WHEREAS , Old Fashion Candy is a company that helps design fundraising plans for organizations, and the Releasor desires to allow Old Fashion Candy the use of the Releasor's name, brief biographical information, and testimonial is attached hereto as Exhibit 'A,' and made a part hereof (collectively 'Testimonial');
NOW THEREFORE , in consideration of the foregoing, and other good and valuable consideration, the receipt and adequacy of which are acknowledged by the parties, the parties hereto agree as follows:
1) LICENSE FOR USE. ' Releasor is voluntarily and exclusively granting and releasing in perpetuity to Old Fashion Candy a license and right to use, name, alter, consign, publish, broadcast, transmit, tape, film and reproduce Testimonial and other works of Releasor,' and parts or derivatives thereof, of the Releasor which are furnished to, or created by, Old Fashion Candy (collectively 'Works'). Releasor voluntarily agrees to grant Old Fashion Candy said license and other rights granted herein without compensation or royalty.
2) ' REPRESENTATIONS; INDEMNIFICATION. ' Releasor hereby represents and warrants it has the legal right and authority to grant and license the use of the Works contemplated hereunder.' Releasor agrees to indemnify and defend OLD FASHION CANDY to the fullest extent permitted by law against any and all claim(s) relating to the Works, whether known or unknown, including but not limited to claims that the Works infringe a copyright, trademarks, patent, trade secret, right of publicity or other property right of a third party, and Releasor shall pay the resultant costs, damages and expenses incurred as a result of such claim(s), including reasonable attorneys' and experts' fees, and if requested by OLD FASHION CANDY, and Releasor shall undertake the defense relating to any such claim(s).'
3) ' INSPECTION WAIVER. ' Releasor does hereby waive any right that Releasor may have to inspect or approve the finished product or the advertising or any copy that may be used in connection therewith, or any use to which the Works may be applied.
4)' INDEPENDENT CONTRACTOR RELATIONSHIP .' The parties hereto intend to create by this Release an independent contractor relationship.' Old Fashion Candy is interested in the results to be achieved.' Nothing in this Release shall be construed to create an agency or employment relationship between Old Fashion Candy and Releasor, and Releasor shall remain an independent contractor, operating independently of Old Fashion Candy's authority, subject only independently to the general obligations and responsibilities regarding satisfactory performance of the Works.
5)' LEGAL AND EQUITABLE REMEDIES .' Recipient acknowledges that the injury to Old Fashion Candy which would be occasioned by Releasor's failure to abide by the terms of this Release shall not be adequately compensated by monetary damages alone, Old Fashion Candy remedies at law being inadequate.' Therefore, in addition to all other remedies available to Old Fashion Candy at law, in equity or pursuant to this Release, including but not limited to monetary damages, Old Fashion Candy shall be entitled to seek immediate and permanent injunctive and other equitable relief including but not limited to temporary restraining orders and/or preliminary or permanent injunctions to restrain or enjoin any violation of the terms and conditions of this Release.' In the granting of any such equitable relief, Releasor acknowledges and agrees that Old Fashion Candy shall be entitled to such relief without the necessity of posting a bond or other security.' These remedies are in addition to all other relief set forth in this Release and available at law, along with the reasonable attorneys' and experts' fees and costs of pursuing available remedies, to enforce the terms of this Release.' Releasor hereby waives, with respect to any future dispute related to this Release, any defense based on the argument that Old Fashion Candy will not be irreparably harmed or that Old Fashion Candy has available an adequate remedy at law.
6)' INTERPRETATION. ' This instrument contains the entire agreement between the parties concerning the use of the Works, and supersedes all prior oral or written understandings, agreements or contracts, formal or informal, between the parties hereto.' As used in this Release, the plural shall be substituted for the singular, and the singular for the plural, where appropriate; and words and pronouns of any gender shall be meant to include any other gender.' This Release may be assigned without the prior written consent of the other party.' This Release shall be binding upon the parties, their respective heirs, successors and assigns.' In the event that ambiguity exists or is deemed to exist in any provisions of this Release, said ambiguity is not to be construed by reference to any doctrine calling for such ambiguity to be construed against the drafter of this Release.' This Release shall be governed by and construed in accordance with the laws of the State of Indiana, not including the choice of law rules thereof, and Releasor consents to the exercise of jurisdiction over any matter arising in connection with this Release in the SuperiorCourtofVanderburghCounty, State of Indiana.' Releasor voluntarily and knowingly waives the right to jury trial and agrees to have any dispute resolved by the above named Court.' In the event of any legal action or claim between the parties hereto involving this Release or the respective rights of the parties hereunder, the party who does not prevail in such shall pay to the prevailing party reasonable attorneys' fees, costs and expenses incurred by the prevailing party.' As used herein the term 'prevailing party' shall include, but not be limited to, a party who obtains legal counsel or brings an action against the other by reason of the other's breach or default and obtains substantially the relief sought whether by compromise, settlement, or judgment.' All headings set forth herein are included for the convenience of reference only and shall not affect the interpretation hereof, nor shall any weight or value be given to the relative position of any part or provision hereof in relation to any other provision in determining such construction.' In the event that any of the provisions of this Release shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision shall be enforced to the fullest extent permissible and the remaining portion of this Release shall remain in full force and effect.' This Release may be executed simultaneously in several counterparts, each of which shall be deemed an original, but all which together shall constitute one and the same instrument.' THIS PROVISION, AND EACH AND EVERY OTHER PROVISION OF THIS RELEASE MAY NOT UNDER ANY CIRCUMSTANCE BE MODIFIED, CHANGED, AMENDED OR PROVISIONS HEREUNDER WAIVED VERBALLY, BUT MAY ONLY BE MODIFIED, CHANGED, AMENDED OR PROVISIONS HEREUNDER WAIVED BY AN RELEASE IN WRITING EXECUTED BY ALL PARTIES HERETO.