This TikTok Shop Content Creator Agreement (the “Agreement”) is between you and Momo Orchard Holdings, Inc. (“Momofuku”) and sets forth the terms and conditions for your participation as a Creator (as defined in the TikTok Terms) promoting Momofuku products and goods on TikTok Shop (the “Program”). The Program is facilitated by TikTok and TikTok Shop (US) (“TikTok Shop”) and you are subject to all policies implemented by TikTok, including, without limitation, that certain TikTok Shop Content Policy, TikTok Shop’s Creator Terms of Use, and any other terms that TikTok may, from time to time, create to govern the relationship between TikTok Shop and Content Creators (collectively, the “TikTok Terms”). In this Agreement, “you” or “your”meanstheindividualorbusinessparticipating in the Program on TikTok Shop. 

The parties understand and acknowledge that neither TikTok nor any of its affiliates is a party to this Agreement.

THIS IS A BINDING CONTRACT. By participating in the Program, you are entering into an agreement with Momofuku and agree to be bound by these terms and conditions.

 

1. Eligibility and Enrollment

To be eligible to participate in the Program, you must: (i) meet those requirements and obligations set forth in the TikTok Terms; (ii) be eighteen (18) years of age or older; and (iii) must be approved by Momofuku, with such approval at Momofuku’s sole and absolute discretion. You must ensure that the information in your account is at all times accurate and up-to-date. Momofuku may send notifications, approvals, and other communications relating to the Program and the Agreement to the email address then-currently associated with your TikTok Shop account. You will be deemed to have received all notifications sent to that email address.

 

2. Commissions

Once you are enrolled in the Program, when your Program content or promotions (“Content”) generates a sale of Momofuku’s products, you may be eligible to receive a commission from Momofuku in such amounts to be determined in accordance with Momofuku’s applicable commission rate then in effect, set in Momofuku’s sole discretion and subject to change at any time (“Commissions”). In addition to all other requirements set forth herein, to be eligible for Commissions, a sale must be completed on TikTok Shop and recorded by TikTok. In the event of any return, refund, chargeback, or similar event that results in a sale being rescinded (each, a “Rescinded Transaction”), you shall not be entitled to any Commissions for such Rescinded Transaction.

Any Commissions paid hereunder will not be subject to any deductions. You agree to indemnify Momofuku with respect to any claim if you fail to pay any assessments or taxes due on your compensation hereunder. You acknowledge that for the purposes of this Agreement, you will not be considered our employee and will not, by way of example and not be way of limitation, be entitled to any benefits from workers compensation, disability benefits, health, medical or life insurance programs, pension, profit sharing or other employee-benefit plans or programs maintained by Momofuku.

 

3. Payment

Momofuku shall pay Commissions to you using the payment process enabled by the TikTok Shop. In order to receive payment of Commissions, you must have:

(a) agreed to the terms of this Agreement via your participation; (b) completed all steps necessary to set-up your account on TikTok Shop; (c) valid and up-to-date payment information in your account on TikTok Shop; and (d) completed any and all required documentation in order for the TikTok Shop or third-party payment processors TikTok may contract with in order to process any payments that may be owed to you.

 

4. Brand Usage and Proprietary Rights

You acknowledge the proprietary nature of all names, logos, other trademarks, and other brand designations, images, colors and color combinations, characters, designs, likenesses and visual representations owned, controlled, or cleared for use by or on behalf of and/or applied for in or registered with the U.S. Patent and Trademark Office (irrespective of the class or nature of goods or services for which an application has been made or registration issued) or otherwise protected by applicable law, or any combination or derivative of same, by Momofuku (collectively, the “Momofuku Marks”). Momofuku hereby grants you a limited, revocable, royalty-free, non-transferable, non-sublicensable license to use any Momofuku Marks solely to the extent necessary to create Content in connection with the Program, and subject to the terms and conditions of this Agreement.

 

5. Content License

You hereby grant Momofuku and its affiliates, successors, and assigns, a perpetual, irrevocable, freely transferable and sublicensable, fully paid-up and royalty-free right and license to use the Content in all formats and media, whether now known and existing or hereafter discovered or developed, throughout the universes, for all or any purposes whatsoever (the “Content License”). For clarity and without limiting the foregoing, you agree that the Content License gives Momofuku the right to: (a) modify, edit, combine with other materials, translate, include in collective works and otherwise create derivative works of the Content; and (b) to reproduce, perform (publicly or otherwise), display (publicly or otherwise), and transmit the Content, in whole or in part.

 

6. Use of Name and Likeness

You hereby grant to Momofuku the right to use your name, performance, voice, signature, photograph and likeness, and any other information you may share and agree to be made publicly available or is publicly available in connection with our use of the Content.

 

7. Representations and Warranties

You represent and warrant that:

You are over the age of eighteen (18) and are authorized to enter into this Agreement.

Your execution and performance of this Agreement will not violate any applicable laws or regulations.

Your execution and performance of this Agreement will comply with the TikTok Terms.

Your Content (except for Momofuku Marks and any materials provided to you by Momofuku) (a) will be your original creative works created specifically for the Program; (b) will not infringe or otherwise violate the rights of any third party (including, without limitation, intellectual property rights and rights of publicity and privacy); (c) will not contain any profanity, vulgar language, nudity, or political or polarizing topics; (d) will not contain illicit drugs or weapons; (e) will not contain any content which is defamatory of any person or disparaging of any entity; (f) will reflect your honest opinion based on actual use of the product; (g) will be true and accurate to the best of your knowledge and will not hold out opinion as fact; (h) will not contain unsupported comparisons intended to disparage or denigrate other products, brands, or e-commerce sites; and (i) will not make explicit or implicit false, deceptive, or unsubstantiated claims.

Your content will not target minors under the age of eighteen (18) years of age.

You will disclose your material connection with TikTok and Momofuku and in all Content as required by the Federal Trade Commission, including, without limitation, pursuant to its Guides Concerning the Use of Endorsements and Testimonials in Advertising and the FTC.com Disclosures.

You shall not make any statements or commit any acts making yourself, in Momofuku’s reasonable opinion, the subject of public disrepute, contempt, or scandal that affects your or Momofuku’s reputation; nor shall you defame our products or services.

 

8. Modification

Momofuku may modify the terms of or replace this Agreement at any time and at its sole discretion. If Momofuku does so, it will provide advance written electronic notice to you. The effective date of any such change will be the date specified by Momofuku. If you do not agree to the new terms, you may choose to terminate the Agreement as provided herein. You acknowledge and understand that your continued participation in the Program following the effective date of such new terms will constitute your acceptance of the new terms.

 

9. Relationship of the Parties

The parties to this Agreement are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You have no authority to make or accept any offers or representation on Momofuku’s behalf, or to otherwise act on Momofuku’s behalf, except as otherwise permitted in this Agreement.

 

10. Term and Termination

The term of this Agreement will begin when you accept the Agreement and will end when terminated by either party in accordance with its terms or as otherwise provided herein. Either party may terminate this Agreement at any time, with or without cause.

 

11. Effect of Expiration or Termination

Upon expiration or termination of this Agreement, all licenses granted by Momofuku hereunder shall immediately terminate and you will immediately cease use of all Momofuku Marks and all other materials provided in connection with the Program. Upon Momofuku’s written request, you will remove, delete, or unlink any Content created in connection with this Agreement.

Except as otherwise set forth herein or as otherwise agreed to by the parties, you are not eligible to receive Commissions after expiration or termination of this Agreement; provided, however, that any Commissions earned prior to the expiration or termination of this Agreement shall be paid to you in accordance with the terms herein notwithstanding the subsequent expiration or termination of this Agreement.

 

12. Disclaimer

Momofuku makes no express or implied warranties or representations with respect to the Program or your potential to earn income from the Program.

 

13. Indemnification and Limitation of Liability

You will indemnify and hold Momofuku and its officers, directors, and employees, harmless from and against all claims, losses, damages, settlements, costs and expenses (including, without limitation, reasonable outside attorneys’ fees) incurred in connection with third party claims, actions, or proceedings arising or resulting from your (a) negligence or willful misconduct; (b) breach of any representation, warranty, or other provision of this Agreement; or (c) acts or omissions in connection with the Program.

You are solely responsible for your Content in connection with the Program. Momofuku is not responsible for yours, TikToks’, and others’ actions or conduct (whether on or off TikTok Shop) and Momofuku does not guarantee the accuracy, integrity, appropriateness, or quality of any content that you, TikTok, and others share or otherwise make available to you in connection with the Program (including, without limitation, offensive, inappropriate, obscene, unlawful, and other objectionable content and defamatory content). 

IN NO EVENT WILL MOMOFUKU BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR LOST PROFITS, LOSS OF USE, OR lost opportunities, WHETHER OR NOT MOMOFUKU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MOMOFUKU BE LIABLE TO YOU FOR ANY AMOUNT EXCEEDING THE LESSER OF (I) FIFTY DOLLARS ($50) AND (II) THE Commissions EARNED UNDER THIS AGREEMENT FOR THE TWELVE (12) MONTH PERIOD PROCEEDING THE CLAIM.

 

14. Miscellaneous

a.     Governing Law; Venue. This Agreement shall be construed in accordance with, and governed by, the laws of the State of New York. In case of any litigation arising out of any dispute between the parties concerning the interpretation or the compliance with this Agreement, the parties agree to accept the jurisdiction of a federal or state court located in New York, NY.
b.     Assignment. You shall not assign any rights or delegate or subcontract any obligations under this Agreement without Momofuku’s prior written consent. Momofuku may freely assign its rights and obligations under this Agreement at any time.
 
c.     Waiver. The failure by Momofuku to exercise rights granted to it hereunder shall not operate or be construed as a waiver of any subsequent breach of the same or any other provision by Momofuku.
 
d.     Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, and any related Momofuku schedules or guidelines, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein.

e.     Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

f.      Conflict of Terms. In the event of any conflict between the terms and conditions of this Agreement and the terms and conditions of any other related document, this Agreement shall control to the extent of such conflict.

g.     Survival. The following sections shall survive the expiration, or earlier termination of this Agreement: Section 4 (Brand Usage and Proprietary Rights), Section 5 (Content License), Section 6 (Use of Name and Likeness), Section 12 (Effect of Termination or Expiration), Section 14 (Indemnification and Limitation of Liability); and Section 15 (Miscellaneous).