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