FORM AFFIDAVIT OF ELIGIBILITY, PUBLICITY RELEASE AND LIABILITY WAIVER
This Affidavit of Eligibility, Publicity Release and Liability Waiver (the “Affidavit of Eligibility and Release” or “Agreement”) is agreed to by person(s) (each a “Winner”) who are awarded a prize (“Prize”) in the contest, sweepstakes and/or promotion sponsored by Cheezburger, Inc. (“Cheezburger”) or any of its affiliates or subsidiaries (the contest, sweepstakes or promotion in which the undersigned has been awarded a Prize is hereinafter referred to as the “Contest”).
Winner is referred to below as “I” or “me”. In consideration for entry into the Contest, and receipt of the Prize, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, I hereby agree as follows:
1. Eligibility. I represent that I am eligible to receive the Prize awarded to me in the Contest. Without limiting the foregoing, I represent that I satisfy all eligibility requirements (e.g., as to my age or place of residence, lack of affiliation with Cheezburger) set forth in the Official Rules located at http://blog.cheezburger.com/legal/cheezburger-contest-rules/, which I acknowledge having read and understood, and any other requirements imposed by law. I further acknowledge and agree that I complied with all of the terms of the Official Rules.
2. Permission to Use Likeness; Publicity Release. I give permission irrevocably and in perpetuity to Cheezburger and its subsidiaries and affiliates to, without additional compensation to me, use, adapt, reproduce, distribute, display and publicly perform my name, visual likeness and biographical data, in whole or in part, throughout the universe, in connection with the promotional or marketing activities of Cheezburger and/or its subsidiaries or affiliates. In connection therewith, I waive any rights under Fla. Stat. § 540.09, RCW 63.60, et seq., California Civil Code § 3344, New York CLS Civil Rights Law §§ 50-51, or any similar law of any state, U.S., or foreign jurisdiction.
3. Assignment of Entry Materials. I understand that any material I submitted and/or entered into the Contest is the sole property of Cheezburger and may be used by Cheezburger for any purpose. I represent that I independently created the material I submitted to Cheezburger and have secured all rights (including third party rights) necessary to convey all rights in such materials to Cheezburger. I assign and convey to Cheezburger all right, title and interest in and to the submitted material(s) and all copyright, trademark and other intellectual property rights in the submitted material(s), and agree to take any actions (including execution of documents) reasonably requested by Cheezburger to effect, perfect or evidence the foregoing assignment. If for any reason, the assignment is ineffective, I grant Cheezburger an irrevocable, exclusive license to display, perform, and reproduce any of the materials and use the materials freely without payment of any royalty to me or to any third party.
4. Tax Consequences. I acknowledge and agree that I may be taxed for the fair market value of the Prize. Accordingly, I agree to execute any documentation necessary (e.g., Form 1099), and agree to pay any and all taxes when due with respect to the Prize.
5. No Warranties Regarding Prize. Cheezburger makes no warranties whether express or implied regarding the Prize. I acknowledge and agree that the Prize is not manufactured or sold by Cheezburger and that use of the Prize is at my own risk. Cheezburger provides the Contest and Prize “as is,” and disclaims all warranties with respect to the Prize and Contest, including warranties for merchantability, fitness for a particular purpose or any warranties imposed by law.
6. RELEASE. I ACKNOWLEDGE THAT ANY ACCEPTANCE, PARTICIPATION IN THE CONTEST, AND/OR RECEIPT OR USE OF ANY PRIZE IS SOLELY AT MY OWN RISK. THEREFORE, I, ON BEHALF OF MYSELF AND MY ASSIGNS, HEIRS, DEVISEES AND ESTATE (COLLECTIVELY, “SUCCESSORS”), HEREBY UNCONDITIONALLY AND FOREVER RELEASE, DISCHARGE AND AGREE TO HOLD HARMLESS CHEEZBURGER AND ITS AFFILIATES AND SUBSIDIARIES, ALONG WITH EACH OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND CONTRACTORS (COLLECTIVELY, “RELEASED PARTIES”), FROM ANY AND ALL CLAIMS, JUDGMENTS, COSTS, DAMAGES, LOSSES, EXPENSES AND LIABILITIES (WHETHER ARISING UNDER A THEORY OF CONTRACT, WARRANTY, TORT, INCLUDING NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT LIABILITY, PRODUCT LIABILITY OR ANY OTHER THEORY) RELATING TO ANY CLAIM I MAY NOW OR HEREAFTER HAVE WITH RESPECT TO ANY DEATH, PERSONAL INJURY, PROPERTY DAMAGE, PECUNIARY LOSS OR OTHER LOSS, DAMAGE, COST OR EXPENSE (COLLECTIVELY, “HARM”) THAT MAY BE SUFFERED BY ME OR ANY THIRD PARTY AS A RESULT OF THE CONTEST, ANY USE BY CHEEZBURGER OF MY NAME, VISUAL LIKENESS OR BIOGRAPHICAL DATA, OR IN CONNECTION WITH MY ACCEPTANCE, PARTICIPATION IN, USE OF AND/OR INABILITY TO USE ANY PRIZE AWARDED TO ME, EVEN IF SUCH HARM IS CAUSED SOLELY BY THE RECKLESSNESS, NEGLIGENCE OR FAULT OF ONE OR MORE RELEASED PARTIES (COLLECTIVELY, THE “RELEASED CLAIMS”).
I HEREBY AGREE TO INDEMNIFY AND HOLD HARMLESS CHEEZBURGER AND ALL OTHER RELEASED PARTIES FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, LOSSES, DAMAGES AND EXPENSES (INCLUDING REASONABLE ATTORNEY’S FEES) INCURRED BY CHEEZBURGER AND ANY OTHER RELEASED PARTY ARISING OUT OF OR IN CONNECTION WITH ANY RELEASED CLAIMS OR IN CONNECTION WITH ANY THIRD PARTY CLAIMS (INCLUDING BASED ON VIOLATIONS OF INTELLECTUAL PROPERTY RIGHTS OR PUBLICITY OR PRIVACY RIGHTS) BASED ON THE MATERIALS I SUBMITTED TO CHEEZBURGER OR BASED ON CHEEZBURGER’S USE OF SUCH MATERIALS.
I SPECIFICALLY UNDERSTAND AND AGREE THAT THIS RELEASE WILL PREVENT ME AND MY SUCCESSORS FROM BRINGING A LAWSUIT, CLAIM OR OTHER ACTION AGAINST CHEEZBURGER OR ANY OTHER RELEASED PARTY AND FROM RECOVERING ANY MONEY DAMAGES OR OTHER LEGAL RELIEF FROM CHEEZBURGER OR ANY OTHER RELEASED PARTY IN CONNECTION WITH ANY OF THE CLAIMS RELEASED ABOVE.
7. DISCLAIMER. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE OFFICIAL RULES OR ELSEWHERE, CHEEZBURGER MAKES AVAILABLE THE CONTEST, AND ANY PRIZES ON AN “AS IS” BASIS AND DISCLAIMS ALL WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN CONNECTION THEREWITH. CHEEZBURGER SHALL NOT BE LIABLE TO ANY ENTRANT OR WINNER FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND – INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA – ARISING OUT OF THE CONTEST, REGARDLESS OF WHETHER CHEEZBURGER WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. THE TOTAL AGGREGATE LIABILITY OF CHEEZBURGER TO ENTRANTS, WINNERS, OR OTHER THIRD PARTIES ARISING OUT OF OR RELATING TO THE CONTEST WHETHER IN TORT, CONTRACT, OR OTHERWISE, SHALL NOT EXCEED THE SUM OF ONE HUNDRED DOLLARS.
8. Reformation. If any provision of this Agreement is found to be unreasonable or unenforceable in any respect by a court, it is my intention and understanding that this Agreement shall nonetheless be enforced to the maximum extent to which it is found by the court to be legally enforceable. To the extent permitted by applicable law, I hereby waive the benefit of any provisions of any statute or other law that might adversely affect the rights of Cheezburger or any Released Party under this Agreement.
9. Choice of Laws. This Agreement shall be governed by the laws of the State of Washington, without reference to its choice of law rules. I irrevocably consent to the exclusive jurisdiction and venue of the federal and state courts located at King County, Washington with respect to any claim or suit arising out of or in connection with this Agreement, the Contest, any delivery, misdelivery or nondelivery of any Prize or my acceptance, participation in, use of, or inability to use any Prize, and agree not to commence or prosecute any such claim or suit other than in the aforementioned courts.
10. Arbitration; Venue. ANY DISPUTE REGARDING THE CONTEST IS EXCLUSIVELY SUBJECT TO ARBITRATION IN SEATTLE WASHINGTON, PURSUANT TO THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION. I HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE CONTEST. SUCH CLAIMS ARE SUBJECT TO BINDING ARBITRATION (WITH ONE ARBITRATOR SITTING) IN SEATTLE, WASHINGTON, IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. I FURTHER WAIVE ANY OBJECTION TO VENUE IN SEATTLE, WASHINGTON, WHETHER SUCH OBJECTION IS BASED ON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE, FORUM NON CONVENIENS OR THE LIKE. SEATTLE, WASHINGTON SHALL BE THE EXCLUSIVE VENUE AND JURISDICTION TO RESOLVE ANY DISPUTES RELATING TO THE CONTEST AND I IRREVOCABLY SUBMIT TO JURISDICTION IN THE STATE OF WASHINGTON IN CONNECTION THEREWITH.
11. Material Inducement. I acknowledge and agree that my consent to the terms set forth above is a material inducement for Cheezburger to award a Prize to me and that Cheezburger would not do so in the absence of my consent.
12. Entire Agreement. Except for the Official Rules, this Agreement constitutes the entire agreement between myself and Cheezburger with respect to the matters described herein, and supersedes any and all other agreements and communications, oral or written, between myself and Cheezburger or any other Released Party with respect to such matters. This Agreement may not be amended or supplemented except by a writing signed by Cheezburger specifically referencing this Agreement.