By submitting YOUR information on the website maintained by PRETTYPARTY LLC (“US”, “OUR” or “THE COMPANY”), and in consideration for US admitting YOU to OUR Brand Ambassador Program and the potential for YOU earning compensation thereunder, YOU agree to the following terms of OUR Brand Ambassador Program (the “Program”):I. Sign Up
a. By submitting your information on the Company’s website, YOU are applying to become a Brand Ambassador for the Company on the terms and subject to the conditions herein, as such terms and conditions may from time to time by modified or amended.
b. THE COMPANY may, in its sole discretion, decline any application to become a Brand Ambassador for any reason or no reason at all, in which case YOU shall not be deemed to be a Brand Ambassador or to participate in the Program, nor shall YOU be entitled to any compensation or other benefits thereunder.
a. If THE COMPANY accepts YOUR application to become a Brand Ambassador, then YOU shall become a Brand Ambassador under the then-existing terms and subject to the then-existing conditions of the Program.
b. Upon YOU becoming a Brand Ambassador, THE COMPANY will assign to YOU a unique identifier code (your “Code”). YOU may from time to time publish, distribute, or use the Code in communications with customers or potential customers of THE COMPANY. If, but only if, a customer of THE COMPANY purchases a product or product directly from THE COMPANY through THE COMPANY’S website and duly, validly, timely, and accurately enters your Code at the time of such purchase, then YOU will be credited with such purchase by THE COMPANY.
c. WE will periodically communicate with YOU in a manner consistent with the ordinary course of the Program.
d. THE COMPANY may, in its sole discretion, for any reason or no reason at all, terminate YOUR participation in the Program or your status as a Brand Ambassador, or modify or amend the terms (including without limitation compensation) of, or terminate, the Program. Any such termination of YOUR participation in the Program or of YOUR status as a Brand Ambassador shall be effective upon US giving YOU notice thereof using the contact information YOU provided to US upon application to the Program. Any such modification or amendment of the terms of, or termination of, the Program shall be effective upon us publishing the modified or amended terms of, or the termination of the Program on OUR website, whether or not YOU have been sent or received notice thereof in any other manner.
a. If, but only if, you are credited with a customer purchase by THE COMPANY as provided in paragraph IIb above, then YOU will be entitled to the payment by US of a specified percentage of the amount of such purchase, excluding taxes, tariffs, and shipping costs; provided, however, that YOU will not be credited (or if YOU have previously been credited, such credit will be reversed in whole) in the case of purchases of products that are subsequently returned, disputed, or charged back.
b. The specified percentage is currently 20.00%, unless YOU are a party to an agreement or understanding with an agent, manager, or other representative under which YOU have agreed to a lesser percentage, in which case the specified percentage payable to YOU in accordance with the foregoing will be the percentage set forth in such agreement or understanding, as the same may be amended or modified from time to time.
c. THE COMPANY shall generally remit payments to YOU weekly. However, THE COMPANY may elect to make payments less frequently at its sole discretion, for any reason or no reason at all, and such election may be made with respect to certain Brand Ambassador’s payments but not to other Brand Ambassador’s payments. The frequency with which THE COMPANY makes any particular payment to YOU shall not obligate US to make any other payment with the same frequency.
d. WE will make all payments to the account with a financial institution located in the United States that YOU last provided to us, in US Dollars, by wire transfer, ACH, PayPal, Venmo, or any other means selected by us in our discretion. WE are not responsible for payments that are misdirected, lost, or otherwise not received by YOU or not credited to your account, for any reason.
e. YOU shall be fully responsible for all federal, state, and local tax filings, payments, and other obligations arising out of or relating to the payments paid to YOU. YOU shall also duly complete and return to US any form or filing reasonably requested by US to comply with any federal, state, local, or foreign tax, governmental, or regulatory requirement, and YOU authorize US to provide information about YOU and YOUR participation in the Program to any federal, state, local, or foreign tax, regulatory, or governmental authority.
f. The amounts credited to and paid to YOU from time to time shall be determined by THE COMPANY based on its records. Such records shall be conclusively deemed to be accurate, absent manifest error. If YOU dispute the amount of any payment, YOU must submit written notification to THE COMPANY that a dispute exists and specify in detail the nature of the dispute no later than 60 days after the receipt of the payment to which such dispute relates. If YOU fail to submit the required written notification within the prescribed time period, the dispute will be deemed to no longer exist and YOU will be deemed to have unconditionally accepted the payment for all services rendered during the time period to which such payment relates.
g. YOU acknowledge and agree that THE COMPANY can deduct from, offset against, and recoup from any payment the amount of any cost, claim, refund, chargeback, loss, or expense arising out of or relating to any purchase giving rise to a previous payment, arising out of or relating to any act or omission by or on behalf of YOU, constituting an overpayment to YOU at any prior time and for any reason, and/or constituting an Indemnified Cost within the meaning of paragraph VIa hereof (each, a “Covered Loss”). Without limiting the generality of the foregoing, it is understood and agreed that THE COMPANY shall have full recourse against YOU for any Covered Loss or other refund, chargeback, cost, claim, loss or expense incurred by US for any reason attributable to YOU, or attributable to purchases using YOUR Code. YOU expressly grant THE COMPANY a Right to Deduction, Setoff and/or Recoupment described herein for the purpose of recovering any Covered Losses suffered or incurred by US. In the event that WE assert any such Right of Deduction, Setoff and/or Recoupment, WE shall provide YOU with notice thereof, provided that failure to give such notice shall not limit or affect OUR right or ability to exercise such Right of Deduction, Setoff and/or Recoupment.
IV. Term and Termination
Either YOU or WE can terminate your participation in the Program, effective immediately upon notice. No such termination shall affect the rights or remedies of YOU or US arising or accrued prior to the effective date of such termination. The provisions of paragraph V and VI shall survive such termination indefinitely.
YOU agree that YOU will not directly or indirectly, in any communication to any third party or publicly, whether verbally, in writing, digitally, electronically, in any social media, or otherwise, and YOU will not permit any person or entity acting with YOUR consent or approval, at YOUR direction or on YOUR behalf to, make, publish, post, release, convey, send, or communicate any statement or information, or publish, post, release, convey, or send any audio, photographic, or video recording, that could tend to disparage THE COMPANY or its products, services, owners, officers, employees or affiliates, that could tend to reflect poorly on THE COMPANY or its products, services, owners, officers, employees or affiliates, that could tend to harm the reputation or image of THE COMPANY or its products, services, owners, officers, employees, or that could tend to disrupt, damage or interfere with the relationship between THE COMPANY and its actual or potential suppliers, vendors, distributors, business partners, customers, Brand Ambassadors, influencers, employees, or others doing business with THE COMPANY.
VI. Indemnity Obligation
YOU, on behalf of YOURSELF and YOUR successors and/or assigns, shall indemnify and hold harmless THE COMPANY, its successors and/or assigns, its directors, officers, employees, affiliates, and equityholders (all of whom are hereinafter referred to as “Indemnitees”) from, for, and against any and all costs, claims, damages, demands, liabilities, losses and expenses (including but not limited to reasonable attorney’s fees and expenses and court costs in connection with any actual, threatened, or pending claim, dispute, or litigation, and including the cost of collection under or enforcement of any provision of this Agreement) (any of the foregoing an “Indemnified Cost”), whether or not presently known, discovered or contemplated and regardless of when discovered by anyone, which any Indemnitee has incurred or may incur at any time before, during, or after YOUR participation in the Program, which either wholly or partly arises out of, is based upon, results from, or is in connection with any actual or alleged (i) negligence, gross negligence, fraud, misstatement, misrepresentation, or intentional misconduct of YOU in connection with the Program or the matters contemplated hereby, (ii) breach or violation of these terms by YOU, including without limitation the inaccuracy or breach of any representation and warranty set forth in paragraph XI, (iii) act or omission by or on behalf of, or event, circumstance, transaction or occurrence involving, YOU or YOUR successors and/or assigns in connection with the Program or the matters contemplated hereby, and/or (iv) claims by a customer, whether in law, equity, or otherwise, that such customer was misled by YOU or purchased a product from US based on, or in reliance on, any misstatement by YOU of a material fact or a failure by YOU to state a fact that was necessary to make any communication by YOU not misleading.
VII. Trademark Clearance
YOU will not print or distribute, post, or publish any materials or information containing any trademark, servicemark or logo of THE COMPANY without prior written approval of THE COMPANY.
VIII. Governing Law
These terms and conditions shall in all respects be interpreted, enforced and governed in accordance with and pursuant to the laws of the state of California, excluding the conflict-of-law principles thereof. Any litigation, claims, disputes or controversies concerning, arising out of or in connection with the Program shall be brought only in state court in the State of California, or in the event of federal jurisdiction in the U.S. District Court for District of California, and both YOU and THE COMPANY hereby consent to the exclusive jurisdiction of such courts and waive any objection or defense concerning jurisdiction or venue that might otherwise be had in such courts.
IX. Independent Contractors
YOU are and at all times shall be an independent contractor, and neither your participation in the Program nor any act or omission of YOU, THE COMPANY, or any other person or entity shall be deemed to create a joint venture, contractor, partnership, employment, or agency relationship between YOU and THE COMPANY or its affiliates.
X. YOUR Representations, Warranties and Covenants
YOU represent and warrant to THE COMPANY as follows:
a. YOU have the full authority, right and power to participate in the Program on the terms and conditions set forth herein, to agree to such terms and conditions, and to carry out your obligations hereunder.
b. YOUR application to join, and participation in, the Program has been expressly authorized and approved.
c. YOUR participation in the Program, use of your Code, and the receipt of payments hereunder does not breach or violate: (1) any contractual obligation of YOU; (2) any duties or obligations YOU may have to any other person or entity; and/or (3) any federal, state or foreign law or regulation applicable to YOU or YOUR actions taken in furtherance of the Program or the terms and conditions thereof.
d. Any information, statement, audio or video recording, image, photograph, or other sales or marketing materials published, posted, released, conveyed, or sent by you, whether verbally, in writing, digitally, electronically, via any social media, or otherwise, in each case relating in whole or in part to US or OUR products or to customers or potential customers of US, shall be accurate and shall not contain any misstatement of a material fact or omit to state therein a fact necessary in order to make the statements therein not misleading.
XI. Arbitration; No Class Action
ANY LEGAL ACTION, CONTROVERSY, SUIT, OR CLAIM ARISING OUT OF OR RELATING TO THE PROGRAM, ANY OTHER AGREEMENT OR RELATIONSHIP BETWEEN YOU OR THE COMPANY, THE ENFORCEMENT OF ANY PROVISION OF THESE TERMS BY YOU OR THE COMPANY, OR ANY ACT OR OMISSION BY, OR SERVICE PERFORMED BY, YOU, THE COMPANY, ANY AFFILIATE OF YOU OR THE COMPANY, OR THE EMPLOYEES, AGENTS, CONTRACTORS OR REPRESENTATIVES OF THE COMPANY WILL BE DETERMINED SOLELY BY ARBITRATION ADMINISTERED BY JAMS LLC IN ACCORDANCE WITH ITS COMPREHENSIVE ARBITRATION RULES AND PROCEDURES. YOU AND THE COMPANY EACH HEREBY IRREVOCABLY RELINQUISH AND WAIVE THE RIGHT TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO TRIAL IN COURT OR BY OR BEFORE ANY JURY, JUDGE, OR JUDICIAL TRIBUNAL. YOU AND THE COMPANY EACH ALSO AGREE TO PURSUE ANY LEGAL ACTION, CONTROVERSY, CLAIM, OR PROCEEDING, INCLUDING WITHOUT LIMITATION ARBITRATION, ONLY IN AN INDIVIDUAL ACTION AND NOT AS A PARTICIPANT IN, OR AS A PART OF, ANY CLASS ACTION, JOINT PROCEEDING, OR SIMILAR COLLECTIVE PROCEEDING OR ACTION. YOU AND THE COMPANY EACH ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT: (A) PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT FROM COURT PROCEEDINGS, (B) THE ARBITRATORS’ AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL REASONING AND ANY PARTY’S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED, AND (C) THE AWARD OF THE ARBITRATORS OR THE MAJORITY OF THEM WILL BE FINAL AND BINDING ON EACH PARTY, AND JUDGMENT ON THE AWARD RENDERED MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THE ARBITRATORS SHALL BE INSTRUCTED TO RENDER A DECISION IN WRITING AND TO AWARD THE PREVAILING PARTY IN SUCH ARBITRATION SUCH PARTY’S COSTS AND EXPENSES, INCLUDING WITHOUT LIMITATION FEES AND EXPENSES OF COUNSEL, INCURRED IN CONNECTION WITH SUCH ARBITRATION (SUBJECT TO THE PROVISIONS OF THE INDEMNITY PROVISION IN PARAGRAH VI HEREOF).
a. Any amendment or supplement to, or waiver of any right under, the Program shall be in writing duly executed by THE COMPANY.
b. If any provision of these terms and conditions is held to be illegal, invalid, or unenforceable, YOU and WE agree that the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
c. The waiver of, or failure of, THE COMPANY to exercise any remedy in any respect of a right provided for in these terms and conditions shall be effective only if in a writing signed by US waiving such remedy and shall not be deemed a waiver of any further right hereunder.
d. YOU understand and agree to comply in all respect with all applicable federal, state, and local laws and regulations, including those relating to privacy and taxes.