(Volunteer) MODERATOR GENERAL TERMS & CONDITIONS
1. Company Intellectual Property.
1.1 In consideration of the case-by-case volunteer services of the Moderator, and free of any obligation of FunPlus International AG (“the Company”) to make any payments to Moderator, Moderator agrees that any and all contributions of Moderator of a proprietary nature (as defined in clause 5 and 8 hereof) relating to the present or future business of the Company that are conceived, developed, or created by Moderator, during or as a result of performing or providing services under the Moderator Commitment Confirmation Letter Agreement (“Letter Agreement”) (all of the foregoing is referred to as “Company Intellectual Property”) shall, to the extent permissible under law, (i) constitute a “work-made-for-hire” if copyrightable or grant a perpetual exclusive license of use of his/her copyrights, and (ii) be owned by or will be immediately respectively automatically assigned to the Company.
1.2 Moderator agrees to promptly disclose and physically, digitally, and legally transfer all Company Intellectual Property to the Company, and hereby irrevocably assigns to the Company all his/her rights (including without limitation all copyright as well as any patent, trade secret and trademark rights, if any) therein and thereto to the Company. In any case, Moderator herewith grants the Company and those parties acting with Company`s permission, during the term of the Letter Agreement, a nonexclusive, irrevocable, royalty-free, fully-paid, sublicensable, worldwide license to: (a) refer to Moderator as a “Moderator” (or similar); (b) use Moderator`s name, nickname, initials, likeness, photo, biography, and/or social handle; and (c) publish, copy, reproduce, display, publicly perform, distribute, adapt, edit, modify, translate, create derivative works based on, and otherwise use Moderator`s contributions in connection with the Letter Agreement, and for other purposes at Company`s reasonable discretion. Moderator agrees to without being entitled to any compensation take such action as reasonably necessary, at Company`s request, to perfect, confirm, or support the rights granted here and to verify that Moderator`s deliverables under the Letter Agreement reflect Moderator`s honest views, opinions, findings, beliefs, and experiences. The Company has no obligation to use Moderator`s deliverables. Following the termination or expiration of the Letter Agreement, Company will have no obligation to remove any contributions and the published contributions can remain in place as posted. All feedback, ideas, or other information offered by Moderator in connection with the Letter Agreement is given voluntarily and will be the Company`s sole property, which the Company may freely use without any compensation being due to Moderator.
1.3 Moderator hereby agrees to execute such assignments and other instruments as the Company may consider appropriate to vest the aforementioned rights, title and interest in the Company Intellectual Property to the Company, and hereby appoints the Company as Moderator’s attorney-in-fact with full powers to execute any such instrument itself in the event of the failure or inability of Moderator to do so.
1.4 During the Term of the Letter Agreement and at all times thereafter, Moderator shall assist Company in every proper way to protect, enforce and perfect Company’s rights and interests in the Company Intellectual Property throughout the world, and to execute all documents required for the protection of all such rights and interests, including, without limitation, patent, copyright, trademark and other applications and assignments relating to Company Intellectual Property. Moderator hereby designates and Moderator waives the benefits of any provision of the law known as moral rights in relation to the Company Intellectual Property. Moderator hereby designates and appoints Company and its duly authorised officers and agents as Moderator`s agents and attorneys-in-fact to execute and file any certificates, applications, or documents and to do all other lawful acts necessary to obtain and protect Company’s’ rights in the Company Intellectual Property. Moderator expressly acknowledges that the foregoing power of attorney is coupled with an interest and is irrevocable and shall survive termination of this Agreement.
2. Relationship of parties
2.1. It is expressly agreed that Moderator is an independent unpaid volunteer service provider. Neither this Agreement nor Moderator’s provision of his/her contributions under the Letter Agreement shall create an association, partnership, joint venture, or relationship of principal and agent, master and servant, or employer and employee between the Company and Moderator. Moderator shall use his/her own discretion in performing the tasks under the Letter Agreement, subject to the general direction of the Company and subject to the express condition that Moderator shall at all times comply with all applicable laws. Nothing herein is intended to preclude Moderator’s simultaneous or subsequent engagement by third parties, provided only that any such engagement and the provision of services in connection therewith do not interfere or conflict with Moderator’s obligations and are consistent with Moderator’s obligations as defined in the Letter Agreement.
2.2. Moderator will not be eligible for any Company employee benefits and the Company will not make deductions from its fees to Moderator for taxes, insurance or any other subscription of any kind relating thereto. Moderator acknowledges and agrees that he/she is obligated to report as income and shall make all applicable tax payments in a timely manner on all compensation received by Moderator pursuant to this Agreement.
2.3. Moderator waives any claim against the Company for benefits provided to its employees during any period during which the Moderator is determined to be an employee or some other designation and not an independent contractor. The Moderator acknowledges that it makes this waiver knowingly, voluntarily and only after consideration with its professional advisors of the ramifications of this waiver.
2.4. Moderator agrees to fully indemnify, hold harmless and defend the Company to the extent of any obligation imposed on the Company to pay any withholding taxes or other taxes, social security, workers’ compensation, unemployment or disability insurance or similar items, including interest and penalties thereon, in connection with any payments made to Moderator by the Company pursuant to the Letter Agreement or imposed upon the Company in the event Moderator is determined not to be an independent contractor. This clause 2.4 mutatis mutandis applies to any claims to or obligations of the Company in respect of any breach or non-compliance of Moderator with his/her obligations under clause 2.2.
2.5. Moderator warrants that he/she is competent to perform the services contemplated in the Letter Agreement. Moderator further warrants that he/she shall provide the services with maximum care, skill and diligence.
3. Expenses.
Any and all costs and expenses related to the execution of the services as defined in the Letter Agreement shall be fully and exclusively borne by Moderator.
4. Intellectual Property Rights
4.1. “Intellectual Property” shall mean any and all worldwide common law and statutory rights in, arising out of, or associated with: (i) trademarks, service marks, brand names, domain names, logos, symbols, trade dress, assumed names, fictitious names, trade names, and other indicia of origin, all applications and registrations for the foregoing, and all goodwill associated therewith and symbolised thereby, including all renewals of same (collectively, “Trademarks”); (ii) national or global patents and utility models and applications thereof and all divisions, continuations, continuations-in-part, provisional, re-examinations and renewal applications; and including renewals, extensions and reissues (collectively, “Patents”); (iii) trade secrets, confidential information and know-how (collectively, “Trade Secrets”); (iv) databases and other compilations of information; (v) Copyright registrations and applications thereof, and all other rights corresponding thereto throughout the world, including mask rights and all renewals, extensions, restorations and reversions thereof (collectively, “Copyrights”); (vi) industrial designs, (vii) all moral and economic rights of authors and inventors, however denominated, and (viii) any similar or equivalent rights to any of the foregoing (as applicable).
4.2. Pre-Existing Intellectual Property. Moderator shall maintain perpetual, worldwide ownership of and rights to use, sell, modify, make public, and distribute any and all of its prior copyrights and other intellectual property rights existing prior to the Effective Date. If, in the course of providing Services under the Letter Agreement, Moderator incorporates pre-existing intellectual property into a contribution, Company is hereby granted and shall have a royalty-free, irrevocable, perpetual, worldwide license (with rights to sublicense through multiple tiers of sublicenses) to modify, use and distribute solely such pre-existing intellectual property as part of the products or processes into which it was originally incorporated. For purposes of this Letter Agreement, “pre-existing intellectual property” means designs, methodology, ideas, concepts, know-how, techniques and other means used by Moderator in the provision of services to different clients and in the conduct of his/her business, and all derivations of the foregoing (including, without limitation, templates, screen flows, creative briefs, functional briefs, design concepts, devices, and other tools and products), developed, acquired or compiled by Moderator prior to the Effective Date.
5. No Infringement
Moderator agrees that he/she will not use, in the course of his/her performing or providing contributions under the Letter Agreement, any Intellectual Property belonging to another person or entity without a valid license thereto. Moderator will indemnify the Company and hold it harmless from and against all claims, liabilities, damages and expenses, including reasonable attorneys’ fees and costs of suit, arising out of or in connection with any violation of the foregoing. Moderator agrees to bring to the attention of the Company (i) all infringements or potential infringements of any intellectual property rights of any other person or entity by Moderator or employees or other agents of the Company and/or Moderator, and (ii) all infringements or potential infringements of any intellectual property rights of the Company by any person or entity, in either case known to him/her or of which he/she becomes aware during the term of the Letter Agreement.
6. Confidential Information.
The attached executed Non-Disclosure Agreement between the parties forms an integral part hereof and shall survive the termination of the Letter Agreement.
7. Data Protection
Personal data means any information provided by the Moderator when providing services under the Letter Agreement that can be used to directly or indirectly identify him/her as an individual.
FunPlus will process any information containing Personal Data provided by the Moderator available in relation to this Letter Agreement and the NDA in accordance with the applicable privacy laws and regulations, including without limitation to the provision of the regulation (EU) 2016/679 the General Data Protection Regulation (GDPR). FunPlus will take appropriate technical and organisational security measures to guarantee the security of Personal Data and prevent a personal data breach. FunPlus is required to provide the Moderator with information about the nature, purpose, legal basis, duration of the processing of personal data, and Moderator’s right over his/her Personal Data. Such information can be accessed in the Player’s Privacy Policy https://funplus.com/privacy-policy/en/
8. No Prohibitions.
Moderator hereby represents and warrants that he/she is not a party to or subject or bound by any agreement or required approval that: (a) prohibits Moderator from providing the services under the Letter Agreement to the Company, or from fully and faithfully performing and discharging his/her obligations under this Agreement and the performance of the contributions under the Letter Agreement will not conflict or cause the breach of any agreement or undertaking to which Moderator is subject or bound, including without limitation, any confidentiality or non-competition agreement, and will not require the consent of any person or entity.
9. Modification and Waivers.
This Letter Agreement may not be altered, amended or modified, except by a written instrument signed by the party against whom such alteration, amendment or modification is sought to be enforced. No waiver of any right granted herein shall be effective unless in a writing duly executed by or on behalf of the waiving party, and then shall be effective only for that instance and only with respect to the specific circumstance referenced therein. Failure by a party to exercise promptly any right herein granted, or to require strict performance of any obligation by the other party, shall not constitute or be deemed to be a waiver of such right or of the right to demand subsequent performance of the same or any other obligation of the other party, and shall not in any way affect the validity of this Agreement or the enforceability of its several provisions.
10. Survival of Terms.
The obligations contained in this Letter Agreement shall survive the termination of this Agreement. In addition, the termination of this Letter Agreement shall not affect any of the rights or obligations of either party arising prior to or at the time of termination of this Agreement, or which may arise by any event causing the termination of this Agreement.
11. Assignment.
The Moderator may only assign its rights and obligations hereunder only with the prior written consent of the Company. The Company can freely assign its rights and obligations.
12. Severability.
If any term or provision of this Letter Agreement shall become or be determined to be unenforceable under the applicable law of any jurisdiction, such term or provision shall be ineffective to the extent its enforceability is so prohibited without invalidating the remainder of such term or provision or any other term or provision hereof, or the application of any such term or provision in any other jurisdiction, or to other parties, or under other circumstances, all of which remain valid to the maximum extent permitted by law. This Letter Agreement shall be binding upon and shall inure to the benefit of the parties and their successors, permitted assigns, executors, administrators and personal representatives.
13. Notice.
All notices required hereunder shall be in writing and sent in accordance with the addresses herein with a copy to the email addresses herein (including a copy to legaleurope@funplus.com). Hard copy notices shall be by certified mail or professional courier delivery, and all post and courier fees prepaid. Notices shall be effective upon, for hard copies, the provable date of delivery and, for electronic copies, the provable date of successful transmission.
14. Opportunity to Review.
The parties acknowledge that each has had the opportunity to consult legal counsel in regard to this Letter Agreement, that each has read and understands this Letter Agreement, that each is fully aware of its legal effect, and that each has entered into it freely and voluntarily and based on independent judgment.
15. Governing Law; Disputes; Procedure.
The Letter Agreement, including, without limitation, any Annex or Exhibit hereto, and all matters relating to this Letter Agreement shall be governed by, and construed in accordance with, the laws of the Canton of Zug, Switzerland. If any dispute arises in the process of the performance of this Letter Agreement, the Company and the Moderator shall timely negotiate in good faith to solve the dispute. If the negotiation fails, either party may submit it for final settlement to competent courts in the Canton of Zug, Switzerland.
16. Counterparts.
This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together will constitute one and the same instrument. Digital (e.g. DocuSign) or scanned and e-mailed signatures shall have the same force, legal validity and enforceability as manual or paper-based methods, to the fullest extent permitted by applicable law.
MODERATOR GENERAL GUIDELINES
We love social media and love to keep the Company`s/our social campaigns consistent with the Company`s values. These Guidelines will help guide the Moderator towards a successful experience.
These guidelines identify good practices, including the obligation to disclose Moderator`s connection to the Company. The Company encourages Moderators to add their own personal flair to their content while using these guidelines to keep the message on track. The Company always reserves the right to request edits or removal of any message or contribution.
MODERATOR’s CONTRIBUTIONS SHOULD:
- Be truthful and honest
- Be useful, relevant, and interesting
- Be easy to understand
- Be something others will want to share
- Be appropriate for a large audience
- Be authentically created by Moderator
- Be respectful of others
- Portray the Company, its brand and its products in a positive light
- Contain an appropriate Company brand or campaign slogan as a hashtag (unless Moderator has worked out another alternative with the Company)
- Disclose Moderator`s material connection to the Company, if it’s not clear from Moderator`s post. (Examples of material connections include payment, receipt of free products, contractual relationships, participation in a brand ambassador program, or any other connection that may impact the weight a person gives Moderator’s opinion.)
- Make sure disclosures are clear, prominent (not buried), and appear in each post/video
MODERATOR’s CONTRIBUTIONS SHOULD NOT:
- Misrepresent the qualities or features of the Company`s games
- Disparage or attack other companies, brands, products, or games
- Contain profanity, nudity, or offensive content
- Promote illegal or unsafe activities, like drugs, tobacco, guns, illegal gambling, and/or any other content prohibited by the Company
- Attack others or their beliefs
- Reflect a political position
- Be disrespectful to others
- Attack or undermine the Company or its values
- Contain the copyrighted work of others
- Contain images, names, or likenesses of others without their permission
- Contain images or trademarks that do not belong to the Company
- Misrepresent Moderator’s relationship to the Company