Be prepared to be disgusted and embarrassed for the companies involved in this contest, which it too bad because they took a really cool concept and got so over-the-top greedy that it is ruined.
This morning I saw a mention of Wilson Golf’s new Driver vs. Driver contest, which “may” become a show on The Golf Channel. Pretty cool concept, I thought. A couple of clicks later I am on the contest website and it appears a contestant is going to win $500,000*, but wait, why is there a big asterisk beside the number? The first first red flag is waiving. I scratched my chin and thought “boy, the contest’s Terms and Conditions should make for some fun reading.” The T&C’s are available via hyperlink at the bottom of the application page. Hours later I have completed this public service announcement.
I have cut-and-pasted the Terms and Conditions below, and have highlighted some of the most egregious aspects, which should get your attention (i.e. red flags). Make sure to scroll to the end of the post to read a few very real scenarios illustrating how a successful contestant may come out a big loser.
Sorry about the horrible formatting, I can’t waste anymore time fighting with WordPress and tables.
Observations / Comments
(NOT LEGAL ADVICE)
|IMPORTANT NOTE: SECTION 19 CONTAINS A BINDING ARBITRATION CLAUSE THAT MAY AFFECT YOUR RIGHTS CONCERNING ANY DISPUTE BETWEEN YOU AND THE PRODUCERS. BY ACCEPTING THESE TERMS, YOU ARE BOUND BY THIS PROVISION.|
|Wilson Sporting Goods Co. located at 8750 W. Bryn Mawr Ave., Chicago, IL 60631 (“Wilson”) and TGC, LLC located at 7580 Golf Channel Drive, Orlando, FL 32819 (“Golf Channel”) (collectively, “Producers”, “We” or “Us”) intend to produce a program tentatively entitled, “Driver vs. Driver”, and certain related, ancillary and derivative programming, including the advertising and promotion thereof (collectively, the “Program(s)”) involving a competition to design and engineer a superior golf driver (“Competition”). The Driver vs. Driver website http://www.wilson.com/drivervsdriver (the “Site”) is created and controlled by Pollinate, Inc. located at 315 SW 11th Ave Suite 200, Portland, OR 97205 (“Administrator”).|
|1. WHO CAN ENTER: Individuals who are 18 years old or older at the time of entry may submit an entry to the Competition. You must be legally eligible to live in the United States and work in the United States on the Program, or you are in the process of attempting to obtain lawful authorization so that you will be eligible to live in the United States and work in the United States on the Program by the time pre-production begins on or around August 15, 2015. Employees of or consultants to Wilson or Golf Channel or any competitor of Wilson engaged in the design, manufacture, sale or distribution of sporting goods products, including, without limitation, golf clubs, and any of their respective related companies, parents, subsidiaries, affiliates, and agents and any agencies or other companies involved in the development or execution of the Competition or production of the Program(s), as well as the immediate family (spouse, parents, siblings, and children) and household members of each such employee are not eligible. You acknowledge your understanding that many will enter the Competition but few will be selected or become Contestants (defined below). By submitting an entry, you hereby agree and notify us that you wish to compete in the Competition as a Contestant, and are submitting your entry in the Competition in accordance with these Terms. You consent to the storage, display, downloading, copying, reviewing, distribution, broadcast, review, and coverage of your entry by the Producers and Administrator. In addition, you will perform all necessary additional steps that may be required for your further participation in the Competition should you be selected to participate as a Contestant in the Competition. The submission of your entry and the Producers’ evaluation thereof is void where prohibited by law.||
“All necessary additional steps that may be required…” Really!
|2. HOW TO ENTER:|
|(a) During the Entry Period (defined below), enter the Competition by logging on to the Driver vs. Driver entry page at the Site, following the provided instructions to complete the required entry questionnaire and upload or provide URLs to the following entry materials: (i) a video introducing yourself and your driver concept, (ii) any additional materials, including images, sketches, drawings, CAD files or patents that help illustrate your driver concept. The concept featured in your entry shall be referred to herein as the “Concept.” The video clip shall be referred to herein as the “Video”. The “Entry” shall include your entry form and questionnaire (“Entry Form”), the Video, the Concept and any additional materials provided with your Entry. Your Entry must be in English.|
|(b) As a condition of your Entry into the Competition, you acknowledge and agree that(i) Wilson, the Golf Channel and other entrants and members of the general public have access to and/or may create materials, ideas and concepts which may be similar or identical to your Entry;(ii) you will not be entitled to any compensation or other consideration as a result of your Entry, except as otherwise provided for herein;(iii) Producers’ or other entrants’ use of materials containing elements similar to or identical with those contained in your Entry Materials shall not obligate Producers to negotiate with you nor entitle you to any compensation or other claim; and,(iv) Producers are free to disclose or otherwise make available your Entry on a non-confidential basis to anyone; and(v) your Entry and/or participation in the Competition shall not create any express or implied agreement or obligation that would in any way limit or preclude the Producers or their affiliates from developing, having developed, creating, acquiring, using, licensing, distributing or otherwise exploiting products, content or services (provided that such products, content or services do not violate your patent rights) that are similar or identical to your Entry, or otherwise place the Producers or their affiliates in any different position from any other member of the public with respect to your entry.||
An explicit acknowledgment on Applicant’s part that if your design isn’t protected, anyone can copy it (the public, Producers, affiliates).
|(c) By submitting an Entry, you warrant and represent that: (i) you have all rights, including, without limitation, patent rights, rights of copyright, trademark and other Intellectual Property rights to the Entry, including, the Concept and the Video; (ii) the Video has not been previously published,(iii) the Concept has not won previous awards,(iv) in accordance with these Terms, if you are selected to be a Contestant on the Program(s), there are no contractual or other obligations (including obligations associated with your employment) that would prevent you from entering into this agreement with Producers regarding your participation in the Program(s) and/or assigning all rights in and to your Entry to Wilson as provided in Section 10 below and the sale of a product inspired by your Concept;(v) your Entry does not infringe upon the patents, trademarks, copyrights, trade secrets, rights of privacy, publicity or other Intellectual Property or other rights of any person or entity; (vi) Concepts contained in the Entry comply with all then current rules and guidelines of “The Rules of Golf” with respect to Clubs and Balls, as published by the United States Golf Association, and located at http://usga.org/Rule-Books/Rules-on-Clubs-and-Balls/Equipment-Rules/, and(vii) your Entry otherwise complies with these Terms. “Intellectual Property” shall include but not be limited to: any rights in any invention, patent, patent application, discovery, improvement, know-how, utility model, trademark, copyright, industrial design, trade secret and all rights relating to software.||
|(d) By submitting an Entry, you agree to grant to the Producers and their agents, partners and affiliates a non-exclusive, royalty-free, irrevocable, perpetual, worldwide license to use your Concept in connection with the Competition and/or Program(s) in any form, media or technology now known or later developed, including promotion and marketing of the Competition or Program(s), and for their internal evaluation purposes.|
|You will indemnify and hold Released Parties (as defined below) harmless from and against any and all claims and any demands, actions, causes of action, damages, costs or expenses brought against or suffered or incurred by the Released Parties arising out of or in connection with your participation in the Competition or the Program(s) or the use, in whole or in part by any Released Party of your Entry (or portion thereof) submitted by you in this Competition.|
Video Guidelines and Restrictions:
By submitting a Video in the Competition, you hereby warrant and represent that your Video conforms to the Video Guidelines and Requirements set forth herein.
|Producers reserve the right to waive any of the Competition entry requirements set forth herein in their reasonable discretion. The Producers reserve the right, in their sole discretion, during or upon completion of the Entry Period, to request that any entrant resubmit his or her Video which fails to comply with the Competition entry requirements.|
|By submitting a Video you warrant and represent that it: (a) it is original to you and that you have all necessary rights (including without limitation, a full transfer of all rights of the videographer, if applicable) in and to the Video to enter the Competition, (b) has not been previously published, (c) has not won previous awards, (d) does not infringe upon the patents, copyrights, trademarks, trade secrets, rights of privacy, publicity or other intellectual property or other rights of any person or entity, (e) that you have obtained verifiable written consent from any person whose name or likeness is used in the Video, (f) and that publication of the Video via various media including Web posting, will not infringe on the rights of any third party. You will indemnify and hold harmless, the Released Parties (as defined below) from any claims to the contrary. Any entrant whose Video includes likenesses of third parties or contains elements not owned by the entrant (such as, but not limited to, performance of music, depictions of persons, trademarks or logos) must provide legal releases for such use including Producers’ use of such Video, in a form satisfactory to the Producers, upon request, prior to selection of entrant as a potential winner.||Written consent; something most Entrant’s will not do.|
|Uploading your Video constitutes entrant’s consent to give the Producers a royalty-free, irrevocable, perpetual, non-exclusive license to use, reproduce, modify, publish, create derivative works from, distribute, broadcast and/or display your Video in whole or in part, on a worldwide basis, and to incorporate it into other works, in any form, media or technology now known or later developed, including for promotional or marketing purposes. If necessary, entrant will sign any necessary documentation that may be required for the Producers or their designees to make use of the non-exclusive rights entrant is granting in the Video. The Producers are not responsible for lost, late, incomplete, invalid, unintelligible or misdirected Videos, which are disqualified.|
|3. COLLABORATIVE WORK: Collaborative works are works created by more than one individual. Collaborative works authored by up to four (4) collaborators are eligible as an Entry, but the name(s) of each individual collaborating on the Entry must be listed on the Entry Form and each collaborator must submit an Entry, and agree to be bound by the terms of this Agreement. All references to “you” and “your” and “Contestant” (if applicable, as defined below) in this Agreement shall mean and include all such individuals. The listed entrants for a particular Entry are solely responsible for getting all required consents and permissions in writing from all those involved in the creation of the collaborative work as well as the appropriate distribution of the competition prize(s), if any, to all of the collaborators on the Entry (and you agree to indemnify the Released Parties for any such claims and/or payments as described elsewhere in this Agreement). The Producers reserve the right to require in their sole discretion that two (2) to four (4) individual entrants assemble as a single collaborative Entry as a condition for such individuals to be considered as Contestants. Should the winning team be comprised of more than one member, the team members will share the prize equally.||
|4. ENTRY FEE: Submission in the Competition is FREE.|
|5. QUANTITY OF ENTRY SUBMISSIONS: Multiple entries are permissible, but you must accompany each entry with an Entry Form.|
|6. ENTRY AVAILABILITY: Your Entry must be available—meaning that the Entry must not have been produced, sold or optioned prior to or at the time of its submission. You may not provide your Entry to any other person, entity or competition (including, without limitation, any sporting goods manufacturer, television network, producer, or agent), during the Entry Period as may be extended under this Agreement.|
|7. ENTRY PERIOD: begins on July 13, 2015 at 12:01 a.m. (CDT) and ends on August 15, 2015 at 11:59 p.m. (CDT); provided, the Producers reserve the right to extend the Entry Period in their discretion.|
|8. JUDGING: The evaluation of your Entry is not a random contest or lottery but is rather a skill-based, technical and aesthetic evaluation and selection. Entries may be judged by any of the following: engineers, marketing executives, retail executives, professional athletes, producers, television executives, television personalities, managers, agents, freelance reality personnel, lawyers, professors or other yet to be named individuals to be determined in Producers’ sole discretion. The results of the judging of all Entries shall be final and you agree to be bound without reservation by any decision rendered by the judges.|
|9. JUDGING PERIOD: The judging of all Entries will occur during the Entry Period and for an additional period of up to ninety (90) days after the conclusion of the Entry Period; provided, the Producers reserve the right to decrease or extend the Judging Period in their sole discretion.|
|(a) The Producers intend to contact and select up to twenty (20) contestants to compete in the Competition and appear on the Program(s) (each, a “Contestant”; collectively, “Contestants”); however there is no obligation for the Producers to use your Entry or those of others; and no guarantee that the Producers will actually be able to select such number of Contestants. For the avoidance of doubt, if any Entry including a collaborative work is selected, the term “Contestant”, while singular, shall refer to the up to four (4) individuals that submitted such Entry. Thus, while the Producers intend to select up to twenty (20) Contestants, up to eighty (80) individuals may compete in the Competition and appear on the Program. The Producers reserve the right to conduct an additional “run-off” competition in the event that they determine, in their sole discretion, that such a run-off is necessary in its selection of the Contestants. Each Contestant will be required to (i) travel, at Producers’ expense, to an undetermined location, for an undetermined amount of time in order to participate in the Competition and Program(s), (ii) sign a Participant Agreement and such other written agreements as may be determined by the Producers, and (iii) submit to such criminal and other background checks as determined by the Producers to safeguard the integrity of the Competition and the Program(s) as conditions precedent of your participation as a Contestant in the Competition and appearing on the Program(s).|
|(b) If the Producers determine that you are one of the Contestants, then for One Hundred Dollars ($100.00 USD) payable by Wilson, the receipt and sufficiency of which you acknowledge, you will sell, assign and transfer to Wilson, its successors and assigns, the full and exclusive right, title and interest in and to:(i) the Entry, including without limitation the Concept and the Video and all of the Intellectual Property rights thereto;(ii) all applications relating to the Concept for Letters Patent of the United States and countries foreign thereto;(iii) all Letters Patents which may issue from said applications in the United States and countries foreign thereto;(iv) all divisions, continuations, continuations-in-part, reissues, certificates and patent term extensions of said applications and Letters Patents;(v) the right to claim for any of said applications the full benefits and priority rights under the International Convention and any other international agreement to which the United States adheres; such right, title, and interest to be held and enjoyed by Wilson, its successors and assigns, to the full end of the term or terms for which any and all such Letters Patent may be granted as fully and entirely as would have been held and enjoyed by you had this Assignment not been made; and(vi) all rights of every kind and nature, throughout the universe, in perpetuity, in all media, whether now known or hereafter devised in and to the Video and all derivative works thereof, together with all rights in copyright (and any renewals or extensions thereof) including, without limitation, all television, motion picture, ancillary and subsidiary rights in and to the Video.|| Kapow!! Let this sink in. If you are selected as a contestant, and we assume that you aren’t the winner, then for the whopping total of one-hundred smackeroos you sell your design and all your IP to Wilson! Hell of a deal.Let’s say you have invested $10k in a patent application, if you are selected as a Contestant then you just sold everything for $100.YOU WOULD HAVE TO BE AN IDIOT TO PARTICIPATE IN THIS “CONTEST.”
|(c) Work-For-Hire. Any services that you render or work product you produce under this Agreement in connection with the Producers’ or your development of your Entry or Concept as part of the Competition, if any, are (i) being performed under a special commission,(ii) the exclusive property of Wilson, (iii) intended to be for the sole benefit of Wilson, and(iv) “specifically ordered or commissioned work” and “work-made-for-hire” under the United States Copyright Act. To the extent that any such item does not so qualify as a “specifically ordered or commissioned work” and a “work-made-for-hire” under the United States Copyright Act, you irrevocably assign and transfer to Wilson all of your right, title and interest (including all Intellectual Property rights) therein, and any associated rights of renewal and all reversionary interests thereof, in and to such work product or services.|
|(d) Documents. Upon Wilson’s request you will sign and deliver such additional documents consistent with the terms of this Agreement, as Wilson may deem necessary to show and effectuate Wilson’s rights under this Agreement. If within 5 business days after receiving Wilson’s request you fail to deliver such documents, you hereby grant to Wilson the right, as your attorney-in-fact, which right will be irrevocable and coupled-with-an-interest, to execute, acknowledge, deliver, and record in the United States Patent and Trademark Office, the United States Copyright Office or elsewhere any and all such documents. Without limiting the generality of the foregoing, you agree to execute a hard copy of this Agreement as a condition precedent to your selection as a Contestant in the Competition.|
|11. AWARDS: Competition Winner.If (a) you are specifically selected as the Grand Prize Winner of the Competition by the Producers during the Program(s),(b) the Program(s) are subsequently produced and exhibited on the Golf Channel,(c) Wilson elects to market a golf driver based on your Concept,and (d) provided, that you are not in breach of this Agreement, then(i) your team shall be entitled to an amount of Five Hundred Thousand dollars ($500,000 USD) payable, if ever, upon such initial US network telecast of the Program(s) and
(ii) you will be named a “Wilson Advisory Staff Member” as defined by Wilson.
For the avoidance of doubt, the total monetary portion of the Grand Prize to be awarded, if any, shall not exceed $500,000 regardless of the number of collaborators in the team which is selected as the Grand Prize Winner. In the event a team consisting of more than one collaborator is selected as the Grand Prize Winner, then such collaborators shall divide the $500,000 equally and each shall be named a “Wilson Advisory Staff Member”.
If (a), (b), (c), AND (d) occur, THEN the team is entitled to $500k IF the show ever airs on a US network telecast. In other words, the stars must align perfectly for 10 days in a row for the winner to have a shot of actually collecting $500k.Let’s say you win and Wilson doesn’t use your design; seems like you get $100 in exchange for selling all your intellectual property to them.Let’s say you win and Wilson uses your design to achieve great commercial success, but the show never airs; seems like you get $100 in exchange for selling all your intellectual property to them.
|12. FULL COMPENSATION: This Agreement establishes the total compensation and consideration to which you are entitled from the Producers regarding its subject matter. You acknowledge that it includes full and adequate consideration for any rights to which you may become entitled.|
|13. TAXES: You are solely responsible for all applicable federal, state, provincial, and local taxes arising from any fees or compensation you receive as a result of the submission of your Entry. The Producers shall also have the right to make any withholdings required by law.|
|14. NO OBLIGATION TO PROCEED: Nothing contained in this Agreement will in any way obligate the Producers to either (i) produce, release, distribute, exhibit or otherwise exploit or make any use of the Entry or (ii) conduct, host, or perform the Competition (which may be canceled by the Producers or any one of them for any time and for any reason); or (iii) produce, release, broadcast or distribute the Program(s). Producers shall be deemed to have fully satisfied their obligations under this Agreement by paying you the compensation, if any, that may become due and payable under Section 10(b) of this Agreement, unless the Competition is completed, the Program is exhibited on Golf Channel’s cable or digital platforms and you are the sole Grand Prize Winner. You understand that the Producers may cancel the Competition, or that the Producers may never exhibit the Program on a cable or digital platform, at the Producers sole discretion. You agree to waive and release any claim against the Producers and any other persons working with the Producers regarding the decision by the Producers, or either one of them, to cancel the Competition or the Program.|
|15. PUBLICITY, PROMOTION, RIGHT TO USE YOUR NAME, LICENSE TO PRODUCERS: You hereby grant to the Producers a worldwide, exclusive, royalty-free license to use your Entry, including, without limitation, the right to review, evaluate and judge your Entry, in accordance with the terms of this Agreement and any other written agreements you sign in connection with the Competition, including, without limitation the Participant Agreement, if any (collectively, the “Other Agreements”). Without limiting the foregoing, you hereby grant the Producers the perpetual right to do any of the following with respect to your Video in any and all media now known or hereafter devised, all without any payment to you or to any other person or entity: encode, digitize and store your Video; reproduce, distribute, publish, publicly perform, and/or display, digitally perform and/or distribute, transmit, and broadcast your Video; add to, subtract from, change, revise, rearrange or otherwise edit your Video; secure any permission or clearances necessary to publicly display the Video; use your Video, or parts of your Video, in perpetuity for the purpose of publicizing, advertising or otherwise promoting the Competition, the Program(s), the Site, Wilson, Golf Channel and/or the any television program or series based on the Competition, the Program(s) and/or Wilson and/or Golf Channel; and provided that you are selected as one of the Contestant of the Competition, create derivative works of your Video pursuant to and in accordance with a separate Participant Agreement. You also grant the Producers the right to use your name and likeness (as well as the right to grant to others the right use your name and likeness) voice, biographical material, User Name, and/or any other indicia of your persona for purposes of publicizing, advertising or otherwise promoting the Competition, the Program(s), the Site, Wilson, Golf Channel and/or any television program or series based on the Competition, the Program(s) and/or Wilson and/or Golf Channel in any manner in connection with the Entry, the Competition, the business operations of the Producers for advertising or promotional purposes without any payment to you or to any other person or entity. You will not furnish or authorize any advertising matter or publicity of any form relating to the Entry, or the development thereof or Wilson or Golf Channel, without the Producer’s prior written approval in each case. You also grant Producers the right to contact you via email to provide you with competition updates.|
|(a) Obligations. You understand and agree that all publicity in connection with the Program(s) is under the sole control of Producers and their licensees. Except as otherwise authorized in advance in writing by Producers, You will not yourself, or authorize others to, use or disclose to any party any confidential information or trade secrets obtained or learned as a result of your entry in the Competition or participation in the Program(s) if applicable, including, but not limited to, any information or materials concerning or relating to the business of Producers or their licensees, Program(s), the Program participants, the location(s) of the Program(s), the events contained in the Program(s) or the outcome of any event in the Program(s) and any other confidential and/or proprietary information relating to the Program(s) and/or of Producers or their assignees or licensees (collectively, the “Confidential Information”). You agree that you shall never make use of any “Social Media” (e.g., Facebook, Twitter, Flickr, YouTube, Tumblr, Instagram, Google+, LinkedIn, blog, or similar Internet source), in connection with your entry in the Competition or participation in the Program(s) without Producers’ prior written approval in each instance. You acknowledge and agree that the Confidential Information is confidential and the exclusive property of Producers and their licensees. You shall have no right to use the name, logo, or other marks related to the Producers and/or their licensees without Producer’s prior written approval in each instance. Your obligations with respect to confidentiality as set forth in this paragraph shall continue in perpetuity or until terminated by Producers in writing. The covenants made by you herein shall extend to all of your employees, agents and independent contractors, who shall be bound by the terms of this Agreement as if they directly entered into this Agreement with Producers. You shall only disclose Confidential Information to your employer, employees, agents, and independent contractors on a “need-to-know basis” and you shall notify such individual(s) of the confidentiality obligations set forth herein.|
|(b) Remedies. You agree that any breach or violation by you of any of the terms or provisions of this Agreement with respect to confidentiality, shall result in substantial damages and injury to Producers, the precise amount of which would be extremely difficult or impracticable to be determined. Accordingly, the parties have made a reasonable endeavor to estimate a fair compensation for potential losses and damages to Producers and, therefore, further agree that you will pay to Producers the sum of Five Hundred Thousand Dollars ($500,000) as a reasonable and fair amount of liquidated damages to compensate Producers for any loss or damage resulting from each breach by you of the terms hereof with respect to confidentiality. The parties hereto further agree that such sum bears a reasonable and proximate relationship to the actual damages which Producers will suffer. You further acknowledge and agree that any breach or threatened breach of this Agreement due to the unauthorized Disclosure or threatened Disclosure by You to Third Parties of any Confidential Information will cause irreparable harm to Producers and shall entitle Producers to obtain (without posting any bond), an ex parte restraining order, preliminary injunction and permanent injunction preventing the Disclosure, or any further Disclosure, of any Confidential Information.|
|17. LIMITATION OF LIABILITY, WAIVER: The Administrator and the Producers are not responsible for (i) lost, late, delayed, misdirected, unintelligible, or incomplete entries; (ii) telephone, electronic, hardware or software program, network, Internet or computer malfunctions, failures, or difficulties; (iii) errors in transmission; (iv) any condition caused by events beyond the control of the Producers that may affect the Entries; (v) any typographical errors in these Terms or the advertising and promotion of the Competition or the Program(s); any human error which may occur in the processing of the Entry or the selection of the Contestants, or which may limit any entrant’s ability to participate in this process. If the Competition becomes compromised, hampered, interrupted, not capable of running as planned, or rendered impossible of performance in any way, the Producers reserve the right, in their sole discretion to cancel, suspend or withdraw the Competition, or to amend these Terms without notice, and, if possible, select Contestants based on Entries which submitted prior to or after the cancellation, suspension, reschedule or withdrawal. Each entrant will not knowingly damage or cause interruption to the Competition and/or prevent others from participating in the process. CAUTION: ANY ATTEMPT TO DAMAGE OR UNDERMINE THE LEGITIMATE OPERATION OF THE COMPETITION HEREUNDER VIOLATES CRIMINAL OR CIVIL LAWS. IF SUCH AN ATTEMPT IS MADE, SPONSOR MAY DISQUALIFY ANY ENTRANT MAKING SUCH ATTEMPT AND SPONSOR MAY SEEK DAMAGES TO THE FULLEST EXTENT PERMITTED BY LAW. You hereby agree that your Entry is not subject to any obligation, whether of confidentiality, attribution, or otherwise, on the Producers’ part and the Producers shall not be liable for any use or disclosure of any Entry. You hereby waive any and all rights that you may have concerning “moral rights” or “droit moral” in connection with your or your Entry. You hereby release and waive any and all claims with regard to, and hold the Producers harmless from and against any and all claims of any kind that are or could be asserted with respect to any use, license, sublicense, assignment, reproduction, distribution, creation of derivative works based on, public performances, public display, digital performances, sales, offers, and other uses of any kind of such Entry. Further, you hereby recognize that Wilson, its employees, representatives and affiliates engage in extensive activities in creating, acquiring, and developing ideas, concepts, designs, patents, know-how, and other intellectual property related to the manufacture, marketing and sale of golf clubs, including drivers (collectively, “Other Projects”). You recognize and acknowledge that Wilson and other entrants, may develop a similar idea to your Entry or may have access to, and/or, may have created, or have commissioned, through some other independent source, or may have otherwise acquired, ideas and concepts, similar to your Entry. You agree that you will not, under such circumstances, be entitled to any compensation, or consideration of any kind, through the use by Wilson of any material so acquired. You also recognize that other persons, including Wilson’s employees, representatives and agents, may have submitted to Wilson, or may hereafter originate, submit or make public material and/or ideas that may be competitive with, similar or identical to your Entry. You acknowledge and agree that you will not be entitled to any compensation as a result of the use by Wilson or its employees, representatives or agents, of any such similar or identical material that has or may come to us from other sources. By sending us your Entry, and in order to participate in the Competition and use the Site, you hereby agree that (a) your Entry is entered voluntarily and is not in confidence; (b) apart from this Agreement and any Other Agreements that may be entered into there is no agreement between us, express or implied, relating to the Producers’ use of the Entry; and (c) you will not assert against Wilson or its assigns or licensees, any claim based on plagiarism, infringement, confidential or fiduciary relationship, implied contract, unfair competition, misappropriation, unjust enrichment, or otherwise arising out of any alleged use of the Entry. If, notwithstanding the foregoing release, you attempt to claim that we have used your Entry, or any portion thereof, without consent or authorization, you specifically agree and understand that any such dispute shall be subject to arbitration as set forth in this Agreement.||
|18. WARRANTIES AND INDEMNITIES: Notwithstanding other warranties and representations you make elsewhere in this Agreement, you represent warrant and agree that your Entry complies with all of the Entry requirements as set forth in this Agreement; you have the right and power to enter into and fully perform this Agreement and to grant all rights granted to Wilson and/or Golf Channel in this Agreement; and that you have not granted, assigned, conveyed or otherwise encumbered, and will not grant, assign, convey or otherwise encumber, any of the rights granted to Wilson or Golf Channel in this Agreement; that your Entry is original; that it is not based on any other work or anything written or conceived by anyone else and that neither the Entry, your Intellectual Property rights therein, nor any documents, materials or information that you furnish to the Producers under this Agreement will violate any patent rights, right of privacy of, constitute defamation against, or violate any copyright or trademark right of any person, firm or entity; and your Entry does not and will not violate any applicable laws and is not defamatory, libelous, pornographic, or obscene. You indemnify and hold Wilson, Golf Channel, Administrator and each of their respective employees, representatives, agents, consultants, affiliates, subsidiaries, parents, licensees, vendors or customers (collectively, “Released Parties”) harmless from and against any and all claims, damages, liabilities, costs and expenses, including but not limited to reasonable outside attorney’s fees and costs, arising out of or in connection with any material furnished by you or any breach of any of your representations and/or warranties made in this Agreement.|
|19. DISPUTE RESOLUTION: WHERE A CONTROVERSY, DISPUTE OR CLAIM ARISES BETWEEN YOU, ON THE ONE HAND, AND ONE OR MORE OF THE RELEASED PARTIES, ON THE OTHER HAND, IN CONNECTION WITH YOUR PARTICIPATION IN THE PROGRAM OR THE COMPETITION (INCLUDING, WITHOUT LIMITATION, THE SCOPE OR APPLICABILITY OF THIS AGREEMENT TO MEDIATE AND ARBITRATE) (EACH A “DISPUTE”) THAT CANNOT BE RESOLVED THROUGH DIRECT COMMUNICATIONS BETWEEN THE PARTIES TO SUCH DISPUTE, THEN SUBJECT TO THE REMAINDER OF THIS PARAGRAPH, SUCH DISPUTE SHALL BE RESOLVED BY WAY OF CONFIDENTIAL MEDIATION AND/OR ARBITRATION PURSUANT TO THE PROCEDURES OF JAMS AND ADMINISTERED BY JAMS OR ITS SUCCESSOR (“JAMS”) IN ACCORDANCE WITH THE COMPREHENSIVE RULES AND PROCEDURES, INCLUDING THE OPTIONAL APPEAL PROCEDURE, OF JAMS OR ANY SUBSEQUENT VERSIONS OF THE FOREGOING (COLLECTIVELY, “JAMS RULES”), INCLUDING, WITHOUT LIMITATION THE RULES PROVIDING FOR LIMITED DISCOVERY AND OTHER EXCHANGE OF INFORMATION AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE RULE PROVIDING THAT EACH PARTY SHALL PAY PRO RATA ITS SHARE OF JAMS FEES AND EXPENSES, AS EACH OF THE FOREGOING ARE MODIFIED BY THIS AGREEMENT. THE JAMS RULES ARE AVAILABLE AT WWW.JAMSADR.COM, AND A FURTHER COPY OF THE JAMS RULES SHALL BE PROVIDED TO YOU BY PRODUCER UPON REQUEST. THE PARTIES TO ANY DISPUTE SHALL FIRST ENDEAVOR TO RESOLVE EACH DISPUTE THROUGH MEDIATION ADMINISTERED BY JAMS BEFORE COMMENCING ANY ARBITRATION. MEDIATION AND ARBITRATION SHALL BE CONDUCTED IN COOK COUNTY, ILLINOIS. THE JAMS RULES FOR SELECTION OF MEDIATORS AND ARBITRATORS SHALL BE FOLLOWED, EXCEPT THAT THE MEDIATOR OR ARBITRATOR SHALL BE (i) AN EXPERIENCED MEDIATOR OR ARBITRATOR (AS APPLICABLE), WHO IS EXPERIENCED IN THE ENTERTAINMENT INDUSTRY, AND LICENSED TO PRACTICE LAW IN ILLINOIS, OR (ii) A RETIRED JUDGE. ANY APPELLATE PANEL SHALL CONSIST OF THREE NEUTRAL MEMBERS WHICH MEET THE FOREGOING REQUIREMENTS.|
|UPON THE CONCLUSION OF ANY ARBITRATION PROCEEDINGS, THE ARBITRATOR SHALL RENDER FINDINGS OF FACT AND CONCLUSIONS OF LAW AND A WRITTEN OPINION SETTING FORTH THE BASIS AND REASONS FOR ANY DECISION REACHED AND SHALL DELIVER SUCH DOCUMENTS TO EACH PARTY TO THE DISPUTE ALONG WITH A SIGNED COPY OF THE AWARD PERSONALLY OR BY REGISTERED OR CERTIFIED MAIL. ANY ARBITRATION AWARD WITH RESPECT TO A DISPUTE SHALL BE FINAL AND BINDING UPON THE PARTIES TO SUCH DISPUTE.|
|THE PARTIES AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SUBJECT TO THE REMAINDER OF THIS PARAGRAPH, THE DAMAGES RECOVERABLE BY THE PARTIES TO ANY DISPUTE SHALL BE LIMITED TO ACTUAL DAMAGES, AND SUCH PARTIES WAIVE THE RIGHT TO SEEK, AND SHALL IN NO EVENT BE LIABLE FOR, PUNITIVE OR EXEMPLARY DAMAGES. THE ARBITRATOR SHALL NOT HAVE THE AUTHORITY TO GRANT ANY REMEDIES THE PARTIES TO ANY DISPUTE HAVE WAIVED HEREIN. FURTHER, YOU AGREE THAT GIVEN THE UNIQUE NATURE OF THE ENTERTAINMENT INDUSTRY, AND THE IRREPARABLE DAMAGE TO PRODUCER, NETWORK AND THEIR LICENSEES THAT WOULD RESULT FROM DELAYING OR PREVENTING THE EXHIBITION OF ANY PROGRAM PRODUCED HEREUNDER, YOU MAY NOT SEEK OR OBTAIN ANY INJUNCTIVE RELIEF THAT WOULD PREVENT ANY SUCH PARTIES FROM EXHIBITING, MARKETING, OR OTHERWISE EXPLOITING ANY PROGRAM PRODUCED HEREUNDER, OR OTHERWISE GRANTING ANY THIRD PARTY THE RIGHT TO DO ANY OF THE FOREGOING. NOTWITHSTANDING THE FOREGOING, YOU RECOGNIZE THAT GIVEN THE UNIQUE NATURE OF THE PROGRAM AND THE COMMERCIAL REALITIES OF THE ENTERTAINMENT INDUSTRY, WHICH RELIES UPON CONFIDENTIALITY AND INTELLECTUAL PROPERTY RIGHTS, ANY BREACH OF YOUR CONFIDENTIALITY OBLIGATIONS PURSUANT TO THIS AGREEMENT OR ANY INFRINGEMENT BY YOU OF PRODUCER’S INTELLECTUAL PROPERTY RIGHTS, WOULD CAUSE PRODUCER IRREPARABLE INJURY AND DAMAGE THAT CANNOT BE REASONABLY OR ADEQUATELY COMPENSATED BY MONETARY DAMAGES IN AN ACTION AT LAW. ACCORDINGLY, NOTWITHSTANDING ANYTHING CONTAINED HEREIN, YOU AGREE THAT PRODUCER SHALL BE ENTITLED TO SEEK AND OBTAIN INJUNCTIVE AND OTHER EQUITABLE RELIEF FROM A COURT OF COMPETENT JURISDICTION FOR ANY SUCH ACTUAL OR ANTICIPATED BREACH OR INFRINGEMENT.|
|TO THE EXTENT PERMITTED BY LAW (a) EACH PARTY TO A DISPUTE SHALL BE RESPONSIBLE FOR ITS OWN ATTORNEYS’ FEES AND COSTS, AND (b) EXCEPT AS PROVIDED HEREIN, THE PREVAILING PARTY SHALL NOT BE ENTITLED TO ANY AWARD OF ANY SUCH FEES OR COSTS FROM THE OTHER PARTY. IF ANY PORTION OF THE DISPUTE RESOLUTION MECHANISM SET FORTH IN THIS PARAGRAPH 19 IS FOUND TO BE INVALID, ILLEGAL OR UNENFORCEABLE FOR ANY REASON, THAT PORTION SHALL BE SEVERED FROM THE REST AND SHALL NOT AFFECT THIS AGREEMENT TO RESOLVE ALL DISPUTES THROUGH MEDIATION AND ARBITRATION.|
|20. REMEDIES: In the event of breach or alleged breach of this Agreement by Wilson or Golf Channel, your rights will be limited to those at law for money damages. In no event will you have the right to seek or obtain injunctive or other equitable relief. Before Producers can be deemed to be in breach of this Agreement, you must give the Producers a written notice and the party receiving that notice has 10 business days to “cure” the breach warned of in that notice. Producers have the unilateral right to terminate this Agreement with you without notice and without opportunity for remedy.|
|21. ACTS OF GOD: All deadlines and dates in this Agreement will be automatically extended for any period during which performance of the affected activity is prevented because of the interruption of the Producers’ business by reason of fire, earthquake or other act of God, labor disputes, or any contingencies of a similar nature which are beyond the Producers’ reasonable control.|
|22. NATURE OF RELATIONSHIP: You hereby acknowledge and agree that the relationship between you, as an entrant or Contestant, on the one hand, and the Producers, on the other hand, is not a confidential, fiduciary, or other special relationship, and that your decision to provide your entry to the Producers for purposes of the Competition does not place Producers in a position that is any different from the position held by members of the general public with regard to elements of your Entry or other Material that are not legally protectable.|
|23. NOTICES AND PAYMENTS: All notices and payments will be sent to you at the address you provided on the Entry form and should be sent to the Producers at Wilson, 8750 W. Bryn Mawr Ave., Chicago, IL 60631, “Attn: Driver vs. Driver” All notices must be in writing to be effective. Notices are deemed effective on the date after overnight mailed or, if mailed, on the earlier of the date received and the third day after postmarked. Payments are deemed made on the date overnight mailed or, if not overnight mailed, on the date postmarked.|
|24. ASSIGNMENT AND AMENDMENT: The Producers can assign this Agreement or any of its provisions to any third party. You may not assign this Agreement or any of its provisions without the prior written consent of the Producers. This Agreement can only be amended in writing.|
|25. GOVERNING LAW: This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois applicable to contracts entered into and fully performed therein. Any legal proceedings brought to resolve any dispute arising out of this Agreement shall be resolved in accordance with Section 19 above.|
|26. ENTIRE AGREEMENT: This Agreement, together with the Other Agreements (all of which are hereby incorporated into this Agreement by this reference), represents the entire understanding between you and the Producers relating to the subject matter hereof, and supersedes any prior agreements (except the Other Agreements) between you and the Producers on this subject matter. You hereby agree that you have read, understand, and agree to all of the terms and conditions in this Agreement and that you are by bound by the terms of this Agreement and the Other Agreements throughout your participation in the Competition and forever afterward. You hereby agree to sign a written copy of this Agreement upon our request, provided that our election not to require you to sign a written copy of this Agreement will not affect the validity or binding nature of this Agreement.|
|27. CERTIFICATION: You hereby certify that all of the answers and information that you have provided in this registration process are true, accurate, and complete, and that you have read and will comply with this Agreement and the Other Agreements in conjunction with your registration, participation in the Competition, and interactions with the Producers. You intend that your acceptance of this Agreement and participation in the Competition shall each constitute your legally binding signature and acceptance of this Agreement and the Other Agreements.|
|We reserve the right to modify the terms and conditions of this agreement at any time, without notice. Any modifications must be adhered to.|
|You acknowledge that you have fully read and understand the terms of using the Site and by using the Site; you fully agree to be bound by all terms and conditions of this Agreement.|
So, they want you to warrant that “your Entry does not infringe upon the patents, trademarks, copyrights, trade secrets, rights of privacy, publicity or other Intellectual Property or other rights of any person or entity.” Additionally, they want you to indemnify them for any breach of the warranties, including but not limited to reasonable outside attorney’s fees and costs!
Does any closet wanna-be golf club designer know if their design would infringe the patents in the huge patent portfolio of a major golf company? Of course not, we are talking about a legally complex clearance project that is a major financial commitment. Even if they naively believe that it doesn’t, the odds favor the likelihood that the design infringes not just one but many patents of the big players. Who should bear the obligation of ensuring the product that goes into production doesn’t walk all over another’s patents?
Let’s consider a few very real possibilities:
A) Let’s say you win and Wilson doesn’t use your design; seems like you get $100 in exchange for selling all your intellectual property to them. Not a bad deal, for Wilson!
B) Let’s say you win and Wilson uses your design to achieve great commercial success, but the show never airs; seems like you get $100 in exchange for selling all your intellectual property to them. Not a bad deal, for Wilson!
Additionally, you are on the hook for effectively insuring Wilson regarding patent infringement. So your design includes a composite portion that infringes 5 patents owned by 3 companies, the design also includes moveable weights that infringe 10 patents by 2 other companies, the design includes some type of channel that infringes 5 more patents by another company, the design includes some knock-off turbulators thereby infringing 3 more patents, and of course the design has an adjustable hosel connection system that infringes 10 more patents. In exchange for $100 you now get to defend Wilson in all the litigation. Not a bad deal, for Wilson! In fact they would be crazy if they didn’t want your design to be an amalgamation of the SLDR, G30, Big Bertha, Vapor, 915, and Fly-Z!
Everyone involved in setting up this contest should be embarrassed!
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