PicCopilot Affiliate Program Service Agreement
Effective as of December 12, 2023
This PicCopilot Affiliate Program Service Agreement (the “Agreement”) describes the terms and conditions applicable to your access and participation in the PicCopilot Affiliate Program (the “Program”) of the websites, and other portals owned, operated, branded or made available by PicCopilot (defined below) from time to time which relate to the PicCopilot platform including but not limited to the web and mobile-optimized versions of the websites identified by the uniform resource locator “www.piccopilot.com/” of the PicCopilot platform (the “Sites”). This document is a legally binding agreement between you as the marketing partner(s) of the Sites (referred to as “you”, “your” or “Participant” hereinafter) and the PicCopilot, operating by NEURALNETICS PRIVATE LIMITED, a company incorporated under the laws of Singapore and having its registered address at 51 Bras Basah Road, #01-21 Lazada One, Singapore, with UEN number 202319219E (referred to as “we”, “our” or “PicCopilot” hereinafter).
Each of PicCopilot and Participant is referred to as a “Party” and collectively as “Parties”.
By checking the box or clicking the “Accept and Continue” button (as applicable), you agree to be bound by the terms and conditions of this Agreement. You acknowledge and agree that you have independently evaluated the desirability of participating in the Program and are not relying on any representation, guarantee, or statement other than as expressly set forth in this Agreement; and hereby represent and warrant that you are lawfully able to enter into contracts (e.g. you are not a minor) and that you are and will remain in compliance with this Agreement. In addition, if this Agreement is being agreed to by a company or other entity, then the person agreeing to this Agreement on behalf of that company or entity hereby represents and warrants that he or she is authorized and lawfully able to bind that company or entity to this Agreement.
1. DEFINITIONS
1.1 “Action” shall have the following meaning depending on the “Cost per Action” Model prescribed in the following:
(a) on a Cost per subscription model: each click on the Participant's advertisement of PicCopilot Content (including but not limited to links), which redirects the viewer to PicCopilot Site and complete the requisite steps required by the PicCopilot Site for acknowledging subscription completion. The model shall apply only after the viewer registers as a user of the PicCopilot, activates the paid product or service in PicCopilot (for detailed information about paid products or services, refer to the PicCopilot Site), and completes the payment of the subscription on the PicCopilot Site.
(b) on a Cost per marketing material production and subscription model: Participants create one-time marketing materials for PicCopilot Content (in the form of materials including, but not limited to videos). Each click on the Participant's advertisement of PicCopilot Content (including but not limited to links), which redirects the viewer to PicCopilot Site and complete the requisite steps required by the PicCopilot Site for acknowledging subscription completion. The model shall apply only after the viewer registers as a user of the PicCopilot, activates the paid product or service in PicCopilot (for detailed information about paid products or services, refer to the PicCopilot Site), and completes the payment of the subscription on the PicCopilot Site.
(c) on other model: to be confirmed by specific email content sent by PicCopilot or by Insertion Order(Schedule A).
1.2 “PicCopilot Content” means text, artworks, graphics, logos, copies, infographic or other multimedia presentation, audio podcast and video in any other current or future format of PicCopilot Products/Services that are made available by PicCopilot to Participant through the Participant’s account at the PicCopilot Sites or through authorized use of designated APIs and links of PicCopilot Sites for advertisements on websites or other media controlled by Participant. PicCopilot Content excludes any data, images, text, or other information or content relating to products or services offered by any website other than the PicCopilot Site.
1.3 “PicCopilot Portal” means the website with the URL: https://www.piccopilot.com/ where Participant must enroll and use for performing the advertising services under this Agreement.
1.4 “PicCopilot Product(s)/Service(s)” means any item or service offered by PicCopilot, including but not limited to image translation, image generation, image optimization.
1.6 “Subscriber” means a registered user of PicCopilot Site who selects the paid product or service on the PicCopilot Site, and completes the payment of the subscription on the PicCopilot Site.
1.7 “Fraud” means any action that intentionally attempts to create subscriptions, sales, leads, or click-throughs using robots, frames, iframes, scripts, or manually “refreshing” of pages, for the sole purpose of creating commissions.
1.8 “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
1.9 “Network” means a Participant who controls a number and variety of websites, newsletters, or other third party online/offline media whereby the PicCopilot Products/Services can be placed.
1.10 “Participant Site/Media” means the website or other online media controlled by Participant whereby Participant has the right to place advertisements of PicCopilot Content pursuant to the Program.
1.11 “Publisher” means an individual or entity that controls a website (including its pop-up links, SEM links, SEO links, email links and other traffic sources on the website) whereby the PicCopilot Products/Services can be advertised through the placing of PicCopilot Content on the website.
1.12 “Partner-created Content” shall mean text, artworks, graphics, logos, and copies and/or any other content created by Participant which may or may not contain a link to a landing page of PicCopilot website and/or PicCopilot Content and shall thereafter be hosted and/or made available by Participant to visitors for performance of Services.
1.13 “Successful Subscription” means that through Participant’s advertisement of PicCopilot Content, the viewer registers as a user of the PicCopilot Site and completes payment for the paid product or service on the PicCopilot Site. A subscription shall be deemed to be “completed” only after the viewer registers as a user of the PicCopilot Site, activates the paid products or service on the PicCopilot Site, and completes the payment steps required by PicCopilot Site for acknowledging subscription completion. For the avoidance of doubt, transactions on the PicCopilot Site that are unsubscribed or refunded by Subscriber shall not be deemed as a Successful subscription.
1.14 “Actual Subscription data” means the subscription period is less than one month, or the subscriber cancels the subscription at any time, the actual subscription data is the actual number of days the subscriber has subscribed.
1.15 “Services” means the advertisement and/or promotion of PicCopilot Content, including hosting, publishing, displaying, distributing and disseminating PicCopilot Content, and/or the production, hosting, publishing, distributing and disseminating Partner-created Content for the purpose of driving the traffic for PicCopilot.
1.16 “Data Tracking and Recording” means the PicCopilot’s recording of the data of the viewer’s subscription action on its own serve. Whenever the viewer’s Successful Subscription completes, or other qualified actions (as may be determined in an Insertion Order) completes, PicCopilot will record the data accordingly and use it as the only basis for calculating the participants' commission.
1.17 “Insertion Order” means a service order form entered into by and between PicCopilot and Participant that sets forth the specific pricing and other terms and conditions of the advertising services provided by Participant pursuant to this Agreement.
1.18 “Alibaba Group” means Alibaba Group Holding Limited and all of its direct or indirect subsidiaries, affiliates, licensees, successors, and assigns.
2. SCOPE OF AGREEMENT
2.1 This Agreement, together with the following rules (the “Relevant Rules”), constitutes the entire agreement between the Parties:
(c) Insertion Order; and
(d) Any and all rules, policies, and terms and conditions as published and amended by us on the PicCopilot from time to time.
2.2 The Relevant Rules shall be an integral part of this Agreement and shall have the same force and effect as this Agreement.
2.3 Participant agrees to abide by the terms and conditions set forth in this Agreement and all Relevant Rules when participating in the Program.
2.4 PicCopilot shall have the right, in its sole discretion, to amend and restate any Relevant Rules from time to time (the “Amended and Restated Relevant Rules”) without notification to Participant. All Amended and Restated Relevant Rules shall become effective immediately upon its publication on the PicCopilot Sites. Participant’s logging-in to the PicCopilot and/or continuance of the participation in the Program after the publication of the Amended and Restated Relevant Rules shall be deemed as consent on the part of Participant to accept and be bound by the Amended and Restated Relevant Rules.
2.5 In the event that Participant does not agree to any of the Amended and Restated Relevant Rules, Participant shall terminate this Agreement in accordance with the terms and conditions set forth in Clause 13 of this Agreement.
3. DESCRIPTION AND GENERAL TERMS OF THE PROGRAM
3.1 The Program is intended to provide Participant, with the opportunity to advertise PicCopilot Content on Participant Site/Media. PicCopilot will make the PicCopilot Content available for Participant through Participant's PicCopilot account page or email(s), or via other means depending on the circumstances, and Participant shall advertise the PicCopilot Content pursuant to the Program. PicCopilot will pay Participant the Fees (as defined in Clause 7.1) for Successful subscription and/or other qualifying Action (as may be determined in an Insertion Order), made by a viewer via Participant’s advertisements of PicCopilot Content in accordance with Clause 7 of this Agreement.
3.2 Subject to PicCopilot’s prior approval, Participant may:
(a) propose other content displaying on the PicCopilot Site to be advertised by Participant on the Participant Site/Media;or
(b) create its own promotional content based on the PicCopilot Content for advertisement on the Participant Site/Media.
(c) transmit instruction or data to PicCopilot for the latter to process and filter certain PicCopilot Content.
3.3 The specific terms and conditions for Participant’s Services provided under this Agreement, in addition to the terms set forth in this Agreement, will be set out in the Insertion Order. And if there is any discrepancy between this Agreement and the Insertion Order, the Insertion Order shall take prevail.
4. ENROLLMENT
4.1 Participant’s enrollment into the Program is subject to, in addition to the execution of this Agreement, the fulfillment of all the following requirements by Participant:
(a) having agreed to and accepted the “Terms of Use” and “Privacy Policy” online through the PicCopilot Site;
(b) having completed the account registration procedures on the PicCopilot Site;
(c) having agreed to be abound by: any and all rules, policies, and terms and conditions as published and amended by PicCopilot on the PicCopilot Portal from time to time.
4.2 PicCopilot reserves the right to reject Participant’s application for participation in the Program if PicCopilot determines that, in its sole and absolute discretion, Participant is unsuitable for participation in the Program.
5. DATA TRACKING AND RECORDING
5.1 Participant agrees that the actual subscription data led by the Participant’s advertisement of PicCopilot Content on the Participant Sites/Media will be tracked and recorded by the PicCopilot. The actual subscription data of the PicCopilot Terminal shall serve as the sole basis for calculating the sum of amount payable to Participant under the Program.
5.2 Participant shall not employ any method to directly or indirectly interfere, disrupt or disable PicCopilot’s recording and tracking system.
5.3 PicCopilot shall be entitled to invalidate the short-key which is embedded in the link generated using the tracking technology of PicCopilot and which is used to record or track any subscribes or Actions, provided that: 1) the short-key has been created for more than one year; or 2) the short-key has been created for less than one year, but has no records of any clicks for the past six months; or 3) the link, in which the short-key is embedded, is known or suspicious to contain or direct to any part of any PicCopilot Content or Third Party Content which would or has infringed any patent, copyright, trade secret, trademark, or other proprietary right of any third party. For the avoidance of doubt, any tracking link with invalidated short-key will be invalid, including, without limitation, unable to track or record any subscribes, or Actions.
6. PARTICIPANT’S RESPONSIBILITIES
6.1 Participant shall use effective technology to detect and prevent unusual activity which involves Fraud. Participant shall have the right to determine and declare such Fraud activities to be invalid and PicCopilot shall not be charged for such Fraud activities.
6.2 Participant shall be responsible for its Participant Site/Media and ensure that:
(a) the technical operation of the Participant Site/Media is secure;
(b) the content/information displayed on the Participate Site/Media is:
i. in compliance with the terms of this Agreement, including the Relevant Rules;
ii.in compliance with any applicable laws and regulations, including but not limited to laws and regulations that govern the sending of unsolicited electronic commercial messages, laws and regulations that govern collection, storage, processing and usage of privacy data;
iii. not infringing any legitimate rights, including but not limited to Intellectual Property Rights, of any third party;
6.3 PicCopilot shall not be liable or otherwise responsible for any matters that arise out of Participant’s breach of any applicable federal, state, provincial, regional, or other laws, including but not limited to any violations of the Telephone Consumer Protection Act (47 U.S.C. § 227 et seq.) or similar legislation, as well as any violations of Clause 7.2 of this Agreement, and PicCopilot shall be entitled to seek indemnification from Participant in accordance with Clause 11 of this Agreement.
6.4 Upon approval of PicCopilot in terms of processing service under Clause 3.2.C), if Participant transfers any information, by reference to which an individual may be identified (“Personal Data”), including, without limitation, device ID, ADID, Photo or Picture of users of Participant Site to PicCopilot, the Participant shall:
1) acquire all required permits and full consent from the correspondent users according to applicable laws to collect and transfer their Personal Data to PicCopilot for agreed purpose prior to their transmitting;
2) agree that PicCopilot will, in its sole and absolute discretion, process only the part of Personal Data that refers to those users who are registered PicCopilot members and agreed to Cookie Preferences of PicCopilot, and may reject to process the other received Personal Data and/or filter PicCopilot Content;
3) agree and understand that PicCopilot will not collect or store any of those transmitted Personal Data;
4) agree and undertake that the transfer and processing of such Personal Data shall be govern by the terms and conditions set forth in Schedule B “Data Procession Addendum” hereunder.
6.5 Participant shall work with PicCopilot in order to improve the Program and its effectiveness on an on-going basis according to the feedback gathered from the various Participant Sites/Media.
6.6 Participant shall be responsible for all activities on its account with the PicCopilot Portal and for loss, theft or unauthorized disclosure of its password. Participant shall provide prompt notification to PicCopilot of any known or suspected unauthorized use of its account or breach of the security of its account on the PicCopilot Portal.
6.7 Participant shall submit required information to PicCopilot, including, without limitation, name, country, information in connection with Participant’s Site/Media, and contact information (“Required Information”). If Participant procures any other agencies or sub-Participants to provide any of its Services hereunder, Participant shall submit to PicCopilot Required Information in connection with such agencies or sub-Participants. PicCopilot shall be entitled to verify the accuracy, completeness and truthfulness of the above Required Information. Participant acknowledges that if it fails to submit any of the Required Information or any of the submitted Required Information is inaccurate or incomplete, PicCopilot shall be entitled to suspend part or all functions for the Participant’s account on PicCopilot Portal, including, without limitation: 1) suspend the remittance; 2) suspend or terminate Participant’s API, which is used to acquire PicCopilot Content and/or; 3) suspend other functions or features with the Participant’s account on PicCopilot Portal. Your privacy data will be subject to PicCopilot Privacy Policy.
6.8 For purpose of the Services under this Program, Participant hereby authorizes PicCopilot to send direct emails, notices and/or pushes for the purpose of providing any recommended PicCopilot Content, any information and/or instructions in connection with Participant’s rendering of Services. Participant may refuse to receive any direct emails, notices and/or pushes by closing the relevant function on its account on PicCopilot Portal.
7. FEES AND PAYMENT TERMS
7.1 PicCopilot shall pay Participant the advertising fees or commissions on a monthly basis for the Services delivered by the Participant in the previous month in accordance to the statistics in corresponding data. Calculation method of advertising fee or commission will be set out as the following:
1) 30% of the monthly accrued subscription fee (accrual basis rather than cash basis) earned by PicCopilot.
2) If the subscriber's subscription does not generate any subscription fees, there will be no commission for the participant. All payments must be made upon completion of the Services.
3) If PicCopilot is unable to pay commissions to Participants in accordance with Clause 7.1, PicCopilot will send the notification email to Participants in advance, and both parties can communicate on the specific matters of deferred payment. The payment time will be subject to the email between the two parties.
7.2 Details and terms governing the amount payable shall refer to this agreement and/or the Insertion Order executed by both Parties. PicCopilot reserves the right to update the terms in connection with the amount payable published on the PicCopilot Portal from time to time by publishing an amended and restated version of the new terms and the new terms shall take effective immediately upon posting on the PicCopilot Portal. Your continued participation in the Program after the publication of the amended and restated terms shall be deemed as your acceptance of the amended and restated terms.
7.3 In the event of conflict between the terms, the terms shall prevail in accordance with the following order:
(a) Insertion Order
(d) This Agreement.
7.4 PicCopilot shall have the right to request a refund arising from Fraud, invalid subscribes or other invalid Actions (the “Disqualified Actions”) in accordance with Clause 7.5.
7.5 PicCopilot shall be entitled to either
(i) set off the refund amount against the amount payable by PicCopilot for one given month;
(ii) request Participant to pay PicCopilot the refund amount (even following the termination of this Agreement).
7.6 Participant shall bear all the applicable taxes, costs and expenses (including but not limited to any handling fees charged by banks) in connection with the payment of any amount payable by PicCopilot to Participant. Participant hereby represents and warrants that it will follow applicable tax regulations to declare and pay the tax and duties.
7.7 All amounts otherwise due and payable by PicCopilot to the Participants under this Agreement are inclusive of any Taxes. ‘“Taxes” means all federal, state, provincial, territorial, county, municipal, local or foreign taxes, including but not limited to sales, use, license, excise, good and services, value added, stamp or transfer taxes, duties, imposts, levies, assessments, tariffs, fees, charges or withholdings of any nature whatsoever levied, imposed, assessed or collected by a Taxation Authority together with all interest, penalties, fines or other additional amounts imposed in respect thereof, but for greater certainty excludes any of the foregoing which are (i) based on gross or net income, (ii) franchise taxes, or (iii) property, personal property or rental taxes (collectively "Excluded Taxes"). Each party shall be responsible for any and all Excluded Taxes that it is liable for under applicable law.
7.8 Notwithstanding anything else contained herein, if any amounts are required to be withheld by PicCopilot from any amount payable by PicCopilot to the Participants under this Agreement, PicCopilot:
(A) shall be entitled to withhold and deduct such amounts from any payments owing to the Participants under this Agreement,
(B) will pay to the relevant Taxation Authority the amount of such applicable withholdings in accordance with applicable law; and
(C) will pay to the Participants the amounts determined by PicCopilot to be owing to the Participants under this Agreement net of such withholdings.
For greater certainty, any amount so withheld or deducted by PicCopilot shall discharge PicCopilot’s obligation to pay such amount to the Participant provided that PicCopilot has remitted such amount to the relevant Taxation Authority.
7.9 “Taxation Authority” means any government, state, municipality or any local, provincial, state or other fiscal, customs, excise or taxing authority, body or official anywhere in the world with responsibility for, and competency to, impose, collect, audit, assess, administer or levy any Taxes or make any decision or ruling in respect of any Taxes.
8. INTELLECTUAL PROPERTY
8.1 As an affiliate of AliExpress.com (as defined in AliExpress Terms of use), except as expressly agreed to in writing by the Parties, PicCopilot and AliExpress will own all right, title and interest in and to all copyrights, inventions, improvements, products, services, technology, information and materials, work product or derivatives of any kind that Participant may independently create, develop or prepare during the Term, including all worldwide Intellectual Property Rights and proprietary rights therein, including without limitation, the entire content of texts, software, audios, pictures, videos, graphics, logos, layouts, designs, advertisements and promotional materials produced for the purpose of fulfilling Participant’s obligations under this Agreement.
8.2 Save as provided in this Agreement, Participant agrees not to transfer, copy, modify, alter, adapt or create derivative works based on the PicCopilot Content or any other materials approved by PicCopilot and Alibaba Group without obtaining their respective written consents.
8.3 Participant is not allowed to use, apply for registration, or register such items identical with or similar to any trademarks, registered or unregistered, trade names, logos and domain names of PicCopilot, its affiliates or the PicCopilot Site.
8.4 Participant shall not copy or modify any icons, buttons, banners, graphics files, or PicCopilot Content that PicCopilot has made available unless otherwise agreed by PicCopilot in writing.
8.5 Except as expressly agreed to in writing by the Parties, nothing in this Agreement will be deemed to grant or assign to the either Party any ownership rights, license rights, or interests of any kind in the other Party’s products, services or technology or in the other Party’s Intellectual Property Rights or proprietary rights.
8.6 In terms of PicCopilot Content and Third Party Content:
8.6.1 Third parties on PicCopilot Site represent and warrant that owns or has valid licenses to use the Third Party Content provided and made available under this Program, free and clear of all liens, including, without limitation, any claim of ownership or other right all proprietary property that is necessary to license Participant for the Services as currently and the Third Party Content provided and made available under this Program does not infringe any patent, copyright, trade secret, trademark, or other proprietary right of any third part
8.6.2 Participant understands and acknowledges that PicCopilot, being only a technical service provider on PicCopilot Site and Participants, has no commercially feasible capability to and does not screen or verify flawlessness, legality or compliance of PicCopilot Content. Participant shall ensure by itself that all hosting, placement, publishing and/or distribution of PicCopilot Content (which shall include all content of or relating to PicCopilot Products/Services) is carried out at all times in good faith and in compliance with applicable laws and regulations and in a manner which shall not be regarded to be dishonest, fraudulent, misleading, improper, unlawful or otherwise against the terms herein in any way or the public interests or public order. Participant further agrees that will not hold PicCopilot liable if any third parties on PicCopilot Site breaches its representation and warranty herein.
8.6.3 PicCopilot further expressly disclaims all warranties, express or implied, including but not limited to any warranties of accuracy, fitness, compliance, non-infringement and/or legality of Third Party Content for a certain purpose even if advised of the possibility of such damages or if such possibility was reasonably foreseeable. All such warranties, representations, conditions, undertakings and terms are hereby disclaimed and excluded.
8.6.4 In case of a dispute or claim of ownership, infringement or damage relating to Third Party Content, Participant shall hold PicCopilot harmless and indemnified against any losses, damages that may be suffered by PicCopilot.
9. CONFIDENTIALITY
9.1 “Confidential Information”: This term is being introduced by the Parties in connection with discussions and negotiations concerning [a possible business relationship between them] (the “Transaction”). In connection with the Transaction, each Party may disclose (such disclosing Party, the “Discloser”) to the other Party or its affiliates (such receiving Party, the “Recipient”), or their respective directors, officers, employees, agents or advisors (including, without limitation, attorneys, accountants, consultants, bankers, financial advisors and members of advisory boards) (collectively, “Representatives”) the Confidential Information of the Discloser. As used in this Agreement, the term “Confidential Information” of the Discloser shall mean all information disclosed hereunder, whether in oral, written or other form, by or on behalf of the Discloser or its Representatives to Recipient or its Representatives in connection with the Transaction. Confidential Information shall also include, without limitation, (i) any notes, analyses, compilations, studies, interpretations, memoranda or other documents prepared by the Recipient or its Representatives which contain, reflect or are based upon, in whole or in part, any Confidential Information furnished to the Recipient or its Representatives pursuant hereto and (ii) the fact that the Parties are considering a Transaction, the fact that any Confidential Information has been made available to the Recipient or its Representatives, the fact that discussions with respect to a Transaction are taking or have taken place, or any of the terms, conditions or other facts with respect to a Transaction, including the status thereof.
9.2 Obligations of Confidence: Each Party, as Recipient, shall employ all reasonable steps to protect the Confidential Information of the other Party, as Discloser, from unauthorized or inadvertent disclosure or use, including but not limited to at least such steps that Recipient takes to protect its own confidential or proprietary information and shall not use it other than in connection with the Transaction. Each Party, as Recipient, shall keep confidential and shall not disclose any Confidential Information of the other Party, as Discloser, to any person (including, but not limited to, the media, any corporation, partnership, group, individual or other entity) other than to its Representatives who (i) reasonably need to know such Confidential Information in connection with the discussion, evaluation, negotiation or implementation of the Transaction and (ii) subject to confidentiality obligations not less restrictive than those hereunder. Each Party, as Recipient, agrees to inform such persons of the confidential nature of such Confidential Information and to require them to treat such information in accordance with the terms of this Agreement as if they were parties hereto. Each Party acknowledges that it shall be responsible for any breach by its affiliates or Representatives or its or its affiliates’ Representatives of the terms of this Agreement.
Notwithstanding the foregoing, a disclosure by either Party or its Representatives of Confidential Information of the other Party, (i) in response to a court or other governmental or regulatory body (including an applicable stock exchange) or otherwise required by law or regulation (including the rules of an applicable stock exchange) or (ii) to establish the rights of such Party under this Agreement, shall not be considered to be a breach of this Agreement by such Party, provided, however, that, if legally permitted and to the extent practicable, such Party shall provide prior written notice thereof to the other Party to enable the other Party to seek a protective order or otherwise limit such disclosure; that, in the event that such protective order or other protection is denied and that Recipient is nonetheless legally compelled to disclose such information, Recipient shall limit the extent of such disclosure solely to the extent required by such order or law; and that Recipient shall use its best efforts to ensure that such disclosed information is treated strictly confidentially by the recipients thereof.
10. REPRESENTATIONS AND WARRANTIES
10.1 Participant represents and warrants that:
(a) It will make no false or misleading representations, warranties or guarantees with respect to PicCopilot and all material aspects of PicCopilot’s business including but not limited to its products and services.
(b) It has the authority and capacity to enter into this Agreement and it is not subject to any restrictive covenant or other legal obligation which prohibits it from performing its obligations hereunder;
(c) It shall perform its obligations under this Agreement in a timely and efficient manner and with reasonable care and skill.
(d) It will comply with all applicable laws and regulations and will maintain any permits, licenses and approvals required to perform its obligations hereunder.
10.2 Participant further represents, warrants and/or covenants that:
(a) All information provided to PicCopilot during its registration process on the PicCopilot Portal is true, complete and accurate.
(b) Participant has obtained all necessary approvals, authorizations, permits and licenses to operate, and to publish any and all content on, the Participate Site/Media.
(c) Any promotional content that Participant has created based on the PicCopilot Content provided by PicCopilot does not and will not infringe any third party’s Intellectual Property Rights.
11. INDEMNITY
Each Party covenants and undertakes to indemnify, defend and hold harmless the other Party from and against any losses, claims, demands, actions, damages, penalties and costs or expenses (“Loss”) resulting from any breach by the indemnifying Party of any of its representations, warranties and covenants under the Agreement or in the Insertion Order.
12. LIMITATION OF LIABILITIES
12.1 ANY OBLIGATION OR LIABILITY OF PICCOPILOT UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL OF THE PAYMENTS PICCOPILOT PAID TO PARTICIPANT UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE CLAIM. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT. NO ACTION, SUIT OR PROCEEDING SHALL BE BROUGHT AGAINST PICCOPILOT PURSUANT, OR IN ANY WAY RELATED, TO THIS AGREEMENT MORE THAN ONE YEAR AFTER THE TERMINATION OF THIS AGREEMENT. PARTICIPANT AGREE THAT PICCOPILOT SHALL NOT BE LIABLE TO PARTICIPANT, OR ANY THIRD PARTY, FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO LOSS OF GOODWILL, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM. PARTICIPANT WARRANTS THAT NO PROMOTIONAL METHOD USED BY PARTICIPANT WILL RENDER PICCOPILOT LIABLE TO ANY PROCEEDINGS WHATSOEVER.
12.2 TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, PICCOPILOT DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO (A) MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, (B) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS, (C) THAT PICCOPILOT's SECURITY METHODS WILL BE SUFFICIENT, (D) REGARDING CORRECTNESS, ACCURACY OR RELIABILITY, OR (D) AGAINST INTERFERENCE WITH ENJOYMENT OF PARTICIPANT’S INFORMATION OR WEBSITE. THOUGH PICCOPILOT MAY REVIEW AFFILIATE'S BEHAVIOR AS PART OF ITS NETWORK QUALITY EFFORTS, PICCOPILOT MAY NOT BE HELD LIABLE FOR AN AFFILIATE’S BREACH OF THIS AGREEMENT, THE CODE OF CONDUCT OR THE PROGRAM TERMS. ALL INFORMATION AND COMPUTER PROGRAMS PROVIDED TO PARTICIPANT IN THE COURSE OF THIS AGREEMENT ARE PROVIDED "AS IS" WITH ALL FAULTS, AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH PARTICIPANT. PICCOPILOT IS UNDER NO CIRCUMSTANCES RESPONSIBLE FOR THE PRACTICES, ACTS OR OMISSIONS OF ANY THIRD PARTY OR ANY WEBSITE, OR THE CONTENT OF ANY WEBSITE OR THAT ANY PARTY MAKES AVAILABLE. PICCOPILOT MAKES NO REPRESENTATION OR GUARANTEE WITH RESPECT TO THE AVAILABILITY OR UPTIME OF THE NETWORK, THE TRACKING FUNCTIONALITY, OR ANY PARTICIPATING SITE AND CONTENT. PICCOPILOT MAY CONDUCT MAINTENANCE ON ANY OF THE FOREGOING AT ANY TIME WITH OR WITHOUT NOTICE TO PARTICIPANT.
13. TERM AND TERMINATION
13.1 This Agreement shall be effective from the time you have clicked “Accept and Continue” button on the PicCopilot Site (or any agreement acceptance process adopted by PicCopilot) and shall continue to be effective unless it is terminated in accordance with the terms of this agreement (the “Term”).
13.2 Either Party may terminate this Agreement without cause any time by giving the other Party a prior written notice of not less than one (1) month.
13.3 PicCopilot may terminate this Agreement with immediate effect on written notice to the other Party if:
(a) the other Party commits a material breach of this Agreement and fails to remedy the breach (if remediable) within seven (7) days of receiving written notice to that effect specifying the breach and requiring it to be remedied;
(b) the other Party ceases to conduct its business operations;
(c) the other Party is unable to pay its debts due and payable; or
(d) the other Party enters into a composition with its creditors or goes into liquidation, or is dissolved, or adjudged insolvent or is otherwise rendered incapable of performing its obligations under this Agreement.
13.4 PicCopilot shall be entitled to recover from the Participant any damages, losses, costs and expenses which PicCopilot may sustain or incur in consequence of such termination.
14. GENERAL
14.1 Assignment. Participant may not assign or transfer this Agreement or any rights and obligations hereunder, in whole or in part, without the prior written consent of PicCopilot.
14.2 Independent Parties. The relationship between the Parties is that of independent contracting parties. Nothing in this Agreement shall constitute or be deemed to constitute a relationship of employment, joint venture, partnership, franchise or similar arrangement between the Parties. Notwithstanding any language in this Agreement to the contrary, the Parties intend that their relationship will be only as set forth in this Agreement. Furthermore, no employee, agent, officer, or independent contractor of the other party shall be deemed an agent, employee, or joint venture of PicCopilot for any purpose, nor shall be entitled to any benefit offered by PicCopilot to any of its employees.
14.3 Governing Law. This Agreement shall be governed by the laws of Hong Kong. Any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be first settled through friendly consultations between the Parties. In the event that no settlement is reached within thirty (30) days from the date of notification by either Party to the other that it intends to submit a dispute, controversy or claim to arbitration, then such dispute, controversy or claim shall be settled by arbitration in accordance with the HKIAC Administered Arbitration Rules in effect at the time of applying for arbitration and as may be amended by the rest of this Clause. The arbitration institute shall be the Hong Kong International Arbitration Centre (“HKIAC”) and the place of arbitration shall be in Hong Kong at HKIAC. The language of the arbitration shall be English. The tribunal shall consist of three arbitrators. Each of the Parties shall select an arbitrator. The third and presiding arbitrator shall be selected by HKIAC. The arbitral award shall be final and binding upon the Parties.
14.4 Force Majeure. Neither Party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, or pandemics.
14.5 Entire Agreement. This Agreement, together with any Schedule, is the complete and exclusive agreement between the Parties with respect to the subject matter hereof, superseding any prior agreements and communications (both written and oral) regarding such subject matter save for fraudulent misrepresentations.
14.6 No waiver. The failure by PicCopilot to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.
14.7 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
Schedule A
Form of Insertion Order
This Insertion Order is supplemental to PicCopilot Affiliate Program Service Agreement (the “Agreement”) entered into as of ___________________ or the date when
you participated in the Program (whichever is later) between NEURALNETICS PTE. LTD. (“Party A”) and You (“Party B”).
Capitalized words and phrases used in this Insertion Order shall have the meaning given to them in the Agreement unless otherwise defined in this Insertion Order. The Agreement and this Insertion Order as well as any other Insertion Orders entered into shall be read and construed as one instrument. Notwithstanding the foregoing, in the event of a conflict between the Agreement and this Insertion Order, this Insertion Order shall take precedence.
Specific conditions | |||
Campaign Name | [●] eg. PicCopilot Affiliate Program | ||
Target Jurisdiction | [●] eg. Global | ||
Type of PicCopilot Content | [●]eg. Video, link | ||
Publication/release date of the PicCopilot Content | [●] Date | ||
Media outlet for publication of the Content (if applicable) | [●] eg. WhatsApp Group | ||
Identities of the key journalists/Influencers(if applicable) | Name of journalist/Influencer | Social media platform | Username |
[●] Name | [●] platform | [●]Username | |
[●] | [●] | [●] | |
Other specifications/requirements for publication of the PicCopilot Content | [●] Other specifications/requirements | ||
Payment Terms | In accordance with Clause 7.(FEES AND PAYMENT TERMS) of the Agreement | ||
Other terms (if applicable) | [●] Other terms (if applicable) | ||
Schedule B
Data Processing Addendum
1. Definition
1.1 Each of "controller", "processor", "data subject", "personal data" and "processing" (and "process") shall have the meaning given in the EU Data Protection Law. Notwithstanding the aforesaid, in the event where the law applicable hereunder is any other Applicable Data Protection Law apart from the EU Data Protection Law, each of the aforementioned terms when referred to in this Addendum shall be deemed as referring to the corresponding defined term under the Applicable Data Protection Law (if such corresponding defined term under the Applicable Data Protection Law is different from any of the aforementioned terms used pursuant to the EU Data Protection Law). For instances, both the terms “controller” and “processor” under the EU Data Protection Law shall, where applicable hereunder, be deemed as referring to the respective terms of “business” and “service provider” under the CCPA (as defined below);
1.2 "Applicable Data Protection Law" means all worldwide data protection and privacy laws and regulations applicable to the personal data in question, including, where applicable, EU Data Protection Law and all analogous (present and future) privacy laws of other states, territories and countries including (without prejudice to the generality of the foregoing) the California Consumer Privacy Act 2018 (“CCPA”) and the United Kingdom Data Protection Act 2018;
1.3 "EU Data Protection Law" means (i) prior to 25 May 2018, Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the Processing of Personal Data and on the free movement of such data (the "Directive"); (ii) on and after 25 May 2018, Regulation 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data (General Data Protection Regulation) (the "GDPR"); (iii) the EU e-Privacy Directive (Directive 2002/58/EC); and (iv) any and all applicable national data protection laws made under or pursuant to (i), (ii) or (iii); in each case as may be amended or superseded from time to time.
2. Disclosure of Data
2.1 Participant may disclose the personal data subject to Clause 6.4 of this Agreements and as is more particularly described in the related Data Processing Description (the "Data") to PicCopilot to process strictly for the purposes described in the corresponding Data Processing Description (the "Permitted Purpose").
3. Relationship of the Parties
3.1 The Parties acknowledge that Participant is a controller of the Data it discloses to PicCopilot, and that PicCopilot will process the Data as a separate and independent controller strictly for the Permitted Purpose. In no event will the parties process the Data as joint controllers.
3.2 Participant acknowledges that all data processing activities during the cooperation with PicCopilot are comply with the requirements set forth in Alibaba Supplier Code of Conduct on International Personal Data Protectionand all Applicable Privacy Laws world widely.
4. Data Protection
4.1 Compliance with law: Each Party shall be individually and separately responsible for complying with the obligations that apply to it as a controller under Applicable Data Protection Law. In particular (and without limitation):
4.1.1 Participant represents, warrants and undertakes to comply with all necessary transparency and lawfulness requirements under Applicable Data Protection Law in order to disclose the Data to PicCopilot to process for the Permitted Purpose; and
4.1.2 PicCopilot shall be separately and independently responsible for complying with Applicable Data Protection Law in respect of its processing of Data it receives from Participant.
4.2 International transfers: Neither Party shall transfer the Data (nor permit the Data to be processed) unless it takes such measures as are necessary to ensure the transfer is in compliance with Applicable Data Protection Law.
4.3 Security: Each Party shall implement appropriate technical and organizational measures to protect the Data (a) from accidental or unlawful destruction, and (b) loss, alteration, unauthorised disclosure of, or access to the Data (a "Security Incident"). Both Parties are obligated to inform each other of any identified or exposed Security Incident in a timely manner, cooperate with each other in the risk mitigation, and reduce the impact as much as possible.
4.4 Cooperation: In the event that either Party receives any correspondence, enquiry or complaint from a data subject, regulator or other third party ("Correspondence") related to (a) the disclosure of the Data by Participant to PicCopilot for the Permitted Purpose; or (b) processing of Data by the other Party, it shall promptly inform the other Party giving full details of the same, and the Parties shall cooperate reasonably and in good faith in order to respond to the Correspondence in accordance with any requirements under Applicable Data Protection Law.
4.5 Miscellaneous: In relation to the processing of personal data under this Addendum, to the extent there is any conflict or inconsistency between this Clause and any other terms of this Addendum or other contracts between the Parties relating to this subject matter, the terms of this Clause shall prevail.
