- “S-Livestreamer” means any of the livestreamer that successfully apply to join the S-Livestreamer App. Only successful S-Livestreamer will be able to log into the S-Livestreamer App.
- “Buyer” means any user of Senheng App, also named as PlusOne member that purchases the product and/or services through Senheng App S-Livestream.
- “S-Livestreamer Media” means all advertising media, including but not limited to websites, applications and newsletters, S-Livestreamer networks' sub S-Livestreamers, their owned and brokered media registered to the Program by the S-Livestreamer and approved by S-Livestream.
“Completed Purchase” means a completion of an approved sale and/or purchase transaction of a Product between a Buyer and a S-Livestreamer on the Platform in accordance with S-Livestream’s Terms and Condition which results directly from a Buyer accessing the livestream via S-Livestreamer Links or livestream placed in Senheng App S-Livestream Pillar and such Buyer:
- is not a computer generated user, such as a robot, spider, computer script or other automated, artificial or fraudulent method to appear like an individual, real life person;
- is not using pre-populated fields;
- completes all of the information required for the Completed Purchase within the time period allowed by S-Livestream, and;
- is not later determined by S-Livestream to be fraudulent, incomplete, unqualified or a duplicate.
- “Commissions” means the every monthly total net value of the Completed Purchases commissions generated through S-Livestreamer livestream placed in Senheng App S-Livestream, calculated as the total value of Completed Purchases in a calendar month excluding any discounts, shipping fees, voucher fees, and other rebates such as S- Coins.
- “App” means any platform operated by S Ecosystem (M) Sdn. Bhd., which also represent the S-Livestreamer mobile applications available on the Google Play Store or Apple App Store.
- “Product” means any item listed offered on Platform by S-Livestreamer for sale to Buyers.
“Prohibited Content” means any content or term that:
- Promotes or is related to illegal activities (illegal drugs, phishing, terrorism, criminal activities, contests, pyramid schemes, or chain letters).
- Promotes or is related to tobacco, gambling, or weapons.
- Is related to pornographic or obscene material.
- Is related to excessively graphic or explicit violence.
- Is defamatory, inappropriate, or profane.
- 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.
- Promotes or contains viruses, worms, corrupted files, malware, cracks, or other materials that are intended to or may damage or render inoperable software, hardware, or security measures.
- Term” has the meaning set forth in Section 7.1. 1.10
- “Territory” means the territory in which the S-Livestream entity that is engaging the S-Livestreamer is domiciled.
- “User” means any registered valid user of the Platform, which is the S-Livestreamer (“S-Livestreamer”) on the Platform.
- “Buyers” means any registered PlusOne members of the Senheng App Platform.
- Registration Information. S-Livestreamer shall provide any information requested by S-Livestream and shall ensure such information is true, accurate and complete, for the purpose of registration of the App. Any false or inaccurate information submitted to S-Livestream shall be deemed as grounds for termination of this Agreement. S-Livestream team may accept or reject S-Livestreamer’s application at its sole discretion and for any reason.
- Limited License. If S-Livestreamer is accepted into the App, S-Livestream grants to S-Livestreamer for the duration of this Agreement a non-exclusive, non-transferable and revocable right to display the S-Livestreamer livestream on its S-Livestreamer Media at its own cost, for the sole purposes of S-Livestreamer’s participation in the App. S-Livestreamer shall not, without the prior written consent of S-Livestream, alter or modify or create derivative works of the S-Livestreamer Livestream or any of S-Livestream’s intellectual property. Except as expressly set forth in this Agreement, nothing in this Agreement is intended to grant S-Livestreamer any rights to use any of S-Livestream’s intellectual property.
- Eligibility. S-Livestreamer Media must be publicly available via the information provided in S-Livestreamer’s application to join the App. S-Livestreamer shall not be eligible to participate, and S-Livestream may terminate S-Livestreamer’s participation in the App if its S-Livestreamer Media contains any of the Prohibited Content or other content that S-Livestream deems inappropriate. S-Livestreamer Media may include social media and websites (including, but not limited to, website/blog domain, Facebook, Pinterest and Twitter) upon approval by S-Livestream (“Approved Social Media”). Approved Social Media must (i) not contain the trademarks, names or logos of S-Livestream, or display misleading content, and (ii) if through Facebook, be displayed through a “fan page” only and not through a “personal page” in accordance with Facebook’s user policies.
- Age. S-Livestreamer must be at least 18 years old to participate in the Program.
||COMMISSION FEE AND PAYMENT TERMS
- Commission Rate. The fees payable by S-Livestream to S-Livestreamer in a given month (the “Commission Fee”) shall be calculated in accordance with the rates stated on the App or as separately agreed between S-Livestreamer and S-Livestream in writing (such rate, the “Commission Rate”).
- Calculation of Commission Fee. The Commission Fees for a given month shall be calculated to be the commission of S-Livestreamer based on the Completed Purchases generated through S-Livestreamer livestream placed in Senheng App S-Livestream. All Commission Fees paid to, and received by, S-Livestreamers are inclusive of all value-added taxes.
- The Commission Fees payable to S-Livestreamer shall be electronic transfer to the S-Livestreamer’s given Bank Account during registration on a monthly basis.
- S-Livestream shall pay S-Livestreamer the commission in monthly basis as per Completed Purchases.
- Payment. Pursuant to Section 3.3, S-Livestream shall validate and approve the Commission Fees payable and shall pay S-Livestreamer within sixty (60) days of system approval. The Commission Fees determined by S-Livestream shall be deemed final.
- Taxes. Each party will pay all taxes that it owes under this Agreement. If applicable law requires S-Livestream to withhold any taxes from the amounts due to S-Livestreamer, S-Livestream will withhold the required amount and provide S-Livestreamer with a receipt or other documentation evidencing the withholding tax payment. If S-Livestreamer is domiciled outside of the Territory, the parties agree that the services provided by S-Livestreamer are performed wholly outside of the Territory.
- Chargebacks. S-Livestream shall not make commission payouts on, and reserves the right to set-off or initiate chargebacks on transactions that were previously paid out. Such transactions include but are not limited to:
- transactions that do not meet the requirements to be a Completed Purchase;
- fraudulent transactions identified manually or by means of a fraudulent order checking process by S-Livestream;
- cancelled, incomplete, returned or refunded transactions;
- transactions made with the intention of reselling the purchased Products; and
- transactions performed through S-Livestreamer livestream placed on S-Livestreamer Media which contains any Prohibited Content.
||RESPONSIBILITIES OF S-LIVESTREAMER
- Business Conduct. S-Livestreamer may not contractually bind S-Livestream or make any representations on behalf of S-Livestream. S-Livestreamer will not engage in any unconscionable, false, deceptive, misleading, or fraudulent conduct. S-Livestreamer will not advertise substances, services, products, or materials that violate applicable laws. S-Livestream shall have the absolute discretion and authority to make any request for any removal of any content, material, or other media placed or displayed by the S-Livestreamer under its performance of this Agreement and S-Livestreamer shall act upon S-Livestream’s request immediately.
- Prohibited Actions. S-Livestreamer will not, and will not allow any third party to do the following:
- use advertising emails to promote S-Livestream without S-Livestream’s prior written consent;
- use robots or other automated query tools, computer generated search requests;
- use any automated means or form of scraping, or other data extraction methods to access, query, collect, or use S-Livestream intellectual property, including logo, key visuals, creative materials and other Confidential Information from the Platform or otherwise;
- apply S-Livestreamer livestream on S-Livestreamer Media that contains Prohibited Content, or in torrent or streaming sites;
- advertise S-Livestreamer Media through any of S-Livestream’s social media channels;
- (where S-Livestreamer is an S-Livestreamer network) re-brokering to another S-Livestreamer network as their sub-S-Livestreamer; or
- incorporate any lottery or lucky draw in the S-Livestreamer Media.
||RESPONSIBILITIES AND RIGHTS OF S-LIVESTREAMER
- Platform. S-Livestream will operate and maintain the Platform. No changes relating to the features or functionalities of the Platform will affect the validity and enforceability of this Agreement.
- request that the S-Livestreamer livestream and/or S-Livestreamer Media be removed or taken down immediately;
- require S-Livestreamer to cure its violation, non-compliance, or breach within a specified period of time;
- for each violation, impose a fine or Chargeback on S-Livestreamer as liquidated damage, which fine or Chargeback will not relieve S-Livestreamer from its liabilities if S-Livestream’s losses exceed such amount; or
- terminate this Agreement.
- “Confidential Information” means all information that is confidential in nature including, but not limited to: (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 S-Livestream materials and all other non-public marketing or technical information, even if not marked as confidential; and (c) all information collected or developed by S-Livestream regarding its Users. Confidential Information also includes oral disclosures if that information would reasonably be understood to be confidential from the context of disclosure.
- 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.
- 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.
||TERM AND TERMINATION
- Term. This Agreement takes effect on the date that S-Livestream approves S-Livestreamer’s application to join the S-Livestreamer App and continues to be in effect until terminated in accordance with Section 7.2 or 7.3 (the “Term”).
- Termination by S-Livestream. S-Livestream may unilaterally terminate this Agreement at its sole discretion and for any reason which S-Livestream deems appropriate with seven (7) days’ prior notice and disabling the S-Livestreamer livestream. S-Livestream may terminate this Agreement immediately and without any prior notice if S-Livestreamer breaches its obligations under this Agreement.
- Termination for Cause. This Agreement will terminate immediately upon:
- 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
- the occurrence of an event of Force Majeure (as defined in Section 11.4) that continues for more than 30 days.
- Effect of Termination. Upon termination of this Agreement for any reason, S-Livestreamer shall immediately cease all use of S-Livestream’s S-Livestreamer livestream, and will cease representing itself as a S-Livestreamer.
- Termination due to S-Livestreamer’s breach. If this Agreement is terminated due to S-Livestreamer’s breach of its obligations in accordance with Sections 5.2 and 7.3, all amounts payable to S-Livestreamer by S-Livestream may be forfeited as liquidated damages without prejudice to S-Livestream’s recourse for other rights or remedies available under applicable laws.
- Survival. The following provisions will survive the termination or expiration of this Agreement: Sections 1, 3, 6, 7, 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. -
||REPRESENTATIONS AND WARRANTIES
- 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.
- Representations and Warranties by S-Livestreamer. S-Livestreamer represents and warrants that:
- 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 S-Livestreamer;
- all information provided by S-Livestreamer to S-Livestream is complete, true, accurate and current;
- no S-Livestreamer Media 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.
- Indemnification by S-Livestreamer. S-Livestreamer will indemnify, defend, and hold harmless S-Livestream and its S-Livestreamers 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 S-Livestreamer of this Agreement; (b) any failure of S-Livestreamer to perform its obligations under this Agreement in compliance with all applicable laws; (c) any violation of any rights of any third party related to S-Livestreamer Media; or (d) S-Livestreamer’s fraud, negligence or willful misconduct.
- Procedure. S-Livestream will promptly notify S-Livestreamer of any claim that is subject to Section 9.1, and will permit S-Livestreamer to assume and control the defense of that claim. S-Livestream will, however, have the right to employ separate counsel and participate in the defense of claims at the S-Livestreamer’s sole cost. S-Livestreamer 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 S-Livestream without S-Livestream’s prior written consent. If the parties agree to settle a claim, S-Livestreamer will not publicize the settlement without first obtaining S-Livestream’s written permission.
||LIMITATION OF LIABILITY
- Disclaimer of Warranties. ALL S-LIVESTREAM MATERIALS AND S-LIVESTREAMER LIVESTREAM ARE PROVIDED “AS IS.” S-LIVESTREAMER ACKNOWLEDGES AND AGREES THAT S-LIVESTREAM WILL HAVE NO LIABILITY ARISING FROM A FAILURE OF ANY SECURITY TECHNOLOGY OR PROCEDURE. S-LIVESTREAM DOES NOT WARRANT THAT THE S-LIVESTREAM MATERIALS OR S-LIVESTREAMER LINKS provided WILL BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, SECURE, ACCURATE, COMPLETE OR ERROR-FREE, THAT DEFECTS, IF ANY, WILL BE CORRECTED, OR THAT THE SERVER THAT MAKES THE SAME AVAILABLE ARE FREE OF VIRUSES, CLOCKS, TIMERS, COUNTERS, WORMS, SOFTWARE LOCKS, DROP DEAD DEVICES, TROJAN-HORSES, ROUTINGS, TRAP DOORS, TIME BOMBS OR ANY OTHER HARMFUL CODES, INSTRUCTIONS, PROGRAMS OR COMPONENTS.
- Disclaimer of Consequential Damages. S-LIVESTREAM WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO S-LIVESTREAMER 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.
- Cap on Liability. UNDER NO CIRCUMSTANCES WILL S-LIVESTREAM’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 PAID OR PAYABLE BY S-LIVESTREAM TO S-LIVESTREAMER UNDER THIS AGREEMENT FOR THE 6-MONTH PERIOD PRECEDING THAT CLAIM.
- 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.
Last updated: 28 June 2022
- Subcontractors. S-Livestream may exercise its rights under this Agreement via its S-Livestreamers and subcontractors. S-Livestream will be responsible for the compliance of those S-Livestreamers and subcontractors with the terms of this Agreement.
- Data Protection. S-Livestream undertakes, where applicable, to comply fully with the Personal Data Protection Act 2010 (PDPA) and to procure that all its employees, agents and contractors including S-Livestreamer to observe the provisions of the PDPA. If any Party including S-Livestream receives personal data pursuant to this Agreement, any receiving Party shall use it as strictly necessary for the performance of its obligations hereunder and in accordance with this Agreement.
- 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.
- 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.
- 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.
- Governing Law and Resolution of Disputes. This Agreement shall be governed by and construed under 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 Dispute 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 jurisdiction of the courts of Malaysia in accordance with the Arbitration Rules of jurisdiction of the courts of Malaysia 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.
- 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 S-Livestream or S-Livestreamer at their respective addresses.
- Assignment. S-Livestreamer 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 S-Livestreamer is the surviving entity), or operation of law, without S-Livestream’s prior written consent, which S-Livestream may withhold in its sole and absolute discretion. Any direct or indirect change of control of equity ownership or management or control of S-Livestreamer, whether or not S-Livestreamer survives as an entity, will be deemed an assignment and delegation of this Agreement that requires S-Livestream’s prior written consent. An assignment by S-Livestreamer will not relieve S-Livestreamer of its obligations under this Agreement unless S-Livestream expressly states otherwise in its written consent. S-Livestream will not release S-Livestreamer of its liability under this Agreement unless S-Livestream expressly states otherwise in its written consent. S-Livestream may 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) without S-Livestreamer’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.
- 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.
- 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.
- 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.
- Confidentiality of Agreement. S-Livestreamer will not disclose any terms of this Agreement to any third party without S-Livestream’s prior written consent, except as required by applicable law.
- 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.
- Language. If this Agreement is executed in more than one language, then only the English version is binding on the parties.
- Headings. Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.
- Integration. These Terms and Conditions 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.