The Studio Fitness Corp (dba Sessions Cycle)
APPEARANCE CONSENT, WAIVER, AND
RELEASE OF LIABILITY
The individual participant named above (referred to as “I” or “me”) desires to participate in the indoor cycling class demonstration video content production and riding a stationary bicycle (collectively, the “Activity”) provided by The Studio Fitness Corp (dba Sessions Cycle) a California corporation with offices located at 14625 Whittier Blvd., Whittier, California 90605 (the “Company”). In consideration of being permitted by the Company to participate in the Activity and the intangible value that I will gain by participating in the Activity, and other good and valuable consideration being provided to me by Company, the receipt and sufficiency of which I hereby acknowledge, and in recognition of the Company’s reliance hereon, I agree to all the terms and conditions set forth in this instrument (this “Release”).
PHOTO, VIDEO, & SOCIAL MEDIA APPEARANCE, RIGHTS, AND RELEASE
I understand that the Company may capture photo, audio, or video recordings (the “Work”) inside the Studio for promotional, publicity, educational, informational, and marketing purposes including, but not limited to for:
Social media posts (Instagram, TikTok, Facebook, YouTube, and similar platforms);
Digital and physical promotional and advertising materials;
Website and content;
Other printed and digital marketing; and
Internal branding and business use.
For the intangible value I will gain by participating in the Work and other good and valuable consideration, the receipt and sufficiency of which I hereby acknowledge, I IRREVOCABLY GIVE COMPANY MY PERMISSION, AND GRANT TO COMPANY THE RIGHT, TO FILM, RECORD, AND PHOTOGRAPH ME (THE “RECORDING”).
I hereby irrevocably grant and license the Company and its affiliates, successors, licensees, agents, and assigns, the worldwide, royalty-free right in perpetuity, throughout the universe, in any and all media and formats and by any all technologies and means of delivery whether not or hereafter known or devised, on any platform, without further consent from or any royalty, payment, or other compensation to me, to:
Photograph, film, or record me (including my image, likeness, appearance, and voice, which shall collectively be referred to as the “Media”); and
Digitize, modify, crop, alter, edit, adapt, create derivative works, display, publicly perform, exhibit, transmit, broadcast, reproduce, exploit, sell, rent, license, otherwise use, and permit others to use, the Media.
I understand and agree that:
I will not receive further compensation or consideration for the use of the Media by Company;
I may notify an instructor before class if I do not wish to appear in photos or videos;
I may request removal of the Media from future use by the Company, but the Company is not required to remove past posts or already-published materials; and may grant my request in its sole discretion.
FURTHER, I HEREBY IRREVOCABLY PERMIT, AUTHORIZE, AND LICENSE COMPANY TO USE MY NAME, LIKENESS, APPEARANCE, VOICE, AND ALL MATERIALS CREATED BY OR ON BEHALF OF COMPANY THAT INCORPORATE ANY OF THE FOREGOING (“MATERIALS”), IN CONNECTION WITH THE WORK AND ADVERTISING AND PROMOTION OF THE WORK AND ADVERTISING, PUBLICITY, AND PROMOTION OF COMPANY AND ITS AFFILIATES AND THEIR BUSINESSES, PRODUCTS, AND SERVICES, IN PERPETUITY, THROUGHOUT THE UNIVERSE, IN ANY AND ALL MEDIA AND FORMATS AND BY ANY AND ALL TECHNOLOGIES AND MEANS OF DELIVERY WHETHER NOW OR HEREAFTER KNOWN OR DEVISED ON ANY PLATFORM WITHOUT FURTHER CONSENT FROM OR ANY ROYALTY, PAYMENT, OR OTHER COMPENSATION TO ME. I represent that I have not given any money or anything else of value to Company or any of its employees, agents, or representatives, or anyone else associated with the Work, in exchange for appearing in the Work or acknowledging me or including my name or any matter in the Work.
I agree that Company is and will be the sole and exclusive owner of all right, title, and interest in and to the Work, the Recording (including but not limited to all film, photographs, and other recordings, including outtakes and behind-the-scenes footage), and the Materials, including but not limited to all copyrights and other intellectual property rights therein, in perpetuity throughout the universe. To the extent that there is any question regarding the ownership, rights, title, or interest in the Recording or Materials, I shall, and hereby do, (a) assign, transfer, and otherwise convey to Company, irrevocably and in perpetuity, throughout the universe, all of my right, title, and interest, if any, in and to the Recording and the Materials, including but not limited to all copyright and other intellectual property rights, including all registration, renewal, and reversion rights, and the right to register and sue to enforce such copyrights against infringers and alleged infringers, and (b) irrevocably waive any and all claims I may now or hereafter have in any jurisdiction to so-called "moral rights" or rights of droit moral in the Recording and the Materials.
NO OBLIGATION.
The Company has no obligation to use the Recording or any Materials, or create, produce, advertise, or promote the Work or the Materials, or include the Recording in the Work, or to exercise any rights granted under this Agreement. I acknowledge and agree that I have no right to review or approve the Work, the Recording, or the Materials before they are used by Company or at any other time, and that Company has no liability to me for any editing or alteration of the Work, the Recording, or the Materials, or for any distortion or other effects resulting from Company’s editing, alteration, or use of the Work, the Recording, or the Materials, or Company’s presentation of me. Any acknowledgment or credit of me in connection with the Work or the Materials, if any, shall be determined by Company in Company's sole discretion.
WAIVER OF LEGAL AND EQUITABLE RIGHTS.
To the fullest extent permitted by applicable law, I hereby irrevocably waive all legal and equitable rights relating to all liabilities, claims, demands, actions, suits, damages, and expenses, including but not limited to claims for copyright or trademark infringement, infringement of moral rights, libel, defamation, invasion of any rights of privacy, violation of rights of publicity, physical or emotional injury or distress, or any similar claim or cause of action in tort, contract, or any other legal theory, now or hereafter known in any jurisdiction throughout the world (collectively, “Claims”) arising directly or indirectly from the Authorized Persons’ exercise of their rights under this Agreement or the production, exhibition, advertising, promotion, exploitation, or other use of the Work, the Recording, and/or the Materials, and whether resulting in whole or in part from the negligence of Company or any other person, covenant not to make or bring any such Claim against any Authorized Persons and their agents, employees, and representatives, and forever release and discharge the Authorized Persons from liability under such Claims. I understand that Company is relying on this Agreement and will incur significant expense in reliance on this Agreement, and I agree that this Agreement cannot be terminated, rescinded, or modified, in whole or in part. I waive my right to injunctive and other equitable relief in the event of a dispute with Company. I will not have the right to enjoin or interfere with the production, distribution, exploitation, advertising, or promotion of the Recording, the Materials, or the Work.
AUTHORITY; AGREEMENT TO INDEMNIFY
I represent and warrant to Company that I am at least 18 years of age, and I have full right, power, and authority to enter into this Agreement and grant the rights granted hereunder. I further represent and warrant to Company that I will provide only true and correct statements and other information in connection with the Work and that my participation in the Work, and the Authorized Persons’ use of the Recording and the Materials and the rights and license granted hereunder, do not, and will not, violate any right (including without limitation copyright, trademark, trade secret, right to privacy, or right of publicity) of, or conflict with, or violate any contract or agreement with or commitment made to, any person or entity, and that no consent or authorization from, or any payment to, any third party is required. I agree to defend, indemnify, and hold harmless the Authorized Persons from and against all Claims by third parties resulting from my breach or alleged breach of this Release or any of the foregoing representations and warranties.
Waiver of California Civil Code Section 1542 (Waiver of Unknown Claims).
With respect to any claims released hereunder, I expressly acknowledge that I have been notified of the provisions of California Civil Code Section 1542, which provides in pertinent part:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THIS RELEASE, AND THAT, IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR THE RELEASED PARTY.
Being aware of this code section, I hereby expressly waive and relinquish all rights and benefits which they may each have under Civil Code section 1542, as well as under any other statute or common law principle of similar effect and does so understanding and acknowledging the significance and consequences of specifically waiving Section 1542.
Thus, notwithstanding the provisions of Section 1542, and to implement a full and complete release, I expressly acknowledges that this Agreement is intended to include in its effect, without limitation, all claims that I do not know or suspect to exist in their respective favor at the time of signing this Release, and that this Release contemplates the extinguishment of any such claims. I further acknowledge that I may later discover facts different from or in addition to those they now know or believe to be true regarding the matters released or described in this Release, and even so I agree that the releases and agreements contained in this Release shall remain effective in all respects notwithstanding any later discovery of any different or additional facts, and that I assume any and all risk of any mistake in connection with such facts.
ARBITRATION AND CLASS ACTION WAIVER
Agreement to Arbitrate. I and the Company agree that any and all disputes, claims, or controversies arising out of or relating to this Release, the Company and Released Parties, and/or my participation in the Activity shall are subject to arbitration under the arbitration provisions set forth in the Federal Arbitration Act (the “FAA”), and in conformity with the procedures of the California Arbitration Act, and shall be submitted to Judicial Arbitration & Mediation Services, Inc. (“JAMS”) for final and binding arbitration. Disputes, claims, or controversies that are not arbitrable as a matter of law shall be excluded from this provision and to the extent that a dispute, claim or controversy involved both claims subject to and excluded by law from arbitration, the Company and I agree to bifurcate such claims and stay litigation on any excluded claims for the duration of the arbitration proceedings relating to the claims properly arbitrable.
Waiver of Trial By Jury. I understand and fully agree that by initialing and signing below, I, along with the Company, am giving up the constitutional right to have a trial by jury, and giving up the normal rights of appeal following the rendering of a decision except as California law provides for judicial review of arbitration proceedings. I anticipate that by entering into this agreement to arbitrate, I will gain the benefits of a speedy and less expensive dispute resolution procedure.
Waiver of Class Action and Collective/Representative Action Claims. To the fullest extent permitted by law, I and the Company agree that: (a) the parties will only submit claims that are covered by the terms of this provision to arbitration and will not seek to represent the interests of any other person (including on a class, collective, or representative action basis); (b) class and collective action procedures are waived and cannot be asserted in any forum, nor will they apply in any arbitration pursuant to this provision and agreement; and (c) I and the Company will not assert or participate in any class or collective claim(s) against the other party in arbitration, court, or other judicial forum.
Arbitration Process.
Arbitration must be initiated upon the express written notice of either party to the other. A demand for arbitration served on the Company must be sent to legal@sessionscycle.com, and a demand for arbitration served on me will be given to the email listed above. The written notice must identify and describe the nature of all claims asserted and the facts upon which the claims are based (rather than mere factual or legal conclusions). Written notice of arbitration must be initiated within the limitations period applicable to the claim(s), or within one (1) year of the date the claiming party first knows or should have known of the event giving rise to the claim(s) if no statutory limitation period applies.
The arbitration will be administered by the Judicial Arbitration & Mediation Services, Inc. (“JAMS”) pursuant to the JAMS Streamlined Arbitration Rules & Procedures (the “JAMS Rules”), which are incorporated herein by reference, except as those rules have been modified herein. A copy of the JAMS Rules can be obtained (i) on the JAMS website at https://www.jamsadr.com/rules-streamlined-arbitration/ or (ii) by calling JAMS at (800) 352-5267. I understand I may also call JAMS if I have any questions about the arbitration process. If the JAMS Rules are inconsistent with the terms of this Release, the terms of this Release govern.
The arbitration will be held before a single neutral arbitrator. The Arbitrator has the power to decide, among other things, any motions brought by any Party, including discovery motions, motions for sanctions, motions for summary judgment and/or adjudication, motions to dismiss, and demurrers. Neither Party will be denied the right to file a pleading challenge (which will be resolved prior to the commencement of discovery in the arbitration) or motion for summary disposition of a particular claim or issue. The Arbitrator will grant an award of costs in connection with an offer of judgment pursuant to Federal Rule of Civil Procedure 68. The Arbitrator may also grant injunctions and all other types of relief the Parties would otherwise be entitled to in court. The Arbitrator also has the authority to order discovery, by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration and applicable law.
The Arbitrator will apply the substantive law relating to all claims and defenses the same as if the matter had been heard in court. The Arbitrator will provide the Parties with a written decision on the merits explaining their findings and conclusions. The Arbitrator’s decision is final and binding upon the Parties.
To the extent permitted by applicable law, the fees and expenses of the Arbitrator (including filing or administrative fee) shall be split equally between the parties. Each Party will pay its own costs and attorneys’ fees, if any. However, if any Party prevails on a statutory claim which affords the prevailing party attorneys’ fees and costs, or if there is a written agreement providing for attorneys’ fees and costs, the Arbitrator may award reasonable attorneys’ fees and costs to the prevailing party. Any dispute as to the reasonableness of any fee or cost will be resolved by the Arbitrator. If the initiating party does not pay its share of the arbitrator’s fees and expenses within 30 days of receipt of an invoice from JAMS, the arbitration will be dismissed, with prejudice.
Disputes Concerning Arbitrability. The parties understand and agree that any dispute as to the arbitrability of a particular issue or claim pursuant to this Release is to be resolved in arbitration, by the Arbitrator. The Arbitrator has exclusive authority to resolve any dispute relating to the interpretation, scope, applicability, enforceability, or breach of this Release including, but not limited to, as to any such claim and as to any part of this Release. Notwithstanding the foregoing, a court of competent jurisdiction has exclusive authority to resolve whether the waiver of class and collective action claims is enforceable. Enforcement of this provision and arbitration agreement shall be governed by the FAA.
I understand that this arbitration provision and agreement is intended to be as inclusive and broad as is allowed under applicable law and that if ay portion is held invalid, it shall be severed, and it is agreed that the remaining portion shall continue in full force and effect. The Company and I will be equally bound to this arbitration provision.
MISCELLANEOUS TERMS
Governing Law & Venue. All matters arising out of or relating to this Release shall be governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction). To the extent any claim or cause of action arising under this Release is not subject to arbitration pursuant to the arbitration provision and agreement above, it may be brought only in the state courts located in Los Angeles County, California and I hereby consent to the exclusive jurisdiction of such courts for such claim.
Entire Agreement. This Release constitutes the sole and entire agreement of the Company and me with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. Nothing contained in this Release shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between me and the Company.
Severability. If any term or provisions of this Release is found to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Release or invalidate or render unenforceable such term or provision, and the remainder shall continue in full force and effect.
Assigns. This Release is binding on and shall inure to the benefit of the Company and me and our respective heirs and successors. The Company may assign this Agreement and its rights and obligations hereunder, in whole or in part, to any party.
Acknowledgment & Signature
THIS RELEASE PROVIDES THE COMPANY WITH MY ABSOLUTE AND UNCONDITIONAL CONSENT, WAIVER, AND RELEASE OF LIABILITY, ALLOWING THE COMPANY TO PUBLICIZE AND COMMERCIALLY EXPLOIT MY NAME, LIKENESS, AND OTHER PERSONAL CHARACTERISTICS AND PRIVATE INFORMATION AS SET OUT ABOVE. BY SIGNING, I ACKNOWLEDGE THAT I HAVE READ AND UNDERSTOOD ALL OF THE TERMS OF THIS RELEASE AND THAT I AM GIVING UP SUBSTANTIAL LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE THE COMPANY. I UNDERSTAND THAT I AM FREE TO OBTAIN ADVICE FROM LEGAL COUNSEL OF MY CHOICE, AT MY EXPENSE, TO INTERPRET THE PROVISIONS OF THIS RELEASE.
I SIGN THIS RELEASE VOLUNTARILY AND, WITH FULL UNDERSTANDING OF ITS TERMS, AND I INTEND MY SIGNATURE TO BE A COMPLETE AND UNCONDITIONAL RELEASE OF LIABILITY TO THE FULLEST EXTENT PERMITTED BY LAW.