TikTok Shop – Affiliate Creator Agreement
This TikTok Shop US Affiliate Creator Agreement ("Agreement") is entered into by and between Vitamin Well LLC, EIN 30-1123889, with address 3865 Grand View Blvd Los Angeles, CA 90066, the US (the "Seller") and you (the "Creator") as of the date of acceptance by the Creator (the "Effective Date").
1. Scope of Services
The Seller engages the Creator to promote and market the Seller’s Barebells products (“Products”) as specified in the collaboration details provided by the Seller on the TikTok Shop US product marketplace page (the “Creator Services”) provided through the TikTok application (the “Platform”). When connecting with the Seller through the Affiliate Feature on TikTok Shop, the Creator warrants that it will comply with the terms and conditions in this Agreement when performing the Creator Services.
2. Certification of Age.
The Creator certifies and confirms that the Creator is at least eighteen (18) years of age.
3. Compensation.
Compensation for the Creator Services is stated in the relevant application process for the provision of the Creator Services on the Platform.
4. Legal Marketing Compliance
4.1 The Creator acknowledges and agrees that it shall ensure that all images, videos, media, content or any element therein created by the Creator in provision of the Creator Services to the Seller (the “Creator Content”):
4.1.1 Is labelled at all times with an appropriate commercial disclosure. The Creator shall in connection to all social media posts, which are made as a part of the collaboration between the Creator and the Seller, or where the Products or its trademarks are visible, in the beginning of the post, clearly state that these are made in a paid partnership with or is advertisement for the Seller (e.g. "Advertisement”, “Ad”, "Paid partnership with..” or similar disclosure language required by applicable law). It shall also be clear that the post is in collaboration with the trademark Barebells and, if possible, include a link to the webpage of the trademark or profile on social media.
4.1.2 Uses the available TikTok labelling functionality.
4.1.3 Complies with all applicable laws, regulations, the terms and conditions of TikTok (as the social media platform the Creator is using to perform the agreed Creator Services), codes of conduct and relevant policies on advertising disclosures at all times.
4.2 The Creator shall not in public, on social media, to the press or in any other context, without the Seller’s written approval, make comments or expressions on the health effects or health characteristics of the Products (so called nutrition and health claims).
4.3 The Creator shall not advertise the Products towards children and not post content that is misleading for customers.
4.4 Intellectual Property Rights.
The Seller shall retain all right, title, and interest in their intellectual property and copyright and no intellectual property and copyright of the Seller shall be transferred to the Creator. The Creator shall not use intellectual property owned by a third party as part of the marketing efforts the Creator carry out under this Agreement, such as music, images, or trademarks, without the approval of such third party right holder.
4.5 The Creator shall comply with all the Seller's reasonable instructions related to legal marketing compliance in connection with this Agreement promptly. The Seller may remove the Creator from participating in a product collaboration due to any breach or anticipatory breach by the Creator of any of the undertakings or obligations in this Agreement. Where the Creator is removed as a participant in a product collaboration by the Seller, the Creator shall promptly remove all Creator Content for the affected collaboration from the Platform as soon as possible. The Creator must promptly remove posts uploaded under this Agreement if the relevant post(s) does not fulfill the requirements agreed herein.
4.6 The Creator shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Seller arising out of or in connection with any breach by the Creator of any of the undertakings or obligations in this Agreement.
5. License of Creator Content.
5.1 Creator grants a worldwide, non-exclusive, sublicensable, transferable, royalty-free license to the Seller solely to distribute or otherwise make available the Creator Content on the Platform.
5.2 Creator grants Seller the right to use the Creator Content for paid advertising purposes during the Creator Services period. Such advertising shall take place via the Creator’s own social media account, using TikTok Spark Ads, and the Creator agrees to provide all necessary approvals or authorizations to enable such use. Creator and Seller agree that Seller shall not be required to pay any additional compensation to Creator for this use of the Creator Content, as here permitted, beyond the compensation as stated in the relevant application process for the provision of the Creator Services on the Platform.
6. Confidentiality
The Creator agrees to keep the content of the Agreement and any knowledge they receive in relation to the operations of the Seller and/or the Products confidential and such information may not be shared to a third party. This undertaking applies without limitation in time.
7. Processing of Personal Data
7.1 In connection with this Agreement, we will collect and process certain personal data about you. We are committed to processing your personal data in a correct, respectful and secure manner. Please read on to find out more about what personal data we process, what your rights are and who to contact if you have any requests or questions. You can also read more about how we process your personal data by taking part of our Privacy Policy available here https://shop.barebells.com/pages/privacy-policy/.
7.2 Under the Agreement, we will process personal data such as your name, and social media usernames, as well as information from public sources, e.g. photos posted, number of posts related to us and number of followers on social media. The legal basis of the processing is to fulfil our rights and obligations under and the overall purpose of this Agreement.
7.3 Where and to the extent necessary, your personal data will be processed by employees of the Vitamin Well Group as well as with advisors, suppliers and other partners. This means that your personal data may be transferred to countries outside the US and the EU/EEA in order to fulfill this Agreement. Your personal data will be stored for as long as it is used in accordance with this Agreement, unless we are legally required to store the data for a longer period.
8. Independent contractor
The Seller engages the Creator in its capacity of an independent contractor. Nothing in the parties’ contractual relationship shall be deemed to form an employment relationship, joint venture or similar. The Creator is exclusively responsible for all state and federal Social Security, self-employment, and income taxes, disability insurance, workers’ compensation insurance, any other statutory benefits.
9. Disputes and Governing Law
9.1 Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the sole arbitrator may be entered in any court having jurisdiction thereof.
9.2 The seat of arbitration shall be Wilmington, Delaware. The language to be used in the arbitral proceedings shall be English. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without reference to its conflict of law principles. The arbitration procedure shall be subject to confidentiality. The parties hereto expressly waive any right to a trial by jury with respect to any dispute arising under or in connection with this Agreement. Each party acknowledges that this waiver is made knowingly and voluntarily.