CAMPAIGN PARTICIPATION AND PUBLICITY RELEASE AGREEMENT
Welcome to the Tonies’ Campaign! This Campaign Participation and Publicity Release Agreement (“Agreement”) applies to participation in the campaign or program named in the sign-up form (the “Form”) to which this Agreement is linked (the “Campaign”). The Campaign is provided by tonies US, Inc. and its parent tonies GmbH (collectively, “Tonies”). Please read this Agreement carefully.
* * *
This Agreement is between Tonies and I, the individual named in the Form, and if I am the minor child named in the Form, my legal parent or legal guardian acting on my behalf (in either instance “I”, “me” or “Participant”). (Note: If more than one child is named in the Form, the reference to “child” shall be deemed to include all such named minor children)
By consenting to this Agreement (via the consent method designated in the Form e.g. selecting that option in the form) or participating in the Campaign, I hereby acknowledge and agree to the following terms:
- My Grant to Tonies. For the opportunity afforded to me to participate in the Campaign, I hereby grant to Tonies and Tonies’ subsidiaries, affiliates, licensees, designees, successors, agents and assignees (collectively, the “Tonies Parties”), the irrevocable, perpetual, royalty-free and worldwide right to do the following in any and all languages, forms, media and markets now existing or hereafter created: (a) to use, reproduce, modify, prepare derivative works from, publicly distribute, publicly perform and display any photos, videos or other footage or content that I may provide to Tonies or otherwise make available publicly via my social media or other channels in connection with or related to my participation in the Campaign (collectively, the “Participant Materials”), in connection with the promotion, marketing and advertisement of Tonies’ products and services, and any other commercial activities of Tonies, as determined by Tonies, in its sole discretion (the “Purpose”); and (b) to use my image, photograph, voice, name, signature, and any likeness of me (my “Likeness”), and my statements, opinions, and testimonials “as is”, edited, paraphrased, amplified, shortened and/or put in conversational form, whether made prior to or after the effective date of this Agreement (my “Statements”) as depicted in or related to the Participant Materials or Campaign Content (defined below) for the Purpose. I understand that the media in which my Likeness and Statements, and the Participant Materials may be used as a result of the grant of rights by me hereunder includes, without limitation, newsletters, flyers, posters, brochures, advertisements, fundraising letters, annual reports, press kits and submissions to journalists, websites, all forms of broadcast television media, print media, and digital and social media channels, communications and applications.
- Tonies owns the Campaign Materials. As between Tonies and me, Tonies will own all content developed or created by Tonies, or on its behalf, in which my Likeness, Statements, or the Materials may be incorporated or appear, including all intellectual property rights therein (“Campaign Content”). I hereby waive any right that I may have to inspect or approve the Campaign Content or use of my Statements, Likeness or Participant Materials therein and any moral rights I may be deemed to have in the Campaign Materials. In addition, any suggestions, ideas or other feedback regarding Tonies’ products and services that I provide to Tonies’ during my participation in the Campaign or otherwise, including feedback embodied in the Statements (collectively, the “Feedback”) will be the property of Tonies, and I agree to assign, and do hereby assign, to Tonies all of my right, title and interest in and to my Feedback, including all related intellectual property rights. Nothing in this Agreement shall obligate Tonies to use my Likeness, Statements, Feedback or the Participant Materials in any manner at any time.
- My Warranty for My Participant Materials. I represent and warrant that (i) the Participant Materials are original and do not violate the rights of any third parties; (ii) I am fully authorized to grant the rights granted in this Agreement; (iii) I am of the age of majority in the state in which I reside and I am fully competent to enter into this Agreement; and (iv) the Statements I provide are true and accurately reflect my honest opinion of and experience with Tonies and Tonies’ products (including those of my minor child) and will continue to be true and accurate unless I notify Tonies otherwise in writing. I further represent, warrant, and covenant that I am the legal parent or legal guardian of the minor child named in the Form.
- Requirements for My Posts. I will comply with all applicable laws and regulations when engaging in any activities part of my participation in the Campaign, including the Federal Trade Commission’s Guides Concerning Endorsements and Testimonials in Advertising (“FTC Guides”), available at https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf, as well as the Participant Requirements set forth in Exhibit A below, which forms part of this Agreement. Furthermore, I agree that I will (i) follow any instructions provided from Tonies regarding how and when to post any Participant Materials (including any required hashtags or links provided by Tonies), and (ii) submit all posts for Tonies’ written approval (email being a sufficient form of writing) before posting or otherwise distributing any posts. I acknowledge that if I violate these requirements or any instructions, Tonies will have the right to require me to take down the non-conforming Participant Materials, and I will do so immediately.
- My Acknowledgements. While Tonies may, in its sole discretion, provide me with free products or services from Tonies or its marketing partners in connection with my Campaign participation, I acknowledge and agree that I am not entitled to any payment, royalty or consideration in connection with the use of my Likeness, Statements, Feedback or the Participant Materials, as authorized by this Agreement or for my participation in the Campaign. I understand that I am a volunteer, and this Agreement does not create an employer-employee relationship, partnership, joint venture, or agency relationship, and as a volunteer, I am not entitled to workers’ compensation coverage by Tonies from any Tonies Parties. I am responsible for payment of all taxes resulting from my receipt of any products or services as a result of my participation in the Campaign, if any.
- Release. I AGREE NOT TO SUE, AND IRREVOCABLY, UNCONDITIONALLY AND ENTIRELY RELEASE, AND HOLD TONIES, THE TONIES PARTIES AND ANY OTHER SUCH PERSONS OR ENTITIES AS TONIES MAY DESIGNATE FROM TIME TO TIME TO EXERCISE ITS RIGHTS HEREUNDER HARMLESS FROM ANY AND ALL MANNER OF LIABILITIES, CLAIMS AND DEMANDS OF ANY KIND OR NATURE, WHATSOEVER, IN LAW OR EQUITY, WHETHER KNOWN OR UNKNOWN, WHICH I EVER HAD, NOW HAVE, OR IN THE FUTURE MAY HAVE AGAINST TONIES AND ITS AGENTS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, ASSIGNS AND ANY OTHER SUCH PERSONS OR ENTITIES AS TONIES MAY DESIGNATE FROM TIME TO TIME TO EXERCISE ITS RIGHTS HEREUNDER RELATING IN ANY WAY TO THIS AGREEMENT, THE USE OF MY LIKENESS, STATEMENTS, FEEDBACK AND THE PRODUCTION MATERIALS, INCLUDING CLAIMS FOR INVASION OF RIGHT OF PRIVACY, RIGHT OF PUBLICITY, DEFAMATION OR COPYRIGHT INFRINGEMENT. I understand that I may not seek any injunctive or equitable relief for use of my Likeness, Statements, Feedback and the Production Materials, such as the termination of this Agreement or stopping the usage or distribution of any of the foregoing.
- Other Terms. This is the complete and binding agreement between Tonies and me and supersedes any other discussions or understandings that I may have had with Tonies about my Likeness, Statements or the Production Materials. If any provision of this Agreement is invalid, the other provisions will remain in effect to the maximum extent permitted by law. This Agreement is governed by the laws of the State of California without regard to or application of conflict of laws rules or principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein. This Agreement cannot be modified except by a written agreement signed by both Tonies and me.
These Participant Requirements are incorporated into and forms part of the Campaign Participation and Release Agreement (“Agreement”). Capitalized terms not defined herein have the meaning given in the Agreement. Tonies believes in full transparency and in full, fair and effective disclosures of material facts relating to your (the “Participant”) relationship with Tonies. Accordingly, Tonies requires that Participant adhere to the FTC Guides, when publishing social media posts or any other content about Tonies or any of Tonies’ products or services, or when otherwise posting or streaming about or for the benefit of Tonies or Tonies’ products or services.
- Clear and Prominent Disclosure of Material Connections. Participant understands that Participant’s connection with Tonies might materially affect the weight or credibility consumers give to Participant’s statement. For this reason, Participant will not post or otherwise speak about or refer to Tonies, directly or indirectly, without disclosing such connection, including the fact that Participant was afforded any consideration or received any free products or services from Tonies. Such disclosure must appear clearly and conspicuously and in close proximity to any statements Participant makes about Tonies, Tonies’ products and services, and/or similar public statements regardless of the space limitations of the medium. In particular, Participant agrees that consumer should not be required to click on, scroll down or mouse over a link in order to view the disclosure and the disclosure should appear before the “click to read more” button. If Participant is streaming, Participant should ensure that Participant both discloses in a voice over and superimpose a disclosure periodically during the stream. The specific form of any such disclosure (which may for example include the hashtags #ad or #sponsored) will either be provided to Participant, or otherwise approved by Tonies, or mutually agreed upon by Participant and Tonies, but at all times in compliance with the FTC Guides. If Participant has any questions on what it means to be in compliance, Participant can access the FTC’s FAQ here https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking.
- Participant’s Honest and Truthful Opinions. Participant’s statements must reflect Participant’s honest and truthful opinions, findings, beliefs, or experiences. When representing that Participant uses Tonies’ products or services, Participant must be a bona fide user of such products or services at the time the statement is given. Generally, Participant should only make factual statements about Tonies or Tonies’ products or services which Participant knows to be true, and which can be verified. Moreover, Participant’s statements must not convey any express or implied representation that would be deceptive if made directly by Tonies.
- No Inappropriate Language or Content. Participant agrees that all social media postings and comments shall always be in good taste and free of inappropriate language and/or content. In particular, Participant understands that content may be rejected by Tonies if it:
- Contains material that is inappropriate, indecent, obscene, hateful, tortious, defamatory, slanderous or libelous or that otherwise promotes bigotry, racism or discrimination against an individual based on race, gender, religion, nationality, disability, sexual orientation or age;
- Contains material that is unlawful, in violation of or contrary to the laws or regulations of the United States or of any jurisdiction where content is created;
- Contains information known by Participant to be false, inaccurate or misleading;
- Contains material or content for which Participant has been compensated or granted any consideration by any third party;
- Disparages Tonies or any other person or party; and/or
- Contains material not consistent with the image and values of Tonies or otherwise associates Tonies or any of Tonies’ products or services with any inappropriate or controversial content that would reflect poorly upon Tonies or its products or services.