ILOLA™ Terms & Conditions for Brands
May 15, 2023
I. Scope of Agreement.
- These Terms form an agreement between Selah LLC (d/b/a ILOLA™), a limited liability company incorporated pursuant to the laws of Delaware USA having its principal office at 445 Marine View Ave, Suite 300 Del Mar, California, 92014 (“ILOLA™”, and the “Company”) and Brands (“Brand” or “Brands”).
- By accepting these Terms when prompted on the Website or when accessing and/or using the Platform, Brands acknowledge they have read, understood, and agree to be bound by these Terms as of the date on which Brands first register, otherwise accept these Terms, or access or use the Platform (the “Effective Date”). If Brands do not accept or agree to be bound by and comply with these Terms, they should not accept or use the Platform. If Brands are accessing or using the Platform on behalf of another person or corporate entity, they represent and warrant that they have the authority to bind such person or entity to these Terms.
- The Company reserves the right, at its sole discretion, to modify or discontinue, temporarily or permanently, the Website and/or the Platform. The Company further reserves its rights to modify these Terms at any time and without prior notice. If the Company modifies these Terms, the Company will post the modification on the Website. The Company will also update the “Last Updated Date” at the top of these Terms. Modifications to these Terms will automatically take effect upon posting. By continuing to access or use the Website and Platform after the Company has posted a modification, Brands are indicating that they agree to be bound by the modified Terms. If the modified Terms are not acceptable to Brands, their only recourse is to cease accessing or using the Website and Platform.
- By accepting these Terms, Brands hereby agree to review, understand, and comply with the Company’s Code of Conduct upon gaining access to the Code of Conduct. Brands shall gain access to the Code of Conduct upon the loading of their products on the Platform and Website and shall be prompted to accept the Code of Conduct at such point. Further, a link to the Code of Conduct shall be contained on Brands’ Clarity Page on the Platform and shall be available for Brands’ reference at all times. If the Code of Conduct is not acceptable to Brands, their only recourse is to cease accessing or using the Website and Platform.
II. Brands Use of Platform and Website
- Brand Accounts Requirements –
- Brands are established as legal entities such as limited liability companies, partnerships, corporations or trusts or the like and represent they are validly formed and existing entities in their respective jurisdictions.
- Brands represent that they have the authority to enter into these Terms and that all acts necessary to make these Terms valid and binding have been done. The person or persons agreeing to the Terms on behalf of Brands represent that they have the right and authority to do so.
- Brands represent and warrant that they are in and shall remain in compliance with the applicable requirements of the Federal Trade Commission (the “FTC”) rules governing influencer marketing. The Company shall not be responsible for ensuring Brands are in compliance with FTC rules governing influencer marketing.
- Brands represent and warrant that all information provided by the Brand either directly to the Company, on their account on the Platform and Website, or in communication to Creators is true and correct. Brands are responsible for ensuring that such information is true and correct at all times and must update such information as soon as possible in the event such information is no longer accurate. The Company bears no responsibility for the accuracy of Brands’ information and bears no responsibility for any misrepresentation made by Brands on the Website and Platform.
- Brands warrant that they are responsible throughout their subscription to the Platform for providing complete and accurate billing and contact information to the Company and notifying the Company of any changes to such information.
- Registration –
- Brands are required to complete a registration form (https://ilolas.com/register-brand/ ) to be considered to use the Platform.
- The Company will review the Brand’s registration form and accept or reject the Brand’s registration. The Company reserves the right to accept or reject Brands at their discretion.
- Once Brands are accepted to use the Platform, Brands will be required to create a password to access the Platform. Brands are responsible for safeguarding and maintaining the confidentiality of their password, and agree not to share their password with anyone. Brands agree to notify the Company immediately if they suspect or become aware of any unauthorized use of their account or any unauthorized access to their password. Brands further agree not to use the account or log in with the email address and password of another Brand.
- Once Brands are accepted to use the Platform, they are required to upload information regarding the products they are offering Creators or provide the Company with Uniform Resource Locators (“URL”) to the products which they intend to offer to Creators. If such URLs do not contain sufficient information, such as, but not limited to, product description, sizing, features and/or high definition images, the Company reserves the right to reach out to Brands for such information.
- The Company shall utilize information on Brands and their products, either provided by the Brands or publicly available to create profiles for Brands and their respective product listings.
- The Company shall strive to create profiles and respective product listings for Brands as soon as possible. However, the Company may have delays in doing so during periods of high traffic of Brand requests.
- Brands are responsible for updating their product listings either directly via their account dashboard or by informing the Company of any changes in product information, product stock, or product availability. Brands are solely responsible for ensuring all information related to their products is true and correct at all times. The Company shall not be responsible for any incorrect information related to Brands’ products or any misrepresentation made by Brands in relation to their products on the Platform, Website, and in communication to Creators.
- After Registration and approval by the Company, the Company reserves the right to utilize Brands’ images, logos, branding, descriptions, or any other content contained within Brands’ website and social media accounts, within the Website and Platform and any Company social media accounts and advertising and promotion materials. The Company is not obligated to inform Brands when Brands’ images, logos, branding, descriptions, or any other content contained within Brands’ website and social media accounts is utilized on the Website, Platform, Company’s social media accounts, and/or advertising and promotional materials.
- Additionally, the Company is not obligated to attribute Brands’ images, logos, branding, descriptions, or any other content contained within Brands’ website and social media accounts to the Brand by displaying Brands’ legal name, account name, and/or social media handles.
- Subscription –
- Brands will be charged an automatically-renewing monthly subscription fee to access and utilize the Platform. The automatically-renewing monthly subscription fee will be charged on the last calendar day of each month.
- The monthly subscription will automatically renew until Brands cancel it. The Company will continue to charge Brands until Brands affirmatively cancel their subscription in accordance with the prescribed cancellation procedure in these Terms.
- The Company retains the right to revise the automatically-renewing monthly subscription fee by providing 30 days written notice to Brands.
- Subscription Cancellation
- Brands can cancel their monthly subscription with the Company via their account dashboard. Brands will only be able to cancel their monthly subscription if they have a clear dashboard. Brands’ dashboards will be deemed cleared when Brands have responded to all Creator requests, have no further shipments to be sent to Creators, have responded to all Creator queries, have completed all Creator refund requests, and have handled all Collaboration Assurance payments appropriately.
- Once Brands cancel their monthly subscription via their account dashboard, the Company shall cancel such Brands’ monthly subscription within 72 hours.
- When Brands cancel their monthly subscription at any point within a calendar month, Brands will only be charged for the period of time they had an active subscription to the Platform (i.e. the prorated amount of the monthly subscription fee from the first of the month in which successful cancellation occurred until the date of successful cancellation). Brands will be charged the prorated monthly subscription fee immediately after successful cancellation in accordance with these Terms. After which, Brands shall no longer be charged a monthly subscription fee.
- By understanding and agreeing to these Terms, Brands understand and agree to fully perform their obligations to the Company, inclusive of fulfilling all of their commitments to Creators in relation to providing the Brands’ products to Creators for the creation and posting of promotional online media content. As such, the Company will only cease charging the monthly subscription fee to Brands, once Brands have fulfilled their obligations and requirements to Creators (such having no further shipments to be sent to Creators, having responded to all Creator queries, having completed and/or resolved all return requests from Creators
,and having handled all Collaboration Assurance payments appropriately), have a clear dashboard, and have canceled their monthly subscription in accordance with the procedure outlined in Section II.D of these Terms.
- The Company will send Brands email acknowledgement of the successful cancellation of their monthly subscription within twenty four (24) hours of canceling their monthly subscription in accordance with Section II.D of these Terms.
- If Brands experience technical issues or any other issues or problems when canceling their monthly subscription in accordance with Section II.D of these Terms, or do not receive email confirmation from the Company within twenty four (24) hours of canceling their monthly subscription in accordance with Section II.D of these Terms, Brands are required to email the Company at email@example.com. Brands failure to inform the Company via an email to firstname.lastname@example.org will result in Brands forfeiting their right to dispute any subsequent charges of their monthly subscription fee and the lack of cancellation of Brands’ monthly subscription.
- Brands are responsible for any and all subscription fees accrued as a result of their failure to email the Company at email@example.com, in the event they face any technical issues or any other issues in canceling their monthly subscription, or if Brands do not receive email confirmation from the Company within 24 hours of canceling their monthly subscription, informing the Company of such issues or lack of confirmation and requesting a cancellation of their monthly subscription.
- The Company will make reasonable efforts to resolve any disputes with Brands directly and Brands will fully cooperate, to the best of their ability, with the Company in the resolution of any disputes. Brands will raise disputes with the payment provider as a measure of last resort and only if attempts to resolve the dispute directly with the Company are unsuccessful. Brands will first attempt to resolve any disputes over monthly subscription fees with the Company, prior to raising a dispute with the payment provider, by emailing the Company at firstname.lastname@example.org. Brands who fail to follow this protocol and raise any disputes with the payment provider directly without first emailing the Company, may have their dispute automatically dismissed by the Company and/or payment provider and may be liable for any fees accrued as a result of such disputes.
- Brands can email the Company at email@example.com to understand the actions required to clear their dashboards in order to successfully cancel their monthly subscription.
- Refund of Monthly Subscription Fee(s)
- The Company does not guarantee that Brands will receive requests from Creators; nor does the Company guarantee a consistent volume of requests from Creators.
- The Company shall not refund Brands’ monthly subscription fees due to Brands’ dissatisfaction in the:
- number of Creator requests received;
- the quality and/or types of Creators;
- the volume of Creator requests;
- Creators’ return of products;
- dissatisfaction with the quality and/or content of Creators’ promotional online media content; and
- the use and/or functionality of the Platform and Website.
- The Company shall only refund Brands’ subscription fees due to incorrect charges as a result of technical issues or billing errors directly attributable to the Company. In such instances, the Company shall only refund Brands’ their monthly subscription fee in proportion to the time during which the technical issue occurred and the Brand was unable to access and/or use the Platform and Website, or the exact amount which was incorrectly billed by the Company.
- If Brands successfully cancel their monthly subscription with the Company in accordance with the procedure outlined in Section II.D of these Terms within seventy two (72) hours of being charged their last monthly subscription fee, such Brands shall qualify to have their last monthly subscription fee refunded to them. In order to avail themselves of the refund, Brands must have canceled their monthly subscription in accordance with the procedure outlined in Section II.D of these Terms within seventy two (72) hours of being charged their last monthly subscription fee. In addition, Brands must have emailed the Company at firstname.lastname@example.org informing the Company of their cancellation and requesting the refund of their last charged monthly subscription fee.
- Brands accounts are not transferable, assignable or resellable under any circumstances.
- Brands should not communicate and/or interact with Creators outside of the Website and/or Platform in regards to the services (i.e. the provisions of products in exchange for promotional social media content) provided on the Platform or Website. Communications and interactions between Brands and Creators outside of the Website and/or Platform are not the Company’s responsibility and may not be used to circumvent these Terms or misuse the Platform for illegal or immoral purposes.
- Brands shall not request from Creators promotional social media content that would be reasonably considered to be pornographic, sexually explicit, lewd, lascivious, violent, harassing, promoting illegal drug use, offensive, or otherwise unlawful or in violation of these Terms.
- Brands cannot reject Creators based on political, or religious activities or affiliations, or race, color, national origin, sex, age, disability, or sexual orientation.
- Brands may not use the Website or Platform to commit or engage in or promote illegal, abusive, or irresponsible behavior including, but not limited to;
- use which in any way breaches any applicable local, national, or international law, code, or regulation, including data protection and privacy laws and laws relating to unsolicited commercial electronic messages;
- use which is any way unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect;
- use of an internet account or computer without the owner’s authorization;
- use which is any way introduced intentionally, knowingly, or recklessly any virus or other contamination code;
- use in any way to collect or use information, including email addresses or other identifiers, by deceit (for example phishing, internet scamming, and password robbery);
- use which in any way intentionally, knowingly, or recklessly leads to the publication of a person’s sensitive identifying information against their wishes; and
- use which in any way could lead to physical damage, death, mental health or personal injury.
- Brands may not use the Website and/or Platform to provide any person under the age of majority in their respective jurisdiction with access to the Website or Platform.
- Brands may not use the Website or Platform for the purposes of building competitive products or services or for any other competitive purposes.
- Unless authorized by the Company, Brands will not probe, scan, or test the vulnerability of security of the Website or Platform.
- Brands may not use the Website or Platform in a manner which the Company, in its sole discretion, believes is unlawful, harmful, threatening, obscene, harassing, or which is otherwise malicious, fraudulent, or morally unacceptable including, but not limited to;
- use which in any way facilitates illegal activity;
- use which in way depicts secually explicit images;
- use which in way exploits minors;
- use which in any way is excessively violent, incites or threatens violence, or contains harassing content or hate speech;
- use which in any way is discriminatory, including discrimination based on race, ethnicity, gender, color, age, religious belief, sexual orientation or disability;
- use which is in any way unfair or deceptive under the consumer protection laws of any applicable jurisdiction;
- use which in any way is defamatory or violates a person’s privacy.
- Brands may not use the Website or Platform which in any way may infringe any copyright, patent, trademarks, design, or other intellectual property right of others.
- Brands will be penalized by the Company for not fully or partially fulfilling their obligations to Creators without just cause. The penalties available to the Company include, but are not limited to:
- temporarily suspending Brands’ accounts and profiles on the Platform; and
- terminating Brands’ accounts and profiles on the Platform.
- The Company reserves the right to prescribe any and all of the noted penalties at their discretion.
- Brands will be penalized by the Company for not fully or partially fulfilling their obligations to Creators without just cause. The penalties available to the Company include, but are not limited to:
III. Intellectual Property
- The Platform and all related intellectual property rights are the exclusive property of the Company. All right, title and interest in and to the Platform, any modifications, improvements, translations, or derivatives thereof, even if unauthorized, and all applicable rights in patents, copyrights, trade secrets, trademarks, trade names, logos, software code, artwork, phrases and all other intellectual property rights in and to the Platform remain exclusively with the Company, including any modifications or improvements made thereto during the Term at the suggestion of, or with input from Brands. The Platform is valuable, proprietary, and unique, and Brands agree to be bound by and observe the proprietary nature of the Platform. All rights not granted to Brands in this Agreement are reserved by the Company No ownership of the Platform passes to Brands; except as otherwise expressly provided, the Company grants no express or implied right under the Company’s patents, copyrights, trademarks, or other intellectual property rights.
- The Company owns all right, title and interest in and to all content (including, all text, files, images, graphics, illustrations, information, data, audio, video, photographs and other content) produced and communicated by Creators to Brands on the Platform, all content published by Creators containing products received from Brands based on relationships and/or communication on the Platform, all derivative content produced by Brands based on content published by Creators containing products received from Brands based on relationships and/or communication on the Platform, and any content as well as derivative content created by Brands and Creators as a result of their relationship developed through the Platform irrevocably, perpetually and without any limitation or restriction whatsoever.
- The Company shall grant Brands an irrevocable, perpetual, worldwide license to Creators’ content featuring their brand and/or product that was submitted through the Platform.
- Brands will have the right to use, display, electronically transmit, distribute, publish, broadcast, modify, edit, combine with the work of others, make derivative works from and otherwise exploit Creators’ content shared on the Platform.
- The Website and Platform may contain links to third-party websites or resources. Brands acknowledge and agree that the Company is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by the Company. Brands acknowledge and agree that it is their sole responsibility for and assume all risk arising from their use of any such websites or resources or the content, products or services on or available from such websites or resources.
- The downloading, viewing and use of the Platform is done at Brands own risk. The Company cannot and does not guarantee or warrant that the Platform is compatible with Brands’ computer systems or that the Platform, or any links from the Platform, shall be free of viruses, works, trojan horses or disabling devices or other code that manifests contaminating or destructive properties. Brands are solely responsible for implementing safeguards to protect the security and integrity of their computer system, and Brands are solely responsible for the entire costs of any service, repairs or connections of and to their computer system that may be necessary as a result of their use of the Platform.
VI. Dispute Resolution
- The Company shall not be liable for any disputes between Creators and Brands. The Company is under no obligation to mediate and/or resolve disputes between Creators and Brands. The Company may, under its own volition, elect to mediate and/or resolve disputes between Creators and Brands but is not required to do so and shall not be held liable for any disputes or damages resulting from such mediation and/or resolution.
- In the event of a claim, dispute or controversy arising out of or relating to these Terms, including, but not limited to the breach, termination, interpretation or validity of these Terms, the Company and the Brand shall first attempt in good faith to resolve the claim, dispute or controversy amicably through negotiation.
- In the event of a claim, dispute or controversy arising out of an agreement between Creators and Brands, the Company shall use reasonable efforts to assist in the resolution of the claim, dispute or controversy, notwithstanding the fact that the Company is not liable in any way whatsoever in respect of any agreement between Creators and Brands.
- In the event that negotiations are unsuccessful, any claim, dispute or controversy arising out of or relating to these Terms shall be submitted to final and binding arbitration, to be held in Los Angeles, California before a sole arbitrator (the “Arbitrator”) selected from the American Arbitration Association, as the exclusive forum for the resolution of such dispute; provided, however, that provisional injunctive relief may, but need not, be sought by either party to these Terms in a court of law while arbitration proceedings are pending, and any provisional injunctive relief granted by such court shall remain effective until the matter is finally determined by the Arbitrator. Final resolution of any dispute through arbitration may include any remedy or relief that the Arbitrator deems just and equitable, including any and all remedies provided by applicable state or federal statutes. At the conclusion of the arbitration, the Arbitrator shall issue a written decision that sets forth the essential findings and conclusions upon which the Arbitrator’s award or decision is based. Any award or relief granted by the Arbitrator hereunder shall be final and binding on the Company and Brands hereto and may be enforced by any court of competent jurisdiction. The Company and Brands agree that the Company shall be responsible for payment of the forum costs of any arbitration hereunder, including the Arbitrator’s fee, but that each party shall bear their attorney’s fees and other expenses.
- Brands acknowledge and agree that Brands are waiving the right to trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceedings. Furthermore, Brands agree that unless otherwise agreed in writing, the arbitrator may not consolidate more than one person’s claim and may not otherwise preside over any form of any class or representative proceedings.
VII. Class Actions
- Brands agree that they may only bring claims against the Company in their own individual capacity and not as a plaintiff or class member in any purposed class or representative proceeding.
VIII. Term and Termination
- Term – The Term begins on the Effective Date and ends on the Termination Date. “Termination Date” means the earlier date of: (i) the completion of the subscription cancellation process; or (ii) termination of these Terms under this section.
- Termination for Cause – Either the Company or Brands may terminate these Terms: (i) if the other party is in material breach of these Terms and fails to cure the breach within 30 days of receiving written notice from the non-breaching party; or (ii) if the other party becomes the subject of a petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Any notice of breach must contain specific information to substantiate the alleged breach. If a Brand terminates due to the Company’s breach, the Brand’s exclusive remedy is a pro-rata reimbursement of prepaid subscription fees covering the remainder of month for which the prepaid subscription fee relates to. If the Company terminates due to the Brand’s breach, the Brand will pay any unpaid subscription fees for the month in which termination occurred. Termination under this section will not relieve the Brand of its obligation to pay any subscription fees owed for the period prior to the Termination Date.
- Effect of Termination – The Brand shall immediately cease all use of and access to the Platform on the Termination Date and their account, profile, and product(s) on the Platform will be removed.
IX. Limitation of Liability and Disclaimer of Liability
- The Platform provides an online social marketplace through which Brands and Creators interact and Brands provide products either free of charge or at a substantially discounted MSRP, forming an agreement between Brands and Creators. Brands understand and agree that the Company is not a party to this agreement and the Company has no control over the conduct of Brands, Creators, and third party users of the Platform.
- Brands acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of a Brand’s access to and use of the Website and Platform remains with the Brand. The Company shall not be liable to the Brand in any way to the maximum extent permitted by applicable law, for any direct, indirect, incidental, special, consequential, or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data, or other tangible losses resulting from;
- the use or inability to use or access the Website or Platform;
- the cost of procurement of a substitute product and/or promotional online media content resulting from any data, information, products, or services obtained or messages received or transactions entered into through or from the Platform;
- any unauthorized access to or alteration of Brands’ information;
- any subscription price change, suspension or termination from the Platform and Brands’ access to it whether in whole or in part;
- any loss of Brand’ information;
- any modification to the Platform, the Website or its services as whole;
- any negative and/or defamatory statements and/or promotional online media content;
- any copyright and/or trademark violations associated with the promotional online media content; and
- any other matter in relation to Brands’ use of the Platform.
- Creators and Brands accessing and using the Platform are independent persons and/or organizations and are not contractors, agents, or employees of the Company. The Company is not liable for the acts, errors, representations, warranties, breaches or negligence of any business or person or for any personal injuries, death, property damage, or other damages or expenses resulting therefrom and the Company takes no responsibility whatsoever related to any products that the Creator may receive as part of the Creators’ dealings with Brands on the Platform and the Website.
- Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the limitations set forth above may not apply to all Brands. If a Brand is dissatisfied with any portion of Platform or these Terms, the Brand’s sole and exclusive remedy is to discontinue use and access to the Platform and the Website. To the extent the foregoing limitations do not apply or in the event these provisions are held to be unenforceable, in whole or in part, by a court of competent jurisdiction, Brands agree that, to the maximum extent permitted by applicable law, in no event will the total aggregate liability on the part of the Company under these Terms (including for breach of any provision hereof, fundamental breach or any other breach giving rise to liability or arising out of or related to these Terms or the Platform in any other way), for any cause of action whatsoever and regardless of the form of action (including breach of contract, tort, or any other legal equitable theory), exceeding ten United States Dollars ($10) or the equivalent in local currency. For greater certainty, the existence of one or more claims under these Terms will not increase the maximum liability amount.
X. Force Majeure
- Except as otherwise expressly provided in these Terms, neither the Company nor Brands shall be deemed in default of these Terms to the extent that performance is prevented by circumstances beyond their reasonable control, including natural disasters, shutdowns, malfunctions, technical failures, or third-party data security breaches or criminal misconduct.
XI. Governing Law
- These Terms shall be treated as though they were executed and performed in the State of California and shall be governed and construed in accordance with the state laws of California without regard to conflict of law principles.
- It is the desire and intent of the Company and Brands that the provisions of these Terms shall be enforced to the fullest extent permissible under applicable law. If any provision of these Terms or any part of any such provision is held under any circumstances to be invalid or unenforceable by any arbitrator or court of competent jurisdiction, then: (i) such provision or part thereof shall, with respect to such circumstances and in such jurisdiction, be modified by such arbitrator or court to conform to applicable laws so as to be valid and enforceable to the fullest possible extent; (ii) the invalidity or unenforceability of such provision or part thereof under such circumstances and in such jurisdiction shall not affect the validity or enforceability of such provision or part thereof under any other circumstances or in any other jurisdiction; (iii) the invalidity or unenforceability of such provision or part thereof shall not affect the validity or enforceability of the remainder of such provision or the validity or enforceability of any other provision of these Terms. Each provision of these Terms is separable from every other provision of these Terms, and each part of each provision of these Terms is separable from every other part of such provision.
XIII. Complete Agreement.
- These Terms constitute and contain the entire agreement and final understanding concerning the subject matters addressed herein between Brands and the Company. These Terms are intended by the Company and Brands as a complete and exclusive statement of the terms of their agreement. It supersedes and replaces all prior negotiations and all agreements proposed or otherwise, whether written or oral, concerning the subject matter hereof. Any representation, promise or agreement not specifically included in these Terms shall not be binding upon or enforceable against either Brands or the Company. These Terms constitute a fully integrated agreement.
- Headings are for reference only and do not affect the meaning or interpretation of these Terms.
- Brands should contact the Company at email@example.com to report any violations of these terms or to ask any questions regarding these Terms, the Website and/or the Platform.