This Global User Generated Content Agreement (this "Agreement") is by and between FAO Schwarz and its affiliated companies, including without limitation Merchsource, Inc. and its subsidiaries and affiliates (collectively, the "Company" or "we," "our," or "us") and you or the organization you represent ("you" or "Participant").
If you do not agree to all of the terms of this Agreement, do not submit User Content on our Platforms or reply to our authorization request to use your User Content posted elsewhere. If you are entering into this Agreement on behalf of an organization, you represent that you have the authority to do so.
License and Use of User Content
From time to time, we, along with our authorized service providers, select User Content on third party online platforms that we would like to use on our Platforms or in connection with related services, including, but not limited to, newsletters, retailer sites, third party sites, prints, stores, video channels and television for marketing and/or advertising purposes (collective “Services”).
Where you upload your User Content to directly on one of our Platforms, you are agreeing to allow us, in our sole discretion, to use your User Content (together with the associated social media handle, social media user name, profile picture, caption and location information included in the User Content) in accordance with this Agreement. By uploading content directly on one of our Platforms, or by authorizing us to use your User Content posted on a third party platform, you become a Participant contributor of User Content.
To be a Participant contributor, you must be, and hereby represent that you are, age of majority or older in your state of residence (which is eighteen (18) in most states, but is nineteen (19) in Alabama and Nebraska and twenty-one (21) in Mississippi) and have access to a valid and genuine third party online platform account. It is not necessary to purchase anything from us to be a Participant contributor of User Content.
Participant hereby: (i) acknowledges that his, her or its User Content, together with the associated social media handle, social media user name, profile picture, caption and location information included in the User Content (“User Generated Content”) may appear in our Services; and (ii) grants the Company and each of its licensees, sublicensees (including all other users of the Services), related entities, brand licensees, and successors and assigns, the non-exclusive, assignable, sub-licensable, worldwide, perpetual, royalty-free, no-cost license and right to use and otherwise exploit Participant’s User Generated Content, in whole or in part, and all of Participant’s social profile information, code, content, content descriptions, and other materials depicted therein, in whole or in part, in any manner or medium now or hereafter known or devised, including on the Internet and in advertising and promotion of the Company and its products and services, throughout the universe and in any and all languages without the requirement to make payment to you or to any third party or the need to seek any third party permission (the “License”).
Participant hereby agrees that the License grants the Company the perpetual, royalty-free and worldwide right to: (i) make unlimited derivative works from Participant’s User Generated Content, to assign or transfer any or all such rights and to grant unlimited, multiple sublicenses with no obligations to Participant, whether financial, credit, approval of changes or otherwise; and (ii) use Participant’s name, voice, likeness, image, photograph, biographical material, logos, marks or trade names, or other information provided or obtained, including without limitation, the right to publicly display, publicly perform, distribute, and reproduce Participant’s User Generated Content, name, voice, likeness, social profile information and biographical material, in connection with the Services, in derivative works thereof, and in any advertising, publicity and exploitational material for purposes of advertising or promoting the Company, its products and/or services.
You hereby forever waive and relinquish all so-called "moral rights" now or hereafter recognized, including, but not limited to, any right you may have to be named as the author of the User Generated Content or to protect the integrity of your User Generated Content. The Company may, at no cost or expense to you, process your User Generated Content for playback over the Internet, in print or on television or direct playback on prepared files or other Services. The Company shall have and retain all right, title and interest in and to the data resulting from such processing, including without limitation, encoding, compressing, formatting, and processing of audio and video data.
You give us your permission to redesign, archive, reproduce, disseminate, display, publicly perform and/or replay and make publicly accessible, as well as to cut and edit, adapt and modify your User Generated Content or any part of it. If your User Generated Content is corrupted, inappropriate, illegible or otherwise not in accordance with the terms of this Agreement then we will not accept your User Generated Content. You accept that we may choose not to use your User Generated Content or that we can remove your User Generated Content from any of our Services at any time. You expressly agree and confirm that you will not receive any payment or other remuneration if we use your User Generated Content in any of our Services or otherwise.
We will only use personal information supplied by you for the purposes of posting your User Generated Content unless you provide your consent for us to use your personal information for any other agreed purpose; provided, however, that we have the right to disclose your identity to any third party who claims that the User Generated Content infringes their rights.
Participants shall not submit any User Generated Content that:
- is known to be false, inaccurate or misleading;
- infringes any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
- violates any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising);
- is, or may reasonably be considered to be abusive, illegal, defamatory, libelous, indecent, hateful, racially or religiously biased or offensive, slanderous, indecent, obscene, pornographic, sexually explicit, unlawfully threatening or unlawfully harassing to any individual, partnership or corporation in any way; or that encourages anyone to break any local, state, national or international law;
- is or contains advertising, promotional material or promotes a product, service or other commercial activity;
- impersonates or attempts to impersonate the Company or any of its employees, another user, or person or entity (including, without limitation, the use of email addresses associated with any of the foregoing);
- includes any information that references other websites or personally identifiable information (e.g., first and last name, addresses, email addresses, contact information or phone numbers); or
- contains any computer viruses, worms, Trojan horses, spyware or other potentially damaging technologies, computer programs or files or malicious code that could impact the operation of our Services or any computer or other device.
We reserve the right, but have no obligation, to take any legally available action that we deem appropriate, in our sole discretion, including, without limitation, editing, removing, deleting, taking down or otherwise erasing your User Generated Content at any time without notice for any reason whatsoever. However, we are not obligated to take any action not required by law. We are not responsible or liable for the conduct or content of any user. We reserve the right, but have no obligation, to monitor or become involved in disputes between you and other users. For purposes of certainty, Participant may not make any commercial or any other use of the Services. The Company reserves the right in its sole and absolute discretion, to remove without notice, or refuse to post in the first instance, any User Generated Content.
Non-Confidentiality of Your User Generated Content
You agree that: (a) your User Generated Content will be treated as non-confidential information, regardless of whether you mark it "confidential," "proprietary," or the like, and that such User Generated Content will not be returned by us; and (b) the Company does not assume any obligation of any kind to you or any third party with respect to your User Generated Content. You expressly acknowledge that the Internet and mobile communications may be subject to breaches of security and that you are aware that submissions of your User Generated Content may not be secure, and you will consider this before submitting any User Generated Content. You expressly agree that all User Generated Content is submitted at your own risk.
The Company DOES NOT accept unsolicited ideas or suggestions on its Platforms. We do not seek any unsolicited ideas or materials for products or services, including, without limitation, ideas, concepts, inventions or designs for apparel, toys, music, gadgets, web sites, apps, books, software or otherwise (collectively, "Unsolicited Ideas and Materials"). Any Unsolicited Ideas and Materials you post on or send to us via our Platforms are deemed User Generated Content and licensed to us as set forth in this Agreement. The Company's receipt of Unsolicited Ideas and Materials is not an admission by the Company of their novelty, priority, or originality, and it does not impair the Company's right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials. Each Participant also expressly acknowledges that other participants and/or the Company may have created ideas and concepts that may have familiarities or similarities to his, her or its own User Generated Content and Unsolicited Ideas and Materials, and that he, she or it will not be entitled to any compensation or right to negotiate with the Company because of these familiarities or similarities. Notwithstanding any custom and practice to pay an individual or entity for an idea (if any), nothing herein shall create an implied or express contract or other obligation to compensate you for your User Generated Content or for any of your ideas or materials in any communications with the Company or its employees, whatsoever.
You hereby agree: (i) that all goodwill that arises in connection with any use of the Company's trademarks or likeness inures exclusively to the Company; and (ii) not to challenge the Company's ownership or control of any Company trademarks, nor use or adopt any trademarks that might be confusingly similar to such Company trademarks.
Representations and Warranties - Indemnity
Participant represents that he, she or it has all necessary rights to allow us to use the User Generated Content, including all necessary permissions from any person(s) entitled with any intellectual property rights or personal rights in the User Generated Content.
Participant hereby represents and warrants that his, her or its User Generated Content and all contributions thereto:
- will not infringe or violate any right whatsoever, including, without limitation, any copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy of any person or entity;
- complies with all applicable laws and regulations;
- are free from viruses and other malware; and
- are not the subject of any threatened or pending litigation, claim or dispute that might give rise to litigation, which adversely affects or in any way prejudices, impairs or diminishes the rights granted to the Company under this Agreement or the value thereof.
Participant further represents and warrants that he, she or it has the right to execute and fully perform this Agreement and that Participant is of the age of majority in his or her state of residence. Participant will defend, indemnify and hold the Company and its parents, and each of their respective successors, assigns, agents and licensees, harmless from and against: (a) any claims, costs, injuries, losses and damages related to any unauthorized use of the User Generated Content or any breach by Participant of this Agreement; and (b) any third party claims, to the extent relating to any breach of any representation, warranty or covenant made by Participant in this Agreement.
Information We Collect or Store
Governing Law and Arbitration
This Agreement shall be subject to and governed by the laws of the State of California, excluding its conflicts of law rules. You agree to ARBITRATE ANY DISPUTES WITH THE COMPANY and to WAIVE JURY TRIAL and CLASS ACTIONS as more fully set forth our Terms of Service, which terms govern this Agreement as if fully incorporated into this Agreement (except that if there is a conflict between this Agreement and those terms, this Agreement will govern such conflict). You agree to comply with all applicable laws, rules and regulations. The Company reserves the right to modify this Agreement, at any time without prior notice (an "Updated Agreement"). You agree that we may notify you of an Updated Agreement by posting it on the Services so that it is accessible via a link on the Services, and that your use of the Services or submission of User Generated Content after we post the Updated Agreement (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Agreement. Therefore, you should review this Agreement on a regular and frequent basis. An Updated Agreement will be effective as of the time that the Company posts it on the Services, or such later date as may be specified in it.