Update Date: Oct. 23.2024
Effective Date: Oct. 23.2024
This Influencer Service Agreement (this “Agreement”) between Youdao (Hong Kong) Limited, a Hong Kong corporation (“Youdao” or ”Party A”), and you, or, if you represent an entity or other organization, that entity or organization (in either case “Influencer” or “Party B”) provides the terms and conditions under which Influencer provides the Services as set forth below. The Effective Date of this Agreement shall be the date that an Influencer has clicked through acceptance of the terms of this Agreement.
Without limiting the foregoing, Influencer must be over the age of 18 and meet any of the other qualifications included in this Agreement. If you are 13 or older and younger than 18, then you may access the Youdao Technology or provide Services only if you have your parents’ or guardians’ prior permission. By accessing Youdao Technology or providing Services, you represent that you are at least 18 or that you are at least 13 and have your parents’ prior permission to do so. If you are a parent or guardian providing permission for a child age 13 or older to access Youdao Technology or provide Services, then you agree to accept full responsibility for that child’s use of Youdao Technology and provision of Services under this Agreement. You may access the Youdao Technology and provide Services solely for lawful purposes and only in accordance with the terms of this Agreement and any other agreement you are required to agree to before being given access to any specific areas of Youdao Technology (any such additional agreements are in addition to this Agreement and will govern your use of the portions of Youdao Technology to which those additional agreements apply in the event of a conflict between the terms of this Agreement and those additional agreements). Youdao reserves the right at any time and in its sole discretion to modify, suspend, or discontinue the Youdao Technology (or any portion thereof), or your right to provide Services with notice.
PLEASE CAREFULLY READ THIS AGREEMENT, ESPECIALLY THE LIMITATIONS OR EXCLUSIONS, WHICH MAY BE HIGHLIGHTED IN BOLD OR CAPITAL LETTERS. BY CLICKING ON THE “ACCEPT” BUTTON BELOW OR BY OTHERWISE ACCEPTING THIS AGREEMENT OR ACCESSING OR USING YOUDAO TECHNOLOGY OR PROVIDING SERVICES, INFLUENCER ACKNOWLEDGES HAVING READ, UNDERSTOOD, AND AGREEING TO BE BOUND BY ALL TERMS OF THIS AGREEMENT AND ALL RULES, PAGE PROMPTS, OPERATING PROCEDURES, ANNOUNCEMENTS OR NOTICES PUBLISHED OR MAY BE PUBLISHED IN CONNECTION WITH THIS AGREEMENT (COLLECTIVELY “TERMS OF SERVICE”).
IF INFLUENCER DOES NOT AGREE TO THIS AGREEMENT, OR DOES NOT MEET THE QUALIFICATIONS INCLUDED IN THIS AGREEMENT, YOUDAO IS UNWILLING TO ALLOW INFLUENCER TO ACCESS OR USE THE YOUDAO TECHNOLOGY OR TO PROVIDE SERVICES.
1. Definitions
Advertising Materials means all the advertising materials, elements and links provided by Youdao to Influencer; or all advertising materials, elements and links designed by Influencer and prior approved by Youdao if applicable.
Business Day(s) means any day other than Saturday, Sunday and any day which is a legal holiday in the People’s Republic of China.
Campaign means a series of Services dedicated to specific product(s) and/or services as identified in the IO.
Client means the advertising clients of Youdao, whose products are being promoted through the Work.
CPC means Pricing Model, whereby Youdao pays based on the number of Internet users’ clicks on Youdao’s promotional information through the Work.
CPI means a Pricing Model, whereby Youdao pays based on the number of Internet users’ installations of the promotional products through the Work.
CPM means a Pricing Model, whereby Youdao pays for each thousand (1000) impressions of the Work.
Deliverable(s) means a measurable result of the display of the Work.
Insertion Order or IO means the order form as set forth in Youdao’s Platform, which includes the scope and requirements of the Service, promotional product, promotional link, promotion schedule and all specifications of the Work. An IO shall be effective once Influencer has clicked to accept it.
Intellectual Property Rights means all works of authorship, registered copyrights, common law copyrights, registered trademarks, common law trademarks, trade dress, labels, designs, logos, patents, patent applications, know-how, trade secrets, database rights, design rights and all other intellectual property rights and associated good will (whether or not any of these is registered and including applications for registration of any such thing) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.
Pricing Model means a method of calculating the payment due to Influencer for the Service.
Product(s) means the product provided by Youdao to Influencer for promotion purpose.
Service means the distribution of the Work over the Internet using various online delivery methods with the purpose of bringing the product specified in the IO to the attention of potential customers of Youdao or Client.
Work means any program/video/stream/text/music produced by Influencer using Advertising Materials for the purpose of promoting the products of the Client.
Youdao Technology means Youdao’s codes, and all additional software, hardware and other technology used by or on behalf of Youdao to provide services to its Clients and Influencer.
Youdao’s Platform means the advertising platform used by Parties to conduct activities relating to this Agreement, including but not limited to publishing Campaign details, approving and rejecting IO, providing Advertising Materials to Influencer, uploading and downloading Deliverables, review of Work, checking bills.
2. Scope of the Service
3. Term
This Agreement shall commence on the Effective Date, which is the date that Influencer has clicked thru acceptance of the terms of this Agreement, and shall be valid until Influencer cancels the Account or Youdao ceases providing the Services due to policies or business changes. But the Insertion Order placed before cancellation still shall be fulfilled by Influencer under agreed IO terms and this Agreement.
4. Distribution of the Work
4.1 For each Campaign to be effective, Youdao shall send to Influencer an IO with the specifications of the Campaign by Youdao’s Platform. Influencer shall respond to the aforementioned Youdao’s Platform within [ 1 ] Business Days by Youdao’s Platform, otherwise such IO shall turn effective immediately after [ 1 ] Business Days.
4.2 Influencer shall provide to Youdao the Work by Youdao’s Platform before it is published/submitted. Youdao shall notify Influencer within [ 3 ] Business days upon receipt of Work if additional revisions and/or amendments shall be made. Only with Youdao’s prior written consent may Influencer publish or submit the Work according to the applicable IO.
5. Payment
5.1 Unless otherwise confirmed expressly to pay pursuant to section 5.1.2 by both Parties via Youdao’s Platform, the payment shall be made according to section 5.1.1.
5.1.1 Post-payment
5.1.2 Prepayment
Youdao may pay part or all of the payment in advance, and the specific prepayment ratio and term will be agreed by each Insertion Order.
5.2 Both Parties shall bear the taxes of their own country under the applicable laws and regulations respectively. The fees in the Agreement are exclusive of any Hong Kong taxes, but inclusive of all applicable taxes of the country of Influencer.
5.3 The payment charges, including but are not limited to bank fees, shall be individually borne by both Parties.
5.4 Influencer shall confirm that the bank account number, PayPal or other relevant information provided are complete and correct. If the withdrawal fails or other expense occurs because of Influencer's personal fault (such as providing wrong information), it shall be borne by Influencer. In that case, Youdao Ads will provide assistance within a reasonable range.
6. Deliverables
All Deliverables with respect to payment shall be calculated by Youdao. Influencer will deliver the agreed number of Deliverables on the agreed platforms according to the applicable IO specified by Youdao. The Services shall conform to the specifications and instructions of Youdao as outlined in detail in the applicable IO, abide by the rules of the relevant social media platforms, and are subject to Youdao's acceptance and approval, otherwise, Youdao can reject any Deliverables in accordance with this Section.
7. Representations and Warranties
7.1 Youdao represents and warrants that it has the right to enter into this Agreement, that it possesses all copyright, trademarks of the content provided by Youdao, and that such content will not infringe the rights of any person or entity.
7.2 Influencer represents and warrants that:
(1) it has the right to enter into this Agreement and that any Work produced by Influencer shall not violate any laws and regulations and shall not infringe the rights of any person or entity;
(2) there is no pending or threatened litigation, including court, administrative or arbitral proceedings, which if decided adversely to Influencer would interfere in any material manner with Youdao's right to use such Work in the way provided in this Agreement;
(3) all content, products, and services on Influencer´s website(s), Advertising Platform(s), application(s), newsletter(s) or any other form of advertising media are legal to distribute, and it owns or has the legal right to use such content, products and services; by such use, it will not infringe upon any Intellectual Property Rights or other rights;
(4) Influencer's website(s), advertising platform(s), application(s), newsletter(s) or any other form of advertising media are free of any "worm", "virus", "malware" or other device that could impair or injure any person or entity;
(5) Influencer’s business complies and shall continue to comply with all applicable laws, rules and governmental (state, local, and community) and regulatory levies and requirements relating to it and the Service;
(6) the execution of this Agreement and the performance of its obligations hereunder will not conflict with or cause a breach or violation of any agreement, law, regulation or other obligations to which Influencer(s) is a party or subject;
(7) Influencer will not make any statements which are negative, defaming, political or potentially damaging in any way whatsoever to Youdao, the Client or the Product, at any point during or after the Campaign;
(8) Influencer will not conduct any Service in a way that harms the interest of Youdao and Youdao’s Clients or that is deceptive and cheating, including without limitation the following activities (altogether, “Fraud Activity”):
(i) it will not display or send deceptive or false representations and/or notifications to End Users in order to create a Deliverable without the End User’s awareness, knowledge or consent;
(ii) it will not conduct any automated or default installation of a Product, use any program to generate non-human clicks (which may include using scripts, web crawlers, spiders, robots or other similar non-human programs to trigger installation of a Product without the End User’s knowledge), or use other means to create false deliverables or false data;
(iii) it will not provide Advertising Services by conducting any search engine optimization or search engine marketing (SEO/SEM), including without limitation any key words ranking using key words related to Youdao, Youdao’s Clients, and/or the Products;
(iv) it will not conduct any DNS hijacking, including without limitation to adding tracking code to the website of Youdao or Youdao’s Client;
(v) it will not create fake Deliverables by other means or conduct any other actions that may harm the interest or goodwill of Youdao and its Clients.
(9) If influencer transmits any personal information to the platform, influencer promises to comply with the data protection requirements before transmitting the relevant information. Influencer promises that it has fully informed the data subject of the type of personal information involved, the purpose of processing, the processing method, the name and contact information, and other statutory contents stipulated by the data protection requirements for the personal information transmitted to the platform, and has obtained the authorization and consent of the data subject. If Influencer violates the provisions of this article, it shall be responsible for compensating for the damage caused to the Youdao, its affiliates and the data subject by the relevant behavior, and shall bear all responsibilities. This clause shall not terminate or lose its effectiveness due to the invalidity, suspension or termination of the main agreement or the task promotion service cooperation.
Youdao has the sole discretion in deciding whether Influencer has conducted any Fraud Activity and the amount of fake or false Deliverables arising thereof.
8. Intellectual Property Rights
8.1 If no otherwise agreed in IO, Influencer acknowledges and agrees that Youdao for the purpose of performing the Services under this Agreement shall own, exclusively and in perpetuity, all rights of whatever kind and character, throughout the world and in any and all languages, in all Works produced, developed, or created by Influencer for this Agreement, and any and all intellectual property rights thereto, including trademarks, trade secrets, trade dress, design, mask work, copyrights, and patent rights (collectively, the “Content”), including the right to sublicense the Content to Youdao’s Client. Notwithstanding the foregoing, Influencer may delete posts from his/her owned and/or controlled social media channels containing any Content after a period of thirtyninety (90) days from the date the Work is published.
8.2 Influencer shall not directly or indirectly enter into any agreement in respect of the Work with the Client during and after the Term of this Agreement
8.3 If no otherwise agreed in IO, Youdao grants to Influencer a limited, revocable, worldwide, non-transferable, non-sublicensable, temporary license to use the Client’s name and Advertising Materials as may be necessary to achieve the promotional purpose but only to achieve the promotional purpose as described in the IO.
8.4 If no otherwise agreed in IO, Influencer grants to Youdao a perpetual license to use Influencer’s name and likeness in all media including Youdao’s website and the Client’s website and on social media sites and in all formats of print and digital media advertising. This section 8.4 survives after this Agreement terminates for any reason.
9. Disclaimer
EXCEPT AS MAY OTHERWISE BE EXPRESSLY SET FORTH HEREIN, THE YOUDAO TECHNOLOGY IS PROVIDED “AS IS” AND YOUDAO DISCLAIMS, AND INFLUENCER DISCLAIMS ANY RELIANCE ON, ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, ORAL OR IN WRITING, ARISING UNDER ANY LAWS, INCLUDING WITH RESPECT TO TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT.
10. Limitation of Liability
EXCEPT IN CONNECTION WITH CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS, YOUDAO SHALL NOT BE LIABLE TO INFLUENCER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, OR ARISING FROM ANY OTHER PROVISION OF THE AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
11. Indemnification
11.1 Each Party(“Indemnifying Party”) will defend, indemnify and hold harmless the other Party(“Indemnified Party”) from and against any and all liabilities, losses, damages, costs and expenses (including legal fees and expenses) associated with any claim of action brought against the Indemnified Party arising out of or related to a breach by the Indemnifying Party of its representations and warranties or any other terms as set forth in this Agreement.
11.2 If, according to Youdao’s sole discretion, Influencer breaches any of the representations and warranties as set forth in this Agreement, Youdao is entitled to any or all of the following remedies and deduct the related amount of payment, penalties, damages (if any) from Influencer’s Personal Wallet Account:
(i) terminate the affected IO, or this Agreement (including without limitation all executed IO) immediately and at Youdao’s choice;
(ii) claim for liquidated damages of 50% of the payment amount from the last billing period; or
(iii) claim for compensation of all losses, costs and expenses caused thereof.
11.3 If, according to Youdao’s sole discretion, Influencer fails to complete the IO as agreed, Parties agree to deal with it as follows:
(1) Influencer Cancels IO without Work produced
(i) If Influencer is unable to deliver Work due to an emergency (e.g., sudden illness, account blocking), Influencer shall refund all prepayment (if any) of the IO and provide corresponding reasonable evidence to prove the existence of the emergency (e.g., medical institution diagnosis proof, account blocking notifications, unblocking refusal records). After actively negotiating with Youdao for alternative solution (e.g., recommending alternative influencer of similar type and popularity). Influencer can cancel the IO with Youdao’s prior written consent. Also, in such circumstances, Youdao reserve the right to unilaterally cancel the IO at any time without paying any fees.
(ii) If Influencer fails to deliver Work and has no valid cause, Influencer shall refund all prepayment of the IO (if any) and actively negotiate with Youdao for alternative solution (e.g., recommending alternative influencer of similar type and popularity). Influencer has no right to cancel the IO unless with Youdao’s prior written consent. If Influencer fails to refund prepayment or provide a satisfactory solution to Youdao, it shall be deemed as a breach. Youdao is entitled to a penalty equals to the related IO fees, and Youdao could deduct it directly from the payables (if any). If Influencer does not pay such a penalty, Youdao reserves the right to pursue all losses and penalties. Influencer may be listed on the Blacklist and not cooperate again as well. Also, in such circumstances, Youdao reserve the right to unilaterally cancel the IO at any time without paying any fees.
(2) Influencer delays the delivery of Work
(i) If Influencer needs to delay the delivery of Work agreed in IO due to emergencies (such as sudden illness, account blocking), Influencer shall provide corresponding reasonable evidence to prove the existence of the emergency (e.g., medical institution diagnosis proof, account blocking notifications, unblocking refusal records), and actively negotiate with Youdao for alternative solution. If Parties agree on the solution, the cooperation will continue to perform and pay normally based on the solution. If Parties cannot agree, Youdao reserve the right to unilaterally cancel the IO without paying any fees, and prepayment of the IO (if any) shall be refunded in all.
(ii) If Influencer delays the delivery of Work and has no valid cause, Influencer shall actively negotiate with Youdao for alternative solution. If Parties agree on the solution, the cooperation will continue to perform based on the solution, but the IO fees will be reduced by 50%. If Influencer fails to provide a satisfactory solution or Parties cannot agree, it will be handled in accordance with Clause 11.3(1) (ii) as a breach.
(3) The Work Influencer delivered does not meet the requirements of IO
If Work delivered by Influencer does not meet acceptance requirements, Influencer shall rework and modify in a timely manner, and deliver the reworked Work to Youdao for acceptance until it is accepted. If Influencer fails to deliver qualified Work before the delivery date specified by IO, Influencer shall actively negotiate with Youdao for an alternative solution. If Parties agree on the solution (e.g., separate acceptance of the qualified parts), the cooperation will continue to perform based on the solution and pay for the accepted parts of Work separately. If Influencer fails to provide a satisfactory solution or Parties cannot agree, it will be handled in accordance with Clause 11.3(2) (ii) as a breach.
In the above circumstances, Youdao has the right to deduct the related amount of payment, penalties, damages (if any) directly from the Personal Wallet Account of Influencer.
12. Law and Jurisdiction
This Agreement and the arbitration clause shall be governed by and construed in accordance with the laws of People’s Republic of China(“PRC”) excluding its conflicts of law provisions. Any dispute arising from or in connection with this Agreement shall be submitted to China International Economic and Trade Arbitration Commission (CIETAC) for arbitration which shall be conducted in accordance with the CIETAC's arbitration rules in effect at the time of applying for arbitration. The seat and venue of the arbitration shall be Beijing, China. The arbitral award is final and binding upon both Parties.
13. Assignment
Influencer shall not assign any of its rights or delegate any of its obligations under this Agreement to any party without the express written consent of Youdao.
14. Confidentiality
Influencer shall keep confidential the commercial secrets and other confidential materials and information that it has learned or come into contact with due to the signing or performance of this Agreement, including but not limited to the brand information, resources, platform operation policies, operation information, relevant data, the content of this Agreement, price system, etc. (hereinafter referred to as "Confidential Information") provided by advertisers to Influencer. Without the written consent of the right holder, Influencer shall not disclose, give or transfer such confidential information to other parties outside this Agreement or use it without authorization, except as required by relevant laws and regulations or national government departments.
The rights and obligations stipulated in this article will continue to be valid after the termination of this Agreement.
If Influencer violates the confidentiality obligation, the platform has the right to terminate this agreement immediately and shall not refund the deposit paid by the defaulting party (if any); if Influencer causes losses to the platform or advertiser due to the breach of confidentiality obligations, the platform has the right to claim from Influencer.
15. Termination
If Influencer breaches any provision in this Agreement and fails to remedy such default within seven (7) days after receipt of written notice from Youdao, this Agreement shall terminate effective as of the expiration of said seven (7) days period. In such event, Youdao is entitled to refuse to pay the payment of the IO which Influencer breached.
16. Waiver
Any waiver by either party of any requirement of this Agreement shall not constitute a waiver of any other requirement of this Agreement, nor of the same requirement on a separate occasion.
17. Independent Contractor
The Parties to this Agreement are independent contractors, and nothing contained in this Agreement shall be construed as establishing an employer/employee, a partnership, or a joint venture relationship between Influencer and Youdao.
18. Force Majeure
Neither party shall incur liability to the other for any failure or delay in fulfilling its obligations under this Agreement due to force majeure. "Force majeure" shall mean acts of nature, acts of government, wars, riots, civil insurrections, strikes and other labor disturbances.
19. Entire Agreement
All terms of this Agreement and all rules, page prompts, operating procedures, announcements or notices published or may be published in connection with this Agreement (collectively “Terms of Service”), and offline agreement (if any) constitute the entire understanding of the Parties with respect to the subject matter hereof.
In case of any conflict between Terms of Service and the offline agreement which was signed and stay effective (if any), the offline agreement shall prevail. However, if Influencer still uses Youdao Ads Service after the offline agreement has expired, both parties shall be abided in accordance with Terms of Service.
By signing this Agreement, Influencer acknowledges and agrees that it has read, reviewed and agreed to comply with Youdao's Business Ethics (Code of Conduct for Business Partner) as well.
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