1.1 “Advertisement” means any advertisement placed pursuant to an Insertion Order under this Agreement.
1.2 “Advertising Fee” has the meaning set forth in Section 3.1.
1.3 “Advertiser” means Customer or the entity identified in an Insertion Order for whom Customer is a reseller.
1.4 “Advertising Material(s)” means any advertising materials and related content provided by or on behalf of Customer, including graphics, artwork, texts, files, URLs, and computer code.
1.5 “Advertising Targets” means the subject brands, products, and services that an Advertiser promotes through Advertising Material, including websites, apps, games, tangible goods, and social network groups.
1.6 “Applicable Deductions” means the taxes and fees applicable to a Deposit.
1.7 “Deposit” has the meaning set forth in Section 3.1.
1.8 “Initial Term” has the meaning set forth in the Cover Page.
1.9 “Landing Page” means the first web page to which a user is redirected after the user clicks on any
1.10 “Media” means any medium (including the Platform) and advertising inventory that Shopee has
1.11 “Platform” means any platform operated by Shopee and selected by Customer in an Insertion Order to place an Advertisement.
1.12 “Prohibited Content” means any content or term that:
a) Promotes or is related to illegal activities (illegal drugs, phishing, terrorism, criminal activities, contests, pyramid schemes, or chain letters).
b) Promotes or is related to tobacco, gambling, or weapons.
c) Is related to pornographic or obscene material.
d) Is related to excessively graphic or explicit violence.
e) Is defamatory, inappropriate, or profane.
f) Is discriminatory or constitutes “hate speech”, whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, sexual orientation, or language of such individual or group.
g) Promotes or contains viruses, worms, corrupted files, cracks, or other materials that are intended to or may damage or render inoperable software, hardware, or security measures of Publisher, any user, or any other third party.
1.13 “Renewal Term” has the meaning set forth in Section 7.1.
1.14 “Term” has the meaning set forth in Section 7.1.
2. ADVERTISING PLACEMENTS
2.1 Authorization. Customer grants Shopee and its affiliates a non-exclusive, worldwide, and fully paid license to use, perform, reproduce, display, transmit, and distribute the Advertising Materials on the selected Media in accordance with this Agreement.
2.2 Account Manager. The Account Manager specified on the Cover Page will be the primary point of contact to assist Customer with various operational activities under this Agreement.
2.3 Insertion Order. For each Advertisement that Customer wishes to place, Customer will provide Advertisement duration, Media, budget, and other relevant information to Shopee. Shopee will then propose a placement solution in an Insertion Order in a form similar to Attachment 1 of this Agreement. The price specified in the proposed Insertion Order will be valid for seven days from the date of issuance (“Insertion Order Deadline”). An Insertion Order will take effect only if Customer, by the Insertion Order Deadline, executes and delivers the Insertion Order to Shopee at the material submission email address set forth on the Insertion Order, which delivery can be made electronically by email. All Insertion Orders will be governed by these Terms and Conditions, and if there is any conflict between these Terms and Conditions and an Insertion Order, these Terms and Conditions will prevail, unless the Insertion Order explicitly provides that its terms will take precedence over specific sections of these Terms and Conditions.
2.4 Submission of Advertising Materials. Customer will submit to Shopee at the material submission email address set forth on each Insertion Order all Advertising Materials and any related Landing Page for each Advertisement by the submission deadline set forth on the applicable Insertion Order. If any Advertising Material or Landing Page is not provided in accordance with this Agreement, Shopee cannot guarantee that it will deliver the corresponding Advertisement by the launch date of the Advertisement specified on the applicable Insertion Order.
2.5 Cancellation and Change Orders. Shopee may cancel an Insertion Order at any time. Customer may cancel an Insertion Order at any time, which cancellation will take effect three business days after Shopee’s receipt of Customer’s written cancellation request. Customer remains obligated to pay the Advertising Fee (and applicable taxes as specified in the Insertion Order) resulting from Advertisements served before the cancellation takes effect. No later than three business days before the launch date of an Advertisement, if Customer requests a change to the applicable Insertion Order and Shopee approves that request, Shopee will prepare a revised Insertion Order, which may include a price adjustment. A revised Insertion Order may delay the launch of the Advertisement and will not take effect until Customer executes and delivers the revised Insertion Order to Shopee by the deadline to the email address specified on the revised Insertion Order.
3. COMPENSATION AND PAYMENT TERMS
3.1 Advertising Fee. Upon execution of an Insertion Order, Customer shall deposit the advertising fee for such Insertion Order ("Advertising Fee”) with Shopee as soon as practicable. Customer’s failure to ensure such deposit is received by Shopee before the launch date of the Advertisement will be deemed a cancellation as specified in Section 2.5. All Advertising Fees are non-refundable.
3.2 Advertising Fee and Invoice.
(a) Following Shopee’s receipt of the executed Insertion Order, Shopee will issue Customer an invoice reflecting the Advertising Fee and any applicable taxes.
(b) Upon receiving the invoice, Customer shall deposit the advertising fee for such Insertion Order with Shopee by the date indicated in the invoice. All Advertising Fees are non-refundable.
(c) If any amount due to Shopee remains unpaid after the due date, Shopee shall be entitled, without limiting any other rights it may have, to charge interest on the outstanding amount at the rate of one percent (1%) per month from the due date until such outstanding amount is paid in full. Shopee shall have the right to suspend, withhold or discontinue the advertisements until the full payment of the outstanding amount and the interest thereon are received by Shopee.
(d) Except as otherwise set forth in an Insertion Order, all payments made by Customer to Shopee under this Agreement will not include any taxes. Each party will pay all taxes that it owes under this Agreement. If applicable law requires Customer to withhold any taxes on behalf of Shopee from the amounts due by Customer, Customer will withhold the required amount and provide Shopee with a receipt or other documentation evidencing the withholding tax payment.
3.3 Wire Transfer. All payments pursuant to Section 3.1 will be made by wire transfer to the bank account specified on the Cover Page. Each party is solely responsible for the wire transfer fees and other charges of its bank.
4. RESPONSIBILITIES OF CUSTOMER
4.1 Business Conduct. Customer may not contractually bind Shopee or make any representations to its own advertisers on behalf of Shopee. Customer will not engage in any unconscionable, false, deceptive, misleading, or fraudulent conduct, including by misrepresenting its own websites as the official website for any Media. Customer must ensure the truthfulness and accuracy of (a) all Advertising Targets and (b) prices, promises, gifts, and rewards described in all Advertising Materials. Customer will not advertise substances, services, products, or materials that violate applicable laws.
4.2 Relationship with Advertisers. If the Advertisement specified in an Insertion Order is placed by Customer on behalf of an Advertiser, Customer may not make any commitment or incur any obligations on behalf of Shopee without Shopee’s prior written consent.
4.4 Landing Pages. With respect to each Landing Page, Customer will ensure that: (a) the content of each Landing Page is substantially similar to the Landing Page previously submitted to Shopee; and (b) the link to each Landing Page remains static and unaffected by time of visit, IP address, geographic location, or other variables.
4.5 Prohibited Uses. Customer will not, and will not allow any third party to: (a) use robots or other automated query tools, computer generated search requests, or fraudulent use of search engine optimization services to generate or conceal impressions, inquiries, clicks, or conversions that are fraudulent or invalid; or (b) use any automated means, form of scraping, or other data extraction methods to access, query, collect, or use Shopee advertising-related information from the Platform without Shopee’s prior written consent.
5. RESPONSIBILITIES AND RIGHTS OF SHOPEE
5.1 Platform. Shopee will operate and maintain the Platform. No changes relating to the features or functionalities of a Platform will affect the validity and enforceability of this Agreement.
(i) reject, remove, cease, or discontinue delivery of the Advertisement;
(ii) require Customer or its Advertiser(s) to cure its violation, non-compliance, or breach within a specified period of time;
(iii) for each violation, impose a fine on Customer or deduct the amounts deposited with Shopee as liquidated damage, which fine or deduction will not relieve Customer from its liabilities if Shopee’s losses exceed such amount; or
(iv) terminate this Agreement or the affected Insertion Order.
6. CONFIDENTIAL INFORMATION
6.1 “Confidential Information” means: (a) any proprietary information of a party to this Agreement disclosed by one party to the other that is in written, graphic, machine readable, or other tangible form and is marked “Confidential” or “Proprietary” or in some other manner to indicate its confidential nature; (b) the Shopee materials and all other non-public marketing or technical information, even if not marked as confidential; and (c) all information collected or developed by Shopee regarding its customers. Confidential Information also includes oral disclosures if that information would reasonably be understood to be confidential from the context of disclosure.
6.2 Exceptions. Confidential Information will not include any information that: (a) was publicly known and made generally available before the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already in the lawful possession of the receiving party at the time of disclosure; (d) is obtained by the receiving party from a third party without a breach of that third party’s obligations of confidentiality; (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information; or (f) is disclosed by the receiving party pursuant to the disclosing party’s prior written approval.
6.3 Non-Use and Non-Disclosure. Each party will: (a) treat as confidential all Confidential Information of the other party; (b) not disclose that Confidential Information to any third party, except on a “need to know” basis to third parties that have signed a non-disclosure agreement containing provisions substantially as protective as the terms of this Section and such party has obtained the written consent to that disclosure from the party that provided the Confidential Information; and (c) not use that Confidential Information except in connection with performing its obligations or exercising its rights under this Agreement. Each party is permitted to disclose the other party’s Confidential Information if required by law so long as the other party is given prompt written notice of that requirement before disclosure and assistance in obtaining an order protecting that information from public disclosure.
7. TERM AND TERMINATION
7.1 Term. This Agreement takes effect on the Effective Date and continues for the term specified on the Cover Page. Unless earlier terminated in accordance with Section 7.2 or either party notify the other party of its decision not to renew this Agreement no later than 30 days before the expiration of the then-current term, this Agreement will be automatically renewed for successive one-year period (each, a “Renewal Term”, and together with the Initial Term, the “Term”).
7.2 Termination. This Agreement will terminate immediately upon:
(a) the written agreement of the parties;
(b) either party’s dissolution or ceasing to do business, or the institution by or against either party of insolvency, receivership, or bankruptcy proceedings or any other proceedings for the settlement of either party’s debts; or
(c) the occurrence of an event of Force Majeure (as defined in Section 11.4) that continues for more than 30 days.
7.3 Termination for Cause. Furthermore, either party may terminate this Agreement immediately if the other party does not cure its material breach of this Agreement within 30 business days of receiving written notice of the material breach from the non-breaching party.
7.4 Termination for Convenience by Shopee. Shopee may terminate this Agreement in its entirety or any Insertion Order at any time without cause by providing Customer with a 60 days’ prior written notice.
7.5 Effect of Termination. If this Agreement is terminated due to Customer’s breach of its obligations in accordance with Sections 5.2(f)(iv) and 7.3, all amounts paid by Customer to Shopee may be forfeited as liquidated damages without prejudice to Shopee’s recourse for other rights or remedies available under applicable laws.
7.6 Survival. The following provisions will survive the termination or expiration of this Agreement: Sections 1, 3, 6, 7.5, 7.6, 9, 10, 11, and any other provisions that, by their nature, are intended to survive. All liabilities that accrued before the termination or expiration will survive the termination or expiration of this Agreement.
8. REPRESENTATIONS AND WARRANTIES
8.1 Mutual Representations and Warranties. Each party represents and warrants that: (a) it is duly organized, validly existing, and in good standing in the jurisdiction it is formed; (b) its execution and delivery of this Agreement has been duly and validly authorized; (c) this Agreement constitutes a valid, binding, and enforceable obligation upon its execution; and (d) it will comply with all applicable laws in performing under this Agreement.
8.2 Representations and Warranties by Customer. Customer represents and warrants that:
(a) the execution, delivery, and performance of this Agreement will not be in conflict with or constitute a default under the terms of any agreement, instrument, judgment, decree, or any order, statute, rule, or governmental regulation applicable to Customer;
(b) all of the information provided by Customer to Shopee, including, if applicable, information provided on behalf of an Advertiser, is complete, true, accurate, and current, and each Advertiser that Customer represents (if applicable), has the right to conduct its business, including offering its products or services;
(c) the Advertising Materials submitted by Customer are true and accurate;
(d) each Advertiser has the right or authorization to use, market, and promote the applicable Landing Pages and Advertising Targets, and the use, marketing, and promotion of such Landing Pages and Advertising Targets in accordance with this Agreement are compliant with all applicable laws;
(e) no Advertising Materials, Landing Page, or Advertising Target contains (i) any information that violates or encourages violation of any applicable law; (ii) fraudulent or deceptive information or incentives; (iii) virus, malware, spyware, Trojan, phishing, or other malicious code that could breach or circumvent any Platform security measure; (iv) information marketing or promoting fake or counterfeit goods or illegal businesses (including apps or software that contain hidden charges); (v) any material that infringes any rights of any third party; or (vi) material that may be harmful, abusive, pornographic or obscene, threatening, or defamatory; and
(f) Customer has all necessary rights to permit and hereby grants Shopee all such rights that are necessary for Shopee to use, store, copy, modify, reform, reproduce, publish, display, transmit, display, and distribute the Advertising Materials on the Platform.
9.1 Indemnification by Customer. Customer will indemnify, defend, and hold harmless Shopee and its affiliates and their directors, officers, and employees from and against all claims, actions, losses, damages, liabilities, costs, and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with: (a) any breach by Customer of this Agreement; (b) any failure of Customer to perform its obligations under this Agreement in compliance with all applicable laws; (c) any violation of any rights of any third party by an Advertisement, Advertising Target, or Advertising Material; or (d) Customer’s fraud, negligence or willful misconduct.
9.2 Procedure. Shopee will promptly notify Customer of any claim that is subject to Section 9.1, and will permit Customer to assume and control the defense of that claim. Shopee will, however, have the right to employ separate counsel and participate in the defense of claims at the Customer’s sole cost. Customer will have the sole authority to defend, compromise, settle, or otherwise dispose of a claim, but it will not agree to any disposition or settlement of a claim that admits liability or imposes duties of performance or payment on Shopee without Shopee’s prior written consent. If the parties agree to settle a claim, Customer will not publicize the settlement without first obtaining Shopee’s written permission.
10. LIMITATION OF LIABILITY
10.1 Disclaimer of Warranties. ALL PERFORMANCE BY SHOPEE AND ITS AFFILIATES AND ANY SHOPEE MATERIALS ARE PROVIDED “AS IS.” SHOPEE MAKES NO GUARANTEES REGARDING THE SUCCESS OF A CAMPAIGN OR AD, NUMBER OF VISITS, SALES, OR CONVERSION RATES. CUSTOMER ACKNOWLEDGES AND AGREES THAT SHOPEE CANNOT ENSURE THAT ANY MATERIAL SUBMITTED BY OR ON BEHALF OF CUSTOMER OR ADVERTISER WILL BE PROTECTED FROM THEFT OR MISUSE, AND SHOPEE WILL HAVE NO LIABILITY ARISING FROM A FAILURE OF ANY SECURITY TECHNOLOGY OR PROCEDURE.
10.2 Disclaimer of Consequential Damages. SHOPEE WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING LOST PROFITS OR LOSS OF BUSINESS.
10.3 Cap on Liability. UNDER NO CIRCUMSTANCES WILL SHOPEE’S OR ANY SHOPEE AFFILIATE’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT RECEIVED FROM CUSTOMER BY SHOPEE UNDER THIS AGREEMENT FOR THE 12-MONTH PERIOD PRECEDING THAT CLAIM.
10.4 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THESE PROVISIONS FAIL THEIR ESSENTIAL PURPOSE.
11.1 Subcontractors. Shopee may exercise its rights under this Agreement via its affiliates and subcontractors. Shopee will be responsible for the compliance of those affiliates and subcontractors with the terms of this Agreement.
11.2 Independent Contractor. This Agreement will not be construed as creating a partnership, joint venture, or agency relationship or as granting a franchise. The parties are independent contractors in the performance of this Agreement. Neither party is authorized to bind the other party to any liability or obligation or to represent that it has any authority to do so.
11.3 Press Release. Except as expressly set forth in this Agreement or as required by the laws of any jurisdiction, neither party will make any public announcement or press release regarding the cooperation contemplated by this Agreement without the prior consent of the other party. Any party required by law to make a public announcement regarding any matter related to the cooperation contemplated by this Agreement will solicit from and consider in good faith the other party’s feedback on the content of that public announcement.
11.4 Force Majeure. Neither party will be liable to the other party for any failure or delay in fulfilling an obligation (other than the financial obligations) under this Agreement if that failure or delay is attributable to circumstances beyond its control, including any fire, power failure, labor dispute, war, civil dispute, or government action (including any new law or regulation) or inaction (“Force Majeure”). The deadline for fulfilling the obligation in question will be extended for a period equal to that of the continuance of the Force Majeure event.
11.5 Governing Law and Resolution of Disputes. This Agreement shall be governed by and construed in accordance with the laws of Malaysia. In the event of any dispute, controversy, claim or difference of any kind whatsoever arising between the parties in connection with this Agreement, including the breach, termination or validity of this Agreement, or in connection with the determination of any matters which are subject to objective determination pursuant to this Agreement (“Dispute”), which Dispute has been subject of a written notice by one party to the other (“Dispute Notice”), the parties shall attempt, for a period of thirty (30) days after the receipt by one (1) party of a notice from the other party of the existence of a Dispute, to settle such Dispute in the first instance by mutual discussions between the senior management of each of the parties. If the Dispute cannot be settled by mutual discussions within the thirty (30) day period, it shall be referred to and finally resolved by arbitration administered by the Asian International Arbitration Centre in Kuala Lumpur in accordance with the Arbitration Rules of the Asian International Arbitration Centre (“AIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause. There will be three (3) arbitrators and the language of the arbitration shall be English. Both parties agree that Part III of the Arbitration Act 2005 shall not apply to this Agreement or the arbitration proceedings arising out of this Agreement.
11.6 Notices. All notices under the terms of this Agreement will be deemed given as of the day they are received either by overnight courier, email, postage prepaid certified or registered mail, or facsimile, and addressed either to Shopee or Customer at their respective addresses specified in the Cover Page.
11.7 Assignment. Customer may not voluntarily, involuntarily, or by operation of law assign any of its rights or delegate any of its obligations under this Agreement (in whole or in part), including by direct or indirect change of control, merger (whether or not Customer is the surviving entity), or operation of law, without Shopee’s prior written consent, which Shopee may withhold in its sole and absolute discretion. Any direct or indirect change of control of equity ownership or management or control of Customer, whether or not Customer survives as an entity, will be deemed an assignment and delegation of this Agreement that requires Shopee’s prior written consent. An assignment by Customer will not relieve Customer of its obligations under this Agreement and any Insertion Order unless Shopee expressly states otherwise in its written consent. Shopee will not release Customer of its liability under this Agreement and any Insertion Order unless Shopee expressly states otherwise in its written consent. Shopee may voluntarily, involuntarily, or by operation of law assign any of its rights or delegate any of its obligations under this Agreement or any Insertion Order (in whole or in part) without Customer’s consent. Any purported assignment or delegation in violation of this Section 11.7 will be null and void. Subject to this Section 11.7, this Agreement will bind and inure to the benefit of each party’s respective permitted successors and permitted assigns.
11.8 Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing provided in accordance with Section 11.6 to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed as a waiver of the party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce.
11.9 Severability. If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the parties will endeavor in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on an amendment, the invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law, and the tribunal will preserve, as far as possible, the original intention of the parties with respect to the severed term, condition, or provision.
11.10 Remedies Cumulative. No single or partial exercise of any right or remedy will preclude any other or further exercise of any other right or remedy. Rights and remedies provided in this Agreement are cumulative and not exclusive of any right or remedy provided at law or in equity.
11.11 Confidentiality of Agreement. Customer will not disclose any terms of this Agreement to any third party without Shopee’s prior written consent, except as required by applicable law.
11.12 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed to be an original and together will constitute one and the same agreement.
11.13 Language. If this Agreement is executed in more than one language, then only the English version is binding on the parties.
11.14 Headings. Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.
11.15 Integration. These Terms and Conditions, together with the Cover Page, and all Insertion Orders, constitute the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to that subject matter. No terms, provisions, or conditions of any purchase order, acknowledgement, or other business form that either party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties, or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of a receiving party to object to these terms, provisions, or conditions. These terms and conditions may be amended by Shopee at any time.