Last Update: 28 March 2024
ADDENDUM TO TERMS OF USE END USER LICENSE AGREEMENT AND TERMS OF SERVICE FOR CREATORS.
PLEASE READ THIS AGREEMENT CAREFULLY! THIS AGREEMENT IS A LEGAL AND CONTRACTUALLY BINDING AGREEMENT BETWEEN YOU AND SPARK9 (DEFINED BELOW). YOU INDICATE YOUR WILLINGNESS TO BE BOUND BY THIS AGREEMENT BY SUBMITTING A REGISTRATION APPLICATION FOR THE SPARK9 CREATORS PROGRAM (THE “PROGRAM“) TO BE CONSIDERED AS A SPARK9 CREATOR (“CREATOR“). BY APPLYING FOR THE PROGRAM, YOU CERTIFY THAT YOU HAVE READ AND UNDERSTAND THE TERMS OUTLINED IN THIS AGREEMENT AND THAT YOU ARE AUTHORISED TO AGREE TO THIS AGREEMENT.
Reference is made to that certain Spark9 End User License Agreement and Terms of Service (the “EULA“), entered into between you, an individual user (“you“), and Spark9 (“Spark9“, “we“, “us” or “our“) governing your use of the Spark9 mobile software application (the “Spark9 App“) and the related website located at www.spark9asia.com (“Site“, and collectively with the Spark9 App, the “Spark9 Services“). BY PROCEEDING FURTHER WITH YOUR PROGRAM APPLICATION, AS ENABLED BY YOUR BEING PRESENTED WITH THIS CREATORS AGREEMENT, WHICH CONSTITUTES AN ADDENDUM TO THE EULA (THIS “ADDENDUM”), YOU AGREE THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THIS ADDENDUM. IF YOU DO NOT AGREE TO THE TERMS OF THIS ADDENDUM, DO NOT PROCEED FURTHER WITH APPLYING TO PARTICIPATE IN THE PROGRAM. THE TERM OF THIS ADDENDUM SHALL BE THE PERIOD COMMENCING ON THE DATE ON WHICH YOU ARE APPROVED BY SPARK9 AS A CREATOR AND CONTINUING THROUGHOUT YOUR INCLUSION IN THE PROGRAM UNLESS WE TERMINATE YOUR PARTICIPATION EARLY AND IS FROM NOW ON REFERRED TO AS THE “CREATOR TERM”. Except as otherwise provided in this Addendum, all terms contained herein will have the same meanings as those used in the EULA. All other provisions of the EULA that this Addendum does not explicitly modify will remain in full force and effect.
1. Program Registration, Approval Process and Participation.
a. Program Registration and Approval. To become a Creator in the Program, you may apply by completing and submitting the registration materials (“Registration Application“) through the Spark9 App. You understand and agree that Spark9 will use a variety of methods to confirm your eligibility to become a Creator, including, without limitation, contacting references and other methods to verify your Registration Application is accurate. By submitting your Registration Application to become a Creator, you explicitly permit Spark9 and its vendors to confirm your eligibility to participate in the Program independently. Spark9 reserves the right to continue verifying the accuracy of your Registration Application at any time as long as you are a Creator. We will notify you whether your Registration Application is approved within five (5) business days of our receipt of your Registration Application. At our sole discretion, we may deny you access to the Program for any reason without notice and liability.
b. Participation in the Program. We grant you the non-exclusive right to participate in the Program to promote and advertise the Spark9 Services and your status as a Spark9 Creator, subject to the terms and conditions hereof. We reserve the right to terminate this Addendum, your Program account and your participation in the Program at any time and for any or no reason, in our sole and absolute discretion, by giving you notice at the email address that we have in our records for you. The reasons we may terminate this Addendum, your Program account and your participation in the Program include, without limitation, failure to keep your page up to date or your page or other marketing materials incorporate images or content that we determine to be detrimental to Spark9 or include materials that may infringe or assist others to infringe on any copyright, trademark, other intellectual property or any other rights of any third party. In addition to this Addendum, you acknowledge that you have carefully read and agree to comply with all of Spark9’s policies and procedures as may be provided to you or are available on the Spark9 Services from time to time, including, without limitation, the EULA, all of which are incorporated into and made part of this Addendum. You agree that if a conflict exists between this Addendum and any of the terms and conditions of the documents referenced in the previous sentence, this Addendum will control.
2. Licenses
- Spark9 License. We grant you a non-exclusive, non-transferable, revocable license to use our trademarks, service marks, logos, links, Spark9 marketing materials and other intellectual property (all only in the form(s) provided to you by us) for use in connection with the Program (collectively, “Licensed Materials“) solely: (i) to promote and advertise your participation in the Spark9 Services and the Program by this Addendum, and (ii) if you are a member in good standing of the Program. You may not alter, modify, or change the Licensed Materials in any way without our express prior written approval. You will not use any specific Licensed Materials for purposes other than advertising and promoting your participation in the Program. You agree that you will not present the Licensed Materials in combination with any other name or mark in connection with your goods or services or in any manner that may suggest or imply that you or your goods or services are supplied by, sponsored by or endorsed by us without first obtaining our prior written approval in each instance. You agree not to use the Licensed Materials, the Spark9 Services, content or other materials or property in conjunction with or to promote any activity that, in our sole discretion, is detrimental to the Spark9 brand or brands, including, without limitation, in any manner that is disparaging or that otherwise portrays us in a negative light. The determination of whether you are using the Licensed Materials, the Spark9 Services, your page, or any other content or materials related to this Addendum in the best interest of Spark9 is left to our sole and absolute discretion. We reserve all our rights in the Licensed Materials and other proprietary rights. Your use of our Licensed Materials does not give you any rights in them other than as described in this Addendum. We may revoke your license to the Licensed Materials at any time, upon notice to you, at which time you agree to cease using the Licensed Materials immediately. We may occasionally email you with any changes or updates to the Licensed Materials, the Program and Spark9’sSpark9’s related products and services, and you must promptly comply with any directions from us in connection therewith.
- Creator License. In addition to the rights granted to us to your User-generated Content as outlined in the EULA and subject to the terms below, you grant us a non-exclusive, royalty-free, unrestricted, unconditional, unlimited, worldwide right and license (with the right to sublicense) to use your approved names, usernames, nicknames, titles, logos, trademarks, trade names, and service marks, copyrights, live streams, user-generated content and any other materials created or used by you (which must be approved by us in writing) in connection with the Program (collectively, the “Creator Materials“) to advertise, market, promote and publicise in any manner the Program, your participation in the Program and to promote Spark9 or Spark9 Services. Spark9 will not be required to use the Creator Materials or to advertise, market, promote or publicise your affiliation with the Program. You represent and warrant that the Creator Materials, your page and any other materials created or used by you in connection with the Program will not contain anything that, in Spark9’sSpark9’s sole judgment, violates any law, regulation, or ordinance, or third-party rights, is considered to be defamatory or constitutes libel or slander, may be inconsistent with Spark9’sSpark9’s public image, maybe in bad taste, are indecentor in Spark9’sSpark9’s opinion, otherwise objectionable, or may tend to bring disparagement, ridicule, or scorn upon Spark9 or any Creator and subsidiary companies. You are responsible for ensuring that the Creator Materials and any other materials posted on your website do not violate, infringe or misappropriate copyrights, right of publicity, trademark rights or other rights of us or any third party. You must have express written permission to use another party’s intellectual, proprietary or contractual rights or to use another’s name, portrait, voice or likeness, and you agree to provide such written permission to us promptly upon request. You will be solely responsible for the development, operation, andmaintenance of your page, all materials on your page, and all marketing and promotion you conduct on your own.
- Ownership. Subject to the limited licenses above, as between Spark9 and you, each party will exclusively own and control its respective intellectual property. All goodwill from the licensed use of a party’s trademarks hereunder will inure solely to the party that owns the trademark.
- Procurement of Advertising, Sponsorship, Endorsement and Branding. During the Creator Term, you grant Spark9 the non-exclusive right (but not the obligation) to undertake efforts to procure advertising, sponsorship, endorsement and branding opportunities for you (any such procured opportunities are from now on referred to as the “Spark9-Procured Opportunities“). Any Spark-Procured Opportunities shall be subject to good faith negotiation of a separate agreement between you, Spark9 and the third-party sponsor.
- Third Party Rights. Unless otherwise approved by Spark9 in writing, no additional license or consent from, or obligation to attribute or credit, any third party is necessary for Spark9 to receive or use the User-generated Content without obligation or liability to any third party.
3. Compliance with Law
Without limiting anything else in this Addendum, and notwithstanding anything to the contrary, you will at all times comply with all government laws and regulations and voluntary industry standards applicable to the Program and your activities, including, without limitation, labour and employment laws and anti-bribery and corruption laws Malaysia and the Republic of Singapore, or in compliance with the government regulations and guidelines of your residency, and will maintain appropriate customary high-quality standards during the Creator Term (defined below). Further, in any Creator Materials that a third party sponsors, you will conspicuously disclose your Creator status concerning the Program and receive compensation from Spark9 for promoting the Spark9 Services. Further, and without limitation, you: (i) will clearly and conspicuously disclose your true identity and that you have received compensation, product and other incentive items from Spark9 or a brand partner proximate to any mention by you of Spark9 or brand partner; (ii) will not make any false, misleading or deceptive statement and will not make any product performance or attribute claims about products (you may express opinions, but will not make factual claims about the products); (iii) will ensure that all of your statements accurately reflect only your honest, current opinions and beliefs based on your personal experience; (iv) will not purport to speak on behalf of Spark9 or a brand partner; and (v) will maintain your social media channels and activities related to the services in a manner appropriate for a family audience and will not be rude or abusive. Accordingly, when creating or publishing a blog post in connection with the Program, you must clearly and conspicuously disclose that you have a connection with a brand partner and Spark9 (e.g., you are participating in the Program) and have received something of value. You must disclose whether you provide brand partner publicity orally or in writing. For certain online media venues, you can use short-form disclosures such as “AD”, “PAID”, and “SPONSORED”, or otherwise, you must make a disclosure that is materially similar to the following: “I have accepted compensation from [insert name of brand partner] in exchange for my post.” Spark9 reserves the right to monitor and review all Creator Materials. Spark9 reserves the right at all times to require you to edit, take down, or otherwise remove Creator Materials published through Service accounts that, in our sole discretion, are objectionable or in violation of this Addendum.
4. Revenue Sharing
- Your Net Revenue Share. We shall credit to your account under the EULA (as amended by this Addendum) the following royalties derived from Net Receipts (as defined below) if any (“Your Net Revenue Share” ):
- Virtual Gifts. Fifty percent (50%) of Net Receipts derived from Virtual Gifts (Virtual Gifts are digital gifts that represent specific Token value, and Tokens are Virtual Currency used on the Spark9 App) received from Creator Materials given by Spark9 Users (with the remainder of such Net Receipts being retained by us for our account); and
- Earnings Derived from Procured Opportunities. Eighty percent (80%) of Net Receipts are derived from Tokens received from Procured Opportunities (together with Third-Party Contributions, collectively, “Subject Earnings“) (with the remainder of such Net Receipts being retained by us for our account).
- Accounting. Within twenty-four hours of receiving net receipts, we will compute the total amount of your net revenue share under this Addendum. A royalty statement is available through the Spark9 App, and Your Net Revenue Share can be withdrawn via PayPal or other similar online payment method available through the Spark9 App. Notwithstanding the preceding, we may set a minimum withdrawal threshold at our sole discretion and not be obligated to make any payment otherwise due.
- Net Receipts Definition. The term “Net Receipts“, as used herein, means all sums (if any) derived from Subject Earnings earned throughout the world that we receive, less any actual out-of-pocket costs incurred by us in connection with such Subject Earnings and in connection with the payment to you of Your Net Revenue Share (including, without limitation, wire transfer and payment processing fees, if applicable) and any amount that you may owe us for any reason. Notwithstanding anything to the contrary expressed or implied in this Addendum, (i) in no event will you be entitled to share in any payment of any kind or nature that we receive except to the extent, if at all, that such payment relates solely or is specifically and identifiably attributable to your Creator Materials, (ii) you will not be entitled to any additional consideration of any kind or nature whatsoever, whether under the EULA (as amended by this Addendum) or otherwise, in connection with any rights granted by you hereunder or the exploitation thereof, and (iii) in no event will you be entitled to audit or otherwise examine any of our books or records, whether relating to Your Net Revenue Share or otherwise.
- Payments. Before receiving Your Net Revenue Share payments from us, we may require you to complete a Know Your Customer(“KYC“) process as part of our corporate compliance requirements. Subject to compliance with the terms of this Addendum, we will pay you any of Your Net Revenue Share after we receive payment from the purchaser. If you terminate this Addendum, we will pay you any undisputed Net Receipts earned by you within sixty (60) days of the date your written notice of termination is received by us. Notwithstanding the preceding, we reserve the right to extend the time we send out any Net Receipts if we offer the ability to obtain a refund from purchasing a product or service until sixty (60) days after the refund period expires. Subject to the preceding, we will either deposit Your Net Revenue Share in your designated PayPal account or use another payment method of your choice. If returns, refunds or other events require recalculation of Net Receipts for a period for which Your Net Revenue Share has already been paid, we will offset from Net Receipts payable in succeeding periods by the amount which Net Receipts are reduced by such recalculation. We may maintain a reasonable reserve against such deductions. If there are no subsequent Net Receipts payable, we will send you an invoice for reimbursement of the overpaid Net Receipts, and you agree to pay any such invoice within fifteen (15) days of the date of such invoice. You will be solely responsible for reporting and paying all income and other related taxes associated with Your Net Revenue Share paid to you and for all compensation benefits and taxes to or for your employees and any third parties engaged by you in connection with your participation in the Program. If you are an individual, we may deduct from Your Net Revenue Share any unemployment insurance payments or any other payments required by law for us to withhold or pay in connection with your participation in the Program. You will defend, indemnify and hold us harmless in all respects concerning any taxes, penalties, damages, costs and expenses relating to our payments made to you hereunder without withholding of taxes. We reserve the right, in our sole and absolute discretion, to withhold payment of any Net Receipts owed to you if we have any suspicion or actual evidence of electronic or non-electronic tampering with any portion of the Program or if a computer virus, bug, unauthorised intervention, fraud, technical difficulties, or failures compromise or corrupt or affect the administration, integrity or security of the Program by you or a third party.
5. Termination
Either party may terminate this Addendum at any time, with or without cause, by giving the other party written notice of termination. Additionally, suppose at any time there has been no substantial activity on your Program account for at least twelve (12) consecutive months, and you have not earned at least $100 in Net Receipts during that twelve (12) month period, we may close your inactive account and terminate this Agreement. If you have accrued Net Receipts in your account, a maintenance fee will be deducted from your remaining balance. The maintenance fee will be the lesser of the accrued Net Receipts in your account or $25.00. Any remaining balance will be paid to you. If we terminate this Addendum because you are in material breach of a term hereof, we may withhold compensation payable to you, and we may terminate this Addendum without further obligation to you, including the obligation to pay compensation. All licenses granted by us to you terminate automatically upon termination of this Addendum, and you will immediately cease use of any Licensed Materials.
6. Representations and Warranties.
You hereby represent and warrant to us as follows:
- This Addendum has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
- Your execution, delivery, and performance of this Addendum and the consummation of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, or (iii) any agreement or other instrument applicable to you or binding upon your assets or properties.
- You are the sole and exclusive owner or authorised licensee of the Creator Materials and have the right and power to grant us the license to use the Creator Materials in the manner contemplated herein. Such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon, violate or misappropriate any trademark, trade name, service mark, copyright, patent, or other proprietary contractual or other right of any other person or entity. In addition, your performance under this Addendum will not infringe upon, violate or misappropriate any trademark, trade name, service mark, copyright, patent, or other proprietary contractual or other right of any other person or entity.
- No consent, approval, or authorisation of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Addendum or the taking by you of any other action contemplated hereby.
- There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any personnel of yours, concerning the execution, delivery or consummation of this Addendum, or concerning the Creator Materials, and to the best of your knowledge, there is no basis for any such claim, action or proceeding.
7. Disclaimers
We make no express or implied warranties or representations concerning the Program, and WE EXPRESSLY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. In addition, we make no representation or warranty that the operation of the Spark9 Services, the Tokens, or our procedures and systems tracking sales generated by the Tokens will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
8. Limitation of Liability
WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES; ANY LOSS OF REVENUE, PROFITS, OR DATA; OR BUSINESS INTERRUPTION ARISING IN CONNECTION WITH THIS ADDENDUM OR THE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ALLEGED IN CONTRACT OR EQUITY. IN THE EVENT THE PRECEDING LIMITATION IS MODIFIED OR CURTAILED AS A MATTER OF LAW, OUR AGGREGATE MONETARY LIABILITY ARISING CONCERNING THIS ADDENDUM AND THE PROGRAM WILL NOT IN ANY EVENT EXCEED THE TOTAL COMPENSATION PAID TO YOU UNDER THIS ADDENDUM IN THE PREVIOUS THREE (3) CALENDAR MONTHS.
9. Indemnification
You hereby agree to indemnify, defend and hold harmless Spark9, its shareholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all actual or threatened claims, losses, liabilities, damages or expenses (including attorneys’ fees and costs) of any nature whatsoever incurred or suffered by us (collectively, the “Losses“), in so far as such Losses (or actions in respect thereof) arise out of, are related to, or are based in any way on: (i) any claim or threatened claim that the Creator Materials infringe, misappropriate or violate the rights of any third party; (ii) the breach or alleged breach of any covenant, Agreement, representation or warranty made by you herein; (iii) any claim related to your page, the conduct of your business, or your goods or services; (iv) your violation of any law, rule, regulation, ordinance or applicable policy of or Agreement in connection with the Program or your obligations or services hereunder; or (v) your infringement, misappropriation or other violation of any third party intellectual, property, contractual or other right.
10. General Provisions
- Entire Agreement. The EULA and this Addendum are the entire Agreement between the parties concerning its subject matter, and they supersede all prior agreements, representations, and understandings, whether express or implied and oral or written.
- Modification. We may modify any of the terms in this Addendum at any time and at our sole discretion. Notice of any change by email to your address on our records or a new agreement designated by us to apply to you or a group of persons or entities, including you, is agreed to constitute sufficient notice of a binding modification of this Addendum. If any modification is unacceptable to you, your only recourse is to terminate this Addendum under Section 5 of this Addendum. Your continued participation in the Program following our posting of a change notice or new agreement on the Spark9 Services will constitute binding acceptance of the modified terms. It is your responsibility to have a working email address in our records so that such notices can be delivered.
- Assignment. You may not assign this Addendum or delegate your obligations, in whole or in part, by operation of law or otherwise, without our prior written consent. We may freely assign this Addendum, in whole or in part. Subject to that restriction, this Addendum will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
- Waiver. Our failure to enforce your strict performance of any provision of this Addendum will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Addendum.
- Relationship of Parties. You and Spark9 are independent contractors, and nothing in this Addendum will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers, enter into any contracts, make any representations on our behalf, or act as a distributor, seller, or reseller of the Spark9 Services.