Effective as of December 15, 2023

 

By clicking the “Add Products” button or otherwise participating in the Program, you (“You”, “Creator” or “Social Seller”) agree to these L’Oréal USA, Inc. (“We”, “Us” or “L’Oréal”) Open Affiliate Terms and Conditions (the “L’Oréal USA Terms”) governing Your participation in the L’Oréal USA Open Affiliate Program on TikTok. These L’Oréal USA 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 L’Oréal USA Terms, in addition to TikTok Shop’s Creator Terms oæf Use, govern the relationship between You and L’Oréal. 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. This review involves Us looking at Your social media content and public profile to see if Your values match L’Oréal’s values as set forth in L’Oréal’s Social Commerce Value Charter.

 

These L’Oréal USA Terms shall take precedence when a conflict of terms arises between topics covered in these L’Oréal USA 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 L’ORÉAL USA TERMS, INCLUDING THE L’ORÉAL SOCIAL COMMERCE VALUE CHARTER. IN ADDITION, IF THESE L’ORÉAL USA TERMS ARE BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THESE L’ORÉAL USA 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 L’ORÉAL USA TERMS.

 

These L’Oréal USA 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:

• You must comply with these L’Oréal USA 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 L’Oréal USA Terms.
• You agree that You will throughout Your participation in the Program uphold Your commitments as described in the L’Oréal Social Commerce Value Charter set out below:
  
  

 

If You violate these L’Oréal USA Terms or the L’Oréal Social Commerce Value Charter, 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 L’Oréal USA 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 L’Oréal 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 L’Oréal USA 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 L’ORÉAL USA 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 L’ORÉAL USA 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 L’ORÉAL USA 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 L’ORÉAL USA TERMS OR APPLICABLE LAW, (D) YOUR VIOLATION OF ANY TERM OR CONDITION OF THESE L’ORÉAL USA TERMS (INCLUDING THE L’ORÉAL SOCIAL COMMERCE VALUE CHARTER), (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. WE OR OUR NOMINEE MAY TAKE LEGAL ACTION AND PERFORM ANY PROCEDURAL ACT ON BEHALF OF ANY L’ORÉAL PARTY, INCLUDING THROUGH SPECIAL MANDATE, TO EXERCISE OR DEFEND A LEGAL CLAIM OR FOR THE PROTECTION OF RIGHTS, INCLUDING FOR THE PURPOSE OF ENFORCING THIS SECTION.

 

INDEPENDENT CONTRACTORS

You and We are independent contractors, and nothing in these L’Oréal USA 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 L’Oréal USA Terms, You will be deemed to have taken the action Yourself.

 

MUTUAL ARBITRATION

The parties hereto shall use good faith efforts to settle any Dispute (as defined below). To this effect, the parties shall consult and negotiate with one another in good faith, in an attempt to reach a just and equitable solution, satisfactory to all parties. You and L’Oréal mutually agree to resolve any Dispute exclusively through final and binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association (“AAA Rules”) as then in effect (currently available at www.adr.org), instead of a court or jury trial. This agreement to arbitrate is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). For clarity, “ Disputes” subject to this agreement to arbitrate include any dispute, claim, question or disagreement arising from or relating to these L’Oréal USA Terms or the breach thereof, in connection with the Program or arising from any arrangement under these L’Oréal USA Terms (whether between you and us or you and TikTok), including Your classification as an independent contractor, Your provision of services, the payments received by You for providing services to L’Oréal, the termination of Your participation in the Program, and all other aspects of Your relationship with L’Oréal, past, present or future, whether arising under federal, state or local statutory and/or common law, including without limitation harassment, discrimination or retaliation claims and claims arising under or related to the Fair Credit Reporting Act, Defend Trade Secrets Act, Worker Adjustment and Retraining Notification Act, Civil Rights Act of 1964, Americans with Disabilities Act, Age Discrimination in Employment Act, Family and Medical Leave Act, Affordable Care Act, Uniformed Services Employment and Reemployment Rights Act, or Fair Labor Standards Act, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims, whether under a statute or the common law (for example, tort or contract claims) arising out of or relating to Your relationship or the termination of that relationship with L’Oréal. However, this agreement to arbitrate does not apply to litigation between You and L’Oréal pending in a state or federal court as of the date of Your receipt of these L’Oréal USA Terms, nor does it apply to any claim that may not be arbitrated as provided by an Act of Congress or lawful, enforceable Executive Order.

 

If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought. Any demand for arbitration shall be delivered to the address indicated in the notice terms of the L’Oréal USA Terms, unless that address has been updated, in writing.

 

Class Action Waiver. You and L’Oréal mutually agree that by entering into this agreement, we waive our right to have any Dispute brought, heard or arbitrated against either of us or our suppliers, licensors or service providers (including TikTok) as a class action, collective action and/or representative action, and an arbitrator shall not have any authority to hear or arbitrate any class, collective or representative action. Notwithstanding any other clause contained in this agreement or the AAA Rules, as set forth below, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. In any case in which (1) the Dispute is filed as a class, collective, representative or private attorney general action, and (2) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class, collective, representative and/or private attorney general action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration. This agreement does not prevent the filing of charges with a government agency like the Department of Labor, NLRB, or the EEOC or participation in any investigation or proceeding conducted by a government agency.

 

ARBITRATION PROCEEDING.

Any arbitration hereunder shall be governed by the AAA Rules, subject to the following:

 

1. The arbitration shall be heard by one arbitrator selected in accordance with the AAA Rules. The arbitrator shall be an attorney with experience in the law underlying the dispute or a retired judge.
2. To the extent permitted under AAA Rules, the arbitration shall be conducted via remote electronic means. In the event the arbitrator determines an in-person hearing is required, if the parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place in a metropolitan area within 100 miles of the geographic location where the services were performed.
3. Each party will pay the fees for its own attorneys, subject to any remedies to which that party may later be entitled under applicable law. However, in all cases where required by law, L’Oréal will pay the arbitrator’s and arbitration fees. If under applicable law, L’Oréal is not required to pay all of the arbitrator’s and/or arbitration fees, such fee(s) will be apportioned between the parties in accordance with said applicable law, and any disputes in that regard will be resolved by the arbitrator.
4. The arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes. Depositions will generally be limited to no more than two depositions per party.
5. Except as provided in the Class Action Waiver, the arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The arbitrator shall apply the state or federal substantive law, or both, as is applicable.
6. The arbitrator may hear motions to dismiss and/or motions for summary judgment, and will apply the standards of the Federal Rules of Civil Procedure governing such motions.
7. If a party seeks injunctive relief that would significantly impact other participants in the Program as reasonably determined by either party, the parties agree that, upon either’s election, such arbitration will not proceed on an individual basis but will be handled by a panel of three (3) arbitrators. Each party shall select one arbitrator, and the two party-selected arbitrators shall select the third, who shall serve as chair of the arbitral panel. That chairperson shall be a retired judge or an attorney licensed to practice law and with experience arbitrating or mediating disputes. In the event of disagreement as to whether the threshold for a three-arbitrator panel has been met, the sole arbitrator appointed in accordance with this section shall make that determination. If the arbitrator determines a three-person panel is appropriate, the arbitrator may – if selected by either party or as the chair by the two party-selected arbitrators – participate in the arbitral panel.
8. The arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law. Judgment may be entered on the arbitrator’s decision or award in any court having jurisdiction.
9. Nothing herein is intended to or shall preclude You or L’Oréal from filing a complaint and/or charge with any appropriate federal, state or local government agency and/or cooperating with said agency in its investigation. Nonetheless, You and L’Oréal acknowledge that to the fullest extent permitted by law You and We shall not be entitled to receive any private relief, recovery, or monies in connection with any governmental complaint or charge, without regard as to who brought said complaint or charge. All monetary relief will only be available through arbitration.
10. Either You or L’Oréal may bring an action in a court of competent jurisdiction to compel arbitration under this agreement, to enforce an arbitration award, or to review an arbitration award. In an action to review an award, the standard of review applied will be the same as that applied by an appellate court reviewing the decision of a trial court sitting without a jury, without any special deference to the arbitrator.
11. You and L’Oréal expressly waive trial by jury for all claims covered by this Agreement. All other rights, remedies, exhaustion requirements, statutes of limitation and defenses applicable to claims asserted in a court of law will apply in the arbitration. You and L’Oréal agree that arbitration as explained herein provides a fair and adequate mechanism for enforcing the parties’ statutory rights.
12. You agree and acknowledge that entering into this arbitration agreement does not change its status as an independent contractor in fact and in law, and that You are not an employee of L’Oréal notwithstanding this arbitration agreement.
13. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential.

 

This arbitration agreement is the full and complete agreement relating to the formal resolution of disputes covered by this arbitration agreement. In the event any portion of this arbitration agreement is deemed unenforceable, the remainder of this arbitration agreement will be enforceable. You have the right to consult with counsel of your choice concerning this arbitration agreement.

 

APPLICABLE LAW

These L’Oréal USA Terms and the contractual relationship between You and L’Oréal USA, Inc. and its affiliates and brands shall be governed by the laws of the State of New York, U.S.A.

 

MODIFICATIONS

We reserve the right to modify any of the terms and conditions contained in these L’Oréal USA Terms at any time and in our sole discretion by posting a change notice or revised L’Oréal USA 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.

 

WHO WE ARE; ADDRESS FOR NOTICES

 

L’Oréal USA, Inc.
10 Hudson Yards
New York, NY 10001
Attn: General Counsel

 

(Updated December 15, 2023)