Influencer Terms of Service – General Terms
These Influencer Terms of Service – General Terms constitute the general terms of the influencer terms of service (the “Form”) accepted by the Influencer/Agency on the Agreement Date, and together with such Form form the agreement between noon and the Influencer/Agency (as described in the Form).
1. Interpretation
1.1 Unless otherwise defined, capitalised terms used in these Terms of Service shall have the meanings given to them in the Form.
1.2 In these Terms of Service, the following words shall have the meanings set out below, unless the context otherwise requires:
“Affiliate” means, with respect to an entity, any entity that controls, is controlled by, or is under common control with such entity, where “control” means the direct or indirect power to direct or cause the direction of the management, operating policies or assets of such entity, whether through the ownership of more than fifty percent (50%) of the voting rights or equity securities or assets of such entity, or by contract, management agreement, voting trust or otherwise; provided that the term “Affiliate” shall include any variable interest entity, whether or not such variable interest entity may or must be consolidated with such entity under generally accepted accounting principles;
“Applicable Law” means, with respect to any person, any and all of: (a) laws, statutes or ordinances; (b) regulations, standards, rules, requirements, orders and norms issued under any such law, statute or ordinance; (c) rules of any stock exchange or equivalent body; (d) applicable data protection laws; and (e) any judgments, orders, writs, directions, 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 property;
“Business Day” means any day other than a Saturday, Sunday or public holiday in Malaysia;
“Commercially Reasonable Efforts” means taking such steps and performing in the manner that a well‑managed company would be expected to take and perform when acting in a determined, prudent and reasonable manner to achieve a particular result in its own interests;
“Confidential Information” means all confidential and non‑public information and data, in whatever form and format (written, visual, electronic or oral), received by the Recipient or its Representatives from the Discloser or its Representatives under or in connection with these Terms of Service (whether before or on the Agreement Date), including but not limited to:
(a) information relating to the business and business strategies of the Discloser and its Affiliates, markets, customers, products (including new products and new product plans, and marketing plans and materials), pricing and cost information, condition (financial or otherwise), operations, assets, liabilities, results of operations, cash flows and prospects, and information relating to their employees, officers, contractors and agents, including technical, commercial, financial, accounting, legal and administrative information;
(b) the existence of these Terms of Service and their terms (including any fees payable to the Influencer/Agency and the commercial details set out in the Form), and the Discloser’s positions in any disputes relating to these Terms of Service; and
(c) any copies of Confidential Information and all information created or derived by the Recipient or its Representatives from the Confidential Information,
provided that Confidential Information shall not include information that: (i) was in the possession of the Recipient or its Representatives at the time of disclosure; (ii) becomes or has become part of the public domain other than as a result of any act or omission by the Recipient or its Representatives in breach of the confidentiality provisions of these Terms of Service; (iii) is obtained by the Recipient or its Representatives from a third party who has not directly or indirectly received such information from the Discloser and is not bound by any obligation of confidentiality in respect of such information; or (iv) is independently developed by the Recipient or its Representatives without use of or reference to the Discloser’s Confidential Information;
“Insolvency Event” means, with respect to a person, any of the following events: (i) a receiver or similar officer is appointed to manage all or a material part of its assets or undertaking; (ii) a resolution for its winding‑up is passed (other than for the purposes of any solvent amalgamation or reconstruction), or a court of competent jurisdiction makes an order for its winding‑up, or a court makes an administration order (or any equivalent order in any jurisdiction); (iii) it enters into any composition or arrangement with its creditors (other than in connection with a solvent restructuring); (iv) it ceases to carry on business; (v) it is unable to pay its debts as they fall due in the ordinary course of business; or (vi) any event occurs in relation to it which has an effect similar to any of the events described in sub‑clauses (i)–(v) above under Applicable Law;
“Influencer Content” means all content created and delivered by the Influencer pursuant to these Terms of Service, including but not limited to all intellectual property owned by the Influencer such as text, images, photographs, illustrations, drawings, animations, songs, audio, video and any other works created and delivered by the Influencer under these Terms of Service;
“Personal Rights” means the rights, under Applicable Law, protecting the Influencer’s name, pseudonym, voice, likeness, image, portrait, biography, character, persona and all other aspects of his/her rights of publicity, privacy or personality, and any intellectual property rights arising from or ancillary to any of the foregoing;
“Intellectual Property Rights” means all copyrights, patents, utility models, trade marks and service marks, geographical indications, domain names, layout design rights, registered designs, design rights, database rights, business or trade 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 any of the foregoing, whether existing now or created in the future, whether registered or unregistered, and all rights to sue for past, present or future infringements, misappropriations or violations of any of the foregoing and to claim damages or other relief in respect thereof; and
“Representatives” means, with respect to a party, its Affiliates (if applicable), and each of their and its Affiliates’ respective officers, directors, employees, advisers, agents and subcontractors.
2. Term
2.1 These Terms of Service apply to the Influencer/Agency from the Agreement Date (as set out in the Form) and, unless earlier terminated in accordance with these Terms of Service, shall remain in force during the Initial Term (as set out in the Form). Upon the expiry of the Initial Term or any then current Renewal Term (as the case may be), noon may renew these Terms of Service for such further period as may be determined by noon in writing to the Influencer/Agency (each a “Renewal Term”). The Initial Term and any Renewal Terms (as applicable) are collectively referred to as the “Term”.
3. Services
3.1 The Influencer/Agency acknowledges and agrees that, during the Term, it shall independently provide to noon the services set out in the Form (the “Services”) in accordance with these Terms of Service and noon’s requirements, and shall, within a reasonable discretion, utilise its technical and professional expertise, taking into account noon’s feedback from time to time. The Services shall include such other services not specifically set out in these Terms of Service as are reasonably required (in the Influencer/Agency’s reasonable discretion, using its technical and professional expertise and in consultation with noon) to achieve performance of the Services, and shall be performed:
(X) with at least the same level of accuracy, completeness and quality as that provided by the Influencer and other social media personalities of similar standing to the Influencer, and with the same degree of care, skill and diligence; and
(Y) in accordance with Applicable Law.
3.2 noon may from time to time place orders with the Influencer/Agency in writing, in such order form as may be determined by noon (each an “Order”).
3.3 Each Order shall form part of these Terms of Service and these Terms of Service shall apply to each Order. In the event of any conflict between:
(i) the Form and these Terms of Service (together, the “Master Terms”); and
(ii) any Order, such conflict shall be resolved by giving priority to the Order, unless expressly provided otherwise in the Order.
3.4 The Influencer/Agency shall acknowledge receipt of each Order within two (2) Business Days after receiving such Order, upon which the Influencer/Agency shall be deemed to have accepted such Order.
3.5 Prior to the delivery of the Services by the Influencer/Agency to noon under an Order, noon shall have the right, by giving written notice to the Influencer/Agency, to amend, vary or terminate such Order with immediate effect.
3.6 In providing the Services, the Influencer shall, and the Agency (if applicable) shall procure that the Influencer shall:
(a) carry out the activities set out in the Form and/or the Order (as applicable), including creating and delivering the Influencer Content;
(b) produce original, carefully created and edited Influencer Content of a quality at least equivalent to the quality of the original content published by the Influencer prior to being engaged by noon;
(c) independently produce the Influencer Content, but, in its reasonable discretion and using its technical and professional expertise, take into account the feedback and/or requests (including creative briefs) provided by noon from time to time;
(d) where applicable, attend events organised, promoted or supported by noon (“Company Events”), provided that noon shall send the invitation at least five (5) days prior to the commencement date of the relevant Company Event. The Influencer shall respond to noon’s invitation within forty‑eight (48) hours of receipt;
(e) ensure that the performance of its Services does not involve any fraud against noon or any other person, and that any information provided to noon is not false, inaccurate or misleading;
(f) not post, authorise or otherwise publish any statements, representations or other content that are defamatory, disparaging, demeaning or damaging to noon or its Affiliates and their related products, services, officers, directors, employees or shareholders (“Company Entities”), whether through social media platforms or during any live streaming;
(g) ensure that the content does not include any abusive or prohibited content (including but not limited to: (i) improper language, defamatory, abusive or infringing materials, including content that promotes prejudice, racism, discrimination based on race, gender, religion, nationality, disability, sexual orientation or age; and (ii) content relating to prohibited tobacco, counterfeit or infringing intellectual property, illegal drugs, medicines or supplements, gambling or lotteries, money‑lending businesses or pornography) when creating and publishing the Influencer Content and any materials involving the Company Entities; and
(h) not subcontract or delegate any of its obligations under these Terms of Service to any third party without noon’s prior written approval.
3.7 noon shall have the right to:
(a) review and approve all Influencer Content or any other public announcements or content related to these Terms of Service prior to its posting or publication; and
(b) require the deletion, relocation, restriction or other removal of any Influencer Content so as to remove it from public circulation (including where such Influencer Content, from time to time, breaches any requirements of noon).
4. Fees; Invoicing; Taxes
4.1 Fees.
(a) As consideration for the Services provided by the Influencer, noon shall pay the Influencer the fees (“Fees”) in accordance with the Form and/or the Order (as applicable).
(b) The Influencer acknowledges and agrees that: (i) except for the Fees, no other fees, royalties, payments, amounts, charges or any other consideration shall be payable by noon to the Influencer or any third party in respect of the Services; and (ii) the Influencer shall bear solely all costs of materials, tools and equipment required for the provision of the Services (including any loss of or damage to any of the foregoing).
(c) The Influencer acknowledges and agrees that noon’s records shall be the sole, final and conclusive evidence of the Influencer’s performance under these Terms of Service and of all Fees payable, and shall be binding on the Influencer for all purposes in connection with these Terms of Service.
4.2 Payment.
(a) noon shall pay the Influencer the undisputed portion of the Fees in accordance with the Form and/or the Order (as applicable), but may withhold payment of any Fees which it disputes in good faith (or, if disputed Fees have been paid, may withhold an equivalent amount), including in relation to any errors in the invoice or disputes as to amounts already paid.
(b) Payment of the Fees shall be made by telegraphic transfer to the Influencer’s bank account (as detailed in the Form). For the avoidance of doubt, the Influencer shall ensure that its bank account information is accurate and valid so that noon can pay the Fees to the Influencer. If any bank‑related penalties or fines are incurred due to inaccurate and/or invalid bank account information provided by the Influencer, such penalties or fines shall be borne solely by the Influencer.
(c) The parties acknowledge and agree that noon shall have the right, under these Terms of Service, to set off and apply any amounts payable or owed by noon and/or its Affiliates to the Influencer and its Affiliates (if applicable) against any amounts payable or claimed from the Influencer and its Affiliates (if applicable) by noon and/or its Affiliates under these Terms of Service or any other transaction, agreement, contract or debit note, including but not limited to any amounts of indebtedness, outstanding claims, demands, losses or damages.
4.3 Taxes.
(a) For the purposes of these Terms of Service, “Taxes” means any type of tax, including but not limited to service tax, consumption tax, value added tax, goods and services tax, business tax and any similar local sales taxes, withholding taxes, indirect taxes, personal income tax or corporate income tax.
(b) All Fees and other amounts payable under these Terms of Service are inclusive of Taxes. noon may deduct any applicable Taxes through a reverse charge or similar mechanism to the extent required or permitted under Applicable Law. noon shall promptly remit any deducted Taxes to the relevant governmental authority and shall provide the Influencer with remittance documents acceptable to noon.
(c) Each party shall be responsible for paying its own Taxes arising from these Terms of Service in accordance with Applicable Law in the relevant tax jurisdiction. Notwithstanding anything to the contrary in these Terms of Service, if noon has any withholding obligation in respect of any payment to be made under these Terms of Service, such payment shall be deemed to be inclusive of all Taxes, and noon shall be entitled to deduct and withhold from such payment any Taxes required to be deducted and withheld under Applicable Law. The amount so deducted and withheld shall be deemed to have been paid to the relevant authority in respect of such deduction and withholding, and noon shall have no further obligation to pay the corresponding amount (or any part thereof) to the Influencer. Upon receipt of the relevant receipt, noon shall promptly provide the Influencer with copies of all government certificates in respect of any Taxes so withheld. The parties shall cooperate and use commercially reasonable efforts to comply with all applicable documentation and registration requirements to minimise the amount of withholding Taxes levied (if any). Without prejudice to the generality of the foregoing, the Influencer shall provide noon within a reasonable period with a valid certificate of residence or equivalent document issued by the relevant authority evidencing that the Influencer is a tax resident of the relevant country; failing which, noon shall be entitled to deduct and withhold from any payment such amount of Taxes as it deems necessary.
5. Intellectual Property
5.1 Rights in Influencer Content. The Influencer acknowledges and agrees that the Influencer Content is created by the Influencer as a “work made for hire” under Applicable Law and that all rights, title and interest (including all Intellectual Property Rights) in and to the Influencer Content shall vest exclusively in noon. To the extent that any rights, title or interest in the Influencer Content do not vest in noon as a work made for hire, the Influencer hereby unconditionally and irrevocably assigns to noon, on a worldwide and perpetual basis, all such rights, title and interest. Upon noon’s request, the Influencer shall execute any documents, in a form acceptable to noon, necessary to fully perfect noon’s ownership of the Influencer Content. If at any time the Influencer fails or is unable to execute any such documents within fourteen (14) days of noon’s request, the Influencer hereby irrevocably appoints noon and its duly authorised officers and agents, as the Influencer’s attorney‑in‑fact and agent, to execute and file all such documents and to do all acts permitted by law with the same legal force and effect as if executed or done by the Influencer. noon shall have a perpetual, worldwide, exclusive right, at its sole and absolute discretion, to use, reproduce, modify, adapt, create derivative works of, publish, distribute, publicly display, communicate to the public, publicly perform, stream, broadcast and otherwise exploit the Influencer Content, without any obligation to pay any royalties, render any accounts or make any other payment to the Influencer or any third party. To the extent permitted under Applicable Law, the Influencer hereby, on behalf of itself and its employees, contractors and agents, waives all moral rights and economic rights (or equivalent rights) in the Influencer Content arising under the laws of any jurisdiction. To the extent such rights cannot be waived under Applicable Law, the Influencer agrees not to assert such rights against noon.
5.2 Influencer’s Personal Rights. The Influencer hereby grants noon a non‑exclusive, worldwide, irrevocable, transferable, sub‑licensable and royalty‑free licence to use the Personal Rights for the purpose of promoting and marketing the services provided by noon and its Affiliates from time to time.
5.3 noon Intellectual Property.
(a) The Influencer acknowledges and agrees that: (i) noon owns all rights, title and interest (including any customisations, enhancements, modifications or derivatives) in and to all materials and content provided by noon to the Influencer under these Terms of Service, and in and to all of noon’s names, logos and trade marks (collectively, the “noon IP”); (ii) the Influencer shall not at any time acquire any rights, title or interest in or to the noon IP or any part thereof; and (iii) the Influencer shall not at any time seek to register, assert or claim any rights, title or interest in or to the noon IP or any part thereof.
(b) noon hereby grants the Influencer a non‑exclusive, revocable, non‑transferable, non‑sub‑licensable and royalty‑free licence, during the Term, to use the noon IP solely to the extent necessary to perform its obligations under these Terms of Service (including providing the Services), provided that any use by the Influencer of noon’s logos, trade marks and other brand devices shall be subject to noon’s prior written consent, except where such use is in accordance with these Terms of Service or noon’s instructions.
6. Recipients of Services
6.1 The Influencer/Agency shall provide the Services to noon and its Affiliates, and in these Terms of Service, unless the context otherwise requires, references to noon shall include its Affiliates to the extent that they receive the Services.
7. Termination
7.1 Either party may, without prejudice to its other rights and obligations under these Terms of Service, terminate these Terms of Service immediately by giving written notice of termination to the other party if:
(a) the other party commits a material breach of these Terms of Service and fails to remedy such breach within fourteen (14) days after receiving written notice from the terminating party;
(b) the other party commits a series of breaches which: (i) when taken individually may be immaterial; (ii) have been notified to such other party; and (iii) have not been remedied within fourteen (14) days after receipt of such notice, and collectively amount to a material breach; or
(c) an Insolvency Event occurs in respect of the other party.
7.2 noon may terminate these Terms of Service or any Order (as applicable) at any time without cause by giving seven (7) days’ prior written notice to the Influencer/Agency.
7.3 The termination or expiry of these Terms of Service shall not affect any rights or obligations of either party which may have accrued prior to such termination or expiry, unless the party entitled to such rights expressly waives them in writing.
7.4 Following termination by noon pursuant to Clause 7.1 or 7.2, and unless otherwise agreed by the parties in writing, the Influencer/Agency shall immediately refund to noon all Fees paid by noon under these Terms of Service that relate to any period during which, as at the date of termination, the Influencer/Agency has materially breached these Terms of Service and has failed to provide the Services to noon’s reasonable satisfaction.
7.5 The expiry or termination of these Terms of Service shall not affect the coming into force or the continuation in force of any provisions which are expressly or impliedly intended to come into or continue in force on or after such expiry or termination (including, without limitation, Clauses 5, 7, 9, 10, 11, 12 and 13).
