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 cgwlcms Mobile US
Sdn. Bhd. (“cgwlcms”) and Influencer/Agency (as identified in the Form).
1. INTERPRETATION
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 US;
“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. TERM
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),
cgwlcms may renew the Initial Term in such periods as may be determined
by cgwlcms in writing to the Influencer/Agency (“Renewal Term”). The
Initial Term and the Renewal Term (where applicable) shall together be
the “Term”.
3. SERVICES
3.1 Influencer/Agency acknowledges and agrees that it shall provide the
services set forth in the Form (“Services”) to cgwlcms during the Term
independently in accordance with this Terms of Service and cgwlcms’s
needs, and shall consider (in its reasonable discretion, making use of
its technical and professional know-how) the feedback of cgwlcms 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 cgwlcms) 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 cgwlcms may from time to time place orders with Influencer/Agency
for additional Services in writing, the form as determined by cgwlcms
(“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 cgwlcms
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 cgwlcms
under an Order, cgwlcms 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
cgwlcms;
(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 cgwlcms from time to time;
(d) (where applicable) attend the events hosted, promoted or supported
by the cgwlcms (“Company Event”), subject to prior invitation
submitted by the cgwlcms at least five (5) days from the
commencement date of the Company Event. Influencer shall also
respond to cgwlcms’s invitation within forty-eight (48) hours of
receipt;
(e) ensure that its performance of the Services shall not involve any
attempts to defraud cgwlcms or any other person, and that no
information provided to cgwlcms 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 cgwlcms 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 cgwlcms’s prior written
approval.
3.7 cgwlcms 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 cgwlcms from time to
time).
4. FEES; INVOICING; TAX
4.1 Fees.
(a) In consideration for the Services rendered by Influencer, the
cgwlcms 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
cgwlcms’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 cgwlcms’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.
4.2 Payment.
(a) cgwlcms shall pay undisputed Fees to Influencer in accordance with
the Form and/or the Order (as applicable), but may withhold payment
of Fees that cgwlcms disputes in good faith (or, if the disputed
Fees have already been paid, then cgwlcms 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 cgwlcms 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 cgwlcms shall have the right
to set off and apply any sum due or owing by cgwlcms 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 cgwlcms 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.
4.3 Tax.
(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. cgwlcms may deduct any applicable Taxes through
a reverse-charge or similar mechanism, to the extent required or
allowed by Applicable Law. cgwlcms 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 cgwlcms 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 cgwlcms 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 cgwlcms shall have no further obligation to
pay the equivalent of such withheld amounts, or any part thereof, to
Influencer. cgwlcms 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 cgwlcms 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 cgwlcms’s request,
failing which cgwlcms 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 cgwlcms. If and to the
extent that any rights, title or interests in or to the Influencer
Content do not vest in cgwlcms as a work made for hire, Influencer
hereby unconditionally and irrevocably assigns to cgwlcms all such
rights, title and interests worldwide in perpetuity. At any time upon
cgwlcms’s request, Influencer shall execute any document in a form
acceptable to cgwlcms to give full effect to cgwlcms’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
cgwlcms’s request, Influencer hereby irrevocably designates and appoints
cgwlcms 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. cgwlcms 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 cgwlcms.
5.2 Influencer Individual Rights. Influencer hereby grants to cgwlcms
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 cgwlcms and its Affiliates from
time to time.
5.3 cgwlcms IP.
(a) Influencer acknowledges and agrees that: (i) cgwlcms owns all
rights, title and interests, including all Intellectual Property
Rights, in and to all materials and content provided by cgwlcms to
Influencer for the purposes of this Terms of Service (including any
customisations, enhancements, changes or derivatives thereof), and
the cgwlcms name, logos and trademarks (collectively, “cgwlcms
IP”); (ii) it shall not at any time acquire any right, title or
interest in or to cgwlcms 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 cgwlcms IP, or any part thereof.
(b) cgwlcms hereby grants to Influencer during the Term a non-exclusive,
revocable, non-transferable, non-sublicensable and royalty-free
licence to use the cgwlcms 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 cgwlcms’s logos, trademarks and other branding devices by
Influencer shall require cgwlcms’s prior written consent, except to
the extent that such usage is in accordance with the terms of this
Terms of Service or cgwlcms’s instructions.
6. SERVICE RECIPIENTS
6.1 Influencer/Agency shall perform the Services for cgwlcms and its
Affiliates, and in this Terms of Service, unless the context requires
otherwise, references to cgwlcms will include, to the extent that they
are receiving the Services, cgwlcms’s Affiliates.
7. TERMINATION
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 cgwlcms 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 cgwlcms pursuant to Clause 7.1 or Clause 7.2,
and unless otherwise agreed in writing between the Parties,
Influencer/Agency shall immediately refund cgwlcms any Fees that cgwlcms
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
cgwlcms 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).
