1.1 Parties and Service. These Terms and Conditions (“Terms”) apply to Wayflyer’s TikTok Business Center service provided by TikTok Information Technologies UK Limited (“TikTok”) and operated by Wayflyer Limited, having its registered offices at RBK House, Irishtown, Athlone, Co. Westmeath, Ireland and company registration number 602786 (“Wayflyer”, “we” or “us”) to Wayflyer customers (“Customer” or “you”).
1.2 Agreement. These Terms together with any other relevant document, order form (“Order Form”), or notice provided to you in relation to these Services constitute an agreement (the “Agreement”) which is legally binding on you. By setting up an account within Wayflyer’s TikTok Business Center (“Customer Account”), you agree to these Terms. If you do not agree with any of these Terms, you must not use the Services.
1.3 Authority and commercial services. If you are an agency acting on behalf of your clients or customers, these Terms apply directly to you as the Customer and you acknowledge and agree that you are liable to Wayflyer for the Services (as defined below) performed pursuant to these Terms. You represent that the individual using the Services has the authority to bind and act on behalf of the Customer. The Services are for businesses, and for commercial purposes only and are not for personal or consumer purposes.
2.1 Description of the Services: In consideration for the payment of the fees incurred on the Wayflyer Business Center account as agreed ("Ad Transaction Fees"), you appoint Wayflyer as your agent to (i) provide access to Wayflyer’s TikTok Business Center to use the TikTok advertising services (“Ad Services”) to submit orders for Ad Services (“Ad Transactions”) and (ii) pay to TikTok the Ad Transaction Fees on your behalf in accordance with these Terms (“Services”).
2.2 Restrictions on use: You must not (a) sublicence, resell, assign, distribute, create derivative works based on or otherwise commercially exploit or make available to third parties the Services (b) modify, disclose, hack or adapt the Services (c) use the Services in any unlawful manner (including in violation of intellectual property rights, privacy or data protection law) (d) use the Services to knowingly distribute or publish any content that is unlawful, hateful, abusive, libellous, obscene, discriminatory, or otherwise inappropriate content (e) use the Services to knowingly distribute or publish any viruses, malware or any other analogous software or (f) otherwise attempt to use the Services in violation of these Terms or any applicable law
2.3 Customer Obligations: You agree to:
2.4 If the Customer does not fulfil its obligations under or in connection with this clause or otherwise in this Agreement then to the extent that such failure prevents Wayflyer from performing any Services in accordance with this Agreement or causes Wayflyer to be in breach of relevant TikTok terms and conditions, then Wayflyer will be relieved of its obligations, and Wayflyer shall not be liable for any cessation of services, extra cost or loss incurred by the Customer as a result of any such failure, and any additional charges or costs will be paid by Customer in accordance with clause 6.
3.1 The Services are provided using TikTok for Business and your use of the Customer Account is therefore also subject to the following which are incorporated by reference into these Terms TikTok Terms, Policies and Guidelines:
3.2 By agreeing to these Terms you warrant that you are and undertake that you will remain in compliance with (i) all applicable law and (ii) such terms and conditions listed above and which may be made available to you from time to time which are applicable to you as a user of the Services. Any breach of this clause will be considered a material breach of these Terms.
4.1 To register for the Services, the Customer must register an account with Wayflyer and follow the instructions provided to set up a Customer Account within the Wayflyer Business Center.
4.2 Once a Customer Account has been created, the Customer will be allocated a Wayflyer account manager (“Account Manager”). A Customer may create numerous Customer Accounts under the Wayflyer TikTok Business Center.
4.3 You will provide in a timely manner all information and assistance reasonably required by Wayflyer to provide the Services.
5.1 Logins and account details for each Customer should be kept confidential by the Customer. Wayflyer will assume that users of a Customer account are always authorised to manage that Customer account and will assume no liability for unauthorised use.
5.2 Where a Customer does become aware of account misuse, the Customer must notify Wayflyer as soon as possible, so that Wayflyer can take any requisite security actions. If we, in our sole discretion, suspect or confirm fraudulent or illegal behavior, we reserve the right to cancel any transaction and/or cancel any remaining balance on your Customer Account.
6.1 The Wayflyer Account Manager and the Customer will agree a maximum amount of advertising spend for the relevant Customer Account each month (“Balance Allocation”).
6.2 The Ad Transaction Fees incurred as the Customer uses the Ad Services will be deducted from the Balance Allocation on an ongoing basis.
6.3 Wayflyer shall issue an invoice to the Customer on a monthly basis in respect of the Ad Transaction Fees (to include all expenses and third-party costs incurred by Wayflyer in providing the Services) incurred by the Customer in its use of the Services in that calendar month.
6.4 All invoices are to be paid by Customer to Wayflyer without any deduction or set-off within the timeframe as indicated on the Order Form.
6.5 Customer authorises Wayflyer to, and Wayflyer will withdraw from the bank account specified in the direct debit mandate or ACH authorisation from the date as set out in the Invoice.
6.6 Ad Transaction Fees are exclusive of VAT (or any similar taxes). If your Ad Services are subject to taxes, such taxes will be billed to you and you agree to bear such taxes. If you are required to withhold or deduct any taxes, you will: (a) pay to any additional amount necessary so that Wayflyer receives a net amount equal to the Ad Transactions Fees set forth in the applicable invoice; and (b) send to Wayflyer on a timely basis and as Wayflyer otherwise reasonably requests all official tax receipts or other documentation required by applicable law proving that you and advertiser complied with the requirement to withhold or deduct those taxes (c) provide a valid VAT identification number or other tax identification number.
6.7 In the event of non-payment of any invoice Wayflyer shall be entitled, without prejudice to its other rights pursuant to these Terms, to suspend the Services until payment is received.
6.8 Wayflyer may also charge interest for late payment of invoices at the rate of 8% above the European Central Bank refinancing rate per annum and Wayflyer shall also be entitled to such reasonable costs it incurs in the collection of any overdue payments.
7.1 For onboarding, certain information is collected by Wayflyer about our customers, which will include personal data. We will require names and contact information of employees of our customers to provide the Services and for communicating with you. We use, share and protect this information in accordance with our Privacy Notice, which is incorporated into this Agreement.
7.2 In relation to the data of end users of Customer’s services, Customers are responsible for their own data protection and security processes and compliance. Our Terms, Privacy Notice, Cookie Notice or any other Wayflyer document does not apply to Customer’s websites, app or services.
7.3 In order for Wayflyer to provide the Services to Customer, Customer is responsible for the collection of all consents, notices, information and preference management that may be required by applicable data protection or privacy law, including as applicable the General Data Protection Regulation (EU) 2016/679 (“EU GDPR”), the EU GDPR as incorporated into the United Kingdom law by the Data Protection Act 2018 and amended by the Data Protection, Privacy and Electronic Communications (EU Exit) Regulations 2019, the EC Privacy and Electronic Communications Regulations 2011 (and any relevant analogous legislation in any other jurisdiction in which the Customer has consumer customers) (as may be amended or superseded, “UK GDPR”), and the California Consumer Privacy Act (as may be amended or superseded, "CCPA").
8.1 Each Party ("Receiving Party") acknowledges that in the course of performing its duties and in discussions or communications relating to the provision of the Services, it may obtain Confidential Information from the other Party ("Disclosing Party").
8.2 The Receiving Party will treat all Confidential Information as secret, confidential, and proprietary, and will not disclose or use the same without the prior written consent of the Disclosing Party, other than to the Receiving Party’s employees and contractors on a need-to-know basis for the purpose of performing its obligations under this Agreement, or as required by law. The Receiving Party will implement such procedures as it considers reasonably necessary (and in any event, procedures at least as stringent as it would apply to its own Confidential Information) to prevent the intentional or negligent disclosure to any third party of any Confidential Information. Notwithstanding the foregoing, nothing in this Agreement will prevent the disclosure by the Receiving Party or its employees of information that:
8.3 The rights and obligations under this Agreement with respect to any Confidential Information will apply for a period of three years after disclosure. Except to the extent required by applicable law, the Receiving Party will, upon request by the Disclosing Party, destroy or return all Confidential Information.
9.1 The Customer acknowledges that any existing intellectual property rights in content and the Services which are not provided by you are owned by Wayflyer or its licensors. Wayflyer hereby grants to the Customer a non-exclusive license during the applicable Term to use the Wayflyer materials solely for the purposes of using the Services.
9.2 Wayflyer acknowledges that ownership of Customer materials and ownership of all intellectual property rights in any Customer materials shall remain vested in the Customer or its licensors. The Customer hereby grants to Wayflyer a non-exclusive licence during the applicable Term to use the Customer materials solely for the purposes of providing the Services and to develop, promote and improve the Services.
10.1 Either Party may terminate the Agreement at any time by providing thirty (30) days’ notice of such intention to terminate to the other party.
10.2 Wayflyer may terminate the Services with immediate effect if a Customer (A) fails to pay any invoiced amount when due or (B) otherwise materially breaches these Terms or any applicable TikTok terms and conditions.
10.3 Following termination, Wayflyer will provide assistance as reasonably requested by a Customer to offboard and transfer its advertising data to a new Business Center or Account, in accordance with the relevant TikTok procedures, policies and terms.
10.4 Wayflyer will not retain any access to Customer data following the date of termination.
10.5 The Customer agrees to discharge all Ad Transaction Fees incurred up to and including the date of termination.
10.6 Provisions of these Terms which are either expressed to survive termination or which from their nature or context survive termination shall remain in full force and effect following termination. Notwithstanding the generality of the foregoing, the following clauses shall survive termination of this Agreement: Clause 8 (Confidentiality); Clause 10 (termination; Clause 11 (Warranties and Disclaimers); Clause 12 (Indemnity); Clause 13 (Limitation of Liability; Clause 14 (General).
11.1 Warranties. The Customer warrants and represents that it (a) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement (b) the person accepting the Terms on its behalf has been duly authorized and empowered to enter into the Terms (c) it has all necessary consents to engage Wayflyer to perform the Services (d) Wayflyer’s use of any Customer information provided in accordance with the Services will not (i) infringe, misappropriate, or otherwise violate any Intellectual Property Rights, publicity rights, or other any rights of any third party or (ii) violate applicable law, and (d) Customer will use the Services in accordance with all applicable law.
11.2 Disclaimer. The Services are provided ‘as-is’ and Wayflyer disclaims all warranties not expressly provided in this Agreement, including any warranties of merchantability, non-infringement, and fitness for a particular purpose. In particular, Wayflyer does not represent or warrant to you that: your use of the commercial products will meet your requirements; your use of the commercial products will be uninterrupted, timely, secure or free from error; any information obtained by you as a result of your use of the commercial products will be accurate or reliable; or that any defects in the operation or functionality of any commercial technology will be corrected. It is your sole responsibility to determine the lawful use of the Services.
12.1 You hereby indemnify, hold harmless, and defend us, Wayflyer and its officers, directors, shareholders, and representatives from and against any and all liability, damages, losses, costs, or expenses (including but not limited to legal fees and expenses) incurred in connection with any claim related to:
13.1 Exclusion of Consequential Damage. In no event will Wayflyer be liable for any loss of profits or any indirect, special, incidental, reliance or consequential damages of any kind regardless of the form of action or whether in contract, tort, strict liability or otherwise, even if informed of the possibility of such damages in advance.
13.2 Liability Cap. Subject to clause 13.1 above, Wayflyer’s entire liability to the Customer will in no event exceed the aggregate fees paid by the Customer to Wayflyer in the three (3) months immediately preceding the occurrence of the claim for which damages is sought.
14.1 Changes to this Agreement. We may revise the Agreement at any time by amending this page and will notify you of this accordingly by placing a notice on our site. If you continue to use our site after any changes or revisions to the Agreement, this will indicate your agreement with the revised Agreement. Please check this page from time to time to take notice of any changes we make, as they are binding on you. If you do not accept any amendments, you may terminate your use of the Services by providing 30 days’ written notice to Wayflyer.
14.2 Electronic format. This Agreement and any other documents or communications relevant to the Services will be provided to you electronically and it is a condition of your use of the Services that you accept them in that format. You further accept that all such documentation is "in writing" for the purposes of the European Communities (Directive 2000/31/EC) Regulations 2003 or similar in another jurisdiction.
14.3 Entire agreement. These Terms and any other documents referred to herein constitute the entire agreement between you and us and supersede all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between you and us relating to its subject matter. You acknowledge that in accepting these Terms that you do not rely on, and will have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these Terms.
14.4 Remedies. Our remedies under these Terms are cumulative and will not exclude any other remedies to which the Party may be lawfully entitled.
14.5 No waiver. Our failure to insist on strict performance of any provision of these Terms will not be a waiver of our right to demand strict compliance therewith in the future.
14.6 Severability. In the event any provision, clause, sentence, phrase, or word hereof, or the application thereof in any circumstances, is held to be invalid or unenforceable, such invalidity or unenforceability will not affect the validity or enforceability of the remainder hereof, or of the application of any such provision, sentence, clause, phrase, or word in any other circumstances.
14.7 Applicable law. This Agreement is governed by the laws of Ireland. You hereby irrevocably submit to the exclusive jurisdiction of the Courts of Ireland.
14.8 Contact us. To contact us, please email tiktok@wayflyer.com.
Dated [X] September 2022
