This Material Submission Agreement (“Agreement”) is effective immediately (“Effective Date”) between the Metro Gold Foothill Extension Construction Authority (“Authority”) and Artist.
1. Artist. The person or entity submitting the Materials as described on the form submitted to the Authority.
2. Material(s). The Materials are those materials described on the form submitted to the Authority (“Material(s)”).
3. Purpose and Rights.
a. Artist submits the Material(s) for consideration, review, analysis, public display or distribution (for comment or promotion) or other evaluation (“Evaluation”) by Authority. Artist acknowledges and accepts that the Material(s) may be viewable and accessible on a website or other public forum and the results of Authority’s Evaluation may or may not result in any further activity, contract or communication to Artist of any kind.
b. Artist hereby grants a non-exclusive, transferable, fully paid-up right and license to Authority to use, execute, perform, distribute, reproduce, adapt and display the Material(s) (the “Rights”) for the purposes of Authority’s Evaluation.
c. Confidentiality. Artist acknowledges and agrees that all information and Material(s) received by Authority from Artist will not be confidential and that Authority is subject to state laws which may require the disclosure of all such information and Material(s), including, without limitation, (i) the California Public Records Act (California Government Code §6250, et seq.) (the “Public Records Act”), which provides generally that all records relating to a public agency’s business are open to public inspection and copying unless otherwise exempted under the Public Records Act, and (ii) the Ralph M. Brown Act (California Government Code §54950, et seq.), which provides generally for open meetings for local legislative bodies.
4. Term and Termination.
This Agreement will commence on the Effective Date and terminate upon the earlier of:
a. Completion of Evaluation of Material(s) by Authority;
b. Notice of Termination by either Authority or Artist to the other, such Notice to be delivered thirty (30) days in advance of the effective date of such termination; or
c. One (1) year following the Effective Date.
d. Effect of Termination. Within 30 days following termination under this Section, Artist may request, at Artist’s sole expense, the delivery of any Material(s) in any form be delivered by Authority to Artist. If no request by Artist is received by Authority within 30 days following termination under this Section, Authority will destroy, in its sole discretion, the Material(s).
5. Representations and Warranties. Artist represents and warrants:
a. Artist has the full legal authority to enter into this Agreement, grant all Rights to Authority herein, and that this Agreement will not breach or violate any contract or obligation, or infringe any rights, including Intellectual Property rights of any person or entity. “Intellectual Property” means all current and future legal and/or equitable rights and interests in know-how, patents (including applications), copyrights (including moral rights), trademarks (registered and unregistered), service marks, trade secrets, designs (registered and unregistered), utility models, circuit layouts, business and domain names, inventions, solutions embodied in technology, and other intellectual activity, and applications of or for any of the foregoing, subsisting in or relating to the Material(s). Without limiting the generality of the forgoing, Intellectual Property includes original architectural design in any tangible medium of expression, including a constructed building or structure, or architectural plans, models, or drawings.
b. The Material(s) alone and as hereby delivered to the Authority do not infringe or misappropriate the rights, including Intellectual Property rights, of any person or entity. Without limiting the generality of the foregoing, the Material(s) does not include the depiction or likeness of any individual from whom Artist does not have sufficient consent to (1) incorporate into the Material(s) and (2) submit the Material(s) to Authority under this Agreement.
a. General Indemnification. To the fullest extent permitted by law, Artist will indemnify, defend and hold harmless Authority and any and all of its members, officers, employees, agents, attorneys, representatives, consultants, volunteers, successors and assigns (“Indemnified Parties”) from and against all any and all claims, charges, damages, demands, actions, proceedings, losses, costs, expenses, whether actual, alleged or threatened, actual attorney’s fees, court costs, and accountant’s fees, judgments, civil fines and penalties, and liabilities of any kind or nature whatsoever (“Claims”) arising out of or in any way connected with, in whole or in part, the acts or omissions of Artist, its officers, agents, employees or subcontractors (or any entity or individual that Artist will bear the legal liability thereof) in the performance of this Agreement, including but not limited to, claims, suits and liabilities for bodily injury, death or property damage to any individual or entity, including employees or officials of Artist. The provisions of this paragraph will not apply to claims arising out of the sole negligence or willful misconduct of the Indemnified Parties.
b. Intellectual Property Indemnification. Artist agrees to indemnify, defend, and hold harmless Indemnified Parties from and against any and all Claims which may be suffered by, incurred by, accrued against, charged to, or recoverable by a third party from any Indemnified Party, by reason of any such Claim arising out of or relating to any actual or alleged infringement of any Intellectual Property rights by (i) the Material(s) or (ii) any exercise of Rights by Authority.
c. This obligation to indemnify, defend and hold harmless the Indemnified Parties is binding on the successors, assigns or heirs of Artist and will survive the termination or expiration of this Agreement. This obligation to indemnify, defend and hold harmless is in addition to any other rights or remedies that the Indemnified Parties may have under the law. Failure of Authority to monitor compliance with these requirements imposes no additional obligations on Authority and will in no way act as a waiver of any rights hereunder.
d. Artist, on behalf of itself and its heirs, executors, administrators and assigns, hereby releases, discharges and agrees not to sue Authority, its agents, officers, servants and employees, for any injury, death or damage to or loss of personal property arising out of, or in connection with Artist’s performance of services pursuant to this Agreement, from whatever cause, including the active or passive negligence of Authority.
a. This Agreement will be interpreted, construed and enforced in accordance with the domestic laws of the State of California. Venue shall be Los Angeles County, California.
b. This Agreement represents the entire and integrated agreement between Artist and Authority and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by a written instrument signed by Artist and Authority. Amendments must be signed by the CEO or the Chairman of the Authority Board on behalf of the Authority.
c. In the event any provision, section or subsection of this Agreement is declared or determined to unlawful, invalid, or unconstitutional, such declaration will not affect, in any manner, the legality of the remaining provisions, sections and subsections of this Agreement.
d. Sections 3, 5, 6, and 7 will survive the expiration or termination of this Agreement.