Never Surrender - enter your song to win

LIONS GATE SUBMISSION AGREEMENT

Artist submission agreement for the Never Surrender promotion :

By selecting Box     on the prior screen, you enter into an agreement (the “Lions Gate Submission Agreement”) between Lions Gate Music, Inc., on behalf of itself, its affiliates and its subsidiaries (“Lionsgate”) and you, on behalf of yourself and any band members, co-writers, and others who may have an interest in the song you are uploading (“you” or “your”).

For the purposes of this Lions Gate Submission Agreement, the “Song” shall mean the sound recording, the composition and the lyrics. By uploading your Song for consideration in the Contest (as defined in paragraph 1.1 below) associated with Lionsgate’s upcoming DVD release of the motion picture, NEVER SURRENDER (the “Picture”), and clicking “I agree,” you are indicating your consent to be bound to the following terms and conditions:

1. THE CONTEST

1.1 Your Song is being uploaded in connection with a contest (the “Contest”) sponsored by Lionsgate pursuant to which the contestants will have the opportunity for their respective Songs to be featured in an upcoming Grindstone mixed martial arts home video release (the “Video”). The Contest will run from April 14, 2009 through June 30, 2009 (the “Contest Period”), deadline for submissions will be 11:59 p.m. PST on May 31, 2009. This Lions Gate Submission Agreement makes reference to and incorporates the official rules to the Contest (the “Rules”) and, by consenting to this Lions Gate Submission Agreement, you are also indicating your consent to be bound by the Rules.

1.2 The Rules provide for the selection of a grand prize winner who will receive the grand prize (the “Grand Prize Winner”), which includes use of the Song in the Video and Prizes TBD.

1.3 There will be up to 3 (three) runners-up selected in the Contest (the “Runners-Up”). All Runners-Up will receive a prize, which includes use of the Song on the Soundtrack and Prizes TBD.

1.4 The Grand Prize Winner and the Runners-Up will be announced and/or notified via telephone and/or e-mail promptly following the end of the Contest Period. Receipt by the Grand Prize Winner of any and all parts of the prize(s) will be subject to satisfactory completion and delivery of any and all forms and further documentation that may be required by Lionsgate. Detailed descriptions of the prizes are set forth in the Rules. Please refer to the Rules for specific details on how the Grand Prize Winner and Runners-Up will be selected and for other terms and conditions of the Contest [LINK]. This Lions Gate Submission Agreement contains additional legal rights and obligations relating to the Song, Contest and/or the prizes.

2. ALL CONTESTANTS

2.1 Lionsgate shall have the non-exclusive right in perpetuity to use without charge any and all Songs submitted by any and all contestants in promotional material relating to the Picture, including internet promotions. Lionsgate shall not be required to notify you if your Song is used for this purpose, however, Lionsgate will use reasonable efforts to ensure that the applicable Song Information will be used to identify your Song (Runners-Up and Grand Prize Winner should refer to Sections 3 or 4 below). “Song Information” shall mean the name, artist, composer or other copyright information that you supply together with the Song you are uploading.

2.2 You hereby grant to Lionsgate in perpetuity throughout the world the non-exclusive royalty-free right to copy, perform, distribute, sublicense and make derivative works of the Song, including the sound recording, the composition, and the lyrics, in connection with the promotion of the Picture, including in any internet promotion of the Picture, and the right to use the Song Information in association with the Song. Unless you are selected as a Runner-Up or the Grand Prize Winner, you will retain ownership rights in the Song, including the right to register a copyright in the Song, subject to the rights granted to Lionsgate in the first sentence of this paragraph.

2.3 You understand and agree that this Lions Gate Submission Agreement requires that you do not grant ownership rights in and to the Song to any third parties until the end of the Contest Period. However, if you are selected as the Grand Prize Winner or a Runner-Up, ownership rights in and to the Song will be subject to the terms of this Lions Gate Submission Agreement; if you are not selected, you will have no further obligations hereunder, and Lionsgate will have no further rights to your Song (other than the rights described hereinabove).

3. ONE GRAND PRIZE WINNER

3.1 Should you be selected as the Grand Prize Winner, you hereby grant to Lionsgate in perpetuity, throughout the world, free and clear of any claims, demands, liens or encumbrances, exclusive ownership of the Song, including all right, title and interest in the sound recording, the composition, the lyrics and all copyrights in the Song, including without limitation, the right to copy, perform, market, sell, distribute, license, make derivative works of, register copyrights in, and make all other uses of the Song as are permitted to a copyright owner, and the right to use the Song Information in association with the Song. You hereby assign any and all rights you have in the Song to Lionsgate. You understand that if any other co-writers, band members or others have any interest in the Song or the Song Information, you must have the legal right to grant all rights granted herein on their behalf at the time you enter into this Lions Gate Submission Agreement.

3.2 The Grand Prize Winner accepts the TAPOUT portion of the Grand Prize as full and fair compensation for placement of the Song, including the sound recording and composition, in the Video and understands that there shall be no additional fees or royalties for distribution of the Video as a home video or through other channels. The Grand Prize Winner understands there may be other songs placed in the Video and that there shall be no guarantee of any particular placement among any such other songs.

3.3 The Grand Prize Winner will be entitled to the so-called “writer’s share” of applicable music publishing income for use of the Song in the Video and in other exploitations, subject to terms to be determined by Lionsgate in good faith in accordance with industry custom. Additionally, should Lionsgate elect to include the Song on any phonorecords derived from the Video or any other phonorecord, the Grand Prize Winner will be entitled to a record royalty, to be determined by Lionsgate in good faith and in accordance with industry custom.

4. RUNNERS-UP

4.1 If you are selected as a Runner-Up, Lionsgate shall have the option to use your Song in the soundtrack album derived from the Video or any other phonorecord (the “Record”). Lionsgate shall notify you in writing promptly following the end of the Contest Period of its intent to exercise its rights under this paragraph and Lionsgate will determine, in good faith and in accordance with industry custom, appropriate compensation, which may be in the form of a flat payment, royalties, or other consideration, if at all, for such use. If you do not receive such notice, you will have no further obligation hereunder, and Lionsgate will have no further rights to your Song (other than the rights described in paragraph 2.2 above), it being understood that if and until such selection is made, Lionsgate’s rights in and to the Song shall be exclusive and you may not grant rights therein, whether by license or otherwise to any third-party.

4.2   If your Song is selected for inclusion on the Record pursuant to paragraph 4.1 above, You hereby grant to Lionsgate in perpetuity throughout the world, free and clear of any claims, demands, liens or encumbrances, exclusive ownership of the Song, including all right, title and interest in the sound recording, the composition, the lyrics and all copyrights in the Song, including without limitation, the right to copy, perform, market, sell, distribute, license, make derivative works of, register copyrights in, and make all other uses of the Song as are permitted to a copyright owner, and the right to use the Song Information in association with the Song. You hereby assign any and all rights you have in the Song to Lionsgate. You understand that if any other co-writers, band members or others claim any interest in the Song or the Song Information, you must have the legal right to grant all rights granted herein on their behalf at the time you enter into this Lions Gate Submission Agreement.

5. YOUR REPRESENTATIONS AND WARRANTIES

You represent and warrant that: (a) you have and will retain throughout the Contest Period full and exclusive ownership in the entire Song, including the sound recording, the composition and the lyrics, to the exclusion of anyone else, and you have the legal right and ability to convey such ownership as may be required herein; (b) you are not subject to any exclusive recording or exclusive publishing agreement; (c) the Song does not contain any samples or other material which is owned or controlled by a third party; (d) none of the uses of the Song contemplated herein will require payments to be made to a third party, including, but not limited to, any producer, union or guild; (e) the Song, the Song Information, and the exercise by Lionsgate of any of its rights herein will not infringe any rights, such as copyright, trademark, right of publicity, privacy right, or other proprietary right, of any third party; and (f) you are at least 18 years old and have the legal right to enter into this Lions Gate Submission Agreement and to grant the rights herein on behalf of yourself and any others that you are representing, including band members, co-writers and any others who may have an interest in the Song. In the event of the breach of any of these warranties, your Song may be disqualified from the Contest, in addition to any other remedies which Lionsgate may have.

6. YOUR INDEMNITY

You agree to indemnify and hold harmless Lionsgate, its respective affiliates, subsidiaries, directors, officers, employees, agents and partners, from and against any claims, losses and demands, including reasonable attorneys’ fees, arising from or relating to any breach of your representations and warranties.

7. LIMITATION OF LIABILITY

YOU UNDERSTAND AND AGREE THAT NEITHER LIONSGATE NOR ITS RESPECTIVE AFFILIATES, SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND PARTNERS, SHALL BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, GOODWILL, OR OTHER INTANGIBLE DAMAGES (EVEN IF LIONSGATE HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES) RESULTING FROM YOUR PARTICIPATION OR INABILITY TO PARTICIPATE IN THE CONTEST, THE SELECTION, PLACEMENT OR NON-SELECTION OF YOUR SONG AND NAME AND LIKENESS, OFFERS OR CONTRACT NEGOTIATIONS BY LIONSGATE OR ITS REPRESENTATIVES, YOUR RELATIONS WITH ANY BAND MEMBERS, CO-WRITERS, OR OTHER PARTIES IN CONNECTION WITH YOUR SONG OR ANY OTHER SONGS THAT YOU HAVE PERFORMED OR WRITTEN, OR ANYTHING ELSE IN CONNNECTION WITH THE CONTEST, THE PRIZES OR THIS LIONS GATE SUBMISSION AGREEMENT. IF ANY PART OF THIS LIMITATION OF LIABILITY IS UNENFORCEABLE UNDER APPLICABLE LAW, LIONSGATE’S LIABILITY SHALL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

8. OTHER TERMS

8.1 Any notices required to be given by Lionsgate under this Agreement may be given to you by email to the account from which you are uploading the Song, and you agree to reply to confirm receipt of any such email notice. If you are selected as a Grand Prize Winner or Runner-Up, Lionsgate may additionally provide written notice to you at the address you supply in any documentation or affidavits. Any notices that you give to Lionsgate shall be sent by registered or certified mail, or overnight delivery service with confirmation of receipt, to Lionsgate Music & Publishing, Attn: Business Affairs, 2700 Colorado Avenue, Suite 200, Santa Monica, California 90404.

8.2 This Agreement contains the entire agreement between you and Lionsgate and does not confer any right, benefit or claim upon others not parties to the Lions Gate Submission Agreement. It may not be modified except in writing signed by authorized representatives of the parties. The Lions Gate Submission Agreement supersedes any other agreements, representations or understandings between the parties. If there is any inconsistency between this Lions Gate Submission Agreement and the Rules, this Lions Gate Submission Agreement shall control.

8.3 If any provision of the Lions Gate Submission Agreement is held invalid or unenforceable for any reason, the rest of the Lions Gate Submission Agreement shall remain in full force and effect, and the parties’ intention shall be interpreted consistent with the full Lions Gate Submission Agreement. The failure by Lionsgate to exercise any right or provision in this Lions Gate Submission Agreement shall not constitute a waiver of such right or provision.

8.4 You represent that you have carefully read and understand this Agreement and that you have had the opportunity, before entering into it, should you so choose, to seek the advice of counsel.

8.5 The Lions Gate Submission Agreement and the relationship between the parties shall be governed by California law, without regard to conflict of law provisions, and you hereby submit to personal jurisdiction in the federal and state courts of Los Angeles County.