Live streaming is an emerging e-commerce model in which streamers display and recommend products to users through live streaming, thereby boosting sales. The live streaming fee refers to the remuneration charged by the anchor for the live streaming, which is generally related to factors such as the duration of the live broadcast, the number of people, and sales. So if the live broadcast fails to complete the sales target, is it a breach of contract, and can the delivery agency be required to refund the live broadcast delivery fee?
OneBrief facts of the case
On May 12, 2021, Company Q (Party A) and Company T (Party B) signed the "** Live Broadcast Promotion Service Agreement", stipulating that: Party B will provide Party A with live broadcast promotion services, and the live broadcast promotion service fee is 100,000 yuan; The target sales volume is 500,000 yuan, and the sales volume that should be achieved within 2-3 months from Party B's receipt of the service fee paid by Party A is 500,000 yuan; Party B matches the anchor to bring goods according to the characteristics of Party A's products, and arranges the first live broadcast within 7-20 days after receiving the service fee, contract procedures and other product-related materials paid by Party A. If all the live streaming arranged by Party B within 2-3 months fails to reach the actual sales volume of 500,000 yuan, Party B shall decide the number of rebroadcast sessions according to the sales volumeParty A ensures that the live broadcast of the products participating in this event is the lowest price in the whole network and history, etc.
After the contract was signed, Company Q transferred 30,900 yuan to Company T on May 14. However, by the expiration date of August 12, 2021, the sales volume of Company T was less than 10,000 yuan, which was far from the sales volume of 500,000 yuan agreed in the contract.
Company Q filed a lawsuit with the court of first instance requesting that:1Company T refunded 30,900 yuan to Company Q; 2.Company T paid liquidated damages of RMB 3,000 to Company Q; 3.The litigation costs, preservation fees, attorney fees, and travel expenses in this case shall be borne by Company T.
2. The Court's decision
The court of first instance rejected all of Company Q's claims.
Dissatisfied, Company Q appealed, and the court of second instance upheld the original judgment.
IIIThe court held that
The court held that the focus of the dispute in this case was whether Company T should refund the corresponding amount and pay liquidated damages to Company Q. As to the key issues in dispute in this case, this court analyzed and determined as follows:
First of all, from the contract involved in the case 12. It can be seen that Company T should pay 100,000 yuan for Company Q to complete the sales volume of 500,000 yuan, and on the basis of 20 sessions, while Company Q is currently only paying the first payment, and the failure to complete the sales volume of 500,000 yuan cannot be fully attributed to Company T.
Second, Company T asserted that it had completed 8 live broadcasts for Company Q, while Company Q confirmed that it had completed 5 live broadcasts, and that the number of live broadcasts of Company T had basically met the schedule of live broadcasts after the first payment. Although the cumulative sales amount did not exceed 10,000 yuan and did not reach the sales target, Company T had made up the field in accordance with the contract and expressed its willingness to make up the field many times during the communication between the two parties. Company Q and Company T failed to achieve a sales volume of 500,000 yuan for live streaming, and Company T did contact Company Q to propose to rebroadcast the sales, but Company Q refused.
According to the available evidence, the non-compliance of sales cannot be fully attributed to Company T, and Company T has also taken remedial measures, and it is not a breach of contract of intentional breach of contract or negligence in performing its contractual obligations, and Company T has completed at least 5 live broadcasts. The dismissal of travel expenses on insufficient grounds was not improper and was upheld by this court.
Fourth, case analysis
The focus of this case mainly revolves around the issue of whether Company T should refund the corresponding amount and pay liquidated damages to Company Q.
According to the contract mentioned in the case, Company T should receive a payment of RMB 100,000 from Company Q after completing the sales volume of RMB 500,000. However, Company Q only made the first payment. The Court held that Company T was not solely attributable to Company T for failing to meet the sales target.
Regarding the reasons for the failure to meet the sales target, the court pointed out that there may be a variety of reasons for the failure of product sales to meet the standard, and the product live broadcast ** provided by Company Q is not necessarily the lowest price on the whole network. The Court held that the sales disparity could not be fully attributable to Company T, especially since Company T had taken some remedial measures
At the same time, the court clearly pointed out that Company T had not deliberately breached the contract or neglected to perform its contractual obligations. However, Company Q's claim for breach of contract and demand for full refund of service fees and payment of liquidated damages were not justified under the court's findings.
FiveConclusion
Whether the live broadcast fails to complete the sales target is a breach of contract, and whether it can request a refund of the live broadcast delivery fee depends on the contract between the two parties and the actual performance of the contract. Therefore, before signing a contract, both parties should be clear about their identity, rights and obligations to avoid disputes in the future. In the performance of the contract, it is necessary to perform in accordance with the contract to avoid breach of contract.