PRIZE ACCEPTANCE/
AFFIDAVIT OF ELIGIBILITY &
(AAffidavit/Release@)
Please provide us with the following Information:
POTENTIAL PRIZE WINNER NAME: DATE:
STREET ADDRESS:
CITY: STATE/ZIP CODE:
DAY PHONE: EVENING PHONE:
PRIZE WINNER SOC. SEC. NO.: AGE:
PRIZE WINNER DATE OF BIRTH:
EMPLOYER NAME:
ADDRESS: CITY/STATE/ZIP
1. I understand that per the Official Rules of SAILBOAT AUCTION:
a. Variety, the Children=s Charity of Southern California (the "Sponsor" and / or AVariety@) is relying on the accuracy of the statements in this Affidavit/Release in determining my eligibility to win the prize for SAILBOAT AUCTION (the "Auction").
b. I am a potential prize winner but cannot be declared the actual winner until my eligibility is confirmed.
c. If I meet all eligibility requirements, and if I sign this document, I as the Winner, accept one ASAILBOAT@ and storage trailer - NOT TO BE USED FOR VEHICLE TOWING (collectively APrize@) used in the motion picture AEVENING@ (APicture@).
d. If I am awarded the Prize, I will be responsible for all registration, title, licensing, fees, taxes, insurance, shipping and delivery of the Prize from Sponsor to my location, all repairs, changes and modifications to the Prize, including any that maybe required by law.
e. In the event that I transfer the Prize to a third party, I agree to disclose in writing to the third party that no rights in the character of the ASAILBOAT@ or any other Focus Features character, logo, tradename or trademark is being transferred and that the Prize was sold to me by Sponsor in AAS IS@ condition with no express or implied warranties of any kind.
f. To be eligible to win the Prize, I must be: eighteen years old or older; be a legal resident of United States and physically located within the 50 states or D.C.; complete and return this Affidavit/Release to Sponsor or its designated representative; and must not be the immediate family member of an employee, officer, director, agent or representative of Focus Features, LLC., Variety B the Children=s Charity of Southern California, eBay, Inc., Silent Partners Inc. or their sponsor, parent companies, affiliates, subsidiaries, media partners, printers, promotion material suppliers, or advertising, promotion or other coordinating agencies involved in this Auction (the AAuction Entities@).
g. I must sign and return this Affidavit/Release, so that the Sponsor receives it no later than __________, 2007, or I will forfeit the Prize. I must arrange delivery of the Prize to me within thirty (30) calendar days from the date of signature and delivery of this Affidavit/Release to Sponsor, or I will forfeit the Prize.
h. The Auction Entities have not arranged for and are not carrying any insurance of any kind for my benefit or that of my heirs, executors and administrators relative to my use of the prize. I am solely responsible for obtaining and paying for all life, accident, property or other insurance relating to use of the Prize.
i. The Auction Entities have not made any warranty, representation or guarantee, express or implied in fact or in law, relative to the Prize or portion of the Prize. I ACKNOWLEDGE THAT THE AUCTION ENTITIES ARE PROVIDING THE SAILBOAT "AS IS" WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE AUCTION ENTITIES MAKE NO GUARANTIES, REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, AS TO THE MERCHANTABILITY, THE FITNESS FOR A PARTICULAR PURPOSE, THE QUALITY OR THE CONDITION OF THE SAILBOAT (INCLUDING, WITHOUT LIMITATION, WHETHER OR NOT THE SAILBOAT IS SEAWORTHY OR SAFE FOR INDIVIDUALS TO BOARD OR BE NEAR WHETHER ON WATER OR ON LAND). THE AUCTION ENTITIES DO NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF, OR THE RESULT OF THE USE OF, THE SAILBOAT. ALL GUARANTEES, CONDITIONS, REPRESENTATION AND WARRANTIES WHETHER EXPRESS OR IMPLIED ARE HEREBY WAIVED, EXCLUDED AND EXTINGUISHED.
k. The actual Prize may differ from that shown on the auction website or in advertisements. The difference between any stated value and actual value will not be awarded to me. All expenses not expressly specified herein are my sole responsibility.
2. I affirm that I am eligible to win and have complied with the Official Rules and regulations of this Auction; I am at least 18 years of age; I have perpetrated no fraud or deception in entering the Auction or in claiming my prize; neither I, nor any member of my immediate family (spouses, parents, children and siblings, and their respective spouses) or those living in my household, is now or was at the time of my entry in the Auction, an employee of any of the Auction Entities.
3. I acknowledge and agree that the Prize is sold to me AAS IS@ and WITHOUT WARRANTY OF ANY KIND, express or implied, (including, without limitation, any implied warrant of merchantability or fitness for a particular purpose). Without limiting the generality of the foregoing, I acknowledge that the Prize was used in connection with the filming of the Picture and that Sponsor makes no representations or warranties that the Prize conforms with any local, state or federal regulations (including without limitation any rule or regulation imposed by the State of California). I further acknowledge and agree the following: (i) the Prize=s materials of construction (including surface coatings) may contain hazardous materials, such as lead or asbestos, that could create potential health concerns when disturbing or altering the surface or underlying materials (e.g., machining, sanding, drilling, paint, stripping, or cutting); (ii) no routine handling, alterations or modifications that could disturb surface or underlying materials should be conducted without prior consultation with a hazardous materials expert; (iii) not for commercial use or for use as a toy or childcare article; (iv) PROPOSITION 65 WARNING (California Health & Safety Code Section 25249.5 et seq.): This Prize contains materials that are known to the State of California to cause cancer or reproductive toxicity; (v) this Prize offered for sale is a one-of-a-kind collectable for PERSONAL PURPOSES ONLY, and (vi) potential winner shall have no rights in and to the Picture and/or Any character in the Picture for any purpose
4. As consideration of my enjoyment and participation in the Auction, and of my receipt of other good and valuable consideration, I hereby agree that I, my assigns, successors, beneficiaries, heirs, guardians, personal representatives, and trustees (individually and collectively, AClaimants@) do hereby waive, release, forever discharge, indemnify, hold harmless and defend the Auction Entities and the directors, officers, and employees of each of them; from any and all claims, demands, expenses, losses, damages, actions, causes of actions or equity which I now have or may hereafter acquire, for any and all harm; invasion of privacy; defamation; misrepresentation; negligence; illness; personal injury; death; property damage, loss, or destruction; accident or any other cause of action, and all costs or expenses related thereto arising out of the Auction, the awarding, delivery, and acceptance, use, misuse, possession, loss, or misdirection of the Prize; and any related merchandise and the advertising and marketing thereof, including but not limited to the exploitation of my personality as provided in Section 5 below.
A. Waiver. Claimants intend and agree that this Affidavit/Release shall be effective as a full and final accord and satisfaction and general release of and from all Claims released and discharged hereunder. In furtherance thereof, Claimants acknowledge that they are familiar with Section 1542 of the Civil Code of the State of California, which states as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
Claimants acknowledge and agree that they are executing this Affidavit/Release voluntarily, and waive any and all rights that he/she or it it has or may have under California Civil Code Section 1542, any successor section to it, and/or any other statute or common law principle of similar effect with respect to any Claims released and discharged hereunder. In connection with this waiver and the Affidavit/Release, the Claimants acknowledge that he/she or it is aware that he/she or it may discover claims presently unknown or unsuspected or facts in addition to or different from those which they now know or believe to be true with respect to the Claims released and discharged hereunder. Nevertheless, the Claimants intend by this Affidavit/Release, and with and upon the advice of their independently selected counsel, to release fully, finally and forever all Claims released and discharged hereunder. In furtherance of such intentions, the releases set forth in this Affidavit/Release shall be and remain in effect as full and complete releases of the Claims released and discharged hereunder notwithstanding the discovery or existence of any such additional or different claims or facts relevant hereto. This waiver of Civil Code Section 1542 is an essential term without which the Auction Entities would not have awarded the Prize to the signator of this Affidavit/Release.
B. Refrain From Commencing Lawsuit. Claimants hereby agree to forever refrain from commencing, instituting or prosecuting any lawsuit, action or other proceedings against any Auction Entities based on, arising out of or in connection with any Claims in law, equity, arbitration, or otherwise, known or unknown, of whatever kind and however arising, from or relating to any Matters identified under this Affidavit/Release .
5. Unless prohibited by law, I irrevocably grant to the Auction Entities and their respective successors, assigns, licensees, employees and agents, the right, in perpetuity, in all media now known or developed in the future, and worldwide, to use my name, voice, physical likeness, hometown, and statements about the Auction, the Sponsor or Prize (APersonal Information@), in and in connection with the marketing, advertising, publicity, promotion, of the Auction, and other promotions that the Sponsor may offer, without additional compensation. I represent that no one else=s consent is required to enable the Auction Entities to use Personal Information and that their use will not violate anyone=s rights. I acknowledge that nothing in this Affidavit/Release requires the Auction Entities to use such Personal Information.
6. It is understood that my use of the Prize is for personal and private use only. By the operation of this Affidavit/Release, I acquire no right to use, and must not use, the name of any of the Auction Entities or any derivation of such names, or any fanciful characters, motion pictures, trademarks, trade names or designs of a Company in advertising, publicity or promotion; to express or to imply endorsement of products, merchandising, or services; or in any other manner whatsoever without prior written approval. I further acknowledge and agree that I acquire no intellectual property right in and to the Picture, and any person rendering services for the Picture in connection with my ownership, use, custody, or control of the Prize in my personal and private use.
7. I agree to assign, forfeit, and return the Prize to the Sponsor, at my sole cost and expense, if any statement made by me in this Affidavit/Release is false.
8. This Affidavit/Release, and any dispute or controversy relating to the existence, validity, meaning, interpretation, or alleged breach of this Affidavit/Release shall, in all respects, be interpreted, enforced and governed by the laws of the State of California applicable to agreements which are executed and fully performed within the State of California without reference to its choice of law rules. Claimants hereto agree to submit to the exclusive jurisdiction of the federal and state courts located in Los Angeles County, California. This Affidavit/Release constitutes a complete and mutually binding agreement, and supersedes any and all prior and/or contemporaneous agreements or understandings (whether written or oral), with respect to the subject matter hereof, and may not be modified or amended except in a writing signed by all Claimants and Auction Entities. In entering into this Affidavit/Release, Claimants have not relied upon any representation or warranty that is not specifically contained in writing in this Affidavit/Release. This Affidavit/Release shall be binding upon the Claimants and their successors and permitted assigns.
8. I declare under penalty of perjury and the laws of the United States and the State of California that the foregoing information is true and correct. I have read or have had read to me and I understand all of the foregoing provisions of this document and that I agree to be bound by all of them.
POTENTIAL PRIZE WINNER:
SIGNED: DATE:
WITNESS: