These Terms of Service (“TS”) contain the terms and conditions that shall apply to anyone who provides services to the Company. Please read them over carefully.
These TS contain the terms and conditions that shall apply to an individual's or an entity's (hereinafter the “Broadcaster”, or “you”) providing service to Elite State Macao Commercial Offshore Ltd. (hereinafter “we”, “us” “our” or “the Company”) its successors and assigns. You must agree to abide by in these TS in order to provide us with your Services.
These TS are subject to change by us at any time, effective upon posting on the Company’s websites with notification of the same to you via electronic means, and your continuing provision of your Services thereafter will constitute acceptance by you of such changes.
2.1 “Account”: Broadcaster account to be opened and maintained at Platform for the purpose of submitting Content thereto.
2.2 “Agent”: an individual or an entity who has been authorized to refer Broadcaster(s) to the Company for the purpose of carrying out Broadcasting work and posting of Content on the Company’s websites.
2.3 “Broadcaster”: an individual who has been authorized by us to carry out broadcasting (including but limited to public real-time streaming, broadcasting, interactive media) and communications with our Members via texting, oral communications, internet expressions, singing performance, and other forms of entertainment on the Company’s Platform (hereafter referred to as “Broadcasting”).
2.4 “Broadcaster Service Fee”: the Company agrees to pay the Broadcaster, in exchange for the Services rendered, a service fee and Special Awards (as defined in Appendix №1).
2.5 “Content”: includes text, software, scripts, graphics, photos, drawings, visuals, music, sounds, videos, audiovisual combinations, interactive features and other materials posted on the Platform by the Company and the Broadcasters.
2.6 “LiveCast”: is a broadcast of live event over the internet using streaming media technology to distribute a single content source to many simultaneous listeners/viewers.
2.7 “Platform”: owned and operated by the Company, is a platform which includes any other associated platform(s) and website(s), together with any LiveCast products, data feeds and software/hardware clients. During the term of this Terms of Service, if the Company acquires additional platform(s), website(s) and/or software/hardware client(s), the terms of this Terms of Service shall apply to them as well.
2.8 “Term”: This Terms of Service shall commence upon the date of execution, and shall continue in force until the obligations contained in the entire Terms of Service have been fulfilled, or until terminated by either Party hereto on the basis that the terminating Party shall give at least 3 months’ notice to the other Party.
2.9 “Services”: The Broadcasters shall create his/her Content and LiveCast to be posted on the Platform in accordance to the Company’s directions and in compliance with these TS and the Company’s policies.
3.1 By your submitting, posting and/or displaying your Content and LiveCast on our Platform, you grant us a worldwide, exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). This license authorizes us to make your Content and LiveCast available to the rest of the world and to let others do the same via computers, mobile devices (including but not limited to mobile phones), tablet computer devices, Over The Top TV and any other electronic dissemination devices. You agree that this license includes the right for the Company to provide, promote, and improve the Services and to make Content and LiveCast submitted to or through the Services available to other companies, organizations or individuals for the syndication, broadcast, distribution, promotion or publication of such Content and LiveCast on other media and services, subject to our terms and conditions for such Content and LiveCast use. Such additional uses by the Company, or by other companies, organizations or individuals as directed by the Company, may be made with no compensation paid to you with respect to the Content and LiveCast that you submit, post, transmit or otherwise make available through the Services.
3.2 You understand that we may modify or adapt the Content and LiveCast as it is distributed, syndicated, published, or broadcast by us and our partners and/or make changes to the Content and LiveCast in order to adapt them to different media.
3.3 You agree that the Content and LiveCast you provide to us shall be made exclusively available on our Platform and not to provide or make available the same to any third party without the written consent of the Company.
3.4 We respect the intellectual property rights of others and expect our Broadcasters to do the same. We reserve the right to remove any Content and LiveCast alleged to be infringing intellectual property rights without prior notice, at our sole discretion, and we reserve our right to seek all remedies available at law and/or in equity for your breaches of any of these TS.
3.5 You agree that we will provide you with technical support and assistance in relation to the upload of the Content and LiveCast on our Platform.
4.1 The Company reserves all rights to assign and allocate all broadcasting work to you at its discretion.
4.2 The Company reserves all discretion regarding the Broadcasting preparations, rehearsals, recording, video recording and all advertising campaigns. The Company may require you to attend any online/offline events.
4.3 The Company reserves its right to discontinue engaging you as the Company’s Broadcaster at its sole discretion at any time.
4.4 You will be subject to screening and appraisals before you are permitted to carry out any Broadcasting activity. All of your Content and LiveCast will be subject to ongoing monitoring. If any of your Content or LiveCast fail to meet the Company’s quality requirements or if any of the Content or LiveCast violate the terms of this Terms of Service, then the Company may suspend, limit or terminate this Terms of Service at its sole discretion.
4.5 The Company reserves its rights to use your name (including but not limited to your real name as it appears on your identity document, pseudonym, broadcasting name, any alias you have previous used or currently using), your personality rights, your image or likeness, cartoon image (including but not limited to any unequivocal aspects of your identity) to promote the Company’s Platform.
4.6 The Company retains the right to all intellectual property rights to the Content and LiveCast even after the termination of this Terms of Service.
5.1 You represent and warrant that the personal identities (including their names, identify card numbers, bank accounts, personal contacts, residential address, etc) submitted to us by you are true. You further represent and warrant that you have reached the age of consent in your jurisdiction. You must notify us immediately of any change in your personal details.
5.2 You acknowledge and agree that you will not at any time stream livecasts, photos or recordings carried out by third parties.
5.3 You must not violate any of the terms of this TS.
5.4 You acknowledge and agree that you will not carry out live casts on other similar platforms of our competitors during the term of this Terms of Service. You also agree that without the Company’s express written approval, you must not promote or make any reference to (including but not limited to words, oral expression, visual expressions, etc) any third party’s name or related information on the Company’s Platform. You must not directly or indirectly engage in any activity that would undermine the Company’s business activities including but not limited to the operation of the Platform.
5.5 You must ensure your Content and LiveCast are at all times compliant with the relevant laws and regulations. The Company may, at its sole discretion, remove or delete any Content or LiveCast that some people may find offensive or inappropriate. The Company reserves all its rights and remedies available at law and/or in equity for breaches committed by you of any of the terms of this Terms of Service and the Company’s policies.
5.6 You must ensure that you attend all events hosted by the Company in a timely manner and to fulfill your duties and obligations in accordance with this Terms of Service save and except with reasonable excuse.
5.7 You acknowledge and agree that during the term of this Terms of Service, you shall on your own expense, procure all equipment, hardware, software, services and any other support required in the production and dissemination of the Content and LiveCast.
5.8 By signing this Terms of Service, you acknowledge and confirm that you have not entered and will not enter into contractual relationship (whether written or oral) with any third party that prevents you from carrying out your obligations under the TS and/or causes any financial loss to the Company.
5.9 You shall carry out all Broadcasting work as directed by the Company during the term of this Terms of Service.
5.10 You shall only use your unique user name in the Company’s websites only and not to use it in any other website owned by third parties. Without the written consent of the Company, you shall not surrender or amend your unique user name such that it shall damage the Company’s interests.
5.11 You shall at all times be solely liable for the compliance of all existing laws, rules and regulations that may apply to you in the performance of your Services under this Terms of Service.
5.12 You hereby agree to hold the Company free and harmless from any liability or damage arising from the performance of the Services contemplated to the Company under this Terms of Service.
5.13 You must refrain from posting and agree not to post any prohibited Content and/or Broadcasting works on the Company’s websites, as determined by the Company, in its sole discretion which includes, without limitation: (i) posting unauthorized commercial communications (such as spam); (ii) collect users' content or information, or otherwise access the Company’s websites, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our prior permission; (iii) engage in unlawful multi-level marketing (such as a pyramid scheme); (iv) upload computer viruses or other malicious code; (v) solicit login information or access an account belonging to someone else; (vi) bully, intimidate, or harass any member of the Company’s websites; (vii) post Content that: is hate speech, racially discriminatory, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence; (viii) post any Content which threatens national security of the PRC; (ix) develop or operate a third-party application containing alcohol-related, dating or other mature content (including advertisements) without appropriate age-based restrictions; (x) do anything unlawful, misleading, malicious, or discriminatory; (xi) do anything that could disable, overburden, or impair the proper working or appearance of the Company’s websites, such as a denial of service attack or interference with page rendering or other functionality of the Company’s websites; and (xii) facilitate or encourage any violations of these TS or the Company’s policies.
5.14 If you breach any of the above clauses 5.1 to 5.13, the Company has the right to terminate this Terms of Service forthwith, cease all payments of any outstanding Broadcaster Service Fee to you, and retain all of its rights and remedies at law or at equity.
6.1 The Broadcaster derives all of its revenue from the Services provided to the Company. For the calculation of the Broadcaster’s fees, please refer to Appendix №1 (Broadcaster’s Service Fee Calculations) for details.
6.2 Each party shall be responsible for the payment of its own tax liabilities (if any) and legal and other costs and expenses, payable in connection with this Terms of Service and the transactions contemplated thereunder.
6.3 If you are represented by an Agent, the Company shall pay your Broadcaster’s Service Fees to your Agent. It is the responsibility of your Agent to pay such Broadcaster Service Fees to you thereafter. Under no circumstances will the Company be liable to pay for any outstanding Broadcaster Service Fees owed to you. You shall settle any dispute with your Agent by yourselves.
6.4 If you are not represented by an Agent, you shall ensure all banking account information provided to us are accurate, complete and up to date such that we are able to pay you your Broadcaster’s Service Fees. We will not be responsible for any payment delay or loss suffered by you due to any inaccurate banking information provided.
6.5 You acknowledge and agree that the Company may, in accordance with market practice, adjust its payment policy and calculations from time to time. The Company will inform you of the any payment policy change via electronic means such as by email. Alternatively, the Company may also notify you by posting any new payment policy and calculations on the Company’s website(s).
6.6 You acknowledge and agree that the Company’s records of data for the purpose of the calculation of your Broadcaster Service Fees shall be conclusive unless and until the contrary is established.
6.7 No employer-employee relationship shall exist between the Company and you. The Company shall not be in any way be liable or responsible for any personal injury or damage, including death sustained or caused by, or to, you during the performance of your work under this Terms of Service. The Company shall not be responsible for your personal welfare and social security. You are responsible for purchasing your own insurance policies and/or taking other safety measures.
6.8 Broadcaster Service Fee Payment
(a) The amount of your Broadcaster Service Fee shall be assessed and notified to you at the beginning of each month (“Notification Date”). You must raise any enquiry or dispute concerning the amount of the Broadcaster Service Fee to us within five (5) business days from the Notification Date. If you do not raise any dispute or enquiry before this time, then the amount of the Broadcaster Service Fee is deemed correct and accepted by you. Your payment of Broadcaster Service Fee will be processed and sent to you in arrears every month.
(b) All payments due under this Terms of Service will be calculated in U.S. Dollars and paid out to you in U.S. Dollars unless the Parties agree to use a currency other than U.S. Dollars. Conversion of U.S. Dollars to other currencies shall be made at the applicable foreign exchange rate as determined by the Company with reference to an internationally recognized financial institution.
(c) Fines imposed on you in accordance to this Terms of Service are to be deducted from any Broadcaster Service Fee payment owed to you on a monthly basis or from any other period at the Company’s sole discretion.
(d)The payment of Broadcaster Service Fee is to be made by wire transfer, cheque or any other means agreed by both Parties.
(e)All banking and handling charges are borne by both the Agent and the Broadcaster, where both parties shall determine the proportions thereof through amicable negotiation.
7.1 For the purpose of these TS, an “ Force Majeure Event” means any circumstance not within the reasonable control of the Party affected, but only if and to the extent that (i) such circumstance, despite the exercise of reasonable diligence, cannot be, or be caused to be, prevented, avoided or removed by such Party, and (ii) such circumstance materially and adversely affects the ability of the Party to perform its obligations under these TS, and such Party has taken all reasonable precautions, due care and reasonable alternative measures in order to avoid the effect of such event on the Party’s ability to perform its obligations under this Terms of Service and to mitigate the consequences thereof.
7.2 Neither Party shall be considered in breach of these TS to the extent that performance of their respective obligations (excluding payment obligations) is prevented by an Force Majeure Event that arises after the effective date.
7.3 The Party (the “Affected Party”) prevented from carrying out its obligations hereunder shall give notice to the other Party of an Force Majeure Event upon it being foreseen by, or becoming known to, the Affected Party.
7.4 If and to the extent that the Broadcaster is prevented from executing the Services by the Force Majeure Event, while the Broadcaster is so prevented, then he/she shall be relieved of its obligations to provide the Services but shall endeavour to continue to perform his/her obligations under these TS so far as reasonably practicable, PROVIDED that if and to the extent that the Broadcaster incurs additional Cost in so doing, the Broadcaster shall be entitled to the amount of such Cost COST BEING DEFINED AS HAVING NO PROFIT COMPONENT (the Broadcaster having taken reasonable steps to mitigate the Cost)].
7.5 If a Party wishes to claim protection in respect of a Force Majeure Event, it shall, as soon as possible following the occurrence or within 3 Business Days (which ever is earliest), notify the other Party of the nature and expected duration of such Force Majeure Event and shall thereafter keep the other Party informed until such time as it is able to perform its obligations. The Parties shall use their reasonable endeavours to:
(i) overcome the effects of the Force Majeure Event;
(ii) mitigate the effect of any delay occasioned by any Force Majeure Event, including by recourse to alternative mutually acceptable (which acceptance shall not be unreasonably withheld by either Party) sources of services, equipment and materials; and
(iii) ensure resumption of normal performance of these TS as soon as reasonably practicable and shall perform their obligations to the maximum extent practicable, provided that neither Party shall be obliged to settle any strike, lock out, work stoppage, labour dispute or such other industrial action by its employees.
8.1 You acknowledge that we have invested substantial time, money and resources in the development and retention of our members and Confidential Information. You acknowledge and agree that any and all goodwill associated with any member belongs exclusively to us. The Broadcaster further agrees that it shall not attempt to start or start business in competition with that of ours any time during the subsistence of these TS or within the one (1) year immediately subsequent to termination of your Account by whatsoever reason.
8.2 You acknowledge that there is no exclusivity granted, expressly or impliedly, in your favor geographically or any of your Services being offered or to be offered to us, nor there is any limitation as to the number of Broadcasters that we may contract with.
8.3 You acknowledge that neither you nor the Broadcasters are not guaranteed a minimum amount of business or Broadcaster Service Fee under this Terms of Service whatsoever.
8.4 You agree that we may suspend or terminate your Account at any time, without prior notice or refund to you, and without affecting any of our accrued rights or claims, where we reasonably believe that you are in breach of this Clause 8.
9.1 The term “Confidential Information” means all business or technical information of the Company, whether it is received, accessed or viewed by the recipient in writing, visually, electronically or orally. Confidential Information shall include, without limitation, technical information, marketing and business plans, databases, specifications, formulations, sketches, models, drawings, computer software (source and object codes), identity of or details of Members, knowhow and trade secrets. Notwithstanding the foregoing, any information disclosed by the Parties will be considered Confidential Information of the Company, only if such information (a) is conspicuously designated as “Confidential” or “Proprietary “or would reasonably be regarded as being of a confidential nature, or (b) if provided orally or visually, is identified as confidential at the time of disclosure, or would reasonably be regarded as being of a confidential nature.
9.2 The Broadcaster agrees that he/she will hold the Company’s Confidential Information in strict confidence and use the same degree of care in protecting the confidentiality of the Company’s Confidential Information that it uses to protect its own Confidential Information of like importance, but in no event less than reasonable care. In addition, the Broadcaster agrees that he/she shall: (a) not use the Confidential Information for any purpose except for the intended purpose as imposed by the Company; (b) return or destroy the Confidential Information, and all other copies thereof, and all abstracts, summaries and documents produced using the Confidential Information and all copies thereof to the Company upon request; (c) not copy any part of the Confidential Information or disclose any part of the Confidential Information to any person or entity other than its employees, agents and representatives who require the information to perform their duties in connection with the terms of this Terms of Service; and (d) take reasonable steps to assure that no such employee, agent or representative uses or discloses any part of the Confidential Information in violation of the terms of this Terms of Service and be responsible for any violation thereof by such persons.
9.3 Should the Broadcaster become legally compelled to disclose any part of the Confidential Information in connection with any legal proceeding, the Broadcaster shall give the Company prompt notice of that fact, including in its notice the legal basis for the required disclosure and the nature of the Confidential Information to be disclosed. The Broadcaster shall cooperate fully with the Company in obtaining a protective order or other appropriate means of protection relating to the disclosure and subsequent use of the Confidential Information. The Broadcaster acknowledges that it shall only disclose the portion of the Confidential Information that is legally required to be disclosed.
9.4 The provisions of this Clause 9 shall survive any termination of this Terms of Service.
10.1 You agree that we may, without prior notice, immediately terminate, limit your access to or suspend your Account, any associated email address, and access to the Website. Causes for such termination, limitation of access or suspension may include but not be limited to (a) breaches or violations of these TS or other incorporated agreements, guidelines, rules, practice or procedures committed by you or Broadcasters, (b) requests by law enforcement or other government agencies, (c) discontinuance or material modification to your organization as a Broadcaster, (d) unexpected technical or security issues or problems, (e) engagement by you or your officers or the Broadcasters in fraudulent or illegal activities related or unrelated to this Cooperation, (f) your disclosure of any confidential / proprietary information relating to the Company’s websites or otherwise than in accordance with these TS. If you cease to upload any Content or engage in Broadcasting on the Company’s Platform for 60 consecutive days, the Company reserves the right to terminate your Account without further notification. Further, you agree that all terminations, limitations of access and suspensions for cause shall be made in our sole discretion and that we shall not be liable to you or any third party for any termination of your Account, any associated email address, or access to your Services.
Termination of your Account includes any or all of the following: (a) removal of access to the Company’s Platform and websites, and (b) deletion of your password and all related information, files ,Content and LiveCast associated with your Account (or any part thereof).
10.2 You agree to indemnify and hold us and our subsidiaries, affiliates, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your violation of these TS, or your violation of any rights of another, either: (a) Where any damage/loss arises out of or in connection with illegal activities and/or copyright infringement you conducted through your Services; (b) Where we reasonably believe that you adopted deceptive, misleading or unfair practices or similar tactics in obtaining Broadcaster qualification from us; (c) Where deceptive or misleading practices are found in your providing your Services; (d) For frequent complaints from members or poor quality service, you having been given timely notice of such complaints and having been given the
opportunity to address the issues which are the subject of such complaints; (e) Where your Account becomes inactive for an extended period or ceases to carry on business; (f) Where a bribe is paid by you or your officers to our staff members, management members or executive officers; (g) Where you attempt to obtain our Confidential Information by whatsoever means, which information is generally not known to the public and which is not related to your daily business as a Broadcaster; (h) Your willful and continued failure to substantially perform the reasonably assigned duties by us; (i) Your willful misconduct which is materially and demonstrably injurious to us; (j) Whether directly or indirectly, your charging practice to members is materially and demonstrably injurious to us; and (k) Where breaches or violations of these TS or other incorporated agreements or guidelines, rules, practice or procedure are found.
10.3 Post termination of your Account with or without cause, you undertake to make every endeavor with us for an orderly settlement of all outstanding operational, business & legal issues. In default of your such undertaking, your irrevocably authorize us to withhold or deduct all of the fees payable to you by way of security and to further pursue after you for compensation thus arising.
10.4 To protect the interest of the members, we will take all necessary actions to ensure that members can still enjoy the Services by, including but not limited to, assigning the uncompleted Services to other Broadcaster(s).
10.5 The contractual right to terminate set out herein is without prejudice to any other rights which the parties may have to terminate whether at Common Law or by statute or otherwise.
11.1 You shall be at all times compliant with the requirements of the Personal Data (Privacy) Ordinance (Chapter 486) (“Ordinance”) laws of Hong Kong and our Privacy Policy when accessing our members’ registration data and other information. We are committed to safeguarding the privacy of individuals with respect to personal data.
11.2 Security of Personal Data
Your contact information containing telephone number, address and email (“Contact Information”) are stored, maintained, transacted under security measures. Access to Contact Information is strictly controlled and requires appropriate management authorization. The Company never sells, shares, transfers your Contact Information to any other third parties unless you specifically ask us to do so.
Should a security breach occur we would endeavor to react as fast as possible to remedy the problem. However we cannot assume responsibility for member details compromised in the unlikely event of a security breach.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
NOTHING IN THESE TERMS SHALL EXCLUDE OR LIMIT OUR WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF Terms of Service OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, ONLY THE LIMITATIONS WHICH ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
You acknowledge and agree that any necessary software used in connection with your Services (“Software”) contain proprietary and confidential information that is protected by applicable intellectual property and other laws. You further acknowledge and agree that Content and LiveCast contained in advertisements or information presented to you through your Services or by advertisers is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws.
To the maximum extent permitted by applicable law, you agree to indemnify and hold us harmless from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) your use of and access to the Service; (ii) your violation of any term of this Terms of Service; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that your Content and/or LiveCast caused damage to a third party. This defense and indemnification obligation will survive this Terms of Service and your use of the Service.
We may change these TS at any time. You can review the most current version of these TS by clicking on the hypertext link located at the bottom of our websites. You are responsible for checking these terms periodically for changes. If you continue to provide your Services after we post changes to these TS with notification to you, you signify your acceptance of the new terms.
16.1 These TS constitute the entire Terms of Service between you and us, superseding any prior version of Terms of Service between you and us. You also may be subject to additional terms and conditions that may apply when you use or purchase third party service, content or software.
16.2 You and us each agree that these TS and the relationship between the parties shall be exclusively governed by the laws of the Hong Kong Special Administrative Region and that any and all claims, causes of action or disputes arising out of or relating to these TS, or the relationship between you and us, shall be resolved exclusively in the Courts of Hong Kong Special Administrative Region. You and us irrevocably agree to submit to the jurisdiction of the courts located within Hong Kong Special Administrative Region, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts by reason of “forum non conveniens”.
16.3 Our failure, if any, to exercise or enforce any right or provision of these TS shall not constitute a waiver of such right or provision. If any provision of these TS is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these TS shall remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to these TS must be filed within one (1) year after such claim or cause of action arose whichever is the earlier, or it will be forever barred.