This Influencer Terms of Service – General Terms constitute the General Terms for the purposes of the Influencer Terms of Service Form (“Form”) accepted by the Influencer/Agency on the Agreement Date, and, together with the Form, shall constitute the agreement between Shopee Mobile Malaysia Sdn. Bhd. (“Shopee”) and Influencer/Agency (as identified in the Form).
1.1 Unless otherwise defined, capitalised words used in this Terms of Service shall have the meaning given to them in the Form.
1.2 In this Terms of Service the following words will have the meanings assigned to them in this Clause, except where inconsistent with the context:
"Affiliate" means, with respect to an entity, any entity that Controls, is Controlled by, or is under common Control with, that entity, where "Control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management, operating policies, or assets of that entity, whether by way of ownership of more than 50% of its voting or equity securities or assets, or by way of contract, management agreement, voting trust, or otherwise; provided that the term "Affiliates" shall include any variable interest entity regardless of whether any variable interest entity may be, or required to be, consolidated with that entity under generally accepted accounting principles;
"Applicable Law" means, with respect to any person, any and all: (a) laws, ordinances, or regulations, (b) codes, standards, rules, requirements, orders and criteria issued under any laws, ordinances or regulations, (c) rules of any securities exchange or equivalent; (d) applicable data protection laws; and (e) any and all judgments, orders, writs, directives, authorisations, rulings, decisions, injunctions, decrees, assessments, settlement agreements, or awards of any governmental authority, in each case applicable to such person or its business or properties;
“Business Day” means any day other than Saturdays, Sundays or public holidays in Malaysia;
"Commercially Reasonable Efforts" means taking such steps and performing in such a manner as a well-managed company would undertake where such company was acting in a determined, prudent and reasonable manner to achieve the particular result for its own benefit;
“Confidential Information” means all confidential, non-public information and data, of any nature and in any form (whether written, visual, electronic or oral), that the Receiving Party and its Representatives receive from the Disclosing Party and its Representatives under this Terms of Service (whether on or before the Agreement Date), including without limitation: (a) information relating to the Disclosing Party's and its Affiliates' business and business strategies, markets, customers, products (including new products and plans for new products, as well as marketing plans and materials), pricing and cost information, condition (financial or otherwise), operations, assets, liabilities, results of operations, cash flow and prospects, or employees, officers, contractors and agents, including, without limitation, technical, commercial, financial, accounting, legal and administrative information; (b) the existence of and the terms of this Terms of Service (including any Fees paid to Influencer/Agency and the commercial details set out in the Form), as well as the Disclosing Party's position in any dispute in relation to this Terms of Service; and (c) any copies of Confidential Information and all information created or derived by the Receiving Party or its Representatives from the Confidential Information, provided that Confidential Information shall not include information that: (i) is already in the Receiving Party’s or its Representatives’ possession at the time of disclosure by the Disclosing Party or its Representatives; (ii) is or becomes part of public knowledge other than as a result of any action or inaction of the Receiving Party or its Representatives in breach of the confidentiality provisions of this Terms of Service; (iii) is obtained by the Receiving Party or its Representatives from a third party who did not obtain such information, directly or indirectly, from the Disclosing Party subject to any confidentiality obligation; or (iv) is independently developed by the Receiving Party or its Representatives without the use of or reference to the Confidential Information of the Disclosing Party;
“Insolvency Event” means, in relation to a specified person, any of the following events: (i) a receiver or similar officer being appointed over all or a material part of that person’s assets or undertaking; (ii) the passing of a resolution for winding-up (other than a winding-up for the purpose of, or in connection with, any solvent amalgamation or reconstruction) or a court making an order to that effect or a court making an order for administration (or any equivalent order in any jurisdiction); (iii) entry into any composition or arrangement with that person’s creditors (other than relating to a solvent restructuring); (iv) ceasing to carry on business; (v) being unable to pay that person’s debts as they become due in the ordinary course of business; or (vi) the person causing or being subject to any event with respect to it which, under Applicable Law, has an analogues effect to any of the events specified in sub-paragraphs (i) – (v) above;
“Influencer Content” means all content created and provided by Influencer in accordance with this Terms of Service, including without limitation all Intellectual Property Rights owned by Influencer such as texts, images, photographs, illustrations, drawings, animations, songs, audios, videos and any other work created by Influencer and made available in accordance with this Terms of Service;
“Individual Rights” means any and all rights under Applicable Law protecting Influencer’s name, pseudonyms, voice, portrait, image, likeness, biography, character, persona, and all other aspects of his or her publicity, privacy or personality rights, and all Intellectual Property Rights related or incidental to any of the foregoing;
“Intellectual Property Rights” means all copyright, patents, utility innovations, trademarks and service marks, geographical indications, domain names, layout design rights, registered designs, design rights, database rights, trade or business names, rights protecting trade secrets and confidential information, rights protecting goodwill and reputation, and all other similar or corresponding proprietary rights and all applications for the same, whether presently existing or created in the future, anywhere in the world, whether registered or not, and all benefits, privileges, rights to sue, recover damages and obtain relief or other remedies for any past, current or future infringement, misappropriation or violation of any of the foregoing rights; and
“Representatives” means a Party’s Affiliates (where applicable), and its and its Affiliates’ respective officers, directors, employees, advisers, agents and subcontractors.
2.1 This Terms of Service applies to the Influencer/Agency on the Agreement Date (as set forth in the Form) and, subject to earlier termination in accordance with the terms of this Terms of Service, will continue for the Initial Term (as set forth in the Form). Upon expiry of the Initial Term or any then-current Renewal Term (as the case may be), Shopee may renew the Initial Term in such periods as may be determined by Shopee in writing to the Influencer/Agency (“Renewal Term”). The Initial Term and the Renewal Term (where applicable) shall together be the “Term”.
3.1 Influencer/Agency acknowledges and agrees that it shall provide the services set forth in the Form (“Services”) to Shopee during the Term independently in accordance with this Terms of Service and Shopee’s needs, and shall consider (in its reasonable discretion, making use of its technical and professional know-how) the feedback of Shopee from time to time. The Services shall include such other tasks, services, functions, activities and obligations which are not specified in this Terms of Service but which are reasonably required (in Influencer/Agency’s reasonable discretion, making use of its technical and professional know-how, after consultation with Shopee) for Influencer/Agency’s performance of the Services; and shall be performed: (X) to at least the same degree of accuracy, completeness and quality provided by, and with the same level of care, skill and diligence used by, influencers and other social media personalities of similar standing to Influencer; and (Y) in accordance with Applicable Law.
3.2 Shopee may from time to time place orders with Influencer/Agency for additional Services in writing, the form as determined by Shopee (“Order”).
3.3 Each such Order shall form part of this Terms of Service and the terms of this Terms of Service shall apply to each Order. If there is a conflict between: (i) the Form and this Terms of Service (together as “Master Terms”); and (ii) any Order, then such conflict will be resolved by giving precedence to the Master Terms unless expressly stipulated otherwise in the Order.
3.4 Influencer/Agency shall confirm receipt of each Order to Shopee within two (2) Business Days of receiving such Order, following which Influencer/Agency shall be deemed to have accepted the Order.
3.5 Prior to delivery of the Services by Influencer/Agency to Shopee under an Order, Shopee shall be entitled to amend, vary or terminate the Order with immediate effect by written notice to Influencer/Agency.
3.6 When providing the Services, Influencer shall and the Agency shall procure the Influencer to:
(a) carry out the activities (including the creation and provision of Influencer Content) set forth in the Form and/or the Orders (as applicable);
(b) produce Influencer Content that is original, well created and edited, and of at the least the same overall quality as Influencer’s original content published prior to engagement as an Influencer by Shopee;
(c) produce the Influencer Content independently, provided that it shall consider (in its reasonable discretion, making use of its technical and professional know-how) any feedback and/or requests (including creative briefs) provided by Shopee from time to time;
(d) (where applicable) attend the events hosted, promoted or supported by the Shopee (“Company Event”), subject to prior invitation submitted by the Shopee at least five (5) days from the commencement date of the Company Event. Influencer shall also respond to Shopee’s invitation within forty-eight (48) hours of receipt;
(e) ensure that its performance of the Services shall not involve any attempts to defraud Shopee or any other person, and that no information provided to Shopee is false, inaccurate or misleading;
(f) not publish, authorise or otherwise make any statement or representation or other communication (whether through social media platforms, or during the live streams) that defames, denigrates, disparages or is otherwise damaging to Shopee or its Affiliates, or their respective products, services, officers, directors, employees or shareholders (“Company Entities”);
(g) ensure that it does not include any abusive or prohibited content (including but not limited to: (i) inappropriate language, defamatory, abusive or infringing materials, (including content promoting bigotry, racism, discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age); and (ii) content that pertains to contraband tobacco; counterfeit or infringing intellectual property rights; illegal pharmaceuticals, drugs or supplements; gambling or lotteries, money lending businesses or pornography) when creating and publishing Influencer Content and any other materials referencing or relating to Company Entities; and
(h) not subcontract or delegate any of its obligations under this Terms of Service to a third party without Shopee’s prior written approval.
3.7 Shopee shall have the right to:
(a) review and approve all Influencer Content or any other public announcements or content by Influencer relating to this Terms of Service prior to posting or publishing; and
(b) require that any Influencer Content is deleted, moved, limited or otherwise removed from public circulation (including where such Influencer Content breaches any requirements of Shopee from time to time).
4. FEES; INVOICING; TAX
(a) In consideration for the Services rendered by Influencer, the Shopee shall pay to Influencer the fees calculated in accordance with the Form and/or the Order (as applicable) (“Fees”).
(b) Influencer acknowledges and agrees that: (i) other than the Fees, no other fees, royalties, payments, amounts, charges or consideration of any kind will be due to Influencer or any third party for Shopee’s receipt of the Services; and (ii) it shall be solely responsible for any costs in providing the materials, tools and equipment necessary for provision of the Services (including any loss or damage to the foregoing).
(c) Influencer acknowledges and agrees that the Shopee’s records shall be the sole, final and conclusive evidence of Influencer’s performance under this Terms of Service and any and all Fees payable and shall be binding on Influencer for all purposes whatsoever in connection with this Terms of Service.
(a) Shopee shall pay undisputed Fees to Influencer in accordance with the Form and/or the Order (as applicable), but may withhold payment of Fees that Shopee disputes in good faith (or, if the disputed Fees have already been paid, then Shopee may withhold an equal amount from a later payment), including disputes in respect of an error in an invoice or an amount paid.
(b) The payment of Fees shall be paid to Influencer’s Bank Account (as detailed in the Form) via wire transfer. For the avoidance of doubt, Influencer shall ensure that Influencer’s Bank Account details are accurate and valid for the purposes of Shopee making payment of the Fees to Influencer. In the event of any bank related penalties due to inaccurate and/or invalid Influencer’s Bank Account details, such penalties shall be solely borne by Influencer.
(c) The Parties acknowledge and agree that Shopee shall have the right to set off and apply any sum due or owing by Shopee and/or its Affiliates to Influencer and/or its Affiliates (where applicable) under this Terms of Service against any amounts due and owing by or claimed against Influencer and/or its Affiliates to Shopee and/or its Affiliates (where applicable) under this Terms of Service or any other dealings, agreements, contracts or debit notes, including but not limited to any amounts of debts, outstanding claims, demands, loss or damages.
(a) For the purpose of this Terms of Service, “Tax” means any taxes, including but not limited to service tax, consumption tax, value-added, goods-and-services tax, business tax and any similar local sales tax, withholding tax, indirect tax, personal income tax or corporate income tax.
(b) All Fees and other amounts due under this Terms of Service are inclusive of Taxes. Shopee may deduct any applicable Taxes through a reverse-charge or similar mechanism, to the extent required or allowed by Applicable Law. Shopee shall timely remit any deducted Taxes to the relevant government authority and shall provide Influencer with documentary evidence of such remittance acceptable to Influencer.
(c) Each Party shall be responsible for the payment of its own Taxes arising from this Terms of Service as required under Applicable Law in the relevant tax jurisdictions. Notwithstanding any other provision in this Terms of Service, should Shopee have any withholding obligation with respect to any payment due pursuant to this Terms of Service, such payments are considered to be inclusive of all Taxes and Shopee shall be entitled to deduct and withhold from such payment any Taxes required to be deducted and withheld with respect to the making of such payment under any provision of Applicable Law. To the extent that amounts are so withheld and deducted pursuant to this Clause, such withheld amounts shall be treated for all purposes of this Terms of Service as having been paid to such authority in respect of which such deduction and withholding was made and Shopee shall have no further obligation to pay the equivalent of such withheld amounts, or any part thereof, to Influencer. Shopee will furnish to Influencer copies of receipts or other government certifications evidencing all Taxes withheld from such payment promptly after such receipts are available. The Parties shall cooperate and endeavour to comply with all applicable documentation and registration requirements so as to minimize the amount of withholding Tax imposed, if any. Without prejudice to the generality of the foregoing, Influencer shall provide Shopee with a valid Certificate of Residence or equivalent document issued by the relevant authority certifying the country in which Influencer is a tax resident within a reasonable time upon Shopee’s request, failing which Shopee is entitled to deduct and withhold the full amount of any Taxes it deems necessary to be deducted and withheld from any payment.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Influencer Content Rights. Influencer acknowledges and agrees that the Influencer Content is being created by Influencer as works made for hire under Applicable Laws, and that any and all rights, title and interests, including all Intellectual Property Rights, in and to the Influencer Content are exclusively owned by Shopee. If and to the extent that any rights, title or interests in or to the Influencer Content do not vest in Shopee as a work made for hire, Influencer hereby unconditionally and irrevocably assigns to Shopee all such rights, title and interests worldwide in perpetuity. At any time upon Shopee’s request, Influencer shall execute any document in a form acceptable to Shopee to give full effect to Shopee’s ownership of the Influencer Content as aforesaid. If, at any time, Influencer fails or is unable to execute any such document within fourteen (14) days upon Shopee’s request, Influencer hereby irrevocably designates and appoints Shopee or its duly authorized officers and agents as Influencer’s agents and attorneys-in-fact, to act for and on Influencer’s behalf to execute and file any and all such documents and to do all other lawfully permitted acts with the same legal force and effect as if executed or done by Influencer. Shopee shall have the exclusive right, in perpetuity and on a worldwide basis, to use, reproduce, modify, adapt, make derivative works of, publish, distribute, publicly display, communicate to the public, publicly perform, stream, broadcast and otherwise exploit the Influencer Content at its sole and absolute discretion without payment of any royalties, accountings or other amounts to Influencer or any third party. To the extent permitted under Applicable Laws, Influencer hereby waives, on behalf of itself and its employees, contractors and agents, all moral and economic rights (or equivalent rights) in respect of the Influencer Content arising under the laws of any jurisdiction. To the extent that such rights cannot be waived under Applicable Laws, Influencer agrees not to assert such rights against Shopee.
5.2 Influencer Individual Rights. Influencer hereby grants to Shopee for the longest term permitted under Applicable Law a non-exclusive, worldwide, irrevocable, transferable, sublicensable and royalty-free licence to use the Individual Rights for the purposes of promoting and marketing related services as offered by Shopee and its Affiliates from time to time.
5.3 Shopee IP.
(a) Influencer acknowledges and agrees that: (i) Shopee owns all rights, title and interests, including all Intellectual Property Rights, in and to all materials and content provided by Shopee to Influencer for the purposes of this Terms of Service (including any customisations, enhancements, changes or derivatives thereof), and the Shopee name, logos and trademarks (collectively, “Shopee IP”); (ii) it shall not at any time acquire any right, title or interest in or to Shopee IP, or any part thereof; and (iii) it shall not at any time seek to register, assert or claim any right, title or interest in or to Shopee IP, or any part thereof.
(b) Shopee hereby grants to Influencer during the Term a non-exclusive, revocable, non-transferable, non-sublicensable and royalty-free licence to use the Shopee IP only to the extent necessary for Influencer to perform its obligations under this Terms of Service (including the provision of the Services), provided that all use of any of Shopee’s logos, trademarks and other branding devices by Influencer shall require Shopee’s prior written consent, except to the extent that such usage is in accordance with the terms of this Terms of Service or Shopee’s instructions.
6. SERVICE RECIPIENTS
6.1 Influencer/Agency shall perform the Services for Shopee and its Affiliates, and in this Terms of Service, unless the context requires otherwise, references to Shopee will include, to the extent that they are receiving the Services, Shopee’s Affiliates.
7.1 Either Party may, without prejudice to its other rights and obligations under this Terms of Service, terminate this Terms of Service at any time with immediate effect upon sending a written termination notice to the other Party if:
(a) the other Party commits a material breach of any of its obligations, representations or warranties under this Terms of Service and fails to remedy that breach within fourteen (14) days after being notified in writing by the terminating Party to do so;
(b) the other Party commits a series of breaches that: (i) by themselves may not be material; (ii) are notified to the other Party; and (iii) are not remedied within fourteen (14) days of being notified to do so, if, in the aggregate, such uncured breaches would amount to a material breach;
(c) an Insolvency Event occurs with respect to the other Party; or
7.2 Shopee may terminate this Terms of Service or any Order (where applicable) at any time and without cause by providing Influencer/Agency with prior written notice of seven (7) days.
7.3 Termination or expiration of this Terms of Service shall be without prejudice to the Parties’ rights and liabilities that may have accrued prior to such expiration or termination, unless waived in writing by the Party enjoying the right.
7.4 Upon termination by Shopee pursuant to Clause 7.1 or Clause 7.2, and unless otherwise agreed in writing between the Parties, Influencer/Agency shall immediately refund Shopee any Fees that Shopee has paid under this Terms of Service while Influencer/Agency has been in material breach of this Terms of Service and for which the Services have not been provided by Influencer/Agency to the absolute satisfaction of Shopee at the termination date
7.5 The expiry or termination of this Terms of Service shall not affect the coming into force or the continuance in force of any provision of this Terms of Service which is expressly or by implication intended to come into force or continue in force on or after expiry or termination (including, but not limited to, Clauses 5, 7, 9, 10, 11, 12 and 13).
8. REPRESENTATION AND WARRANTIES
8.1 Each Party represents, warrants and undertakes to the other Party that:
(a) (if applicable) it is duly organised, validly existing and in good standing under the laws of the jurisdiction where it is organised, with full power and authority to carry on its business as now being conducted;
(b) it is not the subject of an Insolvency Event and is not aware of any such risk;
(c) it has the full capacity, power and authority to enter into and perform its obligations under this Terms of Service, and this Terms of Service, when executed and delivered, will constitute its valid and binding obligations enforceable in accordance with its terms;
(d) the execution and delivery of, and the performance by its of its obligations under, this Terms of Service will not result in any breach of any: (i) (if applicable) any provision of its memorandum and articles of association, certificate of incorporation, bylaws or similar organisational documents; (iii) contract to which it is a party or by which it is bound (which, in the case of Influencer only, shall include any employment, non-compete or confidentiality agreement); or (iv) judgement or court order to which it is bound; and
(e) as far as it is aware, there is no undisclosed proceeding, pending or threatened event, matter, occurrence or circumstance which challenges or may have a material adverse impact on this Terms of Service or its ability to perform its obligations pursuant to this Terms of Service.
8.2 Influencer/Agency further represents, warrants and undertakes to Shopee that:
(a) (i) it has all rights to enter into this Terms of Service and to grant to Shopee all rights and assignments granted under this Terms of Service, free of any encumbrances that may conflict with Shopee’s full enjoyment thereof; and (ii) its performance of its obligations under this Terms of Service and Shopee’s receipt and use of the Services and Influencer Content will not infringe on the rights (including Intellectual Property Rights) of any third party;
(b) it will not violate any Applicable Law (including any applicable data privacy legislation) in its performance of this Terms of Service;
(c) it shall obtain and retain throughout the Term all third party and regulatory approvals, registrations, licences, consents and rights necessary to perform its obligations under this Terms of Service;
(d) it has the necessary qualifications, experience and expertise, as well as the resources (e.g. tools, equipment, materials, human, financial), necessary to perform its obligations under this Terms of Service;
(e) it regularly renders services similar to the Services herein as an independent contractor to multiple customers, and is in the business of rendering such services, and Influencer/Agency shall render the Services independently without being subject to control by Shopee;
(f) it assumes all liability that may arise from any occupational or other hazard or illness associated with the Services under this Terms of Service; and
(g) it will inform Shopee promptly of the existence of any event, matter, occurrence or circumstance which may have an adverse effect upon Influencer/Agency’s ability to fulfil its obligations under this Terms of Service.
9.1 Influencer/Agency (“Indemnifying Party”) will defend, indemnify and hold harmless Shopee (“Indemnified Party”) and its Affiliates, and its and their respective officers, directors, employees, subcontractors and agents (collectively, the “Indemnitees”) from and against any and all losses, liabilities, damages, fines, judgments, settlements, costs, expenses, and fees (including reasonable and justified attorney’s fees), whether foreseeable or not, (“Losses”) directly resulting from any third party claims, investigations, legal or administrative action, litigation or arbitrations or demands (collectively, “Third Party Claims”) to the extent arising out of or relating to:
(a) any actual breach of any of the Indemnifying Party’s representations, warranties, covenants, or obligations under this Terms of Service;
(b) any fraud, fraudulent misrepresentation, wilful or negligent act or omission of the Indemnifying Party, or, where applicable, any of its officers, employees or, agents in relation to the performance of the Indemnifying Party’s obligations under this Terms of Service;
(c) any breach of any third party's rights, including in respect of any claim that the Services or Influencer Content infringe, or their importation infringes the Intellectual Property Rights of any third party anywhere in the world;
(d) the Indemnifying Party’s denial of its independent relationship with Shopee under this Terms of Service;
(e) the death or injury of any person or persons, including Influencer or any person acting under the Indemnifying Party’s direction, or the damage or destruction of any property, including the Indemnifying Party’s property or the property of any person acting under the Indemnifying Party’s direction, caused by or in connection with the performance of any obligation hereunder by the Indemnifying Party; and
(f) any non-payment of fees by the Agency to the Influencer, if the Indemnifying Party is the Agency.
9.2 Indemnified Party will notify Indemnifying Party in a timely manner in writing that it seeks indemnification with specific reference to the Third-Party Claim for which such indemnification is sought. A failure by Indemnified Party to provide such notice or information will not impair its right to indemnification hereunder except to the extent that such failure has materially prejudiced or materially delayed Indemnifying Party in the defence of the Third-Party Claim. Indemnifying Party will have the right to control the investigation, defence and settlement of each such Third Party Claim, provided that Indemnifying Party must obtain Indemnified Party’s prior written approval for the settlement of any such Third Party Claim (unless such settlement provides for the full and final release of Indemnified Party and other Indemnitees, does not involve the payment of any monies or admission of any wrongdoing by Indemnified Party or any indemnitee, and does not require any action or inaction by Indemnified Party or any indemnitee), and provided that Indemnified Party will have the right to participate in the defence and settlement of such Third-Party Claim being defended by the Indemnifying Party through separate counsel, at Indemnified Party’s sole expense.
10. LIMITATION OF LIABILITY
10.1 Shopee shall not be liable to Influencer/Agency for any: (a) indirect, incidental, consequential, punitive or special damages whatsoever; or (b) loss of profits, loss of business, loss of opportunity or loss of goodwill, arising out of or in connection with this Terms of Service, whether based on breach of contract, tort (including, without limitation, negligence), misrepresentation, under statute or otherwise, and whether or not such party has been advised of the possibility of such damage.
10.2 Subject to Clauses 10.1, under no circumstances shall Shopee’s total liability towards Influencer/Agency in respect of all claims arising out of or related to this Terms of Service, regardless of the forum and regardless of whether any action or claim is based on contract, tort (including, without limitation, negligence), misrepresentation, under statute or otherwise, exceed the total Fees under this Terms of Service actually paid to Influencer/Agency in the preceding six (6) months.
11.1 The Party receiving Confidential Information (“Receiving Party”) from the other Party (“Disclosing Party”) shall: (a) keep the Confidential Information strictly confidential and shall not, without the Disclosing Party’s prior written consent, disclose any Confidential Information, in whole or in part, except as permitted by this Clause 11; (b) employ all reasonable measures to protect the Confidential Information from unauthorized or inadvertent disclosure, including measures no less protective than those measures that the Receiving Party employs to protect its own information; (c) not use or copy, or authorise anyone to use or copy, the Confidential Information for any purpose other than the performance of the Receiving Party’s obligations or the exercise of its rights under this Terms of Service; and (d) promptly notify the Disclosing Party of any suspected or actual unauthorised use or disclosure of the Confidential Information.
11.2 The Receiving Party may disclose the Confidential Information to its Representatives only to the extent and provided that such persons: (a) have a need to know the Confidential Information in connection with this Terms of Service; and (b) are obligated to maintain the confidentiality of the Confidential Information on terms that are substantially similar to this Clause 11. The Receiving Party shall be responsible for any breach of this Clause 11 by any of its Representatives.
11.3 Upon the expiry or termination of the Term, or earlier upon the Disclosing Party’s written request, the Receiving Party shall: (a) (and shall ensure that its Representatives shall) promptly return to Disclosing Party or destroy or expunge all copies of Confidential Information; and (b) certify to the Disclosing Party in writing signed by an authorized representative of its compliance with sub-clause (a), provided that the Receiving Party shall be entitled to retain such copies of the Confidential Information as is required by Applicable Law or its bona fide internal compliance or document retention policies on the basis that the confidentiality obligations in this Clause 11 shall continue to apply.
11.4 In the event that Receiving Party or any of its Representatives becomes legally compelled by or is requested by any competent authority, regulatory agency, stock exchange or Applicable Law to disclose any of the Confidential Information, the Receiving Party shall: (a) first provide written notice to the Disclosing Party to permit the Disclosing Party in seeking a protective order or other appropriate remedy; or (b) to the extent it is legally prevented from satisfying sub-paragraph (a), use Commercially Reasonable Efforts to limit the disclosure and obtain assurances from the disclosee as to the confidentiality and use of the Confidential Information, and provide written notice to the Disclosing Party when it is legally permitted to do so.
11.5 The Receiving Party acknowledges and agrees that damages alone would not be an adequate remedy for a breach of this Clause 11 and that the Disclosing Party shall be entitled to seek the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach.
12. GOVERNING LAW AND JURISDICTION
12.1 Governing Law. To the extent permitted by Applicable Law, this Terms of Service and any non-contractual rights or obligations arising out of or in connection with it shall be governed by and construed in accordance with the laws of Malaysia.
12.2 Dispute Resolution. To the extent permitted by Applicable Law, in the event of any dispute, controversy, difference or claim arising under or relating to this Terms of Service (including, without limitation: (1) any contractual or non-contractual rights, obligations or liabilities; and (2) any issue as to the existence, validity or termination of this Terms of Service) (“Dispute”), a Party shall promptly notify the other Party in writing (“Dispute Notice”) and the Parties shall conduct discussions and negotiations in good faith. Any resolution of such Dispute is to be set forth in writing signed by the Parties. If such Dispute cannot be satisfactorily resolved by the Parties through good faith negotiations within thirty (30) days after the Dispute Notice, it shall be referred to and finally resolved by arbitration administered by the Asian International Arbitration Centre in Malaysia in accordance with the Arbitration Rules of the Asian International Arbitration Centre for the time being in force, which rules are deemed to be incorporated by reference in this Clause. The seat of the arbitration shall be Malaysia. This arbitration agreement shall be governed by Malaysian law. The tribunal shall consist of three (3) arbitrators and the language of the arbitration shall be English.
12.3 In any action or suit between the Parties to enforce any right or remedy under this Terms of Service or to interpret any provision of this Terms of Service, the prevailing Party shall be entitled to recover its costs, including reasonable and justified legal costs.
13. GENERAL PROVISIONS
13.1 Relationship of the Parties. The Parties hereby represent and acknowledge that they will have no labour relationship between them and the relationship between the Parties shall be at all times that of independent contractors. Subject to the terms and conditions of this Terms of Service, Influencer/Agency shall perform the Services with and according to Influencer/Agency’s own means and methods that shall remain in the exclusive charge and control of Influencer/Agency; Influencer/Agency will not be subject to a set schedule for the development or performance of the Services; and Influencer shall not be subordinated in any manner. Influencer/Agency will not be entitled to benefits associated with an employment relationship, such as vacations, vacation premium, Christmas bonus, contributions and fees to any social security authority, seniority or any other benefits, as Influencer/Agency under no circumstance shall be considered an employee of Shopee. Influencer/Agency takes on all legal responsibility for full compliance with all governmental Tax and social security requirements under Applicable Law (unless an applicable jurisdiction imposes on user companies withholding requirements associated with services rendered by independent contractors), provided these are caused by Influencer/Agency. Influencer/Agency shall be responsible for all tax, labour, and social security obligations regarding the personnel it uses to comply with its obligations hereunder; such personnel shall never be considered as employees of the Shopee for any reason whatsoever. The Shopee may at any time throughout the Term of this Terms of Service, at its sole discretion, require Influencer/Agency to promptly present evidence proving Influencer/Agency’s timely fulfilment of its own Tax and/or social security obligations as an independent contractor, as well as any Tax, social security, and/or labour obligations that Influencer/Agency owes to its personnel.. Nothing contained herein or done pursuant hereto shall constitute either Party (or its agents or employees) as an agent, legal representative, partner, trust, joint venturer or employee of the other Party for any purpose whatsoever, and each Party and its Representatives shall have no right, power, or authority to assume, create, or incur, in writing or otherwise, any expense, liability, or obligation in the name or on behalf of the other Party.
13.2 Further assurance. Each Party shall do all things necessary, including executing all documents necessary, to give effect to the intention of the Parties in relation to this Terms of Service.
13.3 Costs. Unless otherwise stated herein, each Party shall bear all of its costs and expenses incurred in the performance of its own undertakings, duties, and obligations under this Terms of Service.
13.4 Entire Agreement. This Terms of Service together with the Form sets forth the entire agreement between the Parties with respect to the subject matter hereof, merges all discussions between them, and supersedes and replaces any and every other prior or contemporaneous agreement, understanding or negotiation, whether written or oral, that may have existed among the Parties to the extent that any such agreement relates to the subject matter hereof.
13.5 Severability. Where any provision of this Terms of Service is or becomes illegal, invalid or unenforceable in any respect under the laws of any jurisdiction, then such provision shall be deemed to be severed from this Terms of Service in that jurisdiction and, if possible, replaced with a lawful provision which, as closely as possible, gives effect to the intention of the Parties under this Terms of Service and, where permissible, that shall not affect or impair the legality, validity or enforceability in that, or any other, jurisdiction of any other provision of this Terms of Service.
13.6 Transfers. Influencer/Agency shall not assign, transfer (by way of novation or otherwise), or create any trust or purport to do the same, in respect of a right or obligation in, this Terms of Service without the prior written consent of Shopee. The terms and conditions of this Terms of Service will inure to the benefit of and bind each Party’s respective successors and permitted assigns.
13.7 Waiver. The failure of a Party to enforce at any time or for any period of time any of the provisions hereof shall not be construed to be a waiver of such provision or of the right of such Party thereafter to enforce each such provision. No waiver of any term or condition of this Terms of Service shall be valid or binding on a Party unless the same is set forth in a written document, specifically referring to this Terms of Service and duly signed by the waiving Party.
13.8 Remedies. Except as expressly provided in this Terms of Service, the rights and remedies provided under this Terms of Service are in addition to, and not exclusive of, any rights or remedies provided by Applicable Law.
13.9 Notices. Any notice or other communication to be given in connection with this Terms of Service shall be in writing, and will be (as elected by the Party giving such notice): (a) personally delivered; (b) transmitted by registered or certified mail, return receipt requested; (c) deposited prepaid with a nationally recognized overnight courier service; or (d) sent by confirmed e-mail. Unless otherwise provided herein, all notices shall be deemed to have been duly given on: (x) the date of receipt if delivered personally or by courier; (y) ten (10) Business Days (for the recipient) after the date of posting if transmitted by mail; or (z) if transmitted by facsimile or e-mail, the date a confirmation of transmission is received. Each Party may change its address for purposes hereof on not less than five (5) Business Days prior notice to the other Party. All notices hereunder to Influencer/Agency shall be delivered, transmitted, or sent to the relevant addresses set out in the Form.
All notices to Shopee shall be delivered to the following:
Address : Level 25, Menara Southpoint, Mid Valley City, Lingkaran Syed Putra, 59200 Kuala Lumpur, Malaysia
Telephone Number : +60 3-2777 9299
Email : firstname.lastname@example.org
Attention: Group General Counsel
Last modified: 7 September 2022