Last updated: September 2023
(Applicable to US based Creators)
By clicking the check box “accept” on these terms and conditions (herein after, the “Terms and Conditions” or “Agreement”) you declare that you understand and accept the following:
These Terms and Conditions form an agreement between the Estee Lauder Inc. on behalf of itself and its affiliates, successors, and assigns, and having its principal business address at 767 Fifth Avenue, New York, NY 10153 (herein after, the “Company”) and you (herein after, “you”, “Creator” or “Influencer”) where you will be providing Services (as defined below) to the Company.
Once you are an eligible and approved Creator by TikTok under the TikTok Shop Creator Terms of Use (“TikTok Shop”), you can access and use TikTok E-commerce Creator Center where you will find opportunities and offers to be selected by Company to promote Company’s selected products through your TikTok social media account by creating any content, text, photographs, user generated content, videos (including live streamed and recorded) that incorporates pre-cleared music from TikTok’s Commercial Audio Library (herein after, the “Creator Content”) in order to earn solely a fixed commission set by the Company if your Creator Content generates sales through TikTok Shop for Company (herein after, the “Services”). Creator shall perform its Services and provide all Creator Content hereunder in accordance with any general creative, editorial, aesthetic, and technical requirements, design features and other guidelines and specifications communicated by Company prior to the posting of the Creator Social Media Post (as defined below) and also comply with the deadlines given by Company to provide Services.
Influencer grants to Company the royalty-free, non-exclusive, perpetual, sublicensable, right and license, worldwide, to repost, reproduce, modify, edit, publish, distribute, publicly display, communicate to the public, make available and otherwise use the Creator Content and your TikTok handle in the Company’s social media pages and channels, including, without limitation, Facebook, YouTube, Instagram, Pinterest, Twitter, Line, WeChat, Snapchat, Clubhouse, Periscope, Weibo, TikTok, and related posts.
If applicable, Company shall have the right to put paid media behind Creator Social Media Post (as defined below) and Influencer shall grant to Company the right to create targeted advertisements by putting paid media behind any and all aspects of Creator Social Media Post, including, but not limited to, Spark Ads and dark posting.
All Creator Content and Creator Social Media Post (as defined below) must be in compliance with the FTC’s Disclosures 101 for Social Media Influencers (https://www.ftc.gov/system/files/documents/plain-language/1001a-influencer-guide-508_1.pdf) (“FTC Guides”) and all applicable international, state, local laws, rules or regulations, and self-‐regulatory guidelines (collectively, “Laws”) and the influencer guidelines ( “Influencer Guidelines”) that will be provided by Company through the briefing of each Company product displayed on the TikTok Shop.
Influencer will maintain a clear and conspicuous notice on posts including the Creator Content (herein after, “Creator Social Media Post”), indicating that Influencer has been paid/compensated by Company, in a manner that conforms with the Influencer Guidelines communicated by Company prior the posting of the Creator Social Media Post. Influencer has read and will fully comply with FTC Guides when talking or writing about Company or Company’s products. Further, and without limitation, Influencer: (i) will clearly and conspicuously disclose proximate to any mention by Influencer of Company or Company products that Influencer has received compensation, product and/or other incentive items from Company; (ii) will not make any false, misleading or deceptive statement and will not make any product performance or attribute claims about Company products (Influencer may express opinions, but will not make factual claims about the Company products) without prior written approval of Company; (iii) will ensure that all of Influencer’s statements accurately reflect only Influencer’s honest, current opinions and beliefs based on Influencer’s personal experience; (iv) will not purport to speak on behalf of Company without Company’s approval; and (v) will maintain Influencer’s social media channels and activities related to the Services in accordance with the terms of Section 7 below.
Creator may be eligible to receive commissions through TikTok Shop if your Creator Content generates sales of Company’s products as set forth in the TikTok Shop Creator Terms of Use. . The fixed commission will vary for each Company product and Company may change the rate of the fixed commission at its sole discretion from time to time.
All amounts payable to Creator hereunder will be paid through TikTok’s payment service providers (herein after, “Third Party PSPs”). In order to become a Creator and receive payments for Creator Services, you must review and agree to the following Third Party PSP’s terms and conditions: Hyperwallet Terms of Service and the Hyperwallet Privacy Policy.
Company reserves the right at all times to require Influencer to edit, take down, or otherwise remove Creator Social Media Posts in Company’s sole discretion. Influencer shall immediately modify, remove, or discontinue as Company shall determine, in its sole discretion, any content about Company, and any other references to Company upon Company’s notification to Influencer.
Influencer further warrants and represents to Company that: (i) Influencer shall perform Services diligently and in a professional manner consistent with general industry standards and practices; (ii) Influencer has the sole and exclusive rights in Influencer Persona (iii) Influencer has the permission and release of rights from everybody that appears on the Creator Content for the use of the Creator Content by Influencer or Company (iv) the Creator Content is wholly original and Company’s or Creator’s use thereof, does not and will not infringe any patents, copyrights, trademarks, trade secrets or other intellectual property rights or violate the right of privacy, publicity or other rights of any third-party, nor has any claim of such infringement or violation been threatened or asserted in relation to the Creator Content against Influencer or others.
Influencer warrants and represents that the Creator Content,: (i) is not false, misleading, deceptive, and/or defamatory, inaccurate, libelous, abusive, vulgar, hateful, harassing or threatening, obscene, offensive, or contain disparaging remarks about other people or companies; (ii) does not endorse any form of hate or hate group; (iii) is not profane or pornographic; (iv) is not sexually oriented, explicit or suggestive; (v) is not unnecessarily violent nor derogatory of any ethnic, racial, gender, religious, professional or age group; (vi) does not promote alcohol, illegal drugs, tobacco, firearms/weapons (or the use of any of the foregoing); (vii) does not promote any activities that may be construed as unsafe or dangerous; (viii) is in compliance with all applicable Laws; or (ix) unless specifically approved by Company, does not promote any particular political agenda or message.
Influencer will not disclose to any third party or otherwise utilize any confidential or proprietary information obtained pursuant to this Agreement regarding Company, its products, services, strategies, or activities. For purposes of this Agreement, the term “Confidential Information” shall be deemed to include all information and materials furnished by or on behalf of Company to Influencer and/or otherwise arising from and/or in connection with the Services.
If Company provides you with trademarks, products or any other material owned by Company (herein after, the “Company Materials”) you agree to limit your use of Company’s Materials to the provision of the Services.
In the event that Company provides any Company Materials to Influencer, Influencer agrees to use those products only in connection with the Services provided herein or for Influencer’s own personal use. Influencer will not sell such Company Materials to any third parties, nor use such Company Materials as promotional items in giveaways, contests, or sweepstakes, without the prior written approval of Company
Influencer agrees to indemnify and hold Company and its directors, officers, employees, agents, assigns, distributors, and licensees harmless from and against all third-party demands, claims, suits, actions, judgments, damages, losses, fines, costs or expenses, and liabilities (including reasonable outside attorneys’ fees, costs, and expenses) arising from or relating to: (i) any breach or alleged breach by Influencer of this Agreement and the representations and warrants herein granted; (ii) any claim that the Creator Content infringes third-party intellectual property rights; or (iii) any negligent act or omission by Influencer. unless it shall be determined that the claim arose from the negligence, recklessness or willful misconduct of Company, its directors, officers, employees, agents, assigns, distributors, and licensees.
By accepting these Terms and Conditions, you also agree that you have read, understood and agree to our Privacy Policy which is fully incorporated herein by reference.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY SEEK OR BE LIABLE FOR PUNITIVE, CONSEQUENTIAL, SPECIAL, EXEMPLARY, ENHANCED, OR TREBLED DAMAGES, ARISING FROM ANY DISPUTE, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT, OR THE RELATIONSHIP BETWEEN THE PARTIES WHETHER SUCH DAMAGES ARE CLAIMED FOR BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER TORT CLAIM.
Creator’s performance of the Services for Company hereunder is as an independent contractor. Accordingly, Creator’s engagement with Company does not make Creator an employee of Company and nothing herein shall be construed as creating any relationship of employer/employee, partnership, agency, joint venture, or otherwise between the parties. Creator acknowledges that the rendering of such Services hereunder shall not entitle Influencer to employee benefits as an employee of Company with respect to workers’ compensation, disability benefits, health, medical or life insurance programs, pension, profit sharing or other employee benefit plans or any other program or benefit maintained by Company. Additionally, neither party shall have any right to obligate or bind the other party in any manner other than as outlined herein, and nothing herein shall give, or is intended to give, any rights of any kind to any third-party.
The failure of either party to enforce any provision of this Agreement, or to exercise any right or option herein, shall not be construed to be a waiver of such provisions, rights or options nor will it otherwise limit the parties’ right to subsequently enforce such provision or exercise such right or option.
All remedies, rights, undertakings, obligations, and agreements contained in this Agreement shall be cumulative; and none of them shall be in limitation of any other remedy, right, undertaking, obligations or agreement of either party hereto.
In the event that you have a dispute with TikTok, or any other third party, you agree to release us and our affiliates and each of our and their respective officers, directors, employees, agents, advisors, successors, representatives, shareholders, and suppliers, 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 your use of the TikTok Shop or under the provision of Services.
If any provision of this Agreement is determined to be invalid by a court of competent jurisdiction, such determination shall in no way affect the validity or enforceability of any other provision herein.
All notices given hereunder shall be given in writing by personal delivery or by mail at the respective addresses of the parties as set forth herein; provided, however, that, if either party at any time or times gives notice of any different address for itself, then notices hereunder shall be given to it at the last such address so designated. Notice given by mail shall be sent by reputable overnight delivery service or by certified or registered mail, return receipt requested and shall be deemed given on the date of mailing thereof with postage prepaid. Notices shall be deemed effective when personally delivered or after being transmitted or mailed in the manner specified above, and if the notice is to be given to Company, then by Influencer forwarding same in the manner herein set forth to William Jelinek, Esq., Vice President and Legal Counsel, The Estée Lauder Companies Inc., 767 Fifth Avenue, New York, NY 10153 (p: 212-277-2337, e: wjelinek@estee.com).
This Agreement (together with all matters or issues collateral thereto) shall be governed by the laws of the State of New York applicable to contracts entered into and performed entirely therein without regard to its conflict of laws principles and constituted the entire agreement between the parties hereto with respect to the subject matter herein contained and cannot be changed unless in writing signed by both parties. In the event of any dispute, venue shall be located in New York, New York; and all parties hereby submit to the exclusive jurisdiction of the federal and state courts located in New York, New York over each of them personally in connection with such dispute and waive any objection to venue in such courts and any claim that such forum is an inconvenient forum.
Except as otherwise expressly provided hereunder, neither this Agreement nor any rights or obligations hereunder may be assigned or delegated in whole or in part by Influencer.
This Agreement shall be binding upon Company’s respective successors and assigns, and Company shall make commercially reasonable efforts to cause such successor or assignee to be contractually bound. The section headings of this Agreement are for convenience of reference only and are in no way intended to describe, interpret, define, or limit the scope, extent or intent of this Agreement or any provision hereof. Without limiting the foregoing, there shall be no presumption against either party on the grounds that such party was responsible for drafting this Agreement or any provision hereof.
In no event during the Term hereof, shall Influencer have any right whatsoever to enjoin the distribution or exploitation by Company of the Company Materials produced hereunder or the Company Content.
EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.