Last Updated: Dec 10, 2023
Temisin LLC, with office address at 555 W 5th St, 35th Floor. Los Angeles, CA 90013, USA (“Inboostr”) wishes to engage you, a Merchant, Business Partner, or Affiliate Partner, as defined below (“Participant”, “You”, or “Your”) to provide Your services to Inboostr in accordance with these terms and conditions (this “Agreement”). Inboostr and Participant are collectively referred to herein as the “Parties” or individually as a “Party.”
If You enter into, register for, or otherwise participate in, any TikTok Shop US campaign (each a “
Campaign” and together the “
Campaigns”) then You will be subject to this Agreement and be bound by its terms. This Agreement is subject to, and incorporates by reference, the
TikTok Terms of Service,
TikTok Commercial Terms of Service (including any Supplemental Terms incorporated therein, such as the
US Merchant Terms of Service),
the TikTok Shop Partner Center Terms of Service, the
TikTok Community Guidelines, the
TikTok Advertising Policies, and any applicable TikTok Shop policies and guidelines as updated or amended from time to time, and any other TikTok terms and policies that may be notified to You by Inboostr from time to time (collectively, “
Online Terms”). In the event of a conflict between this Agreement and any Online Terms, this Agreement shall prevail. Any changes to this Agreement will be in effect as of the “Last Updated Date” referenced above. You should review this Agreement before proceeding to participate in any Campaign. Your continued participation in any Campaign will constitute your acceptance of and agreement to such changes.
Any promotional materials relating to a Campaign, including all information on the rules of entry for any Campaign or any Campaign Details as defined below (the “Program Materials”), also form part of this Agreement. In the event of any conflict or inconsistency between the Program Materials and this Agreement, this Agreement shall prevail. Inboostr reserves the right to modify, cancel or suspend a Campaign in whole or in part, at its sole discretion, including, without limitation, if it reasonably believes a Campaign is not capable of being conducted as specified within the Program Materials.
DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, the following capitalized terms shall have the following meanings:
“Affiliate” means either a Business Affiliate partner acting on the behalf of either a Creator or Merchant, respectively.
“Agent” means either a CAP or TSP acting on the behalf of either a Creator or Merchant, respectively.
“Anti-Corruption Laws” means any applicable anti-bribery and anti-corruption laws, regulations and codes of conduct including the U.S. Foreign Corrupt Practices Act, 15 U.S.C. Section 78cc-1 and 78dd-2 and all other applicable anti-corruption laws.
“CAP” means Creative Agency Partner and refers to service providers that focus on the acquisition and management of Creators for Campaigns.
“Campaign Details” means the information made available to Merchants on the TikTok Shop Seller Center when opting into Campaigns or made available to Creators on the Streamer Desktop/App, as applicable.
“CFIUS Restricted Country” means a Committee on Foreign Investment in the US Restricted Country, as identified in 22 C.F.R. §§ 126.1(d)(1) and 22 C.F.R. §§ 126.1(d)(2), which may be amended from time to time.
“Confidential Information” means any and all information in any medium (including in hard copy, electronic or oral form) which relates to the business, technology, affairs, products and/or activities (including but not limited to advertising campaigns, challenges, partnerships and events) of TikTok, TikTok Shop and/or the TikTok Group, which is either (i) identified as confidential or (ii) should reasonably be recognized as confidential due to the nature, type or presentation of the information; and includes, but is in no way limited to, the terms of this Agreement, discussions about the Campaign, the status of the Campaign, and the Campaign itself. Confidential Information does not include any information that Participant can show by documentary evidence was already in the public domain (without any breach of the Participant’s confidentiality obligations set out herein).
“Content” means any materials or content created (or otherwise supplied to TikTok) by a Participant in connection with a Campaign including any Livestreams, Livestream teaser videos, Short Videos and any other images or footage that the Participant is required to provide for a Campaign.
“Creators” means individual users who create Content for TikTok.
“Eligible Products” means any eligible products Merchants opt into any Campaigns involving the sale of such products.
“Fees” means, as applicable, any fees, incentives, or other rewards that the Participant may be eligible to receive from TikTok as further described in the Participant Program Materials, and subject to any Participant Requirements.
“ISV” refers to any third-party software vendor applications available at the TikTok Shop Partner Center which a Merchant may use to support and facilitate Merchant’s use of TikTok Shop.
“Merchant” means any business who promotes or sells goods on the TikTok Shop Platform.
“Mission” means any tasks available on TikTok Shop Seller Center.
“Participant Requirements” means the goals, targets, metrics, and any other criteria that the Participant must complete and achieve in order to receive any Fees, as notified to the Participant by TikTok from time to time and as further described in the Program Materials.
“Participant Restrictions” means any limitations, exclusions or other restrictions that apply to the Participant’s eligibility to receive the Fees, as notified to the Participant by TikTok from time to time and as further described in the Program Materials.
“Services” means any services that the Participant has agreed to perform for any Campaign which includes: (i) creating Content for a Campaign that promotes products available on TikTok Shop US; and (ii) making available, marketing, advertising and publicizing the Content (and TikTok Shop) on the TikTok Platform or any other third-party platform or channel.
“Studio” means any studio or other location otherwise used for a Campaign.
“TikTok Group” means TikTok, its parent company, its subsidiaries and/or any company to which is, in relation to such company, is its parent undertaking or subsidiary.
“TikTok Materials” means TikTok and the TikTok Group’s name, logo, and/or other branded marketing materials and content provided by TikTok to Participant for incorporation into Content or otherwise provided to the Participant for the sole purpose of the Participant providing the Services in accordance with the terms of this Agreement.
“TikTok Platform” means the TikTok app and platform, known as “TikTok”.
“TSP” or “TikTok Shop Partner” refers to any third-party engaged to support and facilitate Merchant’s use of TikTok Shop.
“UBO” or “Ultimate Beneficial Owner” mean a person, or entity, that ultimately owns or controls a U.S. affiliate of a foreign company and that derives the benefits associated with ownership or control.
1.2 In this Agreement, the following rules of interpretation shall apply:
1.2.1 Words such as “including”, “particularly” and similar expressions are not used as, nor are intended to be, interpreted as words of limitation.
1.2.2 Any representation, warranty, undertaking, or other obligation on an Agent set forth in this Agreement shall be deemed to include an obligation on Agent to procure the same from the Merchant and/or Creator, as applicable.
1.2.3 Reference to any legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
1.2.4 Any Agent represents, warrants, and undertakes that it is entitled and authorized to grant and provide the rights set out in this Agreement (including the Content and Participant’s rights embodied therein) on the terms and conditions set out in the Agreement.
2 SERVICES
2.1 In consideration of the Fees, the Participant shall perform the Services:
2.1.1 with all due skill and care and in accordance with good industry practice, the Program Materials, and the terms of this Agreement;
2.1.2 in collaboration with Inboostr and any other third-parties connected to a Campaign and in accordance with Inboostr’s reasonable instructions from time to time; and
2.1.3 in accordance with all applicable federal, state, and local laws, statutes, regulations, and ordinances applicable to the Services, including, but not limited to, the Federal Trade Commission’s (“FTC”) Guides Concerning the Use of Endorsements and Testimonials in Advertising (16 C.F.R. Part 255), which requires the disclosure of what a Participant is paid to promote, such as social media disclosures containing the hashtags #ad or #sponsored. In addition, Participant will comply with the FTC’s Enforcement Policy Statement on Deceptively Formatted Advertisements and the FTC’s Native Advertising: A Guide for Business, and any applicable regulatory guidance, industry best practices and standards and laws, rules, or regulations, including, but not limited to any applicable regulatory guidance, industry best practices and standards and laws, rules or regulations implemented after execution of this Agreement.
2.2 The Participant acknowledges and agrees that it shall not do anything which in Inboostr’s reasonable opinion would jeopardize the ability of Participant to perform the Services in accordance with the terms of this Agreement.
2.3 At any time upon Inboostr’s request, including for Participant’s failure to comply with this Agreement or any other Inboostr policy or guidelines, Participant shall promptly remove and delete any Content made available by or on behalf of Participant on the Inboostr Platform or any other third-party platforms. Subject to the foregoing, the Participant guarantees and undertakes that it shall keep the Content on the Inboostr Platform (and any other applicable third-party platforms and channels) for no less than 90 days from when it is first made available by the Participant (unless otherwise prohibited by applicable law or specified by Inboostr).
2.4 The Participant represents and warrants that Participant shall comply with (i) all applicable laws, regulations, rules, requirements of relevant government authorities, legal restrictions, and industry standards; (ii) all applicable Tiktok Shop policies and guidelines applicable to:
2.4.1 the pricing, the promotion, and the sale of any Eligible Products during a Campaign;
2.4.2 the creation and publishing of the Content, including:
2.4.2.1 Refraining from the impermissible us of third-party intellectual property (such as logos, brands, copyrights, trademarks, and rights of publicity); and
2.4.2.2 respecting third-party privacy rights of individuals other than Participant by impermissibly including other persons in the Content.
2.5 For any Campaign, “GMV” means ‘gross merchandise volume’ as calculated, notified and approved by Inboostr to the Participant in writing. The GMV will be the amount of cleared payments for product sales made by Inboostr users during the Campaign, less the amount of any products that: (a) are refunded within 30 days of receipt by the Inboostr user; or (b) do not comply with any applicable laws or regulations, requirements set forth in the Program Materials, including but not limited to the sale of prohibited products, and/or any of Inboostr’s terms and policies. Inboostr may review, inspect and audit all Short Videos, Livestreams and orders placed from those Short Videos and/or Livestreams, and Inboostr will have absolute discretion in determining the authenticity of such orders, and whether they qualify the Participant for any relevant Fees that may be due under a Campaign. Inboostr reserves the right not to pay any Fees that it deems to have been calculated in breach of this Agreement. If the Participant account is found to be knowingly involved in fake or fraudulent orders or transactions, Inboostr has the right to immediately terminate this Agreement and require the repayment of any Fees paid to the Participant resulting from such fake or fraudulent orders or transactions.
2.6 The Participant acknowledges that it has read, understands, and agrees to comply with the Tiktok Shop Community Content Creation Guidelines set out in Schedule 1 of this Agreement.
3 LIVESTREAMS
3.1 If a Participant produces a livestream (a “Livestream”, otherwise referred to as a “Live”, “EC live”, “Effective EC live” or similar), then the Participant shall ensure that the Livestream meets and satisfies all of the Participant Requirements and, unless the Participant Requirements expressly state otherwise, then the Participant shall ensure that it:
3.1.1 includes the hashtags indicated in section 2.1.3 (which may include, without limitation, “#ad” or “#sponsored”) or as is otherwise required by applicable law, rule, or regulation;
3.1.2 unless stated otherwise by Inboostr is a ‘closed loop’ e-commerce livestream;
3.1.3 focuses on showcasing products that are available for purchase on Tiktok Shop;
3.1.4 includes closed loop e-commerce product anchor link to the relevant products on Tiktok Shop and has the shopping cart feature enabled;
3.1.5 guides customers regarding how to use Tiktok Shop to make a purchase and how to click on a product anchor link to place an order;
3.1.6 does not include any products that are not available for purchase from Tiktok Shop;
3.1.7 does not include links or any other activity that may direct users off the Inboostr Platform to other websites or platforms for any reason, including but not limited to purchasing the products;
3.1.8 has bright lighting, a clean background and clear picture quality;
3.1.9 complies with: (i) all applicable laws, rules, and regulations; and (ii) Inboostr’s terms and policies as updated from time to time, including but not limited to the Inboostr Community Guidelines and Inboostr Advertising Policies; and
3.1.10 passes Inboostr’s reasonable internal audits, including but not limited to: compliance with Inboostr’s Community Guidelines, the Program Materials, and the Participant Requirements, and meet any reasonable additional requirements and/or instructions provided by Inboostr from time to time.
3.2 Unless Inboostr expressly agrees otherwise in writing with the Participant, Livestreams that do not comply with the requirements in this clause 3.1 will not be accepted as valid for the Campaign and no Fees will be payable to Participant by Inboostr in respect of the same.
4 SHORT VIDEO
4.1 If the Participant produces a short video (a “Short Video,” otherwise referred to as “SV” or “EC Short Video” or similar), then the Participant shall ensure that the short video meets and satisfies the Participant Requirements and, unless the Participants Requirements expressly state otherwise, the Participant shall ensure that it:
4.1.1 includes the hashtags indicated in section 2.1.3 (which may include, without limitation, “#ad” or “#sponsored”) or is otherwise required by applicable law, rule, or regulation;
4.1.2 focuses on showcasing products that are available for purchase on Tiktok Shop;
4.1.3 includes a closed loop e-commerce product anchor link to the relevant product on Tiktok Shop;
4.1.4 guides customers how to use Tiktok Shop to make a purchase and how to click on a product anchor link to place an order;
4.1.5 does not include any products that are not available for purchase from Tiktok Shop;
4.1.6 does not include links or any other activity that may direct users off the Inboostr platform to other websites or platforms for any reason, including but not limited to purchasing the products;
4.1.7 complies with: (i) all applicable laws, rules, and regulations; and (ii) Inboostr’s terms and policies as updated from time to time, including but not limited to the Inboostr Community Guidelines and Inboostr Advertising Policies; and
4.1.8 passes Inboostr’s reasonable internal audits, including but not limited to: compliance with Inboostr’s Community Guidelines, the Program Materials, and the Participant Requirements, and meet any reasonable additional requirements and/or instructions provided by Inboostr from time to time.
4.2 Unless Inboostr expressly agrees otherwise in writing with the Participant, Short Videos that do not comply with the requirements in clause 4.1 above will not be accepted as valid for the Campaign and no Fees will be payable to Participant by Inboostr in respect of the same.
4.3 Unless Inboostr expressly states otherwise in writing with Participant, use of script, macro or any automated system to produce Content is prohibited and Inboostr may, in its absolute discretion, determine that such Content shall be ineligible to receive Fees with respect to the applicable Campaign.
5 INTELLECTUAL PROPERTY RIGHTS
5.1 To the extent that the Content is posted by Participant on the Inboostr Platform, Participant hereby acknowledges that this Agreement is supplemental to the Inboostr Terms of Service and the Tiktok Shop Merchant Terms of Service (when applicable), each of which Participant has read and accepted when Participant created the Participant’s account on the Inboostr Platform, as updated or amended from time to time).
5.2 Without prejudice to clause 5.1, Participant (to the maximum extent permitted by applicable law) hereby grants to the Inboostr Group a worldwide, perpetual, non-exclusive, irrevocable, sublicensable, fully paid and royalty-free license to use, publicize, adapt, copy, reproduce, edit, enhance, adapt, distribute, perform, display, broadcast, stream, digitize, modify, make derivative works of and otherwise exploit the Content in any and all media in any form, whether now known or later developed, for such purposes as Inboostr may require which includes, without limitation: to promote, advertise, and market the Inboostr Group, Tiktok Shop (including Tiktok Shop merchants, upon Participant’s written approval, email shall suffice), and to publish or allow the publication of the Content on any and all channels and platforms; for public relations purposes; for the purposes of publicizing the Inboostr Group and its related business activities, including but not limited to on social networking sites, programming content, and non-paid editorial coverage about the Inboostr Group in national, regional or trade press; for internal use by Inboostr; for editorial and documentaries; for Inboostr’s corporate communications, including but not limited to presentations, education and training; for the archival purposes of Inboostr; in Inboostr’s credentials materials in connection with the promotion of its business; and for use in or in relation to industry festivals, awards and competitions, trade shows and conferences. Participant also consents and acknowledges and agrees that the license granted to the Inboostr Group in this clause 5.2 extends to and includes a license to use Participant’s name, nickname, likeness, voice, statements, branding, endorsement, image and appearance and any biographical information relating to Participant or any materials based on or derived from these items (“Participant Rights”) and Participant hereby grants to Inboostr the right, to use and exploit the Participant Rights in connection with the promotion, marketing and advertising of the Content. Notwithstanding termination of this Agreement, the parties hereby acknowledge and agree that Inboostr shall not be obliged to remove, delete, take down or withdraw any content comprising the Content or the Participant Rights. To the extent necessary, Participant agrees that it shall procure the rights necessary from any third-parties to grant Inboostr Group the license set forth in this clause 5.2.
5.3 To the maximum extent permitted by applicable law, Participant irrevocably and unconditionally waives, and shall procure if necessary, in perpetuity, all moral rights in the Content and all similar rights under the laws of any jurisdiction whether now existing or conferred in the future.
5.4 Inboostr shall at all times retain ownership of all intellectual property rights in the Inboostr Materials. Inboostr hereby grants to Participant a non-exclusive, revocable, non-transferable, non-sublicensable, limited license to use, access, and display the Inboostr Materials during the term of a Campaign for the sole purpose of performing the Services under this Agreement.
5.5 THE INBOOSTR MATERIALS ARE PROVIDED “AS IS” AND INBOOSTR MAKES NO REPRESENTATIONS, CONDITIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE INBOOSTR MATERIALS TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
6 REPRESENTATIONS AND WARRANTIES
6.1 Participant represents and warrants to Inboostr that:
6.1.1 Unless otherwise specifically agreed to in writing by Inboostr (and notwithstanding any other provision of this Agreement), all Services will be performed by Participant;
6.1.2 it is free to enter into and implement the terms of this Agreement (including any of the Participant Requirements), and it has the full power and authority to grant the rights expressed to be granted hereunder and that Participant’s entering into this Agreement and performing the Services hereunder will not breach any agreement with any third-party;
6.1.3 the Content will not include any material in any form that includes rights owned and/or registered to any third party, unless Participant has (i) lawfully and validly secured all such necessary rights and consents to use the same, (ii) notified Inboostr in writing in advance of the same, and (iii) Inboostr approves or authorized such use in writing in advance;
6.1.4 it is not necessary for Inboostr to obtain permission from, or pay any fees to, any third party in connection with the rights granted by Participant under this Agreement.
6.1.5 the use of the Content by Inboostr in accordance with the terms of this Agreement shall not infringe, misappropriate, or otherwise violate the rights of any third party (including any intellectual property rights, confidentiality obligations, or rights of publicity or privacy);
6.1.6 other than any Inboostr Materials, all Content will be the Participant’s own original creation and Participant shall (i) use Participant’s own equipment, materials, supplies and other resources at Participant’s own expense, in creating any Content, and (ii) exercise Participant’s own talent, skills, judgment and aesthetic sense in creating any Content;
6.1.7 the Content shall be transparent to all users as being marketing in accordance with all applicable rules, regulations and guidelines, specifically addressing paid endorsements, sponsored promotions and advertising content, by, without limitation,: (i) ensuring that all Content includes a clear and conspicuous statement that it is an advertisement, promoted or sponsored content by using the applicable disclosure, e.g. #ad, prominently at the beginning of a post, (ii) where such functionality exists on the Inboostr Platform, clicking any relevant box (or use other similar functionality as the Inboostr Platform provides) when posting the Content to indicate and/or declare that the Content is paid-for content, and (iii) including any specific disclosures and/or other form of words set out in the Program Materials;
6.1.8 that no Content will be misleading or include anything about the Inboostr Group that may bring the Inboostr Group into disrepute, ridicule or otherwise be detrimental to the name, image or reputation of the Inboostr Group and/or its business;
6.1.9 Participant will only use and publish the Content in accordance with this Agreement;
6.1.10 Participant will not to falsely state, misrepresent, or conceal Participant’s affiliation with any person or entity;
6.1.11 all Content will be appropriate for audiences of 13 years of age or older;
6.1.12 the Content will comply with (i) any and all applicable laws and regulations and (ii) all terms and conditions of any social media platforms or other online platforms used by Participant and/or Inboostr in relation to the Services;
6.1.13 no Content will include, promote or otherwise be connected to any material that is private, unlawful, harmful, dangerous, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, offensive (including on grounds of race, religion, gender, sexual orientation, disability, nationality, family status, age or any other class protected by law), misleading (including by omission), unsafe, unjustifiably distressing, disparaging of other products, services or businesses, that promotes activities generally understood as Internet abuse, that encourages criminal activity or violations of the intellectual property rights of others, or that identifies any third person without their prior consent, or that Inboostr otherwise considers to be inappropriate;
6.1.14 the Participant has never been subject to any investigations, sanctions, or disciplinary action by any regulatory body;
6.1.15 the Participant does not have a UBO, located in a CFIUS Restricted Country, who maintains more than a 25% interest in the Participant; and
6.1.16 if applicable, it shall take good care of any sample products that are required to be used for the Content and not use any sample products for any purpose for which they are not designed or intended and not attempt to repair, adjust, alter, combine with any third-party items or otherwise modify any of the sample products unless the merchant of the sample products has provided its prior written approval; and
6.1.17 Participant is not a member of a union or guild which may require Inboostr to make any pension, health, or other payments (other than the Fee in connection with the Services and rights granted hereunder).
6.1.18 any third-parties used by Participant to provide Services will comply with (i) the terms of this Agreement; (ii) all applicable laws, regulations, and regulatory guidance; (iii) any Inboostr terms and policies applicable from time to time including, without limitation, the Inboostr Community Guidelines, the Inboostr Advertising Policies, and any applicable policies as updated or amended from time to time, and any other Inboostr terms and policies that may be notified to Participant by Inboostr from time to time.
7 CONFIDENTIAL INFORMATION
7.1 Participant agrees that it shall (i) keep Inboostr’s Confidential Information strictly confidential and shall not at any time use or disclose any Confidential Information to any person and (ii) use such Confidential Information solely for the purpose(s) for which it was originally disclosed and only for the purpose of fulfilling Participant’s obligations under this Agreement. Notwithstanding the foregoing, Participant may disclose Confidential Information (a) to Participant’s professional representatives who have a need to know such information and who are subject to obligations of confidentiality no less strict than those hereunder and (b) as required by law or any legal or regulatory authority, provided that Participant provides Inboostr with notice and a reasonable time to respond before revealing such Confidential Information. For the avoidance of doubt, the terms of this Agreement shall be treated as Confidential Information.
8 PAYMENT TERMS
8.1 The Participant acknowledges and agrees that its receipt of any Fees hereunder is subject to the Participant Restrictions and is conditional on the Participant:
8.1.1 successfully completing and achieving all the Participant Requirements during the Campaign; and
8.1.2 complying with this Agreement and any other applicable Inboostr policies or guidelines, as may be updated from time to time.
8.2 The Fees shall be paid in accordance with the Program Materials. Unless expressly agreed otherwise in writing by Inboostr, any undisputed Fees due to the Participant by Inboostr shall be paid within 30 days of Participant’s satisfactory completion of all applicable Services and after Inboostr’s receipt of a valid undisputed invoice (as well as all the necessary and valid payment information of Participant requested by Inboostr). Inboostr will not under any circumstances be obliged to pay the Fees to the Participant prior to such time.
8.3 All expenses (including, if applicable, travel expenses) must be pre-approved by Inboostr in writing in advance. If approved by Inboostr, the Participant shall submit an expense request to Inboostr including an itemized description of the expenses and deliver to Inboostr any and all receipts relating to such expenses which correspond to the itemized description. If the Participant fails to comply with this clause 8.3, then no expenses shall be payable by Inboostr.
8.4 If Inboostr notifies the Participant of a bona fide dispute concerning the Fees, then Inboostr shall pay any undisputed amount but shall be entitled to withhold the amount in dispute pending resolution. Payment in relation to which there is a bona fide dispute shall be made within 30 days of settlement of the dispute.
8.5 Inboostr may at any time offset any liability of the Participant under this Agreement against any liability or monies owed by the Participant to Inboostr.
8.6 Save for the Fees (or any expenses pre-approved in writing by Inboostr), Inboostr shall not be responsible for any other costs or expenses incurred by the Participant in connection with this Agreement. Payment by Inboostr (or its payment agent) to the bank account nominated by the Participant shall constitute full discharge of Inboostr’s responsibility to pay any Fees (or expenses pre-approved in writing by Inboostr) to the Participant. Inboostr shall not be liable for any agent’s fees or commissions, taxes, production company fees or other payments to third parties payable by Participant in connection with this Agreement or the Services.
8.7 Each party shall be solely responsible for its own taxes and fees applicable to each party’s performance under this Agreement.
9 PRODUCT SAMPLES
9.1 If Participant purchases product samples for the purposes of providing the Services to Inboostr and facilitating the creation of Content, the contract for sale and purchase will be between the Merchant of that product sample and Participant. Inboostr shall have no responsibility for any product samples (including, without limitation, with respect to any returns, requests for refunds or any requests for a product sample to be repaired or replaced). To the maximum extent permitted by applicable law, Inboostr shall not be responsible or liable for (a) any loss, damage, or theft to any product samples and/or (b) any wrong orders, delayed orders or faulty, defective or misdescribed product samples that the Participant may order or otherwise receive. Inboostr makes no warranties or representations, express or implied, with respect to any product samples. The Participant will own and be solely responsible for any product samples.
9.2 Subject to clause 9.1, and Inboostr’s receipt of a valid invoice, Inboostr may reimburse the Participant for any agreed-upon product sample purchases, provided that any reimbursement shall be subject to a spend limit notified to the Participant by Inboostr from time to time. In no circumstances shall Inboostr be responsible for reimbursing the Participant if the Participant exceeds the applicable spend limit for any product samples or does not comply with any other requirements or instructions for any product samples. All reimbursements by Inboostr for any product samples are subject to Inboostr’s prior written approval. Inboostr shall only reimburse the Participant for product samples used to purchase product samples for Tiktok Shop US.
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 Participant 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 Participant is in material breach of this Agreement (as determined in Inboostr’s sole discretion); and
12.3.2 Participant 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 Participant 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 Participant 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 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 ten (10) days of receipt.
12.7 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.
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
