CREATOR PROGRAM AGREEMENT
Last updated: 2021-02-19
This Creator Program Agreement (the “Agreement”) is made and entered into by and between
FRIEND FACTORY AB
with its principal place of business located at Åsögatan 140, 116 24 Stockholm, Sweden and company ID: 559170-1775 (“Friend Factory”)
the individual who have been offered the opportunity to join the Frever Creator Program and accepted such opportunity and this Agreement (the “Creator”)
(hereinafter referred to individually as a “Party” and collectively as “the Parties”).
WHEREAS, the Creator wishes to join the Frever Creator Program as a Creator and thereby use Products for a commercial purpose;
WHEREAS, Friend Factory wishes to provide the Creator the opportunity to perform certain services which entitle the Creator to payment;
WHEREAS, the Parties desire to regulate the commercial use of the Products and the obligations for each Party in this Agreement;
NOW, THEREFORE, the Parties hereby agree as follows:
1.1 EULA shall mean the agreement between Friend Factory and end-users for the use of the Products agreed by the Creator when downloading the Products.
1.2 Products shall mean the software(s) defined in Appendix A.
1.3 Creator shall mean any user of the Product, that have applied to join the Creator Program, and after being accepted by Friend Factory, have entered into this Agreement.
1.4 Creator Program shall mean a program managed by Friend Factory in order to support Creators with help, guidance, asset development and economic compensation.
1.5 Intellectual Property Intellectual Property shall mean all and any copyrights, know-how, licenses, trademarks, service marks, and applications, registrations thereof, trade names, business names and licenses thereof, product descriptions, patents, inventions, processes, discovery, trade secrets, domain names, computer software, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), rights in designs, database rights, scientific, technical or product information, utility models and all other intellectual property rights of a similar or corresponding character, in each case whether registered or unregistered and including all applications and rights to apply for and be granted renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world generated by either Friend Factory or the Creator or licensed by Friend Factory or Creator prior or during this Agreement.
1.6 Payment shall mean payment in SEK or USD from Friend Factory to the Creator in accordance with article 6 and Appendix B;
1.7 Effective Date Effective Date mean the date of signature of this Agreement.
1.8 Personal Data Personal Data mean any Personal Data as defined in Article 4 (1) (1) in The General Data Protection Regulation (EU) 2016/679 ("GDPR")
1.9 Data mean any record of end-user (including the Creator) use and usage of Products
1.10 Confidential Information mean the Intellectual Property and any and all information relating to Friend Factory’s business, including, but not limited to, research, developments, product plans, products, services, diagrams, formulae, processes, techniques, technology, firmware, software,
know-how, designs, ideas, discoveries, inventions, improvements, copyrights, trademarks, trade secrets, customers, suppliers, markets, marketing, finances disclosed by Friend Factory either directly or indirectly in writing, orally or visually, to Creator.
1.11 Termination Date shall mean the date six (6) months counted from the Effective Date.
1.12 Term shall mean the period between the Effective Date and Termination Date.
1.13 Appendices shall mean Appendix A and B (as amended from time to time in accordance with Clause 16.1) to this Agreement.
2. GRANT OF LICENCES
Friend Factory hereby grants the Creator, in addition to the rights stated in the EULA, a non-exclusive license to use the Products for certain commercial purposes, subject to the terms of conditions outlined in Appendix A and the main body of this Agreement.
3. THE CREATOR PROGRAM
The Creator Program is a program indented to help, support and promote certain users of the Products for the purposes of helping said users create better quality videos with the Products and/or increase said users reach in Products and other social media platforms (see appendix B for which social media platforms the Creator Program currently supports). Only users who has applied to join the Creator Program, and where Friend Factory has unilaterally decided, based on information provided in an application that the user shall be allowed to join the Creator Program, shall be eligible to join.
The formal entry into the Creator Program is made through entering into this Agreement. Thus, upon signing the user will become an “Official Frever Creator”.
Friend Factory shall have the right, for whatever reason, upon any time during the Term of this Agreement to discontinue the Creator Program immediately and thus cancelling this Agreement with immediate effect.
Creators who join the program shall have the right to request different kinds support from Friend Factory that may help them in creating videos or promotion of videos, but Friend Factory provides no guarantee that this support will happen. For example, support may mean that Friend Factory can produce certain assets, help circumventing bugs, or promote videos from the Creator in social media or other forms of communication and/or marketing by Friend Factory.
The support given by Friend Factory is given to Creators at the request of Creators or provided at-will by Friend Factory. Creators shall understand and acknowledge that Friend Factory have no obligations to perform such requests of support during the term of the Agreement.
4. CREATOR FEATURES
The Creator shall provide accurate and correct information to Friend Factory for Friend Factory to be able to ensure that the Creator is eligible to join the Creator Program and not in any manner distort, lie, falsify or tweak the information provided to Friend Factory.
The Creator shall ensure that it is either a Swedish citizen or is hired through another legal entity from which the Creator can issue invoices to Friend Factory based on the obligations performed in this Agreement.
The Creator shall ensure that it is at least 13 years old and otherwise has the right/permission to enter into this Agreement.
During the Term the Creator may, free of choice, perform certain tasks which are outlined in Appendix B.
Should the Creator breach any of the obligations of this article 4 and/or Appendix B or breach any other part of this Agreement, Friend Factory shall have the unilateral right to suspend the Creator from the Creator Program and/or terminate this Agreement.
Should the Creator violate any parts of the EULA (except for article 2.2h and 4.6f in the EULA, which this Agreement regulates), Friend Factory shall have the unilateral right to suspend the Creator from the Creator Program and/or terminate this Agreement.
5. TERM & TERMINATION
This Agreement shall remain in effect during the Term and be automatically terminated at the end of the Term.
This Agreement may be terminated by the Creator at any time during the term with 10 days written notice. Any outstanding payment owed by Friend Factory to the Creator will be paid out in accordance with article 6, should this kind of termination take place.
This Agreement may be terminated immediately by Friend Factory at any time during the term of the Agreement. Any outstanding payment owed by Friend Factory to the Creator will be paid out in accordance with article 6, should this kind of termination take place.
Upon the Termination Date of this Agreement, all legal obligations, rights and duties arising out of this Agreement shall terminate except for such legal obligations, rights and duties as shall have accrued prior to the effective date of termination and except as otherwise expressly provided in this Agreement.
The Creator shall have the right to receive economic compensation from Friend Factory when the Creator performs certain tasks such as participating in a brand collaboration brokered by Friend Factory. To be entitled to receive economic compensation in accordance with this Agreement, the Creator must provide a monthly report of the fulfillment of all of its tasks given by Friend Factory as a participant of such collaboration for each calendar month and the payment/invoicing details requested by Friend Factory. The report shall be submitted in accordance with Friend Factory’s instructions at latest on the 10th each calendar month and at earliest on the 1st of the subsequent month from which the report is covering.
Should the Creator breach any of its obligations under article 4 or materially breach any other parts of this Agreement, Friend Factory shall not be obligated to pay any outstanding amount to the Creator (notwithstanding anything to the contrary stated herein).
Friend Factory shall assess the report and approve it in writing at latest on the 15th each month. If the report contains any errors, Friend Factory will notify the Creator, which must promptly correct any errors found in order to be entitled to the compensation. Should the first report or later reports be approved by Friend Factory before the 15th each month, Friend Factory shall pay out the outstanding amount for the month which the report concerns in accordance with 6.5 and 6.6 below.
If the Creator is a Swedish citizen the payment will occur at latest on the 25th each calendar month (15 days from when the report was due) and paid in SEK. The payments are subject to Swedish income taxes.
If the Creator is a legal entity, the payment will be paid out at latest 30 days upon receiving the invoice. The Creator has the right to issue the invoice at earliest when their monthly report has been approved by Friend Factory. If the legal entity is not Swedish, the payment will be made in USD and the invoice may be subject to taxes such as VAT and income taxes for the Creator in the country of residence for the legal entity.
Should the Agreement have been terminated in accordance with this Agreement the Creator shall submit the last monthly report at latest 5 business days from the date of termination in order to be entitled to compensation. Friend Factory shall pay out any outstanding payments for any milestones achieved by the Creator between the last monthly report and the date of termination.
Should the Agreement have been terminated due to a material breach by the Creator, Friend Factory shall not pay out any outstanding payment to the Creator.
7. INTELLECTUAL PROPERTY
The Parties agrees that nothing herein shall give to the other Party any right, title or interest in the Intellectual Property owned or licensed by the other Party before entering into this Agreement as well as any Intellectual Property created independently by the respective Party during the Term of this Agreement except the right to use such Intellectual Property in accordance with the terms of this Agreement. The Parties further agrees that as between the Parties such copyrights, trademarks, and service marks including the goodwill appurtenant thereto are and will be the sole property of the respective Party and that any and all uses of such trademarks and service marks shall be in accordance with the terms and conditions of this Agreement.
8. DATA & PERSONAL DATA
9. CONFIDENTIAL INFORMATION
The Creator agrees, during the Term of the Agreement and thereafter, not to disclose to any third party any Confidential Information.
This confidentiality undertaking does not apply to information which:
is in or comes into the public domain without breach of this Agreement by the Creator,
was in the possession of the Creator prior to receipt from Friend Factory and was not acquired by the Creator from Friend Factory under an obligation of confidentiality or non-use,
is acquired by the Creator from a third party not under an obligation of confidentiality or non-use to Friend Factory, or
is independently developed by the Creator without use of any Confidential Information of Friend Factory.
the Creator is given permission by Fried Factory to disclose; to clarify the Creator shall be allowed to disclose to third parties:
that it is an Official Frever Creator
videos/photos made with the Products
The Creator agree not to disclose the existence or contents of this Agreement or Confidential Information to any third party without the prior written consent of the other Party except if this is required by law or court order.¨
10. WARRANTY & INDEMNIFICATION
The Creator hereby represents, warrants and undertakes that, it:
Shall use all due care, skill and diligence in performing this Agreement;
is free to enter into this Agreement and has no other commitment that will conflict with its performance of this Agreement;
Performance of this Agreement shall be in a timely and professional manner;
It has and will provide all necessary skills, experience, equipment and facilities to perform its obligations pursuant to this Agreement;
It possesses all necessary rights, licenses, consents and permissions (whether contractual, regulatory or otherwise) for performance of this Agreement;
It shall at all times fully comply with any and all applicable rules, regulations and laws currently in force and/or issued from time to time by the respective regulating authorities; and
shall fully comply with applicable third-party software licenses, all applicable legislative requirements and restrictions (including rules for misleading advertising, consumer protection laws, and data protection laws and regulations);
shall not infringe any third-party intellectual property rights;
shall not use any material which infringes any legislative or regulatory restriction or third-party rights (e.g. copyright and/or any other intellectual property rights); and
shall not use any obscene, offensive or defamatory material and expose the other Party to any civil or criminal proceedings.
The Creator declares that it assumes full responsibility for its own actions and/or omissions.
The Creator shall indemnify and hold harmless the other Party from and against any and all claims, liabilities, costs, fines, damages, expenses (including reasonable legal expenses), penalties and any other loss suffered or incurred by them as a result of a breach by the Creator of any of its representations, warranties, undertakings or obligations contained in this Agreement.
11. LIMITATION OF LIABILITY
Neither party excludes or limits its liability for:
Fraud, negligence or willful misconduct;
death or personal injury caused by its negligence or that of its employees, agents or subcontractors (as applicable);
damage to real property or tangible property;
any indemnity given by Creator or Friend Factory under this Agreement;
any regulatory penalties, fines, costs expenses or other losses arising from a breach of any applicable law;
any fines or penalties levied on Friend Factory arising from a breach of this Agreement by Creator;
breach of the confidentiality provisions under this Agreement; or
any liability which cannot be excluded or limited as a matter of law.
Subject to article 10.3, either Party’s aggregate liability arising out of or in connection with this Agreement, whether in contract, tort (including negligence) or otherwise in respect of all events or claims (connected or unconnected) will not exceed the total amounts paid or payable by Friend Factory to Creator.
The Parties expressly agree that if any limitation or provision contained or expressly referred to in this article 11 is held to be invalid under any applicable Law, it will to that extent be deemed omitted, and if any Party becomes liable for loss or damage in respect of which its liability would otherwise have been excluded or limited, that liability will be subject to the other limitations and provisions set out in this article 11.
12. FORCE MAJEURE
Either Party shall be excused from any delay or failure in performance required hereunder if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to, acts of war, fire, insurrection, strikes, lock-outs or other serious labor disputes, riots, earthquakes, floods, explosions or other acts of nature.
The obligations and rights of the Party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the Parties’ respective obligations hereunder shall resume.
In the event the interruption of the excused Party’s obligations continues for a period in excess of fifty (50) calendar days, either Party shall have the right to terminate this Agreement upon five (5) calendar days’ prior written notice to the other Party.
The services to be performed by Creator in relation to the Project hereunder are personal in nature, and Friend Factory offered the Creator to perform under this Agreement as a result of Creator’s expertise relating to such services. Creator, therefore, agrees that it will not assign, sell, transfer, delegate or otherwise dispose of this Agreement or any right, duty or obligation under this Agreement without Friend Factory’s prior written consent. Nothing in this Agreement shall prevent the assignment by Friend Factory of this Agreement or any right, duty or obligation hereunder to any third party.
14. INJUNCTIVE RELIEF
Creator acknowledges that a violation of this Agreement could cause immediate and irreparable harm to Friend Factory for which monetary damages could be inadequate. Therefore, Friend Factory will be entitled to injunctive relief for Creator’s breach of any of its obligations under this Agreement without proof of actual damages and without the posting of bond or other security. Such remedy shall not be deemed to be the exclusive remedy for such violation, but shall be in addition to all other remedies available at law or in equity.
15. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement shall be governed by and construed in accordance with the laws of Sweden, without giving effect to any choice of law or conflict of law provisions.
Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce.
This Agreement constitutes the entire agreement of the Parties on the subject hereof, being the Project, and supersedes all prior understandings and instruments on such subject. This Agreement may not be modified other than by a written instrument executed by duly authorized representatives of the Parties.
No waiver of any provision of this Agreement shall constitute a waiver of any other provision(s) or of the same provision on another occasion. Failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of such provision or any other provision(s) of this Agreement.
Should any provision of this Agreement be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision may be modified by such court in compliance with the law giving effect to the intent of the Parties and enforced as modified. All other terms and conditions of this Agreement shall remain in full force and effect and shall be construed in accordance with the modified provision.
17. SURVIVAL OF PROVISIONS
All provision of this Agreement that by their nature extend beyond the termination of this Agreement shall survive the termination of this Agreement.
APPENDIX A – COMMERCIAL LICENSE FOR PRODUCTS
Non-exclusive, revocable, limited and non-transferable license (without the right to sub-license) to use the Products solely for commercial uses listed below.
The Creator may use the Products to record and create videos and still images, which may be used to promote a social media account managed and owned by the Creator.
The Creator may join a partner program of a social media platform such as Youtube Partner Program or Instagram Partner Program where the Creator will receive ad revenue-share with any of these platforms from a video or image created with the Products. This does not include the right to do direct brand collaborations on other social platforms, it only includes the right to receive ad revenue from ads which the platform has automatically integrated with the Creator’s content on said platform.
The Creator may also be asked to participate in brand collaborations brokered by Friend Factory. If the Creator is participating in such collaboration, any payment to the Creator, if any, shall be agreed on an ad-hoc basis with the Creator and Friend Factory depending on the collaboration in question.
The Creator may not:
market, sell products or services in its own capacity or together with third parties that are not social platforms (such as a brand collaboration) through the use of the Products, which may generate any revenue to the Creator. In other words, the Creator is not allowed to enter into a deal with a brand, where the Creator create a video/image with the use of the Products, and receive money for posting such video/image on social media account that the Creator have created. To clarify, brokering a deal with a brand through the use of a social platform as a proxy, where the brand pays the platform and the platform then pays the Creator is also not allowed;
market and sell commercial TV-shows, feature films, podcasts, corporate identification material, catalogues, and any other type of creative product or services to a third party for which the Creator receive payment, where such product has been made with the help of the Products;
Market or sell a social media account (transferring passwords and other credentials in exchange of money) to a third party that has been built up by the Creator through the use of the Products.
All provisions found in in the EULA shall also apply for this License, except for 2.2h and 4.6f (commercial purposes), which is regulated by this Agreement.
Frever iOS or Android apps and associated software such as frever.com
Any territory where Friend Factory have made the app available for public use through app stores (iOS App Store, Google play etc.)
Every video made public outside of the Products shall include a watermark carrying the logotype of Frever. The Creator is not allowed to remove this watermark or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Products or videos.
APPENDIX B – CREATOR FEATURES
Social media platforms supported by the Creator Program
TikTok and Instagram.
Social Media account related actions to do to be eligible for compensation:
Start a new account on any of the social media platforms above after discussion with Friend Factory.
Swap the account to be a creator/pro account so that analytics and stats can be easily retrieved.
Follow other accounts that are also part of the Frever Creator Program (list will be provided by Friend Factory) on the same social media platform as the account has been registered.
Like and comment other accounts requested by Friend Factory on an ad-hoc basis.
Reporting to do to be eligible for compensation:
Every week the Creator shall report Key Performance Indicators (KPIs) to Friend Factory to an online database (link will be provided separately). KPIs shall include:
No. Followers (Total since account start)
No. Views (gathered the preceding week)
No. Likes (Total since account start)
No. Profile Views (gathered the preceding week)
No. Posts (published the preceding week)
Creative tasks to do to be eligible for compensation:
Upon request of Friend Factory remix certain video(s) in the Products and post the remixed video to your social media and Product account.
Upon request of Friend Factory integrate certain assets in your videos and published these videos to your social media and Product account.