Introduction
This Referral Program Agreement sets out the terms and conditions in relation to your participation in the referral program offered by Finspark Sdn Bhd (Company No. 201401005913 (1081992-D)) (“Finspark”). For clarity, this referral program is only opened for participation by the existing or former student/customer who has purchased course offered by Finspark.
If you are agreeable to the terms and conditions contained in this Referral Program Agreement, kindly proceed to register and sign up to Finspark’s referral program as Finspark’s referrer.
By registering and signing up to Finspark’s referral program as Finspark’s referrer, you shall be deemed to have read, accepted and agreed with all the terms and conditions contained in this Referral Program Agreement.
Finspark may update or amend any terms and conditions contained in the Referral Program Agreement at any time and from time to time. You are advised to check the Referral Program Agreement periodically to ensure that you are aware of and are complying with the current version of the same. Changes are binding on you and will take effect immediately from the posting of the revised version of the Referral Program Agreement on the platform owned or operated by Finspark. If you are not agreeable to the update or amendment, you may choose to terminate the Referral Program Agreement.
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REFERRAL PROGRAM AGREEMENT
Interpretation and Definition
Covenants by Finspark
Finspark will provide the Referrer with a specific Referral Link to be shared by the Referrer to any third party or displayed by the Referrer on his/her/its social media.
Covenants by the Referrer
The Referrer shall use his/her/its best endeavours to promote the Course. Any costs and expenses incurred by the Referrer for the purpose of promoting the Course shall be solely borne by the Referrer.
The Referrer shall, at his/her/its own costs, apply and obtain all licenses, consents, approvals, authorisations, permits and/or permissions from the relevant governmental bodies, municipal authorities, administrators, owners and/or any other competent authorities for the purpose of promoting the Course.
The Referrer shall promptly correct any errors or omissions in the information relating to the Course after becoming aware of such errors or being notified by Finspark.
The Referrer covenants that he/she/it has and shall continue to maintain all licenses, consents, approvals, authorisations, permits and/or permissions to perform his/her/its duties and obligations and all matters contemplated under this Referral Program Agreement.
The Referrer shall conduct himself/herself/itself in a proper and reasonable manner and shall not commit any act or make any statement which may cause Finspark to be brought into disrepute.
The Referrer shall also abide by all guidelines, rules, regulations and policies, as and when the same may be implemented and/or amended from time to time by Finspark under the Referral Program.
Intellectual Property Rights
The Referrer acknowledges that Finspark shall retain ownership of all rights, title and interest in and to all intellectual properties of Finspark or embodied in the Platform, including but not limited to its trademarks, trade names, logos and all data contained in the Platform or elsewhere (“Finspark’s Intellectual Properties”). Nothing contained in this Agreement shall be deemed to transfer any such right, title or interest to the Referrer in any way.
Grant of License
Finspark hereby grants the Referrer a non-exclusive and non-transferable license to use and/or display Finspark’s Intellectual Properties and Referral Link on the Referrer’s social media during the subsistence of this Referral Program Agreement (the “License”) PROVIDED THAT:-
the Referrer shall only use and/or display Finspark’s Intellectual Properties and Referral Link for the purpose of promoting the Course within the context of the Referral Program and for the benefit of Finspark;
the Referrer shall not use and/or display Finspark’s Intellectual Properties and Referral Link in the manner which may cause Finspark to be brought into disrepute or jeopardise the interest of Finspark;
the Referrer shall comply with all directions, instructions, guidelines, rules and regulations as may be implemented and/or amended by Finspark from time to time with regard to the use and/or display of Finspark’s Intellectual Properties and Referral Link; and
where so requested by Finspark, the Referrer shall remove or delete or cause to be removed or deleted Finspark’s Intellectual Properties and Referral Link from the Referrer’s social media and/or in the custody of the Referrer within TWENTY (24) HOURS upon receiving written notice from Finspark on such removal or deletion.
In the event of breach of Clause 5.1 above by the Referrer, Finspark shall be entitled to terminate this Referral Program Agreement with immediate effect, without prejudice to its other rights and remedies as set out in this Referral Program Agreement and/or under the law, including but not limited to demand for compensation from the Referrer arising from such breach.
This License shall expire upon the termination of this Referral Program Agreement.
For the avoidance of any doubt, the Referrer shall not be entitled to sublicense the rights granted to him/her/it under Clause 5.1 above to any third party, without the prior written consent from Finspark.
Payment of Commission
Finspark shall pay the Referrer the Commission in accordance with the payment schedule/scheme which can be found at the Referral Dashboard and which may be updated by Finspark at any time and from time to time. Such payment shall be made within FOURTEEN (14) WORKING DAYS from the date of Finspark’s approval of the request for payment from the Referrer (the “Referrer’s Payment Request”).
For avoidance of any doubt, the Referrer acknowledges and agrees that:-
the Commission payable to the Referrer at the time of the making of the Referrer’s Payment Request shall not include those which may be generated from the sale of the Course of which the Refund Period has not expired; and
the amount of the Commission as stated or reflected in the Referrer’s account maintained with Finspark under the Referral Program at the time of the making of the Referrer’s Payment Request or informed by Finspark shall be final and conclusive.
Relationship between the Parties
Finspark and the Referrer are independent contractors and nothing contained in this Referral Program Agreement shall construe the relationship between the Parties as a partnership, joint venture, agent or employee of the other for any purpose. Neither Parties shall have any right power or authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other Party without the prior consent of such other Party.
Term of Agreement
This Referral Program Agreement only enters into force and effect upon the issuance of written confirmation of Finspark’s acceptance and approval of the Referrer by Finspark. By registering and signing up to the Referral Program as referrer, the Referrer agrees, acknowledges and accepts the terms and conditions of this Referral Program Agreement, including the provisions related to modifications to this Referral Program Agreement.
This Referral Program Agreement shall continue in force unless otherwise terminated in accordance with Clause 9 below.
Termination of Agreement
Upon the occurrence of any one or more of Event of Default as defined in Clause 9.4 below by either Party and through no fault of the other Party, the non-defaulting Party shall be entitled at any time from the date of such default and without prejudice to any other right, power, privilege and remedy contained in this Referral Program Agreement and/or under the law, to issue a written notice to the defaulting Party to terminate this Referral Program Agreement with immediate effect.
Notwithstanding Clause 9.1 above, either Party may terminate this Referral Program Agreement at any time by giving the other Party FIVE (5) DAYS’ notice in writing.
Upon the termination of this Referral Program Agreement:-
Finspark shall pay the Referrer of his/her/its Commission up to the date of issuance of the written notice of termination of this Referral Program Agreement;
notwithstanding Clause 9.3(a) above, Finspark shall be entitled to deduct from the Commission any monies due from the Referrer to Finspark, including but not limited to any losses, damages, costs and/or expenses incurred and/or suffered by Finspark by reasons of any breach of the provisions contained in this Referral Program Agreement by the Referrer, including the Agreed Liquidated Damages as defined hereunder. For the avoidance of any doubt and unless otherwise stated in this Referral Program Agreement, Finspark shall, at its sole discretion, determine the amount of such deduction; and
the Referrer shall immediately remove or delete or caused to be removed or deleted all materials provided to him/her/it by Finspark or used by him/her/it under or for the purposes of the Referral Program, including but not limited to Finspark’s Intellectual Properties and Referral Link. The Referrer shall comply with all the directions and instructions given by Finspark on the removal or deletion of such materials on the Referrer’s social media and/or in the custody of the Referrer.
The Event of Default wherever used herein shall means any one of the following events: –
failure, neglect or refusal by either Party to observe, perform or comply with any of his/her/its obligations, undertakings or covenants on his/her/its part in accordance with the provisions of this Referral Program Agreement;
a Party of any commits any act of bankruptcy or becomes bankrupt or if a bankruptcy proceeding is commenced against any such Party and such proceeding is not dismissed within TWENTY-ONE (21) DAYS;
a Party of any commits any act of insolvency or becomes insolvent or winding-up petition is commenced against any such Party and such petition is not dismissed within TWENTY-ONE (21) DAYS;
the Party of any, is charged or convicted of a criminal offence and the continue engagement with the said Party may, at the other Party’s sole opinion, bring the other Party into disrepute; or
a Party of any becomes insane and/or dies.
Confidentiality
Each Party expressly agrees and undertakes to take all reasonable steps to protect and to preserve the confidentiality of all information and any know-how made available under or in connection with this Referral Program Agreement, or any activities by the Parties that are either designated as being confidential or which by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary or confidential (hereinafter collectively referred to as “the Confidential Information”).
All confidential information provided by a Party hereto shall only be used by the other Party hereto solely for the purpose of this Referral Program Agreement throughout the term of this Referral Program Agreement. Neither Party will make use of any Confidential Information except as expressly authorised in this Referral Program Agreement or as agreed to in writing between the parties and each Party shall not disclose the Confidential Information to any third party except:-
as it may be required in carrying out this Referral Program Agreement PROVIDED THAT the disclosing party shall first obtain consent from the providing party;
to his/her/its directors, shareholders, officers, employees, legal advisors and/or auditors;
to any other person in accordance with any judicial or other governmental order or when such disclosure is required by law, PROVIDED THAT prior to such disclosure, the disclosing party shall provide the providing party with SEVEN (7) DAYS written notice and shall comply with any protective order or equivalent; and/or
to any other person in accordance with the regulatory audit or inquiry without prior notice to the disclosing party.
Notwithstanding anything to the contrary and in the event of termination of this Referral Program Agreement, this clause shall survive and continue in full force and effect and, shall be without prejudice to and shall not affect the right of either Party to recover from the other Party any and all damages to which either may be entitled therefor or any other rights from the breach of Clause 10.1 and Clause 10.2 above.
Parties’ Warranties
Each Party represents and warrants to the other Party that for the term of this Agreement: (a) he/she/it has the full capacity and authority to enter into and perform his/her/its obligations under this Agreement; (b) he/she/it has taken all corporate action required by him/her/it to authorize the execution and performance of this Agreement; and (c) this Agreement constitutes legal valid and binding obligations of that Party in accordance with its terms.
Indemnity
Without prejudice to the foregoing terms and conditions and in addition and without prejudice to any other powers, rights and remedies which each Party may be entitled to, the Referrer shall indemnify Finspark and hold Finspark harmless from and against any losses, damages, claims and expenses, whatsoever, legal or otherwise, including but not limited to all legal costs which Finspark may sustain, suffer or incur as a consequence of:-
any misrepresentation, fraud, omission or concealment of any facts incidental to this Referral Program Agreement by the Referrer;
breach or non-observance of all or any of covenant, warranty, stipulation, agreement and terms and conditions contained herein by the Referrer;
breach of any third-party’s rights by the Referrer; or
any claim related to the Referrer’s social media.
Notwithstanding anything to the contrary, in the event of termination of this Referral Program Agreement, this clause shall survive and continue in full force and effect.
Agreed Liquidated Damages
Without prejudice to what is set out elsewhere in this Referral Program Agreement, both the Referrer and Finspark agree that it may be impracticable and difficult to ascertain the amount of actual damages caused by material breach of the intellectual property and confidentiality provisions set forth in Clause 5 and Clause 10 above. Therefore, the Parties agree that, in the event it is established that the Referrer has violated any of such provisions, the Referrer shall pay to Finspark, as agreed liquidated damages, a sum of ten thousand United States dollar (10,000 USD) (the “Agreed Liquidated Damages”) for each breach. The Referrer and Finspark further agree that this Agreed Liquidated Damages provision represents reasonable and minimum compensation for the initial loss which would be incurred by Finspark due to any such breach. The Referrer also agrees that nothing in this provision is intended to limit Finspark’s rights to obtain injunctive and other relief as may be appropriate. This provision is also without prejudice to Finspark’s rights to claim additional and/or cumulative damages for a breach of the said intellectual property and/or confidentiality provisions (in case the damage demonstrably exceeds the Agreed Liquidated Damages amount) or any other provisions of this Referral Program Agreement.
Notwithstanding anything to the contrary, in the event of termination of this Referral Program Agreement, this clause shall survive and continue in full force and effect.
Limitation of Liability
Under no circumstances that shall Finspark be liable for the Referrer’s injuries, any incidental, direct or indirect, special, consequential or exemplary damages, loss, expenses and/or costs incurred or suffered by the Referrer, including but not limited to, any loss of profits, loss of revenue or income, loss of business, loss of reputation, depletion of goodwill and/or any similar loss, loss of anticipated savings, loss of opportunity, loss of use, whether or not the same was/were foreseen or foreseeable arising from or in connection with the Referral Program.
Notwithstanding anything to the contrary, in the event of termination of this Referral Program Agreement, this clause shall survive and continue in full force and effect.
Force Majeure
In the event of the occurrence of any events, circumstances and/or occurrences beyond the reasonable control of the Parties and/or a Party, including but not limited to an act of god, fire, flood, earthquake, windstorm or other natural disaster; act of any sovereign including but not limited to war invasion, act of foreign enemies hostilities (whether war be declared or not) civil war, rebellion revolution, insurrection, military or usurped power or confiscation, nationalisation, requisition, destruction or damage to property by or under the order of any government or public or local authority or imposition of government sanction embargo or similar action; act of government or governmental instrumentality, law, judgement, order, decree; embargo blockade labour dispute including but not limited to strike lockout or boycott; interruption or failure of utility service including but not limited to electric power, gas, water or telephone service; interruption or failure or unavailability of any equipment including but not limited to decoders satellite dishes, satellites or transponders or any other reason beyond the reasonable control of the Parties and/or a Party (hereinafter referred to as the “the Force Majeure”), the Party affected by the Force Majeure shall notify the other Party in writing as soon as practicable of any anticipated delay due to Force Majeure WHEREUPON the Parties agree to suspend performance only for such period of time as is necessary as a result of the Force Majeure and shall use reasonable effort to resume performance as quickly as possible. For the avoidance of any doubt, the Parties shall be at liberty to negotiate and determine whether to suspend, rescind, partially exempt, and/or extend the performance of this Referral Program Agreement.
Income Tax & Corporate Tax
Each respective Parties shall be responsible to declare and pay for his/her/its own income tax and/or corporate tax imposed by the relevant authorities arising from this Referral Program Agreement and in compliance with all relevant tax laws, statutes, acts, rules and regulations, by-laws, directives and requirements made by the Government, municipal authorities and any other competent authorities.
General
Hyperlinks: All the online contents to which the hyperlinks (referred to or mentioned in this Referral Program Agreement) are linked, shall be taken read and construed as an integral part of this Referral Program Agreement and all terms, conditions, stipulations, provisions, representation, warranties, covenants and undertakings contained therein shall be deemed incorporated in and form a part of this Referral Program Agreement as if they were one document. In the event that the Referrer encounters any technical problem in accessing to the said online contents, the Referrer undertakes to immediately inform Finspark of the same, failing which, the Referrer shall be deemed to have read, understood and accepted such contents.
Notice: Any notice or request to be served by either party hereto to the other under this Referral Program Agreement shall be in writing and shall be deemed to be sufficiently served:-
in the case of notice by letter THREE (3) WORKING DAYS after the same is sent by prepaid registered post addressed to the other party at that other party’s last known address; or
in the case of electronic mail transmission by that party to the other party at the other party’s last known electronic mail address, it shall be deemed to have been received at the time of such transmission; or
if it is given by that party and despatched by hand to the other party at that other party’s last known address and it shall be deemed to have been received at the time when such notice was delivered and acknowledged by the recipient of the respective notice or notices.
Time: Time wherever mentioned in this Referral Program Agreement shall be of the essence, both in respect of any dates and periods specifically mentioned herein and in respect of any dates and periods which may be agreed in writing between the Parties be substituted for them.
Waiver: Any delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of any power of right preclude any other further exercise of it, or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
Severability: If any term, condition, stipulation, provision, covenant or undertaking of this Referral Program Agreement is or may become under any written law, or is found by any court or administrative body of a competent jurisdiction to be illegal, void, invalid, prohibited or unenforceable, such term, condition, stipulation, provision, covenant or undertaking shall be ineffective to the extent of such illegality, voidness, invalidity, prohibition or unenforceability without invalidating the remaining terms, conditions, stipulations, provisions, covenants or undertaking of this Referral Program Agreement. The Parties shall use their respective best endeavours to negotiate and agree a substitute term, condition, stipulation, provision, covenant or undertaking which is valid and enforceable and achieves to the greatest extent possible the economic, legal and commercial objectives of such illegal, void, invalid, prohibited or unenforceable term, stipulation, provision, covenant or undertaking.
Heading: The headings in this Referral Program Agreement are for convenience only and shall not affect the construction or interpretation of this Referral Program Agreement. Words denoting the singular shall include the plural and vice versa. Words denoting any gender shall include all genders. Words denoting persons shall include corporations and vice versa.
Entire Agreement. This Referral Program Agreement (including the online contents to which the hyperlinks (referred to or mentioned in this Referral Program Agreement) are linked as well as all guidelines, rules, regulations and policies referred to or mentioned in this Referral Program Agreement) constitutes the entire agreement, undertaking and understanding between the Parties and shall supersede any other agreement, letters, correspondence (oral or written or expressed or implied) or undertaking, if any, between the Parties in respect of the subject matter of this Referral Program Agreement and this Referral Program Agreement was not entered by the Parties in reliance of any agreement or understanding of any party not expressly contained or referred to in this Referral Program Agreement.
Amendments: Finspark may revise this Referral Program Agreement at any time without prior notice and the Referrer is advised to check this Referral Program Agreement periodically to ensure that the Referrer is aware of and is complying with the current version of the same. Changes are binding on the Referrer and will take effect immediately from the posting of the revised version of the Referral Program Agreement on the Platform. The Referrer agrees that the Referrer’s use or continuing use of the Platform shall constitute the Referrer’s acceptance of such changes.
Negotiation: In the event of any dispute, difference or claim between the Parties arising out or relating to this Referral Program Agreement, the Parties shall, at first instance, attempt in good faith to resolve any of such dispute, difference or claim arising out or relating to this Referral Program Agreement.
Governing Law and Jurisdiction: This Referral Program Agreement shall be governed by and construed in accordance with the laws of Malaysia, and the Parties shall submit to the non-exclusive jurisdiction of the Courts of the Malaysia.
Successor Bound: This Referral Program Agreement shall be binding upon the heirs, personal representatives, executors, administrators, successors-in-title and/or assigns of the Parties.
Should you have any further query on the above, please drop us an email at hello@valueinmind.co or contact us at +601113101012.
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Introduction
This Affiliate Program Agreement sets out the terms and conditions in relation to your participation in the affiliate program offered by Finspark Sdn Bhd (Company No. 201401005913 (1081992-D)) (“Finspark”).
If you are agreeable to the terms and conditions contained in this Affiliate Program Agreement, kindly proceed to register and sign up to Finspark’s affiliate program as Finspark’s affiliate.
By registering and signing up to Finspark’s affiliate program as Finspark’s affiliate, you shall be deemed to have read, accepted and agreed with all the terms and conditions contained in this Affiliate Program Agreement.
Finspark may update or amend any terms and conditions contained in the Affiliate Program Agreement at any time and from time to time. You are advised to check the Affiliate Program Agreement periodically to ensure that you are aware of and are complying with the current version of the same. Changes are binding on you and will take effect immediately from the posting of the revised version of the Affiliate Program Agreement on the platform owned or operated by Finspark. If you are not agreeable to the update or amendment, you may choose to terminate the Affiliate Program Agreement.
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AFFILIATE PROGRAM AGREEMENT
Interpretation and Definition
Covenants by Finspark
Finspark will provide the Affiliate with a specific Affiliate Link to be placed or displayed by the Affiliate on the Affiliate Media.
Finspark will provide the Affiliate with various Advertising Materials updated from time to time.
Covenants by the Affiliate
The Affiliate shall use his/her/its best endeavours to advertise or promote the Course. Any costs and expenses incurred by the Affiliate for the purpose of advertising or promoting the Course shall be solely borne by the Affiliate.
The Affiliate shall, at his/her/its own costs, apply and obtain all licenses, consents, approvals, authorisations, permits and/or permissions from the relevant governmental bodies, municipal authorities, administrators, owners and/or any other competent authorities for the purpose of placing the Advertising Materials on the Affiliate Media and/or promoting or advertising the Course.
Unless otherwise agreed by Finspark in writing, the Affiliate shall not edit or modify the Advertising Materials.
The Affiliate shall not place any contents on the Affiliate Media that may breach any prevailing laws, public morals or third-party rights, or that may harm the reputation or interest of Finspark or its other affiliates.
The Affiliate shall duly and diligently maintain and adjust the contents of the Affiliate Media and shall keep the contents of the Affiliate Media up-to-date and accurate. The Affiliate shall promptly correct any errors or omissions on the Affiliate Media and in the information relating to the Course after becoming aware of such errors or being notified by Finspark.
The Affiliate shall, at his/her/its own costs, promptly comply with any reasonable requests from Finspark to make such (further) changes, alterations or amendments to any aspect of the Affiliate Media.
The Affiliate may subcontract the exercise and/or performance of all or any portion of his/her/its duties and obligations under this Affiliate Program Agreement to any third party PROVIDED THAT:-
the Affiliate shall obtain prior written approval from Finspark before subcontracting such duties and obligations to any third party;
any subcontract granted or entered into by the Affiliate of all or any portion of his/her/its duties and obligations under this Affiliate Program Agreement shall not relieve the Affiliate from such duties and obligations under this Affiliate Program Agreement;
any act or omission by a subcontractor of the Affiliate shall be deemed an act or omission by the Affiliate; and
the Affiliate shall ensure that each of his/her/its subcontractors comply and keep complying with all terms and conditions contained in this Affiliate Program Agreement.
The Affiliate covenants that he/she/it has and shall continue to maintain all licenses, consents, approvals, authorisations, permits, permissions and/or the like, to perform his/her/its duties and obligations and all matters contemplated under this Affiliate Program Agreement.
The Affiliate shall conduct himself/herself/itself in a proper and reasonable manner and shall not commit any act or make any statement which may cause Finspark to be brought into disrepute.
The Affiliate shall also abide by all guidelines, rules, regulations and policies, as and when the same may be implemented and/or amended from time to time by Finspark under the Affiliate Program.
Intellectual Property Rights
The Affiliate acknowledges that Finspark shall retain ownership of all rights, title and interest in and to all intellectual properties of Finspark or embodied in the Platform, including but not limited to its trademarks, trade names, logos, all data and the Advertising Materials contained in the Platform or elsewhere (“Finspark’s Intellectual Properties”). Nothing contained in this Agreement shall be deemed to transfer any such right, title or interest to the Affiliate in any way.
Grant of License
Finspark hereby grants the Affiliate a non-exclusive and non-transferable license to use and/or display Finspark’s Intellectual Properties and Affiliate Link on the Affiliate Media during the subsistence of this Affiliate Program Agreement (the “License”) PROVIDED THAT:-
the Affiliate shall only use and/or display Finspark’s Intellectual Properties and Affiliate Link for the purpose of promoting the Course within the context of the Affiliate Program and for the benefit of Finspark;
the Affiliate shall not use and/or display Finspark’s Intellectual Properties and Affiliate Link in the manner which may cause Finspark to be brought into disrepute or jeopardise the interest of Finspark;
the Affiliate shall comply with all directions, instructions, guidelines, rules and regulations as may be implemented and/or amended by Finspark from time to time with regard to the use and/or display of Finspark’s Intellectual Properties and Affiliate Link; and
where so requested by Finspark, the Affiliate shall remove or delete or cause to be removed or deleted Finspark’s Intellectual Properties and Affiliate Link from the Affiliate Media and/or in the custody of the Affiliate within TWENTY (24) HOURS upon receiving written notice from Finspark on such removal or deletion.
In the event of breach of Clause 5.1 above by the Affiliate, Finspark shall be entitled to terminate this Affiliate Program Agreement with immediate effect, without prejudice to its other rights and remedies as set out in this Affiliate Program Agreement and/or under the law, including but not limited to demand for compensation from the Affiliate arising from such breach.
This License shall expire upon the termination of this Affiliate Program Agreement.
For the avoidance of any doubt, the Affiliate shall not be entitled to sublicense the rights granted to him/her/it under Clause 5.1 above to any third party, without the prior written consent from Finspark.
Payment of Commission
Finspark shall pay the Affiliate the Commission in accordance with the payment schedule/scheme which can be found at the Affiliate Dashboard and which may be updated by Finspark at any time and from time to time. Such payment shall be made within FOURTEEN (14) WORKING DAYS from the date of Finspark’s approval of the request for payment from the Affiliate (the “Affiliate’s Payment Request”).
For avoidance of any doubt, the Affiliate acknowledges and agrees that:-
the Commission payable to the Affiliate at the time of the making of the Affiliate’s Payment Request shall not include those which may be generated from the sale of the Course of which the Refund Period has not expired; and
the amount of the Commission as stated or reflected in the Affiliate’s account maintained with Finspark under the Affiliate Program at the time of the making of the Affiliate’s Payment Request or informed by Finspark shall be final and conclusive.
Relationship between the Parties
Finspark and the Affiliate are independent contractors and nothing contained in this Affiliate Program Agreement shall construe the relationship between the Parties as a partnership, joint venture, agent or employee of the other for any purpose. Neither Parties shall have any right power or authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other Party without the prior consent of such other Party.
Term of Agreement
This Affiliate Program Agreement only enters into force and effect upon the issuance of written confirmation of Finspark’s acceptance and approval of the Affiliate by Finspark. By registering and signing up to the Affiliate Program as affiliate, the Affiliate agrees, acknowledges and accepts the terms and conditions of this Affiliate Program Agreement, including the provisions related to modifications to this Affiliate Program Agreement.
This Affiliate Program Agreement shall continue in force unless otherwise terminated in accordance with Clause 9 below.
Termination of Agreement
Upon the occurrence of any one or more of Event of Default as defined in Clause 9.4 below by either Party and through no fault of the other Party, the non-defaulting Party shall be entitled at any time from the date of such default and without prejudice to any other right, power, privilege and remedy contained in this Affiliate Program Agreement and/or under the law, to issue a written notice to the defaulting Party to terminate this Affiliate Program Agreement with immediate effect.
Notwithstanding Clause 9.1 above, either Party may terminate this Affiliate Program Agreement at any time by giving the other Party FIVE (5) DAYS’ notice in writing.
Upon the termination of this Affiliate Program Agreement:-
Finspark shall pay the Affiliate of his/her/its Commission up to the date of issuance of the written notice of termination of this Affiliate Program Agreement;
notwithstanding Clause 9.3(a) above, Finspark shall be entitled to deduct from the Commission any monies due from the Affiliate to Finspark, including but not limited to any losses, damages, costs and/or expenses incurred and/or suffered by Finspark by reasons of any breach of the provisions contained in this Affiliate Program Agreement by the Affiliate, including the Agreed Liquidated Damages as defined hereunder. For the avoidance of any doubt and unless otherwise stated in this Affiliate Program Agreement, Finspark shall, at its sole discretion, determine the amount of such deduction; and
the Affiliate shall immediately remove or delete or caused to be removed or deleted all materials provided to him/her/it by Finspark or used by him/her/it under or for the purposes of the Affiliate Program, including but not limited to Finspark’s Intellectual Properties and Affiliate Link. The Affiliate shall comply with all the directions and instructions given by Finspark on the removal or deletion of such materials on the Affiliate Media and/or in the custody of the Affiliate.
The Event of Default wherever used herein shall means any one of the following events: –
failure, neglect or refusal by either Party to observe, perform or comply with any of his/her/its obligations, undertakings or covenants on his/her/its part in accordance with the provisions of this Affiliate Program Agreement;
a Party of any commits any act of bankruptcy or becomes bankrupt or if a bankruptcy proceeding is commenced against any such Party and such proceeding is not dismissed within TWENTY-ONE (21) DAYS;
a Party of any commits any act of insolvency or becomes insolvent or winding-up petition is commenced against any such Party and such petition is not dismissed within TWENTY-ONE (21) DAYS;
the Party of any, is charged or convicted of a criminal offence and the continue engagement with the said Party may, at the other Party’s sole opinion, bring the other Party into disrepute; or
a Party of any becomes insane and/or dies.
Confidentiality
Each Party expressly agrees and undertakes to take all reasonable steps to protect and to preserve the confidentiality of all information and any know-how made available under or in connection with this Affiliate Program Agreement, or any activities by the Parties that are either designated as being confidential or which by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary or confidential (hereinafter collectively referred to as “the Confidential Information”).
All confidential information provided by a Party hereto shall only be used by the other Party hereto solely for the purpose of this Affiliate Program Agreement throughout the term of this Affiliate Program Agreement. Neither Party will make use of any Confidential Information except as expressly authorised in this Affiliate Program Agreement or as agreed to in writing between the parties and each Party shall not disclose the Confidential Information to any third party except:-
as it may be required in carrying out this Affiliate Program Agreement PROVIDED THAT the disclosing party shall first obtain consent from the providing party;
to his/her/its directors, shareholders, officers, employees, legal advisors and/or auditors;
to any other person in accordance with any judicial or other governmental order or when such disclosure is required by law, PROVIDED THAT prior to such disclosure, the disclosing party shall provide the providing party with SEVEN (7) DAYS written notice and shall comply with any protective order or equivalent; and/or
to any other person in accordance with the regulatory audit or inquiry without prior notice to the disclosing party.
Notwithstanding anything to the contrary and in the event of termination of this Affiliate Program Agreement, this clause shall survive and continue in full force and effect and, shall be without prejudice to and shall not affect the right of either Party to recover from the other Party any and all damages to which either may be entitled therefor or any other rights from the breach of Clause 10.1 and Clause 10.2 above.
Parties’ Warranties
Each Party represents and warrants to the other Party that for the term of this Agreement: (a) he/she/it has the full capacity and authority to enter into and perform his/her/its obligations under this Agreement; (b) he/she/it has taken all corporate action required by him/her/it to authorize the execution and performance of this Agreement; and (c) this Agreement constitutes legal valid and binding obligations of that Party in accordance with its terms.
Indemnity
Without prejudice to the foregoing terms and conditions and in addition and without prejudice to any other powers, rights and remedies which each Party may be entitled to, the Affiliate shall indemnify Finspark and hold Finspark harmless from and against any losses, damages, claims and expenses, whatsoever, legal or otherwise, including but not limited to all legal costs which Finspark may sustain, suffer or incur as a consequence of:-
any misrepresentation, fraud, omission or concealment of any facts incidental to this Affiliate Program Agreement by the Affiliate;
breach or non-observance of all or any of covenant, warranty, stipulation, agreement and terms and conditions contained herein by the Affiliate;
breach of any third-party’s rights by the Affiliate; or
any claim related to the Affiliate Media.
Notwithstanding anything to the contrary, in the event of termination of this Affiliate Program Agreement, this clause shall survive and continue in full force and effect.
Agreed Liquidated Damages
Without prejudice to what is set out elsewhere in this Affiliate Program Agreement, both the Affiliate and Finspark agree that it may be impracticable and difficult to ascertain the amount of actual damages caused by material breach of the intellectual property and confidentiality provisions set forth in Clause 5 and Clause 10 above. Therefore, the Parties agree that, in the event it is established that the Affiliate has violated any of such provisions, the Affiliate shall pay to Finspark, as agreed liquidated damages, a sum of twenty-five thousand United States dollars (25,000 USD) (the “Agreed Liquidated Damages”) for each breach. The Affiliate and Finspark further agree that this Agreed Liquidated Damages provision represents reasonable and minimum compensation for the initial loss which would be incurred by Finspark due to any such breach. The Affiliate also agrees that nothing in this provision is intended to limit Finspark’s rights to obtain injunctive and other relief as may be appropriate. This provision is also without prejudice to Finspark’s rights to claim additional and/or cumulative damages for a breach of the said intellectual property and/or confidentiality provisions (in case the damage demonstrably exceeds the Agreed Liquidated Damages amount) or any other provisions of this Affiliate Program Agreement.
Notwithstanding anything to the contrary, in the event of termination of this Affiliate Program Agreement, this clause shall survive and continue in full force and effect.
Limitation of Liability
Under no circumstances that shall Finspark be liable for the Affiliate’s injuries, any incidental, direct or indirect, special, consequential or exemplary damages, loss, expenses and/or costs incurred or suffered by the Affiliate, including but not limited to, any loss of profits, loss of revenue or income, loss of business, loss of reputation, depletion of goodwill and/or any similar loss, loss of anticipated savings, loss of opportunity, loss of use, whether or not the same was/were foreseen or foreseeable arising from or in connection with the Affiliate Program.
Notwithstanding anything to the contrary, in the event of termination of this Affiliate Program Agreement, this clause shall survive and continue in full force and effect.
Force Majeure
In the event of the occurrence of any events, circumstances and/or occurrences beyond the reasonable control of the Parties and/or a Party, including but not limited to an act of god, fire, flood, earthquake, windstorm or other natural disaster; act of any sovereign including but not limited to war invasion, act of foreign enemies hostilities (whether war be declared or not) civil war, rebellion revolution, insurrection, military or usurped power or confiscation, nationalisation, requisition, destruction or damage to property by or under the order of any government or public or local authority or imposition of government sanction embargo or similar action; act of government or governmental instrumentality, law, judgement, order, decree; embargo blockade labour dispute including but not limited to strike lockout or boycott; interruption or failure of utility service including but not limited to electric power, gas, water or telephone service; interruption or failure or unavailability of any equipment including but not limited to decoders satellite dishes, satellites or transponders or any other reason beyond the reasonable control of the Parties and/or a Party (hereinafter referred to as the “the Force Majeure”), the Party affected by the Force Majeure shall notify the other Party in writing as soon as practicable of any anticipated delay due to Force Majeure WHEREUPON the Parties agree to suspend performance only for such period of time as is necessary as a result of the Force Majeure and shall use reasonable effort to resume performance as quickly as possible. For the avoidance of any doubt, the Parties shall be at liberty to negotiate and determine whether to suspend, rescind, partially exempt, and/or extend the performance of this Affiliate Program Agreement.
Income Tax & Corporate Tax
Each respective Parties shall be responsible to declare and pay for his/her/its own income tax and/or corporate tax imposed by the relevant authorities arising from this Affiliate Program Agreement and in compliance with all relevant tax laws, statutes, acts, rules and regulations, by-laws, directives and requirements made by the Government, municipal authorities and any other competent authorities.
General
Hyperlinks: All the online contents to which the hyperlinks (referred to or mentioned in this Affiliate Program Agreement) are linked, shall be taken read and construed as an integral part of this Affiliate Program Agreement and all terms, conditions, stipulations, provisions, representation, warranties, covenants and undertakings contained therein shall be deemed incorporated in and form a part of this Affiliate Program Agreement as if they were one document. In the event that the Affiliate encounters any technical problem in accessing to the said online contents, the Affiliate undertakes to immediately inform Finspark of the same, failing which, the Affiliate shall be deemed to have read, understood and accepted such contents.
Notice: Any notice or request to be served by either party hereto to the other under this Affiliate Program Agreement shall be in writing and shall be deemed to be sufficiently served:-
in the case of notice by letter THREE (3) WORKING DAYS after the same is sent by prepaid registered post addressed to the other party at that other party’s last known address; or
in the case of electronic mail transmission by that party to the other party at the other party’s last known electronic mail address, it shall be deemed to have been received at the time of such transmission; or
if it is given by that party and despatched by hand to the other party at that other party’s last known address and it shall be deemed to have been received at the time when such notice was delivered and acknowledged by the recipient of the respective notice or notices.
Time: Time wherever mentioned in this Affiliate Program Agreement shall be of the essence, both in respect of any dates and periods specifically mentioned herein and in respect of any dates and periods which may be agreed in writing between the Parties be substituted for them.
Waiver: Any delay in exercising any power or right of a party does not operate as a waiver of that power or right, nor does any single exercise of any power of right preclude any other further exercise of it, or the exercise of any other power or right. A power or right may only be waived in writing, signed by the party to be bound by the waiver.
Severability: If any term, condition, stipulation, provision, covenant or undertaking of this Affiliate Program Agreement is or may become under any written law, or is found by any court or administrative body of a competent jurisdiction to be illegal, void, invalid, prohibited or unenforceable, such term, condition, stipulation, provision, covenant or undertaking shall be ineffective to the extent of such illegality, voidness, invalidity, prohibition or unenforceability without invalidating the remaining terms, conditions, stipulations, provisions, covenants or undertaking of this Affiliate Program Agreement. The Parties shall use their respective best endeavours to negotiate and agree a substitute term, condition, stipulation, provision, covenant or undertaking which is valid and enforceable and achieves to the greatest extent possible the economic, legal and commercial objectives of such illegal, void, invalid, prohibited or unenforceable term, stipulation, provision, covenant or undertaking.
Heading: The headings in this Affiliate Program Agreement are for convenience only and shall not affect the construction or interpretation of this Affiliate Program Agreement. Words denoting the singular shall include the plural and vice versa. Words denoting any gender shall include all genders. Words denoting persons shall include corporations and vice versa.
Entire Agreement. This Affiliate Program Agreement (including the online contents to which the hyperlinks (referred to or mentioned in this Affiliate Program Agreement) are linked as well as all guidelines, rules, regulations and policies referred to or mentioned in this Affiliate Program Agreement) constitutes the entire agreement, undertaking and understanding between the Parties and shall supersede any other agreement, letters, correspondence (oral or written or expressed or implied) or undertaking, if any, between the Parties in respect of the subject matter of this Affiliate Program Agreement and this Affiliate Program Agreement was not entered by the Parties in reliance of any agreement or understanding of any party not expressly contained or referred to in this Affiliate Program Agreement.
Amendments: Finspark may revise this Affiliate Program Agreement at any time without prior notice and the Affiliate is advised to check this Affiliate Program Agreement periodically to ensure that the Affiliate is aware of and is complying with the current version of the same. Changes are binding on the Affiliate and will take effect immediately from the posting of the revised version of the Affiliate Program Agreement on the Platform. The Affiliate agrees that the Affiliate’s use or continuing use of the Platform shall constitute the Affiliate’s acceptance of such changes.
Negotiation: In the event of any dispute, difference or claim between the Parties arising out or relating to this Affiliate Program Agreement, the Parties shall, at first instance, attempt in good faith to resolve any of such dispute, difference or claim arising out or relating to this Affiliate Program Agreement.
Governing Law and Jurisdiction: This Affiliate Program Agreement shall be governed by and construed in accordance with the laws of Malaysia, and the Parties shall submit to the non-exclusive jurisdiction of the Courts of the Malaysia.
Successor Bound: This Affiliate Program Agreement shall be binding upon the heirs, personal representatives, executors, administrators, successors-in-title and/or assigns of the Parties.
Should you have any further query on the above, please drop us an email at hello@valueinmind.co or contact us at +60 1113101012.
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