Effect of Assigning Rights: By assigning the Materials to Company, You understand and agree that Company, as owner of such Materials, may use the Materials for any purpose, including, but not limited to, for the Book, Website or Ancillary Projects; provided, however, that nothing contained herein shall require Company to develop or produce the Project, to otherwise use or commercialize the Materials, and/or to include and/or use the Materials in the Project or in any capacity whatsoever.
4. Fictionalization of Materials: Without limiting the generality of any of Company’s rights set forth herein, Company may portray, represent, fictionalize, impersonate, dramatize, rearrange, add to or subtract from, rewrite in any way, combine with other fictional or nonfictional material, and otherwise depict and use in any way the Materials and all or any elements thereof, in the Project and the exploitation thereof, including, without limitation, the right to portray, represent and depict You and to use Your name, image, likeness, voice and biographical information in a fictionalized manner for and in connection with the Project and in the advertising and promotion thereof.
5. Purchase Price: In the event that Company elects, in its sole and absolute discretion, to use the Materials in connection with the Project, Company shall notify You in writing, using the contact information that You provided at the time You submitted the Materials, and shall pay You as follows: (a) if Company elects to use the Materials in connection with the Book, Company shall pay You a one-time royalty of $1,000 (the “Book Purchase Price”), and (b) if Company elects to include the Materials in one or more Ancillary Project(s), Company shall pay You a one-time royalty of $5,000 (the “Ancillary Payment”). Subject to all other terms and conditions herein, any and all payments owed to you in connection with this Agreement will be paid only if You first complete, and Company receives from You and approves of, all required and dully completed tax, work permit and/or payroll documentation (e.g., w9, w4 and/or i9, etc.) and/or any other documents that Company feels are necessary for the use of the Materials in connection with the Project. You understand and agree that any dispute regarding any amounts paid or payable to You under this Agreement, including, without limitation, any dispute related to the amount or timing for payment thereof, shall not affect the validity of Your assignment of, and Company’s exploitation of, the Materials, including, without limitation, Your failure to complete and return the payroll documentation described in this Paragraph 5.
6. No Other Payments: Except as expressly set forth in this Agreement, You (and any other party) will not be entitled to any royalties or other compensation for the Materials.
7. Waiver of Certain Rights: By submitting any Materials to Company, You understand and agree that the Materials may be used in a manner that, once used, cannot be changed. Therefore, as a condition of Your ability to submit Materials, You hereby understand, acknowledge, and agree that:
8. License of Identification Content: You hereby grant Company the perpetual, sublicenseable, transferable, royalty-free, fully paid-up and irrevocable right to record, copy, reproduce, adapt, modify, summarize, copyright, photograph, film license, vend, rent, distribute, televise, publish, exhibit, disseminate, display, perform, commercialize and otherwise exploit in any and all markets and media Your name, image, likeness, and biographical and professional information, including information that You provide to Company and any other information about You that is publicly available (collectively the “Identification Content”) in connection with the Materials, the Project, and/or any advertising and promotion of the Materials or the Project, throughout the universe and in any medium or format now existing or hereafter developed on any platform without further consent from or any royalty, payment, or other compensation to You.
9. Waiver and Release: You hereby waive any and all rights of privacy, publicity, false light, defamation or any other rights of a similar nature in connection with the Materials, or any portion thereof, including, without limitation, Company’s use thereof in connection with Your Identification Content. Without limiting the generality of the foregoing, You warrant and covenant that You shall not at any time claim or assert that any portrayal or depiction of any characters or other content in connection with any exploitation of the Materials, in accordance with the terms of this Agreement, constitutes a violation of any of Your rights, including, without limitation, Your right of privacy, publicity, false light, and Your right to bring and prosecute an action for defamation (“Released Claims”). You hereby release Company (including, without limitation, Company’s affiliates, and its and their respective successors, assigns, licensees, directors, officers, employees and representatives) of and from any and all Released Claims by or under Your authority. You acknowledge that You are aware that You may hereafter discover claims or defenses presently unknown or unsuspected, or facts in addition to or different from those which You now know or believe to be true, as to the matters released herein. Nevertheless, it is Your intention under this Agreement to fully, finally, and forever settle and release all Released Claims. In furtherance of such intention, the Released Claims herein given by You shall be and remain in effect as a full and complete release of such matters, notwithstanding the discovery or existence of any such additional or different claims, defenses, or facts related thereto. In granting the Released Claims, You are not relying upon any statement, representation, inducement, or promise of Company, except as expressly set forth in this Agreement.
10. California Waiver Requirements: You represent that You have been advised by legal counsel (or if not, You have elected not to seek such advice and waive Your right to do so) and that You are familiar with the provisions of Section 1542 of the Civil Code of the State of California (or any similar law of any other relevant jurisdiction) which reads 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. You waive and relinquish any right or benefit that You may have under California Civil Code Section 1542 or any similar provision of the statutory or non-statutory law of any other jurisdiction to the full extent that You may lawfully waive all such rights and benefits pertaining to the Released Claims.
11. Moral Rights: In connection with Your assignment of Materials hereunder, to the fullest extent not prohibited by applicable law, You hereby irrevocably assign, transfer and convey any rights throughout the world that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like or any other rights of an author to control the use of a work, including how the work is displayed, attributed, distributed or otherwise used and/or any right to prevent revisions, alterations or distortions of a work (collectively, “Moral Rights”) with respect to the Materials. To the extent any Moral Rights that You may have in any the Materials are not assignable under applicable law, then to the fullest extent permitted under applicable law, You hereby irrevocably waive for Yourself, on behalf of Your heirs, executors, administrators and assigns, and agree never to support, maintain or permit any action based on the benefits of any Moral Rights. You expressly acknowledge that many parties may contribute to the Project and that other works will embody all or part thereof. Accordingly, if under any applicable law the above waiver by You of Moral Rights is not effective, then You shall exercise such Moral Rights in a manner which recognizes the contribution of and will not have an adverse effect upon such other parties.
12. Additional Materials: Company may ask You to provide additional materials or services in connection with the Project, including, without limitation, by conferring with Company, whether by phone, email and/or in person to provide information, assist with research, answer questions, or recount experiences, feelings, circumstances, or situations related to the Materials to Company or any third parties rendering services in connection with the Project (“Additional Materials”). While You are under no obligation to provide any Additional Materials, if You elect to provide such Additional Materials, You understand and agree that such said Additional Materials shall be assigned to Company upon submission pursuant to the assignment grant in Paragraph 2 and shall be subject to other terms set forth in this Agreement. Except for Paragraph 5, all references herein to Additional Materials shall be deemed to also refer to and include Additional Materials. NOTWITHSTANDING THE FOREGOING, YOU UNDERSTAND AND AGREE THAT EVEN IF YOU ELECT TO PROVIDE THE ADDITIONAL MATERIALS DESCRIBED IN THIS PARAGRAPH 12, COMPANY MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES THAT IT WILL USE, INCORPORATE, FEATURE, DISPLAY OR COMMERCIALIZE THE MATERIALS, WHICH DECISION IS COMPANY’S TO MAKE IN ITS SOLE AND ABSOLUTE DISCRETION.
13. Restrictions on Submissions: Without limiting any other restrictions set forth herein, by entering into this Agreement, You agree not to do or encourage others to do any of the following, except as expressly set forth herein:
14. Representations and Warranties: You are solely responsible for the Materials You submit to Company. You represent, warrant and covenant that, with respect to the Materials, including, without limitation, all portions thereof, such Materials: (i) do not and will not in any way defame, slander, libel, infringe upon, misappropriate, or violate the rights of any kind, including, but not limited to the right of privacy, publicity or copyright, of any third parties; (ii) are and shall be true (i.e., a true story from Your real life), complete, and accurate; (iii) are not the subject of any litigation or claim that might give rise to litigation; (iv) are wholly original with You, meaning that You are the creator and owner of and/or have the necessary rights to use and to authorize Company to use and exploit the Materials in the manner contemplated by this Agreement; (v) You have obtained all rights, licenses, permissions, authorizations, clearances, and consents from any persons referenced, portrayed, described, or featured in any Materials You submit to Company as necessary to comply with this Agreement; and (vi) neither Company nor any other party shall need to obtain any rights, licenses, permissions, authorizations, clearances, or consents from or pay any fees or royalties to other party to use the Materials submitted by You, except as expressly set forth herein. You further represent and warrant that You have the right to enter into this Agreement and grant the rights being granted hereunder.
15. Additional Documents: As provided for herein You shall execute the documents and take other actions as may be reasonably required by Company (or Company’s licensees, successors, and assigns) to further evidence or effectuate Company’s rights hereunder. You hereby irrevocably appoint Company as Your attorney-in-fact (which appointment is coupled with an interest) with full power of substitution to execute, verify, acknowledge, and deliver any such documents if You fail to promptly execute, verify, acknowledge, and/or deliver such documents within five (5) business days after Your receipt of Company’s written request therefor in accordance with this Paragraph 15.
16. Indemnity: You shall defend, indemnify and hold Company (including, without limitation, Company’s affiliates, successors, designees, licensees and assigns), as well as any distributors, exhibitors and/or publishers of the Project, and each of their directors, officers, employees, members, managers, representatives, agents, site managers, site hosts and site facilitators harmless from and against all claims, actions, causes of action, lawsuits, settlements, judgments, liabilities, damages, costs, losses, and expenses (including reasonable legal fees and court costs) arising from or relating to any breach or alleged breach of any representation, warranty or agreement made by You hereunder or from any use of the rights granted hereunder, including, but not limited to, any use by Company of the Materials in accordance with the terms of this Agreement. Company shall have the right to approve, which shall not to be unreasonably withheld, any attorneys or other counsel retained by You in connection with the obligations set forth in this Paragraph 16. In addition, Company may compromise or settle such claim or litigation, upon terms Company in its sole discretion deems reasonable, and You may not compromise or settle such claim or litigation without the prior consent of Company.
17. No Rescission: All rights, licenses and privileges herein granted to Company are irrevocable and not subject to rescission, restraint or injunction under any circumstances.
18. Non-Union: You acknowledge that Company is not a signatory to any guild, union, or other collective bargaining agreement and that this Agreement and the Materials are not subject to any such agreement, including, without limitation, any Writers Guild of America agreement or rules or any other union or guild contract or rules.
19. Remedies: Your sole remedy, if any, as to any breach or alleged breach hereunder by Company, including, but not limited to any dispute related to payment and/or the assignment of any rights hereunder, shall be the recovery of money damages, if any, in an action at law and any such breach, alleged breach or dispute of any kind hereunder shall not affect the validity of the assignment of Materials to Company hereunder. In no event may You obtain, and You hereby waive all rights to seek and obtain, injunctive or other equitable relief with respect to the Materials, the Project, or otherwise with respect to any breach of Company’s obligations hereunder. Under no circumstances shall Company be in a less favorable situation than we would have been had Company not secured from You the rights and immunities contained herein.
20. Binding Confidential Arbitration; No Class Actions: Subject to Paragraph 22, all disputes which may arise between the parties hereto under or with respect to this Agreement, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of when a claim arises, shall be determined solely and exclusively by binding arbitration before a sole neutral arbitrator in accordance with the rules of J.A.M.S. The confidential arbitration shall be held in Los Angeles, California, and each Party shall pay its own attorneys’ fees; provided that, the arbitrator may award costs and reasonable outside attorneys’ fees to the prevailing party to the extent permitted by law. Such determination by the sole arbitrator shall be final, binding, and conclusive upon the parties hereto, and shall be rendered in such form that it may be judicially confirmed under the laws of the State of California. The parties hereto shall maintain the confidential nature of the arbitration proceeding and any arbitration award except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to any arbitration award or its enforcement, or unless otherwise required by law or judicial decision. YOU AND COMPANY AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both You and Company agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND COMPANY EACH ARE EXPRESSLY WAIVING THEIR RESPECTIVE RIGHT TO A JURY TRIAL AND TO PARTICIPATE IN A CLASS ACTION, AND THAT THIS AGREEMENT SHALL BE SUBJECT TO AND GOVERNED BY THE FEDERAL ARBITRATION ACT. Please visit www.adr.org for more information about arbitration.
21. Governing Law: This Agreement will be governed by the substantive laws of the State of California without reference to its choice or conflicts of law principles. Only if the mandatory arbitration provision in Paragraph 20 is deemed to be null and void under applicable law, then, subject to Paragraph 22, all disputes arising between You and Company under this Agreement will be subject to the exclusive jurisdiction and venue of the state and federal courts located in Los Angeles County, California, and You and Company hereby submit to the exclusive personal jurisdiction and venue of these courts.
22. Injunctive Relief: Notwithstanding anything to the contrary herein, including, without limitation, Paragraphs 20 and 21, Company shall be entitled to seek, in any court of competent jurisdiction, injunctive or other equitable relief, including, without limitation, a preliminary and/or permanent injunction, a temporary restraining order, an order for specific performance or other appropriate or similar equitable remedies whenever the circumstances permit Company to seek such relief.
23. Assignment: Company may assign and/or sublicense this Agreement or any of its rights hereunder to any person, firm, corporation, or other entity. You may not assign or sublicense this Agreement or any of Your rights hereunder, or to delegate any of Your obligations hereunder. Any assignment in violation of this Agreement shall be void. Subject to the foregoing, this Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and permitted assigns.
24. Notices:
To You:
Notices will be provided to You at the address and contact information completed by You and provided to Company in
submitting the Materials to Company through the Website.
Notices to Company:
c/o Morris Yorn Barnes Levine Krintzman Rubenstein Kohner Endlich & Gellman
2000 Avenue of the Stars
Third Floor, North Tower
Los Angeles, CA 90067
Attn: Stephen D. Barnes, Esq.
25. General: This Agreement, including all Additional Terms, contains the entire agreement between You and Company regarding the subject matter hereof and supersedes and replaces any prior or contemporaneous agreements, negotiations or understandings regarding the subject matter hereof. This Agreement may not be amended, changed or modified, or any covenant or provision hereof waived, except by an agreement in writing, signed by You and Company. The waiver by either party or consent to a breach of any provision of this Agreement by the other party shall not operate or be construed as a waiver of, consent to, or excuse of any other or subsequent breach by the other party. Nothing in this Agreement shall be deemed to restrict, diminish or impair any rights that Company would have as a member of the general public if this Agreement were not in existence. In the event that any provision hereof is deemed to be illegal or unenforceable, such provision shall be modified or removed, as necessary, from this Agreement and shall not affect the validity or enforceability of the remaining provisions hereof, all of which shall remain in full force and effect. You acknowledge and agree that You have had the right to consult with counsel regarding the subject matter hereof before entering into this Agreement or have been informed of and has voluntarily waived Your right to do so. Your electronic acceptance of this Agreement via submission through the Website shall be valid as an original signature and constitutes Your agreement to and intent to be bound by the terms of this Agreement.Any provision of this Agreement that contemplates performance or observance subsequent to any termination of this Agreement, or which is otherwise necessary to interpret the respective rights and obligations of the Parties hereunder, shall survive any termination of this Agreement and shall continue in full force and effect. The relationship between You and Company is that of independent contractors, and nothing in this Agreement is intended to, or shall be construed to, create a partnership, agency, joint venture, employment, or similar relationship between the parties. You are not personnel of Company.