10 INDEMNIFICATION
10.1 Participant shall indemnify and hold harmless Inboostr Group, its affiliates, and each of their respective officers, directors, employees, and agents from and against any claim, action, liabilities, losses, damages, demands, obligation, debt, cost, and expense (including reasonable legal fees, costs and expenses), suffered or incurred directly or indirectly by Inboostr Group arising from or related to: (i) Participant’s breach of this Agreement; (ii) any infringement or violation of third-party rights, including rights of intellectual property, privacy, or confidentiality with respect to the Content or Participant’s involvement in any Campaign; (iii) breach of any representations, warranties, and obligations under this Agreement by Participant; (iv) any negligent act or omission or willful misconduct of Participant; (v) any damage or loss to any Studio (or any equipment contained therein) resulting from any act or omission of Participant in connection with its use of such Studio; and (vi) the purchase of product through Participant’s involvement in any Campaign.
(a) Client Indemnity. Client shall indemnify, defend, and hold harmless Inboostr, its parents, subsidiaries, and affiliated companies, and its and their respective employees, officers, directors, shareholders, and agents (each an “Inboostr Indemnitee”) from and against any and all Loss incurred by an Inboostr Indemnitee based upon or arising out of any third-party claim, allegation, demand, suit, or proceeding (each, a “Claim”) made or brought against any Inboostr Indemnitee with respect to any advertising, branding, research or other products or services which Inboostr prepared or performed for Client hereunder to the extent that such Claim relates, in whole or substantial part, to: (i) the inaccuracy of any information supplied by Client or its agents to Inboostr including, without limitation, information concerning Client’s products and services, the products or services of Client’s competitors or Client’s product or service category; (ii) the use of any marketing, branding, research, advertising, packaging, trademark, software, hardware or other materials, or components thereof, furnished by Client or its agents to Inboostr to be included in any Materials or media placements; (iii) the use of any materials or data provided or created by Inboostr and changed by Client or its agents or used in a manner
different from that agreed by the parties; (iv) risks or restrictions known by Client where Client nonetheless elected to proceed; (v) death, personal injury, or product liability (including health and safety) claims or actions arising from the use of Client’s products and services; (vi) the unauthorized or improper use of Materials or the Marks by Client, Client’s designees, licensees, distributors, franchisees or Client Affiliates; (vii) claims brought by Client’s employees for employment discrimination, other employment or labor disputes, breach of contract, personal injury or other civil law matters, or claims brought by those parties with whom Client has a contractual or supplier relationship; (viii) allegations of patent, trademark or trade dress infringement or any other violation of a patent, trademark or trade dress right; (ix) any material breach of the terms of this Agreement by, or any act of omission of, Client or its agents or employees relating to media commitments made by Inboostr pursuant to Client’s approval as provided for herein; and (x) the negligence, gross negligence, bad faith, or intentional or willful misconduct of Client or its employees, agents or Client Affiliates.
(b) Inboostr Indemnity. Excluding claims covered by Section 11(a), Inboostr shall indemnify, defend, and hold harmless Client, the Client Affiliates, and their respective employees, members, managers, officers, directors, shareholders, and agents (each a “Client Indemnitee”) from and against any and all Loss incurred by a Client Indemnitee based upon or arising out of any Claim made or brought against Client arising out of the production or dissemination of materials produced hereunder that involve (i) libel, slander, defamation, copyright infringement, right of publicity and/or invasion of right of privacy arising out of work created by Inboostr and in final form (i.e., ready to be disseminated to the public); or (ii) damage to or destruction of personal property, injury to or death of any person directly attributable to or arising out of Inboostr’s negligence or willful misconduct in connection with the performance of the Services hereunder.
(c) Third Party Investigations of Client. In addition, Client shall reimburse Inboostr for all costs and expenses (including reasonable attorneys’ fees and costs) incurred by Inboostr resulting from any third-party investigation of the acts or practices of Client including, without limitation, any costs or expenses related to compliance with any third party subpoena or other discovery request. Should Inboostr be served with a third party subpoena in connection with Services it performed for Client, Inboostr shall promptly advise Client and consult with Client regarding Inboostr’s response to the subpoena to the extent the subpoena seeks Client data, documents, or information pertaining to Client so that Client may have an opportunity to seek appropriate relief.
(d) Notification of Claims. A party entitled to be indemnified pursuant to this Section 12 (the “Indemnified Party”) shall provide prompt written notice to the party liable for such indemnification (the “Indemnifying Party”) of any claim or demand which the Indemnified Party has determined has given or could give rise to a right of indemnification under this Agreement. The Indemnifying Party shall promptly undertake to discharge its obligations hereunder. Additionally, the Indemnifying Party shall employ counsel reasonably acceptable to the Indemnified Party to defend any such claim or demand asserted against the Indemnified Party. The Indemnified Party shall have the right to participate in the defense of any such claim or demand at its own expense. The Indemnified Party shall cooperate with the Indemnifying Party in any such defense. In addition, the Indemnified Party shall at all times have the right to fully participate in any settlement which it reasonably believes would have an adverse effect on its business, but the Indemnified Party shall not make any settlement of any Claims that might give rise to liability of the Indemnifying Party without the prior written consent of the Indemnifying Party. The Indemnified Party shall make available to the Indemnifying Party or its agents all records and other materials in the Indemnified Party’s possession reasonably required by it for its use in contesting any third party claim or demand.
11 LIMITATION OF LIABILITY
11.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE INBOOSTR GROUP BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, STATUTORY, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR OTHER SPECIAL DAMAGES EVEN IF INBOOSTR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE, FOR FRAUD, OR FOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED BY APPLICABLE LAW.
11.3 SUBJECT TO CLAUSE 11.2, INBOOSTR’S AGGREGATE LIABILITY FOR CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, MISREPRESENTATION OR OTHERWISE, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID TO THE PARTICIPANT FOR THE SERVICES.
11.4 INBOOSTR SHALL NOT BE LIABLE, IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER FORM OF ACTION FOR: (I) ANY LOSS, DAMAGE, OR INJURY RESULTING FROM YOU ENTERING A CAMPAIGN OR YOUR ACCEPTANCE AND/USE OF ANY INCENTIVE, OR FOR TECHNICAL, HARDWARE OR SOFTWARE FAILURES, LOST, FAULTY OR UNAVAILABLE NETWORK CONNECTIONS OR DIFFICULTIES OF ANY KIND THAT MAY LIMIT OR PROHIBIT YOUR ABILITY TO ENTER A CAMPAIGN; (II) ANY LOSS OR DAMAGE, HOWSOEVER AND BY WHOMSOEVER CAUSED, OF OR TO PARTICIPANT’S PROPERTY SUSTAINED AT, OR WHILST IN TRANSIT TO OR FROM, ANY STUDIO; OR (III) (TO THE EXTENT PERMITTED BY LAW) ANY PERSONAL INJURY, AILMENT OR DEATH ARISING OUT OF OR IN THE COURSE OF PARTICIPANT’S PROVISION OF THE SERVICES AT ANY STUDIO.
11.5 LIMITATION OF LIABILITY. EXCLUDING INDEMNIFICATION OBLIGATIONS OR DAMAGES ARISING FROM BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, FOR ANY LOST PROFITS (excluding direct damages for Inboostr’s anticipated fees), BUSINESS INTERRUPTION, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LIABILITY, NOR SHALL INBOOSTR’S AGGREGATE LIABILITY FOR ANY OTHER DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE REVENUE PAID BY CLIENT TO INBOOSTR IN ACCORDANCE WITH THE APPLICABLE SERVICES.
12 TERM AND TERMINATION
12.1 Term. This Agreement shall continue until terminated in accordance with its terms.
12.2 Termination for Convenience.
12.2.1 Inboostr may suspend or terminate this Agreement, or any associated Campaign, for any reason at any time on giving the Participant written notice.
12.2.2 Client may terminate this Agreement at any time on giving Inboostr no less than 30 days’ written notice.
12.3 Termination for Cause. Inboostr may terminate this Agreement with immediate effect upon written notice to Participant if:
12.3.1 Client is in material breach of this Agreement (as determined in Inboostr’s sole discretion); and
12.3.2 Client has at any time (whether during or prior to the Term) (i) committed a crime; or (ii) been involved in any situation or activity which: (a) tends in the reasonable opinion of Inboostr to have a negative effect on the reputation of Inboostr or any aspect of their businesses; (b) would expose Inboostr or any aspect of their businesses to disrepute, scandal, ridicule or contempt, or would tend to shock, insult or offend the public, such as but not limited to, posting or publishing on social media or elsewhere of any content that promotes bigotry, racism, violence or discrimination based on race, gender, religion, nationality, disability, sexual orientation or age, or the use of, trade in, or other association with, illegal drugs; or (c) reflects unfavorably on the reputation of Inboostr, brands, products or services. Such conduct shall be deemed a material breach and, unless Inboostr determines otherwise, shall be deemed an incurable material breach. Inboostr’s decision on all matters arising under this clause 12.3.2 shall be conclusive and at its sole discretion.
12.4 Upon termination of this Agreement for any reason, the Client acknowledges and agrees that Inboostr shall not be obliged to provide Participant with any Fee unless all the Participant Requirements have been met in full at the date of termination or expiry and Participant has complied with all the terms set forth in this Agreement.
12.5 Following termination of this Agreement, the Client acknowledges and agrees that it may be required to delete all or part of the Content (including any of the Content that may not be on the Inboostr Platform such as, but limited to, any other social media channels) requested by Inboostr.
12.6 Following termination of this Agreement, the Client acknowledges and agrees Inboostr may delete all or part of the Content (including any of the Content that may not be on the Inboostr Platform such as, but limited to, any other social media channels) created by Inboostr during its terms of service, including work and content done through Inboostr affiliates and partners.
12.7 Effect of Termination. Client shall pay Inboostr for all services rendered and work performed up to the effective date of termination. Accordingly, Inboostr will send to Client a final bill for the last month of service prorated by the number of days of service for the respective month prior to termination. Client shall pay the invoice within five (5) days of receipt.
12.8 Return of Proprietary or Confidential Information. Within ten (10) days after the termination or expiration of this Agreement, each party shall return to the other all Proprietary or Confidential Information (defined below) of the other party (and any copies thereof) in the party’s possession or, with the approval of the party, destroy all such Proprietary or Confidential Information.
12.9 Kill Fee: Inboostr may impose a Kill-Fee of monetary value determined mutually by Client and Inboostr, under mutually agreed upon terms and rates.
13 USE OF THIRD-PARTIES
13.1 With the exception of Agents, all Services must be provided by Participant directly, unless pre-approved by Inboostr in writing. If any Participant engages third-parties for the procurement of Services, including CAPs, such Participant will: (i) be fully liable to Inboostr for any Services provided by such third parties; (ii) remain obligated under this Agreement for providing Services; (iii) require all third-parties to agree in writing to terms consistent with the terms of this Agreement such that CAP is authorized to bind such third-parties to the terms of this Agreement; and (iv) require all third-parties to agree in writing that Inboostr is an intended third-party beneficiary of its agreement with Participant.
14 AGENT-SPECIFIC TERMS
14.1 Agent will enter into separate agreements with any Merchants and/or Creators arising from its provision of the Services. Inboostr is not a party to such agreements between or among TSPs, CAPs, Merchants, and Creators; provided that all such engagements and resulting Services, and the contracts regarding the same, will be subject to any requirements in this Agreement (including but not limited to, the applicable guidelines and rules set forth in Schedules 1 and 2 hereto).
14.2 Agent acknowledges and agrees, and shall procure that any third-parties engaged by Agent (including, without limitation, the Merchants and Creators) acknowledge and agree, that: (i) Inboostr shall have no liability for any claims in relation to any contract between Agent and Merchants, any contract between Agent and Creators, and/or any contract between Merchants and Creators, including regarding a Merchant’s products or services, any call to action and/or other promotional messages that a Merchant requires a Creator include in the Content, or the services performed by a Creator for a Merchant; (ii) Inboostr will not be responsible for any enforcement of any contract between Agent and Merchants or Creators, or between Merchants and Creators; (iii) any Content posted on the Inboostr Platform may be accessible worldwide and, after the term of any contract between Agent and Merchants and Creators has expired, Inboostr is not required to take down or remove Content from the Inboostr Platform; and (iv) Inboostr shall have no liability for a User’s access, retention, use or distribution of the Content after the term of any contract between Agent and Merchants and Creators has terminated or expired.
14.3 Inboostr has no special relationship with or fiduciary duty to Agent or any Creator or Merchant, does not make any representations or warranties of any kind with respect to any Merchant or Creator, nor shall Inboostr be deemed to endorse Agent or any Merchant or Creator. Agent is advised to do its own due diligence on Merchants and Creators and consider seeking legal advice before entering any contract.
14.4 In the event that Agent has a dispute with a Creator or Merchant, Agent agrees, to release Inboostr and each of its Affiliates from claims, demands and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, foreseeable or unforeseeable, arising out of or in any way connected to such disputes with such other parties or to Agent’s use of the Inboostr Platform or in Agent’s offer or provision of or request for Services or Content. Additionally, CAP expressly waives any rights it may have under California Civil Code Section 1542 (or analogous laws of other states), which says: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” Inboostr reserves the right, but has no obligation, to monitor disputes between Agent and Creators and/or Merchants.
14.5 Merchants and Creators may provide links to third-party sites outside of Inboostr. Agent acknowledges and agrees, and shall procure, that any third-parties engaged by Agent (including, without limitation, the Merchants and Creators) acknowledge and agree, that (i) Inboostr shall have no responsibility for any content, services, merchandise or activities on any such third-party site, (ii) Inboostr does not endorse the information contained on any such sites or guarantee their compliance with any applicable law, accuracy, reliability, quality, completeness, fitness, or merchantability, (iii) Inboostr does not endorse or assume responsibility for any product or service advertised or offered by a third party through Tiktok Shop or any hyperlinked services in other advertising, and (iv) since third-party sites and the content on such sites are outside of Inboostr’s control, if it chooses to access any such site, or Merchant- or Creator-information that includes such site, it does so entirely at its own risk.
15 NO OBLIGATION TO USE
15.1 Participant and Inboostr each agree that nothing in this Agreement in any way obligates Inboostr to make use of the Content or the Participant Rights created, provided or made available pursuant to or in connection with this Agreement.
16 ANTI-CORRUPTION LAWS
16.1 The Participant represents, warrants and covenants that (i) Participant is aware of Anti-Corruption Laws and will advise all persons and parties supervised by it of the requirements of Anti-Corruption Laws; (ii) Participant has not and will not, and to its knowledge, no one acting on its behalf has taken or will take any action, directly or indirectly, in violation of Anti-Corruption Laws; (iii) Participant has not and will not cause any party to be in violation of Anti-Corruption Laws; (iv) should Participant learn of, or have reason to know of, any request for payment that is inconsistent with Anti-Corruption Laws, Participant shall immediately notify Inboostr; and (v) Participant is not a “foreign official” as defined under the U.S. Foreign Corrupt Practices Act, does not represent a foreign official, and will not share any fees or other benefits of this Agreement with a foreign official.
17 NOTICES
17.1 All notices under this Agreement shall be in writing and shall be deemed given when sent by email, 24 hours from delivery, if sent to the email address set forth herein (or to such other address as agreed to by the parties from time to time) and provided that an email bounce-back is not received within one (1) hour.
18 ASSIGNMENT
18.1 This Agreement and the Services contemplated hereunder are limited to Participant. The Participant may not assign, transfer or subcontract any of its rights or obligations under this Agreement without the prior written consent of Inboostr. Inboostr may assign, transfer, or subcontract any of its rights or obligations under this Agreement without prior notice or consent to Participant.
19 INDEPENDENT CONTRACTOR
19.1 Neither this Agreement nor Your performance of the Services shall be construed to create or result in any partnership, joint venture, agency, employer-employee, or fiduciary relationship between Participant and Inboostr. Participant understands that this Agreement does not create an exclusive relationship between Participant and Inboostr.
20 PUBLICITY
20.1 Except as set forth in this Agreement, Participant shall not make any comment, announcement, or press release in relation to any Campaign, this Agreement, or Participant’s relationship with Inboostr without the prior written consent of Inboostr. Participant agrees to immediately contact Inboostr if a member of the media contacts Participant about a comment or content relating to any member of the Inboostr Group or Tiktok Shop, or solicits You to make a comment related to any member of the Inboostr Group, Tiktok Shop or Your content. Participant shall not provide any comment to a member of the media regarding any of the foregoing without the prior written consent of Inboostr.
21 SANCTIONS
21.1 Participant represents, warrants, and undertakes that Participant is not an entity:
21.1.1 whose property or interest in property is blocked by any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control or the U.S. Department of State (“Sanctions”); or
21.1.2 residing in a country or territory that is the target of comprehensive Sanctions.
22 SURVIVAL
22.1 Clauses 1, 5, 6, 7, 10, 11, 22, and 25 shall survive termination or expiration of this Agreement, additionally, the rights and obligations of the parties in this Agreement, which, by their nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
23 FORCE MAJEURE
23.1 Inboostr Group is not responsible or considered in breach of this Agreement for any condition, circumstances, losses, failures or delays caused by events beyond its control, including but not limited to: (i) acts or defaults of any supplier selected by Inboostr to provide an incentive or otherwise may cause a Campaign to be disrupted or corrupted, or that may lead to loss or damage of the incentive in transit to the recipient; (ii) acts of god; (iii) governmental actions, (iv) fires, (v) explosions, (vi) labor disputes, (vii) accidents, (viii) a pandemic or epidemic, or (ix) civil disturbances.
24 MISCELLANEOUS
24.1 All of Inboostr’s decisions in relation to a Campaign are final and at its sole discretion including, without limitation, the determination of whether a Livestream, Short Video or any other Content satisfies any requirements set forth in the Program Materials or this Agreement.
24.2 If You produce or attempt to enter a Campaign in a manner, which in Inboostr’s reasonable determination is contrary to this Agreement or by its nature is unjust to other Campaign participants (including without limitation tampering with the operation of a Campaign, cheating, hacking, deception or any other unfair playing practices such as intending to annoy, abuse, threaten or harass any other participants or Inboostr and/or any of its agents or representatives), You may be immediately removed from a Campaign at Inboostr’s sole discretion.
24.3 Without prejudice to any other rights, powers, privileges or remedies that Inboostr may have, Participant acknowledges that any breach of this Agreement may cause irreparable harm to Inboostr, for which damages alone would not be an adequate remedy, and, therefore, Inboostr will be entitled to seek any other remedies (including injunctive relief, specific performance or other equitable relief).
24.4 No amendments, modifications, or waivers to this Agreement will be effective unless in writing and accepted by both parties.
24.5 In the event that any clause of this Agreement shall be determined to be invalid, illegal or unenforceable, that clause will be modified to the minimum extent necessary to make it valid, legal and enforceable and the validity and enforceability of the rest of this Agreement shall otherwise remain unaffected and in full force and effect.
24.6 Any member of the Inboostr Group may enforce the terms of this Agreement.
24.7 This Agreement, the Program Materials, and any terms and policies incorporated by reference, constitute the entire agreement between the parties relating to the subject matter of this Agreement and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
24.8 The failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies.
24.9 The parties agree that English shall be the sole language governing the interpretation of this Agreement and that any notice, as well as all other documents, given under or in connection with these terms shall be in English.
24.10 Where a translation of this Agreement is provided, in case of any discrepancy, the English language version shall prevail.
24.11 Nothing in this Agreement shall be construed as creating an exclusive relationship between Inboostr and Participant.
24.12 This Agreement shall be governed by and construed according to the laws of the State of California, without giving effect to any choice of law rule that would cause the application of the laws of any other jurisdiction. The Parties will resolve all disputes or claims (including non-contractual disputes or claims) under this Agreement in accordance with clause 25 below.
25 Arbitration Agreement: Class and Representative Action Waiver – PLEASE REVIEW THIS SECTION CAREFULLY, AS YOU AND Inboostr MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY, AND AGREE TO RESOLVE ANY CLAIM OR DISPUTE AGAINST EACH OTHER ON AN INDIVIDUAL BASIS IN ARBITRATION, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS SECTION (“ARBITRATION AGREEMENT”).
25.1 Agreement to Binding Individual Arbitration Between You and Inboostr. You and Inboostr, including third-party beneficiaries, agree that any dispute, claim or controversy arising out of or relating to Your access or use of our Website and/or Application, to any services distributed through our Website and/or Application, to any aspect of Your relationship with Inboostr, or to these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof will be resolved by binding arbitration, and not in a court of law.
25.2 Waiver of Class, Representative, Collective, or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS; ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.
25.2.1 There will be no right or authority for any dispute to be brought, heard or arbitrated as a class action and the Arbitrator will have no authority to hear or preside over any such claim (“Class Action Waiver”). The Class Action Waiver shall be severable from this Agreement if there is a final judicial determination that any portion of the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In such instances, the class action must be litigated in a civil court of competent jurisdiction—not in arbitration.
25.2.2 There will be no right or authority for any dispute to be brought, heard or arbitrated as a collective action and the Arbitrator will have no authority to hear or preside over any such claim (“Collective Action Waiver”). The Collective Action Waiver shall be severable from this Agreement if there is a final judicial determination that any portion of the Collective Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In such instances, the collective action must be litigated in a civil court of competent jurisdiction—not in arbitration.
25.2.3 There will be no right or authority for any dispute to be brought, heard or arbitrated as a representative action and the Arbitrator will have no authority to hear or preside over any such claim (“Representative Action Waiver”). The Representative Action Waiver shall be severable from this Agreement if there is a final judicial determination that any portion of the Representative Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In such instances, the representative action must be litigated in a civil court of competent jurisdiction—not in arbitration. Individual claims under the Private Attorney General Act (“PAGA”) are not subject to this provision, and such claims must be adjudicated in arbitration.
25.2.4 Regardless of anything else in this Agreement and/or the AAA Rules, and/or any amendments and/or modifications to those rules, any claim that all or part of the Class Action Waiver and/or Collective Action Waiver and/or Representative Action Waiver is invalid, unenforceable, unconscionable, void or voidable, may be determined only by a court of competent jurisdiction and not by an arbitrator.
25.3 Waiver of Bench or Jury Trial.
YOU AND INBOOSTR HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.
BECAUSE YOU AGREE TO ARBITRATION WITH INBOOSTR, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST INBOOSTR ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF, UNLESS OTHERWISE PERMITTED BY LAW. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST INBOOSTR IN AN INDIVIDUAL ARBITRATION PROCEEDING (INCLUDING ANY ALLEGED INDIVIDUAL CALIFORNIA PRIVATE ATTORNEY GENERAL ACT CLAIMS). IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF PERMITTED BY APPLICABLE LAW BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THE AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
25.4 Exceptions to Arbitration. Notwithstanding any other provision in these Terms, this Arbitration Agreement will not require arbitration of the following types of claims: (a) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction, (b) injunctive or other equitable relief to prevent the actual or threatened infringement, misappropriation or violation of a party’s confidentiality rights or copyrights, trademarks, trade secrets, patents or other intellectual property rights, and (c) claims that may not be subject to arbitration as a matter of generally applicable law.
25.5 Governing Law and Rules. The parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”) will govern its interpretation and enforcement. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the AAA’s Commercial Arbitration Rules (the “AAA Rules”) then in effect, and the parties agree that the arbitrator (“Arbitrator”) will have exclusive authority to resolve threshold arbitrability disputes including those relating to the interpretation, applicability, enforceability, validity or formation of this Arbitration Agreement. Any issue not governed by the FAA and AAA Rules will be resolved under the laws of the state of California to the fullest extent permitted by law.
25.6 Procedure. A party that seeks to initiate arbitration must provide the other party with a written Demand for Arbitration, as specified in the AAA Rules. The Arbitrator will be either (1) a single retired judge or (2) a single attorney licensed in the state of California, selected by the parties (or appointed by AAA if the parties cannot agree) from the AAA’s roster of commercial dispute arbitrators. Unless the parties otherwise agree or the Arbitrator otherwise requires, the arbitration will be conducted in Los Angeles County, California, and claims that do not exceed $10,000 will be conducted solely on the basis of documents submitted by the parties. The Arbitrator will issue a reasoned, final, and binding decision, and judgment on the Arbitrator’s award may be entered in any court having appropriate jurisdiction. There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
25.7 Severability. If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (i) the unenforceable or unlawful provision will be severed from this Arbitration Agreement, (ii) the remainder of the Arbitration Agreement will be given full force and effect, and (iii) severance of the unenforceable or unlawful provision will have no impact on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis.
SCHEDULE 1
Tiktok Shop Community Content Creation Guidelines
These guidelines summarize the key rules to follow when creating content for Tiktok Shop US. Please read and make sure you understand these guidelines before doing so.
If you are a merchant, creator or any other party involved in content creation, you should note that these guidelines are not an exhaustive list of your obligations and do not override those obligations imposed on you by law or under the terms and conditions that apply to your use of the Tiktok Shop. You are personally and legally responsible for your statements and fully responsible for ensuring that your content complies with applicable laws and regulations, including without limitation the Federal Trade Commission Guides Concerning the Use and Endorsement and Testimonials in Advertising, 16 CFR Part 255 and .com Disclosure guidelines. Please note, these guidelines do not constitute legal advice, and you must consult a lawyer if you have any questions about the rules relating to content creation for the Tiktok Shop.
https://seller-us.tiktok.com/university/article/agreement?knowledge_id=10014585&identity=1
