Terms of Use Agreement

By uploading any photographs, videos, and/or written materials including, without limitation, captions and stories (collectively, “My Materials”), to the Awkward Family Photos website, I certify and acknowledge that I wholly own all rights in and to My Materials including but not limited to any copyrights in My Materials.  To the extent My Materials include the images of myself or others, or includes the name of other people, I hereby warrant and represent that I have the right to grant the rights herein granted including granting the rights to permit usage of the images and other content contained in My Materials by way of reproduction, display or otherwise.  Now therefore, in light of the above representation, through the act of uploading My Materials to your website, I hereby grant to Awkward Family, LLC and its parents, members, managers, directors, shareholders, partners, representatives, subsidiaries, affiliates, sponsors, successors, assigns, heirs and licensees (collectively, “you” or “your”) the non-exclusive right to use without payment My Material.  This grant includes the right by you to reproduce, display, post, edit, create derivative works, publish, promote, distribute, perform, sub-license and otherwise exploit My Materials and my name in connection with My Materials.

I waive any right to inspect or approve any of the rights granted herein.

I represent and warrant that I have the right to enter into this agreement and to grant, without the consent of any third parties, all the rights herein granted; that I have not exclusively granted or assigned or otherwise transferred such rights to any third parties; and that there are no claims, litigation or other proceedings pending or threatened which could in any way impair, limit or diminish the rights granted to you hereunder.  I, on behalf of myself, my successors, heirs, representatives and assigns, hereby irrevocably covenant that I will not assert a claim or maintain an action or suit and will not consent to the assertion or maintenance by others of any claim, action or suit (including, but not limited to claims, actions or suits for invasion of my rights of privacy, rights of publicity, defamation or rights in the nature of “droit moral”) of any kind on account of the exercise by you of any of the rights herein granted or agreed to be granted to you.

I represent and warrant that if any minors appear in My Materials, I am the mother, father or duly appointed guardian of such minors or have the irrevocable permission of the parents or duly appointed guardian(s) of such minors to grant the rights set forth herein to you on behalf of such minors.

I agree to indemnify and defend you, and hold you harmless from and against any and all liability, losses, damages, costs, expenses (including but not limited to costs and attorneys’ fees), judgments and penalties arising out of, resulting from, based upon or incurred because of the breach of any warranty, representation or agreement made by me hereunder (including, without limitation, with respect to any claims that I lack the authority to grant all of the rights (including rights of third parties and minors) herein granted).  I further agree to indemnify and defend you and hold you harmless from and against any liability, losses, damages, costs expenses(including but not limited to attorneys’ fees and costs) judgement and penalties arising out of any claim made by any person who claims a violation of that person’s rights related to your exploitation of My Materials pursuant to the grant set forth in this agreement. For the avoidance of doubt, this obligation to defend and this indemnity obligation applies regardless of whether the third party claim has merit such that I agree that upon the mere making of the claim by the third party, such triggers my obligation to indemnify and defend you.  I agree that I will have no rights to terminate or rescind any rights granted to you hereunder or to enjoin the publication, production, exhibition or distributionor exploitation of My Materials or any work incorporating My Materials.

IN NO EVENT WILL YOU BE RESPONSIBLE OR LIABLE FOR ANY DAMAGES OR LOSSES OF ANY KIND, INCLUDING WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, ARISING OUT OF MY USE OF YOUR WEBSITES OR YOUR REMOVAL FROM YOUR WEBSITES OF, OR DISCONTINUATION OF ACCESS TO, MY MATERIALS.  WITHOUT LIMITING THE FOREGOING, YOUR WEBSITES AND ALL MATERIALS PROVIDED ON OR THROUGH YOUR WEBSITES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.  YOU DO NOT NOW AND SHALL NOT IN THE FUTURE HAVE ANY DUTY OR LIABILITY, DIRECT OR INDIRECT, VICARIOUS, CONTRIBUTORY, OR OTHERWISE, WITH RESPECT TO THE INFRINGEMENT OR PROTECTION OF MY INTELLECTUAL PROPERTY RIGHTS, IF ANY, WITH RESPECT TO ANY SUBMISSION OF MATERIAL.

This release is governed by and shall be construed in accordance with the laws of the State of California, United States of America, without regards to its principles of conflicts of law.  In the event of any dispute arising out of or in connection with this agreement or otherwise in connection with your websites or My Materials, such dispute shall be submitted to arbitration in the County of Los Angeles, State of California, United States of America in accordance with the rules and regulations of the American Arbitration Association then in effect (as amended herein), provided that said arbitration shall be heard before a single arbitrator, selected pursuant to such rules and regulations, and shall be conducted on an expedited basis and in confidence.  Each party hereby waives any and all rights and benefits which it might otherwise have or be entitled to under United States federal law or the laws of the State of California, United States of America or any other state or country to litigate any such dispute in court, it being the intention of the parties to arbitrate, according to the provisions of this agreement, all such disputes.  The arbitrator’s decision shall be controlled by the terms and conditions of this agreement and any other agreements I may enter into with you, and shall be final and binding, and shall provide for each party to bear its own costs of arbitration and attorneys’ fees.  Each party expressly waives any right to a jury.  Judgment upon the award of the arbitrator may be entered or enforced in any court of competent jurisdiction.  If either party shall fail to appear at the hearing on the date designated in accordance with the rules of the American Arbitration Association, or shall otherwise fail to participate in the arbitration proceeding, the arbitrator is hereby empowered to proceed ex parte.  In the event of any dispute concerning this agreement or any other agreement between you and me, my sole and exclusive remedy shall be to seek damages pursuant to an arbitration authorized by this paragraph, and in no event will I be entitled to seek rescission, or injunctive or other equitable relief whatsoever.   For any dispute not subject to arbitration according to this release, I agree to personal jurisdiction by the United States federal and state courts located in Los Angeles, California, United States of America, and waive any jurisdictional, venue, or inconvenient forum objections to such courts.  Further, in any such dispute, under no circumstances will I be permitted to obtain awards for, and hereby irrevocably waive all rights to claim, punitive, incidental or consequential damages, and I irrevocably waive all rights to have damages multiplied or increased.

I agree that this instrument constitutes my entire agreement and complete understanding and that all prior or contemporaneous promises, understandings and agreements, oral or written, are merged into and included in this written instrument. I agree also that you are under no obligation to make use of any right or privilege that I have granted to you.

This agreement shall bind my heirs, administrators, representatives, executors and assigns forever. You shall have the right to assign any or all of your rights hereunder to any person, firm or entity in your sole discretion.  I may not assign this agreement to any third party, and any purported attempt to do so shall be deemed null and void ab initio.

I give you the foregoing permission with the knowledge and understanding that you will incur substantial expense in reliance thereon.  If any part of this agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect.

I am the age of majority in my state of residence (which is typically 18 years of age in most states) and competent to contract in my own name. I HAVE READ THIS SUBMISSION RELEASE AND I FULLY UNDERSTAND AND FREELY ACCEPT THE CONTENTS AND MEANING OF THIS AGREEMENT. I AGREE TO BE BOUND HEREBY AND INDICATE MY ACCEPTANCE OF THESE TERMS BY CLICKING THE BOX BELOW.  MY electronic consent to this Agreement (or to any other agreement between ME AND YOU), whether by clicking THE BOX BELOW or similar buttons provided in conjunction with any such agreement, shall constitute MY electronic signature and, according to the provisions of UNITED STATES federal law (INCLUDING, WITHOUT LIMITATION, UNITED STATES COPYRIGHT LAW), shall be of the same effect as if I had signed such agreement manually.   UPON YOUR request, I agree to sign a non-electronic version of this Agreement.  A printed version of this Agreement and/or of any notice given in electronic form shall be admissible in judicial, administrative, or arbitration proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.

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