OLLY Open Affiliate Program (the “Program”)
Terms and Conditions for TikTok Shop Creators
By clicking the “Add Products” button or otherwise participating in the Program, you (“You”, or “Creator”) agree to these OLLY Open Affiliate Terms and Conditions (the “OLLY Terms”) governing Your participation in the OLLY Open Affiliate Program on TikTok. These OLLY Terms are separate from TikTok Shop’s Creator Terms of Use. TikTok Shop’s Creator Terms of Use govern Your relationship with TikTok, while these OLLY Terms, in addition to TikTok Shop’s Creator Terms of Use, govern the relationship between You and OLLY Public Benefit Corporation (“We”, “Us” or “OLLY”). We reserve the right to conduct a review of the materials You post on any social media platform and any public data available about You.
These OLLY Terms shall take precedence when a conflict of terms arises between topics covered in these OLLY Terms and TikTok Shop’s Creator Terms of Use.
YOU HEREBY REPRESENT AND WARRANT THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS (YOU ARE NOT A MINOR) AND THAT YOU ARE AND WILL REMAIN IN COMPLIANCE WITH THESE OLLY TERMS. IN ADDITION, IF THESE OLLY TERMS ARE BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THESE OLLY TERMS ON BEHALF OF THAT COMPANY OR ENTITY HEREBY REPRESENTS AND WARRANTS THAT THEY, HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THESE OLLY TERMS.
These OLLY Terms include a provision waiving the right to pursue any class, group or representative claim and requiring You and Us to pursue certain disputes through individual arbitration.
By participating in this Program, You agree that You will comply with the following with any OLLY product (“Product”):
- You must comply with these OLLY Terms to participate in the Program and receive commission income. However, We do not make any representation, warranty, or covenant regarding the amount of commission income You can expect at any time in connection with the Program, and We will not be liable for any actions You undertake based on Your expectations.
- You must promptly provide Us with any information that We request to verify Your compliance with these OLLY Terms.
- You agree that You will throughout Your participation in the Program uphold Your commitments for advertising requirements for OLLY as set out below:
ADVERTISING REQUIREMENTS
- You must read and comply with the OLLY Product Claims Report. The OLLY Product Claims Report provides details on how to promote and advertise Products. The terms of the OLLY Product Claims Report are shared by OLLYs Agency of Record and are incorporated into the OLLY Terms.
- Do not misrepresent Product benefits.
- Do not state or reference that a Product will achieve any results unless permitted by OLLY.
- Do not state or reference that a Product with diagnose, treat cure or prevent any disease.
- Do not make any claims about a Product, unless specifically permitted by the OLLY Product Claims Report.
- Do not compare or mention TikTok Shop pricing of Product to other retailers (Costco, Amazon, Walmart, Target, etc.).
- Do not misrepresent the Product price on TikTok Shop.
If You violate these OLLY Terms in addition to any other rights or remedies available to Us, We reserve the right to direct TikTok to permanently (to the extent permitted by applicable law) cease payment of (and You agree You will not be eligible to receive) any commission income attributable to this Program otherwise payable to You under these OLLY Terms and the TikTok Shop’s Creator Terms of Use, whether or not directly related to such violation without notice and without prejudice to any right of OLLY to recover damages over this amount.
TERM AND TERMINATION
We may terminate Your participation in the Program at any time for any reason, including but not limited to any of the following: (a) You are in material breach of these OLLY Terms, (b) We believe that We may face potential claims or liability in connection with Your participation in the Program; (c) We believe that our brand or reputation may be tarnished by You or in connection with Your participation in the Program; (d) Your participation in the Program has been used for deceptive, fraudulent or illegal activity; or (e) We have terminated the Program as We generally make it available to participants.
DISCLAIMERS
NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PROGRAM, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF ANY LAW, CUSTOM, COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE COMMISSIONS, PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH YOUR PARTICIPATION IN THE PROGRAM, OR (Z) ANY TERMINATION OR SUSPENSION OF YOUR PARTICIPATION IN THE PROGRAM.
LIMITATIONS ON LIABILITY
NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA ARISING IN CONNECTION WITH THE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSION INCOME PAID OR PAYABLE TO YOU UNDER THESE OLLY TERMS IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED. YOU HEREBY WAIVE ANY RIGHT OR REMEDY IN EQUITY, INCLUDING THE RIGHT TO SEEK SPECIFIC PERFORMANCE, INJUNCTIVE OR OTHER EQUITABLE RELIEF IN CONNECTION WITH THESE OLLY TERMS. NOTHING IN THIS PARAGRAPH WILL OPERATE TO LIMIT LIABILITIES THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
INDEMNIFICATION
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE WILL HAVE NO LIABILITY FOR ANY MATTER DIRECTLY OR INDIRECTLY RELATING TO THE CREATION, MAINTENANCE, OR OPERATION OF YOUR TIKTOK CHANNELS(S) (INCLUDING YOUR USE OF ANY TIKTOK SERVICE OFFERING) OR YOUR VIOLATION OF THESE OLLY TERMS, AND YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD US AND OUR RESPECTIVE AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, AND REPRESENTATIVES, HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) RELATING TO (A) YOUR TIKTOK CHANNELS(S) OR ANY MATERIALS THAT APPEAR ON YOUR TIKTOK CHANNELS(S), INCLUDING THE COMBINATION OF YOUR TIKTOK CHANNELS(S) OR THOSE MATERIALS WITH OTHER APPLICATIONS, CONTENT, OR PROCESSES, (B) THE USE, DEVELOPMENT, DESIGN, MANUFACTURE, PRODUCTION, ADVERTISING, PROMOTION, OR MARKETING OF YOUR TIKTOK CHANNELS OR ANY MATERIALS THAT APPEAR ON OR WITHIN YOUR TIKTOK CHANNELS, (C) YOUR USE OF ANY TIKTOK SERVICE OFFERING OR YOUR PARTICIPATION IN THE PROGRAM, WHETHER OR NOT SUCH USE IS AUTHORIZED BY OR VIOLATES THESE OLLY TERMS OR APPLICABLE LAW, (D) YOUR VIOLATION OF ANY TERM OR CONDITION OF THESE OLLY TERMS, (E) YOUR TAXES AND DUTIES OR THE COLLECTION, PAYMENT, OR FAILURE TO COLLECT OR PAY YOUR TAXES OR DUTIES, OR THE FAILURE TO MEET TAX REGISTRATION OBLIGATIONS OR DUTIES, OR (F) YOUR OR YOUR EMPLOYEES’ OR CONTRACTORS’ NEGLIGENCE OR WILLFUL MISCONDUCT.
INDEPENDENT CONTRACTORS
You and We are independent contractors, and nothing in these OLLY Terms will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between You and Us or our respective affiliates, nor shall You represent to any third party that any of the foregoing relationships exists. You will have no authority to make or accept any offers or representations on our or our affiliates’ behalf. If You authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of these OLLY Terms, You will be deemed to have taken the action Yourself.
MUTUAL ARBITRATION
All disputes relating in any way, directly or indirectly, to OLLY for breach of contract, breach of fiduciary duty, negligence, personal injury, intentional torts or other tort will be arbitrated according to the rules of the American Arbitration Association (AAA) in San Francisco, California, including any dispute about the scope of this arbitration agreement, and including all questions about the types of disputes that are subject to this arbitration agreement, all of which you agree will be decided by the arbitrators, whose decision will be final and binding on you. Any issue concerning the extent to which a dispute is subject to arbitration, or concerning the applicability, interpretation or enforceability of the OLLY Terms, including any contention that all or part of this agreement is invalid or unenforceable, shall be governed by the Federal Arbitration Act and resolved by the arbitrators. You acknowledge and agree that, in any arbitration proceeding, no depositions will be taken, and all other forms of discovery of facts will be limited to those things that the arbitrators determine, in their sole discretion, to be necessary. Further, in any arbitration proceeding, (i) there shall be no award of punitive, exemplary, incidental or consequential or other special damages, (ii) all damages claims and awards will be governed by the provisions of the California Civil Code, and (iii) the parties will conduct the arbitration confidentially and expeditiously and will pay their own costs and expenses of arbitration, including their own attorneys’ fees. If you are unable to afford the AAA fee, you agree to notify all persons against whom you have an arbitrable claim and give such persons the opportunity individually and as a group to pay such fee. The proceeding and the decision shall be kept confidential by the parties.
APPLICABLE LAW
The OLLY Terms is governed by the Federal Arbitration Act, applicable federal law, and the laws of the state of California, without regard to its conflicts of laws rules. Foreign laws do not apply. Arbitration or court proceedings must be in San Francisco County, California. If any provision of the OLLY Terms is invalid under the law of a particular jurisdiction, that provision will not apply in that jurisdiction.
MODIFICATIONS
We reserve the right to modify any of the terms and conditions contained in these OLLY Terms at any time and in our sole discretion by posting a change notice or revised OLLY Terms. The effective date of such change will be the date the notice is provided. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE EFFECTIVE DATE OF SUCH CHANGE WILL CONSTITUTE YOUR ACCEPTANCE OF THE MODIFICATIONS. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE YOUR PARTICIPATION IN THE PROGRAM.
Effective as of November 25, 2024