PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
INFLUENCER AND AFFILIATE AGREEMENT
BY CLICKING “I AGREE,” you are entering into a legally binding contract with D.D. TOMOLI LLC (“TOMOLI”, “The Advertiser”) and are agreeing to be bound by these Influencer and Affiliate Terms Conditions which will govern the relationship between you, as an Influencer and/or Affiliate, and TOMOLI.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT SUBMIT YOUR APPLICATION OR CONTINUE YOUR PARTICIPATION IN THE COLLABORATION. In addition, if at any time you no longer wish to be bound by these Influencer and Affiliate Terms and Conditions, you must immediately notify TOMOLI.
Influencer Appointment. TOMOLI would like the Influencer’s assistance in promoting / offering / selling TOMOLI’s products via the Influencer’s social media accounts. TOMOLI hereby appoints the Influencer as its representative on a non-exclusive, non-employee basis to endorse and promote its services to the target audience.
Term. This Agreement shall have an initial term of one year and shall automatically renew for additional one-year terms thereafter unless either party provides thirty days prior written notice of its intention of nonrenewal.
Influencer Deliverables. The Influencer shall deliver the agreed number of posts and other promotional material on the agreed platforms on behalf of TOMOLI, according to the delivery schedule specified by TOMOLI. The services shall conform to the specifications and instructions of TOMOLI, abide by the rules of the relevant social media platforms, and are subject to TOMOLI’s acceptance and approval. The Influencer must submit the content to TOMOLI for review prior to publishing it on their social platforms. TOMOLI will notify the Influencer if content revisions are needed. The Influencer must complete the suggested revisions, and resubmit the updated deliverable to TOMOLI for review prior to publishing it.
Cancellation. Either party may terminate this agreement within ten days, with written notice if the other party breaches this agreement and does not cure such breach within such time period, in addition to any right or remedy that may be available to TOMOLI under this agreement or applicable law. In the event that the Influencer has breached this agreement, TOMOLI may (i) immediately suspend, limit or terminate the Influencer’s access to any TOMOLI account and/or (ii) instruct the Influencer to cease all promotional activities or make clarifying statements, and the Influencer shall immediately comply. Either party may terminate this agreement at any time without cause upon thirty days prior written notice to the other party.
Collateral Details. TOMOLI will provide the necessary products, content, and briefing materials to enable the Influencer to perform agreed upon marketing services.
When the Influencer is consigned TOMOLI products to create promotional materials, it is the responsibility of the Influencer to treat the products with care, and return them to TOMOLI according to TOMOLI’s instructions. This does not apply when TOMOLI gifts the products to the Influencer, or when the products represent TOMOLI’s compensation to the Influencer.
If the Influencer has obtained employees or agents (the "Influencer Personnel"), the Influencer shall be solely responsible for all costs associated with the Influencer Personnel.
Items to Avoid in Influencer Posts: The Influencer agrees to avoid mentioning competitors of TOMOLI. The Influencer also agrees to abide by all branding guidelines set by TOMOLI. (For example, all blog posts, social media statuses, tweets, and/or comments should be in good taste and free of inappropriate language and/or any content promoting bigotry, racism or discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age).
Approval and Content Origination: The Influencer understands that all promotions and products they promote as part of this agreement are controlled by TOMOLI. The Influencer assumes all responsibility for verifying that the campaign materials published meet TOMOLI’s approval.
Confidentiality and Exclusivity. During the course of the Influencer's performance of services for TOMOLI, the Influencer will receive, have access to, and create documents, records and information of a confidential and proprietary nature to TOMOLI and customers of TOMOLI. The Influencer acknowledges and agrees that such information is an asset of TOMOLI or its clients, is not generally known to the trade, is of a confidential nature and, to preserve the goodwill of TOMOLI and its clients, must be kept strictly confidential and used only in the performance of the Influencer's duties under this Agreement. The Influencer agrees that he/she will not use, disclose, communicate, copy or permit the use or disclosure of any such information to any third party in any manner whatsoever except to the existing employees of TOMOLI or as otherwise directed by TOMOLI in the course of the Influencer's performance of services under this Agreement, and thereafter only with the written permission of TOMOLI. Upon termination of this Agreement or upon the request of TOMOLI, the Influencer will return to TOMOLI all of the confidential information, and all copies or reproductions thereof, which are in Influencer's possession or control. The Influencer agrees that during the tenure of this contract, and for a three-month term afterward, the Influencer will not undertake influencer marketing for a competitor in the same vertical as TOMOLI.
Influencer Compensation. In full consideration of the Influencer’s performance, his / her obligations and the rights granted herein, the Influencer will be paid the amount agreed upon between the Influencer and TOMOLI. This includes any agreed bonus incentives should the Influencer meet the agreed targets. Where TOMOLI and the Influencer agree to an in-kind collaboration, the Influencer will receive the agreed upon product from TOMOLI as compensation. The Influencer will otherwise perform the services at his/her own expense and use his/her own resources and equipment. The Influencer acknowledges that the agreed upon compensation represents the Influencer’s entire compensation with respect to this agreement, and TOMOLI shall have no other obligation for any other compensation to, or expenses or costs incurred by, the Influencer in connection with the performance of its obligations under this agreement.
Influencer Payment Terms. When applicable, payments will be made by PayPal or check/money order to the address given by the Influencer. TOMOLI will issue payments within 30 days of the invoice date.
Affiliate Marketing and Commissions. The Influencer will have the option to engage in affiliate marketing activities to promote TOMOLI products and earn commissions. Commissions will be paid once a month. For an Influencer and/or Affiliate to receive a commission, the order transaction must have been successfully completed. Transactions that result in chargebacks or refunds will not be paid out.
The Influencer and/or Affiliate’s may use graphic and text links both on their website and within their email messages. The Influencer and/or Affiliate may also advertise TOMOLI products in online and offline classified ads, magazines, and newspapers.
The Influencer and/or Affiliate may use the graphics and text provided by TOMOLI, or may create their own as long as they are deemed appropriate according to the conditions outlined in Condition 14.
Material disclosures and compliance with FTC Guidelines. When publishing posts/statuses about TOMOLI’s products or services, the Influencer and/or Affiliate must clearly disclose his/her “material connection” with TOMOLI, including the fact that the Influencer and/or Affiliate was given any consideration, was provided with certain experiences or is being paid for a particular service. The above disclosure should be clear and prominent and made in close proximity to any statements that the Influencer makes about TOMOLI or TOMOLI’s products or services. Please note that this disclosure is required regardless of any space limitations of the medium (e.g. Twitter), where the disclosure can be made via
Hashtags, e.g. #sponsored. The Influencer and/or Affiliate’s statements should always reflect the Influencer and/or Affiliate’s honest and truthful opinions and actual experiences. The Influencer and/or Affiliate’s should only make factual statements about TOMOLI or TOMOLI’s products which the Influencer and/or Affiliate’s knows for certain are true and can be verified.
Force Majeure. If either party is unable to perform any of its obligations by reason of fire or other casualty, strike, act or order of public authority, act of God, or other cause beyond the control of such party, then such party shall be excused from such performance during the pendency of such cause.
14. Termination. The Influencer and Affiliate application status may be suspended or terminated for any of the following reasons:
- Inappropriate advertisements (false claims, misleading hyperlinks, etc.).
- Spamming (mass email, mass newsgroup posting, etc.).
- Advertising on sites containing or promoting illegal activities.
- Failure to disclose the affiliate relationship for any promotion that qualifies as an endorsement under existing Federal Trade Commission guidelines and regulations, or any applicable state laws.
- Violation of intellectual property rights. TOMOLI reserves the right to require license agreements from those who employ trademarks of TOMOLI in order to protect our intellectual property rights.
- Offering rebates, coupons, or other form of promised kick-backs from the affiliate commission as an incentive. Adding bonuses or bundling other products with TOMOLI, however, is acceptable.
- Self-referrals, fraudulent transactions, suspected Affiliate fraud.
In addition to the foregoing, TOMOLI reserves the right to terminate any Affiliate account at any time, for any violations of this Agreement or no reason.
15. Coupon and Deal Sites
TOMOLI occasionally offers coupon to select affiliates and to our newsletter subscribers. If the Affiliate is not pre-approved / assigned a branded coupon, then the Affiliate is not allowed to promote the coupon. Below are the terms that apply for any affiliate who is considering the promotion of our products in relation to a deal or coupon:
- Affiliates may not use misleading text on affiliate links, buttons or images to imply that anything besides currently authorized deals to the specific affiliate.
- Affiliates may not bid on TOMOLI Coupons, TOMOLI Discounts or other phrases implying coupons are available.
- Affiliates may not generate pop-ups, pop-unders, iframes, frames, or any other seen or unseen actions that set affiliate cookies unless the user has expressed a clear and explicit interest in activating a specific savings by clicking on a clearly marked link, button or image for that particular coupon or deal. Your link must send the visitor to the merchant site.
- User must be able to see coupon/deal/savings information and details before an affiliate cookie is set (i.e. “click here to see coupons and open a window to merchant site” is NOT allowed).
- Affiliate sites may not have “Click for (or to see) Deal/Coupon” or any variation, when there are no coupons or deals available, and the click opens the merchant site or sets a cookie. Affiliates with such text on the merchant landing page will be removed from the program immediately.
TOMOLI will not be liable for indirect or accidental damages (loss of revenue, commissions) due to affiliate tracking failures, loss of database files, or any results of intents of harm to the Program and/or to our website(s).
TOMOLI does not make any expressed or implied warranties with respect to the affiliate program and/or the products sold by TOMOLI. We make no claim that the operation of the affiliate program and/or our website(s) will be error-free and we will not be liable for any interruptions or errors.
Independent Contractor. The Influencer and/or Affiliate is retained as an independent contractor of TOMOLI. The Influencer and/or Affiliate acknowledges and agrees that (i) the Influencer and/or Affiliate is solely responsible for the manner and form by which the Influencer and/or Affiliate performs under this Agreement, and (ii) the Influencer and/or Affiliate is a self-employed individual, who performs services similar to the services outlined in this agreement for various entities and individuals other than TOMOLI. The Influencer and/or Affiliate is responsible for the withholding and payment of all taxes and other assessments arising out of the Influencer and/or Affiliate’s performance of services, and neither the Influencer and/or Affiliate nor any of the Influencer and/or Affiliate’s employees or independent clients shall be entitled to participate in any employee benefit plans of TOMOLI.
Choice of Law. This Agreement shall be construed and enforced pursuant to the laws and decisions of the state of Minnesota.