TERMS OF SERVICE
The following Terms of Service (the "Terms of Service") govern your access to and use of (1) the MODEN website located at https://www.modenkol.com (the “Website”), (2) the MODEN online platform facilitating the matching of KOL (as defined below) and other users (each, a “Brand”) interested in engaging a KOL to create online media content that are promotional in nature, and (3) all other services provided by MODEN, as described on the Website (collectively, the "Site”). These Terms of Service form an agreement between Modencare Sdn. Bhd. (1265146-K) ("MODEN", “us”, “we”, “our”) and you.
The term "you" refers to the person or entity (including, but not limited to Brands) visiting the Site, browsing or otherwise using the Site, or communicating with content creators registered with MODEN (each, an “KOL”) for the purpose of creating promotional online media content for your products or services (each, a “Campaign”).
By accessing and using (the term “use” when used herein in respect of the Site shall mean access or use, and using shall have a corresponding meaning) the Site, you accept and agree to be bound by and comply with these Terms of Service. If you do not accept and agree to be bound by these Terms of Service, please do not access or use the Site. If you are accessing or using the Site on behalf of another person or a corporate entity, you represent and warrant that you have the authority to bind such person or entity to these Terms of Service.
The Site is provided solely (the “Permitted Use”) to: (1) assist you in gathering information about the various types of Campaigns and KOLs available on the Site, including profiles, price quotes, and videos of KOLs (each, an “KOL Profile”); (2) enable you to post information regarding yourself and your Campaign request; (3) post reviews of KOLs; (4) facilitate communication with KOLs with the objective of entering into a Campaign Agreement; and (5) facilitate the transmission of payments from you to the KOL under a Campaign Agreement (“Platform Services”).
CHANGES TO THESE TERMS OF SERVICE AND PLATFORM
Except where prohibited by applicable law, MODEN reserves the right to change these Terms of Service at any time without notice. Your continued access to or use of the Site after any changes to these Terms of Service indicates your acceptance of such changes. It is your responsibility to review these Terms of Service regularly.
MODEN reserves the right to change any information, material or content (including, but not limited to, price, features, availability of KOLs, KOL Profiles and types of Campaigns, and reviews of Campaigns and KOLs) contained on or provided through the Site (the "Content") at any time, and from time to time, without notice.
Subject to these Terms of Service, MODEN grants you a personal, revocable, non-exclusive and non-transferable license during the Term to permit you to access and use the Site in accordance with these Terms of Service.
Subject to these Terms of Service, you grant to MODEN a perpetual, transferable, irrevocable, royalty-free, fully paid-up, worldwide and fully sublicensable license to access, collect, store and use any data, information, records and files that (1) you load, transmit to or enter into the Site, or (2) we collect from your local computer system or from third-parties with your permission, and (in each case) including all results from processing such data, including compilations, and derivative works thereof solely for the purpose of: (A) providing the Site Services, (B) complying with applicable law, and (C) MODEN’s reasonable audit and data retention policies.
TERM AND TERMINATION
These Terms of Service shall commence on the day you first use the Site and will continue in force until terminated by either party (the “Term”). Either party may terminate these Terms of Service as follows: (1) MODEN may terminate these Terms of Service at any time and with immediate effect by giving notice to you, at MODEN’s discretion, by email (at your current email address on file with MODEN) or through the Site; (2) you may terminate these Terms of Service at any time and with immediate effect by requesting (by email or through any then-available interfaces on the Site) that your User Account be deleted, ceasing use of the Site and uninstalling and removing all local software components thereof.
CAMPAIGN AGREEMENTS WITH BRANDS AND KOLS
The Site permits you to view the Brands or KOL Profiles of Brands or KOL who have registered on our Platform and have chosen to allow you to view their Brand or KOL Profiles. If you select a Brand or KOL for a Campaign through the Site, you may separately enter into an agreement with that Brand or KOL on such terms and conditions as may be agreed to between you and that Brand or KOL (“Campaign Agreement”). For example, the Campaign Agreement may contain (a) a description of the services to be provided by the Brand or KOL, (b) payment terms, and (c) any other terms and conditions as communicated between you and the Brand or KOL through this Platform or otherwise. You understand that you are engaging the Brand or KOL you selected and not MODEN, and that MODEN is not a party to and will be in no way responsible for the performance of either you or the Brand or KOL under any Campaign Agreements, except for facilitating the transmission of payment from you to the Brand or KOL on your instructions in accordance with these Terms of Service. MODEN does not make any representations or warranties of any kind in respect of a Brand or KOL or a Campaign Agreement. You are responsible for managing, inspecting, accepting and paying for services and deliverables provided under a Campaign Agreement in accordance with the terms and conditions thereof. You also agree to act in good faith when negotiating and performing your obligations under each Campaign Agreement.
If you enter into a Campaign Agreement other than through the use of the Site, you will notify MODEN within seven (7) days of the date of such Campaign Agreement.
You shall pay MODEN a fee in connection with each Campaign Agreement or, if no amounts are payable by you in connection with a Campaign Agreement, you shall pay MODEN an amount as determined by the then current fee schedule that can be found on our Website (the “Fee”). If you make any payments in connection with a Campaign Agreement other than through the Site or MODEN, you shall pay MODEN the Fee before each campaign is created. You will pay MODEN the Fee even if the KOL fails to perform fully or partially under the Campaign Agreement.
MODEN may facilitate the transmission of payments from you to the KOL in connection with a Campaign Agreement (“Facilitated Payment”). You hereby authorize MODEN to deduct the Fee from any such Facilitated Payment prior to transferring the remaining funds to the KOL on your instructions. MODEN is not your trustee or fiduciary in respect of any Facilitated Payments or any Campaign Agreements. MODEN reserves the right, at its sole discretion, to place a hold on a Facilitated Payment, if MODEN determines that the funds may be subject to a breach of applicable law (e.g. fraud or money laundering), or if MODEN is required to cooperate with law enforcement.
For a period of twelve (12) months commencing on the later of: the date when you last communicated with a KOL in respect of a Campaign, whether through the Site or otherwise, and the execution date of a Campaign Agreement entered into with a KOL (the “Commencement Date”), neither you nor your agents or affiliates will enter into an agreement directly or indirectly with such KOL for the creation of any promotional media content, subject to the following exemptions:
The agreement you are entering into with the KOL is a Campaign Agreement, in respect of which MODEN will receive a Fee as provided for hereunder; or
You were engaged in good-faith negotiations with the KOL for the creation of that promotional media content on or before the Commencement Date; or
You are renewing a pre-existing agreement with the KOL that expired after the Commencement Date.
Please note that KOLs may have additional privacy policies or statements which govern their practices in collecting, storing, using and disclosing your personal information. Please read those additional privacy policies or statements carefully.
You hereby represent and warrant to MODEN that you have familiarized yourself and agree with those privacy policies or statements imposed by any KOL with whom you elect to deal through the Site.
DISCLAIMER AND LIMITATION OF LIABILITY
THE SITE AND THE CONTENT ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. USE OF THE SITE OR THE CONTENT IS AT YOUR OWN RISK. MODEN DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS ABOUT THE QUALITY, ACCURACY, RELIABILITY, COMPLETENESS, CURRENCY, OR TIMELINESS OF THE SITE OR THE CONTENT.THE SITE AND THE CONTENT MAY INCLUDE ERRORS, OMISSIONS AND INACCURACIES, INCLUDING, WITHOUT LIMITATION, PRICING ERRORS. MODEN DOES NOT ASSUME ANY RESPONSIBILITY FOR ANY ERRORS, OMISSIONS OR INACCURACIES IN THE SITE OR THE CONTENT. IN ADDITION, MODEN EXPRESSLY RESERVES THE RIGHT TO CORRECT ANY PRICING ERRORS ON THE SITE.
KOL AND CAMPAIGN REVIEWS DISPLAYED ON THE SITE ARE INTENDED AS ONLY GENERAL GUIDELINES, AND MODEN DOES NOT GUARANTEE THE ACCURACY OF THE REVIEWS. MODEN MAKES NO GUARANTEES ABOUT THE AVAILABILITY OF SPECIFIC KOLS, CAMPAIGNS OR TYPES OF CAMPAIGNS.
TO THE FULLEST EXTENT PERMITTED BY LAW, MODEN DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND WITH RESPECT TO THE SITE AND THE CONTENT WHETHER EXPRESS, IMPLIED, STATUTORY OR COLLATERAL, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OR THAT THE SITE OR THE CONTENT ARE OR WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. IN NO EVENT WILL MODEN BE LIABLE, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, FOR ANY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, LOST PROFITS, LOSS OF USE, LOSS OF DATA, PERSONAL INJURY, FINES, FEES, PENALTIES OR OTHER LIABILITIES), WHETHER OR NOT MODEN IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM OR RELATED TO THE USE OF, OR THE INABILITY TO MAKE USE OF, THE SITE OR THE CONTENT OR ANY CAMPAIGN AGREEMENT.
KOL MARKETING THEIR SERVICES THROUGH THE SITE ARE INDEPENDENT ORGANIZATIONS AND NOT CONTRACTORS, AGENTS OR EMPLOYEES OF MODEN. MODEN IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY KOLS OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM AND TAKES NO RESPONSIBILITY WHATSOEVER FOR CAMPAIGNS CREATED BY KOLS.
TO THE EXTENT THAT THE FOREGOING LIMITATION DOES NOT APPLY, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF MODEN IN CONNECTION WITH OR UNDER THESE TERMS OF SERVICE, INCLUDING FROM A CAMPAIGN AGREEMENT, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE SITE OR THE CONTENT, OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO A CAMPAIGN AGREEMENT, OR YOUR USE OF, OR INABILITY TO MAKE USE OF, THE SITE OR THE CONTENT EXCEED ALL FEES MODEN HAS COLLECTED UNDER THESE TERMS OF SERVICE IN THE PRECEDING 12 MONTHS OR THE EQUIVALENT IN LOCAL CURRENCY. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS OF SERVICE WILL NOT INCREASE THE MAXIMUM LIABILITY AMOUNT.
The limitation above reflects the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed of its essential purpose.
GENERAL TERMS OF SERVICE
Beginning here until the end of the document, the Terms of Service is applicable to all users of the Site.
MODEN retains the right, at its sole discretion, to deny access to anyone to the Site or the services it offers, at any time and for any reason, including, but not limited to, for violation of these Terms of Service. You shall cease and desist from any such access or use immediately upon request by MODEN.
REVIEWS AND COMMENTS
By submitting content to the Site or MODEN or OMGloh, including any Brand, KOL or Campaign reviews, questions, comments, suggestions, ideas or similar information (collectively, “Submissions”), you grant MODEN and its affiliates, a worldwide, non-exclusive, royalty-free, perpetual, transferable, irrevocable and fully sublicensable right to (a) use, reproduce, modify, adapt, translate, distribute, publish, create derivative works from and publicly display and perform such Submissions throughout the world in any media, now known or hereafter devised; and (b) use the id that you submit in connection with such Submission. You acknowledge that MODEN may choose to provide attribution of your Submissions (for example, listing your ID and city on a KOL or Campaign review that you submit) at our discretion, and that such submissions may be shared with others using our Platform. You further grant MODEN the right to pursue at law any person or entity that violates your or MODEN’s rights in the Submissions by a breach of these Terms of Service. You acknowledge and agree that Submissions are non-confidential and non-proprietary.
MODEN takes no responsibility and assumes no liability for any Submissions posted or submitted by you. MODEN has no obligation to post your Submissions and reserves the right, in its absolute discretion to determine which Submissions are published on the Site. If you do not agree to these terms, please do not provide us with any Submissions.
You are fully responsible for the content of your Submissions, specifically including, but not limited to, reviews posted to the Site. You shall not post or transmit to or from the Site: any unlawful, threatening, libelous, defamatory, obscene, pornographic, or other material or content that would violate the rights of publicity and/or privacy, or that would violate any law; any commercial material or content (including, but not limited to, solicitation of funds, advertising, or marketing of any goods or services); and any material or content that infringes, misappropriates or violates any copyright, trademark, patent right or other proprietary right of any third party. You shall be solely liable for any damages resulting from any violation of the foregoing restrictions, or any other harm resulting from your posting of content to the Site. You acknowledge that MODEN may exercise its rights (e.g. publish, delete) to use any Submissions without any notice to you.
All Content, including and not limited to designs, illustrations, software, video, sound, ids, words, phrases, logos, images, tracks, titles, descriptions and marks displayed on the Site, are owned or licensed by MODEN and are protected by copyright, trade-mark and other intellectual property laws.
MODEN reserves all rights in the Site and all materials provided by MODEN in connection with these Terms of Service that are not specifically granted to you. You acknowledge that all right, title and interest in the Site, all materials provided by MODEN in connection with these Terms of Service (including the Content), and any update, adaptation, translation, customization or derivative work thereof, and all intellectual property rights therein will remain with MODEN (or third party suppliers, if applicable), and that the Site and all materials provided by MODEN hereunder are licensed and not “sold” to you.
All contents of the MODEN website are: © 2019 Modencare Sdn. Bhd. (1265146-K).
The intellectual property rights in the Site and all of the text, pictures, videos, graphics, user interfaces, visual interfaces, trademarks, logos, applications, programs, computer code and other content made available on it are owned by us and our licensors. You may not and shall not permit anyone else to print or otherwise make copies of any such content without our express prior permission.
You agree to indemnify and (to the maximum extent permitted by law) hold MODEN and any of our affiliates harmless against any damages or liability you may suffer.
THIRD PARTY WEBSITES
The Site may provide links to other websites and online resources. We are not responsible for and do not endorse such external sites or resources. Your use of third party websites and resources is at your own risk.
COMMUNICATIONS NOT CONFIDENTIAL
MODEN does not guarantee the confidentiality of any communications made by you through the Site. Although MODEN generally adheres to the accepted industry practices in securing the transmission of data, you understand, agree and acknowledge that MODEN does not guarantee the security of data transmitted over the Internet or public networks in connection with your use of the Site.
You shall defend, indemnify and hold harmless MODEN and all of its officers, directors, employees and agents from and against any claims, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature including but not limited to reasonable legal and accounting fees, brought in connection with or as a result of: your breach of any of your warranties, representations or obligations under these Terms of Service or any documents referenced herein; (b) your violation of any law or the rights of a third party (including, without limitation, intellectual property rights); (c) your use of the Site; (d) breach of or failure to perform under any Campaign Agreement by you or by any third party acting on your behalf or with your permission; or (d) the use of any media content created by KOLs, you or third parties in connection with a Campaign by you (Brands and or KOLs or by any third party acting on your behalf or with your permission.)
GEOGRAPHIC APPLICATION OF THE SITE
Not all of the KOLs, Campaigns and services described on the Site are available in all jurisdictions. Furthermore, nothing on the Site constitutes an offer or solicitation to buy or sell any product or service to anyone in any jurisdiction in which such offer or solicitation is prohibited by law.
These Terms of Service will be governed by and construed in accordance with the laws of Malaysia, and the courts of Malaysia will have non-exclusive jurisdiction over any claim or dispute arising under or in connection with these Terms of Service.
ENTIRE AGREEMENT, WAIVER AND SEVERABILITY
These Terms of Service constitute the entire agreement between MODEN and you pertaining to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between you and MODEN with respect to the Site. A printed version of these Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms of Service to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
MODEN's failure to insist upon or enforce strict performance of any provision of these Terms of Service shall not be construed as a waiver of any provision or right.
If any of the provisions contained in these Terms of Service are determined to be void, invalid or otherwise unenforceable by a court of competent jurisdiction, such determination shall not affect the remaining provisions contained herein.
If any of the provisions contained in these Terms of Service conflicts with the terms of another agreement between the parties (such as the terms of a Campaign Agreement in respect of a Campaign), then these Terms of Service shall prevail; provided that, if you are also a KOL registered on the Site, the Terms of Service applicable to KOLs will govern your relationship with MODEN in that respect.
It is the express wish of the parties that these Terms of Service and all related documents be drawn up in English.
MODENKOL.COM TERMS OF SERVICE
LAST UPDATED: 28th July, 2020