Affiliate Agreement

This Agreement ("Agreement") is made between Talentsbay Sdn Bhd (932119-T) ("Talentsbay") and you ("Affiliate").

Terms and Conditions

In consideration of the promises set forth below, we agree as follows:

IMPORTANT-READ CAREFULLY: THIS AFFILIATE AGREEMENT ("AGREEMENT"), IS A LEGAL AGREEMENT BETWEEN YOU AND TALENTSBAY FOR PARTICIPATION IN TALENTSBAY'S AFFILIATE PROGRAM ("PROGRAM"). BY REGISTERING FOR AND PARTICIPATING IN THE PROGRAM, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, THE TERMS OF USE AND OUR PRIVACY POLICY. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THE TERMS OF USE AND/OR OUR PRIVACY POLICY, DO NOT REGISTER FOR OR PARTICIPATE IN THE PROGRAM. IF YOU DO NOT AGREE TO AND ACCEPT THE TERMS OF THIS AGREEMENT IN ITS ENTIRETY, IMMEDIATELY TERMINATE ALL USES OF TALENTSBAY'S MARKS AND ANY LINKS TO TALENTSBAY'S WEBSITE.

1. Participation in the Program

This agreement governs participation in the Talentsbay’s Affiliate Program ("Program") only. The Affiliate must fill out the registration form with current, complete, and accurate information. If there is a need to update this information, the Affiliate should contact Talentsbay and inform about the change(s). Talentsbay can be reached via email at [email protected]. Participation in the Program is free. You should note that if you are accepted to participate in the Program and we thereafter determine, at our sole discretion, that you are unsuitable, based on the criteria below for the Program, we may terminate this Agreement and the Affiliate’s participation in the Program, and forfeit all outstanding Affiliate Commissions/credits purchased:

• Providing false information in the registration form will result in immediate termination from the Program and Talentsbay will forfeit all outstanding Affiliate Commissions/credits purchased;
• Talentsbay reserves, at its sole discretion, the right to refuse to anyone participation in the Program at any time. Talentsbay also reserves the right to refuse Affiliates from certain countries that have a track record of originating credit card fraud;
• Any attempt to artificially inflate Affiliate Commissions/credits purchased will result in immediate termination of this Agreement, termination of Affiliate’s participation in the Program and forfeiture of all outstanding Affiliate Commissions/credits purchased;
• Promoting graphic violence (which may include certain types of game sites);
• Promoting discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
• Promoting sexually explicit, pornographic or obscene content (whether in text or graphics);
• Promoting illegal activities;
• Including "Talentsbay" or variations or misspellings thereof in your domain names;
• Promoting content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethnically or otherwise objectionable;
• Promoting or using bulk unsolicited email (spam);
• Promoting speech or images that are offensive, profane, hateful, threatening, harmful, defamatory, libellous, harassing or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability or otherwise);
• Promoting content related to liquor, tobacco, firearms, drugs, gambling, crime or death;
• Promoting politically sensitive or controversial issues (e.g. abortion, capital punishment) or other political content (e.g. lobbyists, political campaigns);
• Promoting any unlawful behaviour or conduct; or
• any thing which is considered offensive or inappropriate at Talentsbay's sole discretion.

2. Definitions

2.1. “Affiliate” or “You” means a person or an entity that has registered with the Program.

2.2. “Candidate” means the job applicant or a 3rd party referral.

2.3. “Job Advertisers” mean recruitment agents or potential employers who post job advertisements on Talentsbay’s site

2.4. "Site" means a World Wide Web Site and, depending on the context, includes Talentsbay Site.

2.5 "We" or “Us” or “Talentsbay” means Talentsbay Sdn Bhd.

3. Affiliate Responsibilities/Benefits

3.1. The Affiliate agrees:

a) to only provide the Candidate’s name, contact number, email address and a short description explaining the relevance and suitability of the Candidate for the Job advertised on Talentsbay Site. Any other information on the Candidate, including the Curriculum Vitae and/or Resume and/or financial information, etc shall NOT be uploaded or submitted to Talentsbay’s Site;

b) to be responsible for all information submitted and all information submitted is true, accurate and current;

c) to allow Talentsbay a royalty free, perpetual, irrevocable, non-exclusive licence and right to use, reproduce, modify, copy and translate the information submitted and to display the contents on Talentbay’s Site;

d) that Talentsbay is not involved in the actual transaction between the Job Advertiser and the Candidate;

e) to consider carefully and reasonably the offer or counter-offer from the Job Advertisers, and thereby accept, reject or to make a one-time counter offer against the offer/ counter-offer made by the Job Advertiser within a reasonable time;

f) to a 14-day exclusive right to represent the Candidate if the Affiliate is the first to post the Candidate to the Job Advertiser;

g) to receive commercial information about the Program and Talentsbay’s promotions;

h) that participation in the Program is at the Affiliate’s sole risk;

i) that trademarks and other materials, in particular, but not limited to, the marketing materials, are the property of Talentsbay and may be used by the Affiliate for promotion of Talentsbay in relation to the Program only;

j) to be responsible for all taxes and other similar levies applicable to the Affiliate Commissions pursuant to any law or regulation;

k) to provide Talentsbay, with current, full and accurate details or documents within two (2) days from the initial request, should Talentsbay be responsible for the provision of such documents or details to any relevant authorities under any law or regulation;

l) to represent and warrant to Talentsbay that this Agreement has been duly and validly accepted and constitutes a legal obligation, enforceable with the terms of this Agreement when the Affiliate clicks on the “I AGREE” tab, and shall form as the Affiliate’s agreement to be bound by this Agreement on this visit and on subsequent visits, even though the Affiliate is not expressly requested to agree on every log in;

m) not to send unsolicited e-mail and shall not send e-mail nor any other communication to a recipient if the recipient has not expressed his or her prior consent;

n) to acknowledge and clearly identify and respect that all proprietary information, trademarks, copyrights and all other similar rights in and arising out of Talentsbay are, and shall continue to be, the exclusive property of Talentsbay;

o) to maintain confidentiality of password and user-id, and to inform Talentsbay of any unauthorised use of password and user-id;

p) that his or her participation in the Program is subject to all applicable national, international, state, and local laws and any and all applicable regulations, including those stipulated in the Terms of use, the Privacy Policy and this Agreement;

q) not to approach Job Advertisers directly for the purpose of referring a Candidate outside of the Talentsbay platform while you remain valid Users. In the event of such approach, Talentsbay reserves the right to take all and any action against you and in the event there is any credit (whether earned or purchased) in your account with Talentsbay, the same shall be confiscated and your memberships shall be terminated.

r) that the Affiliate shall not provide, promote or make available any content on Talentsbay Site that:

i) is unlawful, threatening, abusive, harassing, defamatory, obscene, libellous, slanderous, deceptive, fraudulent, invasive of another person's privacy, tortuous, or otherwise violates Talentsbay's rules or policies;

ii) victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability;

iii) associates any content broadcasted through Talentsbay with pornography, adult related material, child pornography, bigotry, racism, hatred, profanity, mail fraud, or any material which may be insulting to another person or company;

iv) infringes on any patent, trademark, trade secret, copyright, right of publicity, or other proprietary right of any party, including, but not limited to, unauthorized copying and posting pictures, logos, software, articles, musical works and videos;

v) contains harmful content, including, without limitation, software viruses, Trojan horses, worms, time bombs, cancel bots, spy-ware, or any other files, software programs, or technology that is designed or intended to disrupt, damage, surreptitiously intercept or expropriate services or any system, program, data or personal information, or limit the functioning of any software, hardware, or equipment or to damage or obtain unauthorized access to any data or other information of any third party;

vi) impersonates any person or entity, including any of our employees or representatives;

vii) violates any law, statute, ordinance, or regulation including, without limitation, those governing consumer protection, Internet tobacco sales, unfair competition, anti-discrimination or false advertising;

viii) offers or disseminates fraudulent goods, services, schemes, or promotions (e.g. make money fast schemes, chain letters, pyramid schemes) or engage in any unfair deceptive act or practice;

ix) is associated with any form of gambling or lottery type services;

x) is associated with any form of adult, sexually oriented, or obscene materials or services, including without limitation, any material clearly designed to sexually arouse the viewer/reader (e.g. books, text, photos, videos, X-rated movies, pornographic materials, etc.), any materials which require individuals to be eighteen (18) or older to view or purchase those materials, escort services, and adult websites;

xi) is associated with the sale of any controlled drug that requires a prescription from a licensed practitioner; or any over-the-counter drug, or non-prescription drugs;

xii) is associated with illegal telecommunications or cable television equipment, such as access cards, access card programmers and cable descramblers or filters;

xiii) is associated with weapons of any kind and related items, including firearms, firearm parts and magazines, ammunition, BB and pellet guns, tear gas, stun guns, switchblade knives and martial arts weapons; and

xiv) markets nicotine, nicotine services, services imitating nicotine services, symbols relating to smoking or nicotine, alcohol of any kind, drugs of any kind, services relating to drugs, symbols relating to drugs, the use of drugs of any kind, medical services, medical aid, medical assistance, medicines, video lotteries, cylindrical games, card games, dicing, and automated games, unreasonably show minors in dangerous situations;

3.3. Talentsbay will not, and is not obligated to, make any representations, warranties or other statements concerning you, your Candidate, your Site, any of your products or services, or your Site policies.

3.4. You shall indemnify and hold us harmless from all claims, damages and expenses (including, without limitation, attorney's fees) relating to the information of the Candidate.

4. Affiliate Commissions

As an approved participant of the Program, you may earn commissions for affiliate services in accordance with this Section 4. Talentsbay may change the provisions of this Section 4 at any time and at Talentsbay's sole discretion.

4.1. Talentsbay agrees to pay you the commission specified in this Agreement if your referral is successfully accepted by a Job Advertiser ("Successful Referral"). All commission paid shall be subject to tax, if applicable.

4.2. For each Successful Referral, Talentsbay will pay 70% of the agreed fee between the Affiliate and the Job Advertiser, to the Affiliate as the Affiliate Commission. The determination of a Successful Referral is based on the following:

a) there is an agreed fee between the Affiliate and the Job advertiser; and

b) the Candidate agrees to be contacted by the Job Advertiser through an affirmative confirmation SMS or email sent to Talentsbay by the Candidate; and

c) i) there is no formal complaint lodged by the Job Advertiser on the Candidate’s information as provided by the Affiliate within 7 days of the acceptance of the referred Candidate by the Job Advertiser; or

ii) if there is a formal complaint lodged by the Job Advertiser on the Candidate’s information as provided by the Affiliate within 7 days of the acceptance of the referred Candidate by the Job Advertiser, and the Affiliate subsequently within 3 days from the date of the lodgement of the formal complaint, provide a response which Talentsbay deemed as a satisfactory response.

Talentsbay, at its sole and absolute discretion, shall be the final arbiter of such disputes or complaints, and its decisions shall be final and binding. Formal complaints raised by Job Advertisers shall be limited only to the accuracy of the information or details of the Candidate as provided by the Affiliate.

4.3. Talentsbay shall have the sole right and responsibility for processing all payment of Affiliate Commission.

4.4. All determinations of Successful Referral and whether a commission is payable will be made by Talentsbay and will be final and binding on all parties and Talentsbay may at its sole discretion make a full, partial or no payment of commission as a final resolution to a dispute raised by a Job Advertiser.

4.5. As an independent contractor, you will be solely and entirely responsible for any and all taxes and/or other fees or obligations associated with the receipt of payment under this Agreement.

4.6. The terms and conditions of this Section 4, including the commission amounts, may be changed at any time and for any reason at Talentsbay's sole discretion.

4.7. Payment of Affiliate Commission shall be made within 14 days of a Successful Referral.

4.8. All payment of Affiliate Commission shall be made by way of crediting the Affiliate’s account with Talentsbay.

4.9 An Affiliate may request for the withdrawal or redemption of Affiliate Commission in the Affiliate’s account with Talentsbay via Paypal or Bank transfer and is subject to an administration charge, provided always that the withdrawal or redemption amount exceeds or is equal to the minimum present amount as published on Talentsbay’s Site.

5. Termination

5.1. Either party may terminate this Agreement at any time, for any reason, upon five (5) days prior written notice of such termination to the other party. In addition, Talentsbay.com shall be entitled to terminate this Agreement immediately if you materially breach or violate any terms or conditions of this Agreement, or if Talentsbay.com determines, in its sole discretion, that there are technical, or operational issues (e.g. interruptions caused by or shifts in online/Internet technology) that adversely affect the implementation of the Program, or the orders/referrals were obtained fraudulently, or through misrepresentation, in which case Talentsbay.com reserves the right to withhold payment of Affiliate Commission pending an investigation of the suspected fraud or misrepresentation.

5.2. Upon termination of this Agreement for any reason, you will immediately cease use of Talentsbay’s Site, and remove from your Site, all links to our Site, and all Talentsbay.com trademarks, trade dress and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program.

5.3. You are only eligible to earn commissions on Successful Referrals occurring during the term of this Agreement, and Affiliate Commission earned through the date of termination will remain payable.

6. Representations

NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. TALENTSBAY MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM OR THAT OUR SITE WILL BE UNINTERRUPTED OR ERROR-FREE AND WE WILL NOT BE RESPONSIBLE FOR CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

7. Indemnification

Each party hereby agrees to indemnify, defend and hold harmless the other party and its directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable Solicitors' fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein.

8. Limitation of Liability

In no event will either party be liable to the other party for any direct, indirect, special, exemplary, consequential or incidental damages arising from or related to this Agreement or the Program, even if informed of the possibility of such damages.

9. General

9.1. No Agency. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect, and nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. Neither party shall make any statement, whether on their site or otherwise, that reasonably would contradict anything in the paragraph.

9.2. Responsibility for Binding Agreement. You acknowledge that you have read this Agreement and agree to all its terms and conditions. You understand that we may at any time (directly or indirectly) solicit referrals on terms that may differ from those contained in this Agreement or operate Sites that are similar to or compete with your Site. You have independently evaluated the desirability of participating in the Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.

9.3. Jurisdiction; Venue. This Agreement shall be governed by the laws of Malaysia, without reference to rules governing choice of laws and you irrevocably consent to the jurisdiction of such courts. Talentsbay may freely assign their rights in this Agreement. An Affiliate may not assign Affiliate rights in this Agreement.

9.4. Counterparts. This Agreement may be agreed to in more than one counterpart, each of which together shall form one and the same instrument. The parties agree that execution and manifestation of assent may be achieved in any format convenient to the parties.

9.5. Severability. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.

9.6. Assignment. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent, which may be withheld in our sole discretion. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.

9.7. Equitable Relief. The parties agree that any breach of either of the party's obligations regarding trademarks, service marks or trade names, confidentiality, links or the removal of links, and/or user data may result in irreparable injury for which there may be no adequate remedy at law. Therefore, in the event of any breach or threatened breach of a party's obligations regarding trademarks, service marks or trade names, confidentiality, links or the removal of links, and/or user data, the aggrieved party will be entitled to seek equitable relief in addition to its other available legal remedies in a court of competent jurisdiction.

9.8. Obligation to Mediate in Good Faith. Except as provided in this Section 9.7, before either party initiates a lawsuit against the other relating to this Agreement, the parties agree to mediate all disputes and claims arising out of or relating to this Agreement, the parties' performance under it, or its breach. To this end, either party may request, after informal discussions have failed to resolve a dispute or claim, that each party designate an officer or other management employee with authority to bind the party to meet in good faith and attempt to resolve the dispute or claim through mediation. During their discussions, each party will honour the other's reasonable requests for information that is not privileged and relates to the dispute or claim. This Section does not apply (i) should the expiration of the statute of limitations for a cause of action be imminent, or (ii) if a party is seeking an injunction pursuant to Section 9.7.

9.9. Force Majeure. You acknowledge that Talentsbay's servers, equipment, and services (e.g. tracking and reporting) may be subject to temporary modifications or shutdowns due to causes beyond Talentsbay's reasonable control. Such temporary service interruptions will not constitute a material breach of this Agreement. Talentsbay will use commercially reasonable efforts to provide the services contemplated under this Agreement and to remedy any temporary interruptions or other problems that adversely affect the Program.

9.10. Legal Fees. In the event any action is commenced to construe or enforce any provision of this Agreement, the prevailing party, in addition to all other amounts such party is be entitled to receive from the other party, will be entitled to receive its reasonable legal fees and costs incurred in bringing such action.

9.11. Survival. Sections 5 (Termination), 7 (Indemnification), 8 (Limitation of Liability), and 9 (General), including all subsections thereof, shall survive the termination of this Agreement.

9.12. Modifications. We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on the Talentsbay Site. Modifications may include, for example, changes in the scope of Affiliate commission, payment procedures, and Program. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.