LOKAI INNER CIRCLE BRAND AMBASSADOR PROGRAM AGREEMENT
AS OF: 2/20/2020
PLEASE READ THIS ENTIRE AGREEMENT CAREFULLY.
BY SUBMITTING AN APPLICATION TO BE A LOKAI INNER CIRCLE BRAND AMBASSADOR, YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU UNEQUIVOCALLY AGREE TO BE LEGALLY BOUND BY EACH AND EVERY TERM AND CONDITION.
This LOKAI INNER CIRCLE BRAND AMBASSADOR Program Agreement (the “Agreement”) is a legally binding contract between you (“Brand Ambassador”, “you”, or similar terms) and Lokai Holdings LLC (“LOKAI”, “we,” “us,” “our,” or similar terms) and applies to your participation in the LOKAI Brand Ambassador Program (the “Program”). Any person or entity that participates or attempts to participate in the Program must accept this Agreement without change. By registering for the Program, you agree to the terms of this Agreement.
- Description of the Program
The Program permits you to monetize your social media user-generated content by placing on your social media profiles and personal websites (“Your Profiles”) a personalized Brand Ambassador coupon code (“Your Code"). Your Code will be provided to you on approval. When our customers purchase eligible goods from www.lokai.com (the “LOKAI Site”), using Your Code, you will be eligible to receive a commission (“Commissions”) for “Qualifying Purchases,” as further described (and subject to the limitations in) Section 3 below.
We periodically modify the terms of this Agreement. We may also choose to replace these terms in their entirety if, for example, the Program changes, ends, or becomes part of an existing program, including our partner programs. If you don’t agree to a modification or replacement, you can choose to terminate your participation in the Program. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING ANY CHANGES TO THIS AGREEMENT WILL CONSTITUTE YOUR ACCEPTANCE OF THE MODIFICATIONS. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE YOUR PARTICIPATION IN THE PROGRAM.
You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us or our respective affiliates. You will have no authority to make or accept any offers or representations on our or our affiliates’ behalf.
You will ensure that the information in your Program application and information otherwise associated with same, including your email address, mailing address, and other contact information, is at all times complete, accurate, and up-to-date. We may send notifications (if any), approvals (if any), and other communications relating to the Program and this Agreement to the email address then-currently associated with your Program account. You will be deemed to have received all notifications, approvals, and other communications sent to that email address, even if the email address associated with your account is no longer current.
You can update your information by emailing us at: email@example.com.
- Eligibility To Participate In The Program & Prohibited Activities
You must be at least 18 years of age to participate.
You must have a PayPal account.
You must comply with this Agreement to participate in the Program and to receive Commissions.
You must promptly provide us with any information that we request to verify your compliance with this Agreement.
You must clearly identify yourself as a “Lokai Inner Circle Member” when posting, by stating the following, or any substantially similar statement (the “Disclosure”) on Your Profiles: “As a member of the Lokai Inner Circle, I earn commissions from qualifying purchases.”
You must be kind and respectful to all other Brand Ambassadors.
Your Code is for you to post solely in Your Profiles. Participation in the Program does not grant you any rights to sell LOKAI items at events of any kind (ex. farmer's markets, etc.).
You must not comment with Your Code on any LOKAI Bracelets social media posts or channels (i.e. Instagram, Twitter, Facebook, etc.), even if you see another Brand Ambassador doing it.
You must not post Your Code in the comments of any posts from LOKAI wholesale accounts or stores who carry our products.
You must not enter into any retail stores that sell LOKAI goods and share Your Code with customers.
DO NOT add or post Your Code to coupon sites. We check these sites frequently.
Do NOT share the “Refer a Friend” or any other promotions.
- Commissions on Qualifying Purchases
We will pay you a commission with a base amount of no less than fifteen percent (15%) of the price paid by the customer and actually received by LOKAI, before taxes and shipping, on all Qualifying Purchases (your “Commission”). A “Qualifying Purchase” occurs when (i) a customer uses Your Code to purchasing eligible goods from the LOKAI Site; (ii) the customer’s payment is successfully processed.
For example, if a customer uses Your Code to purchase a single bracelet priced at USD $18.00 and Your Code provides the customer with a 15% discount, then once LOKAI receives that customer’s payment of USD $15.30 ($18.00 less the 15% discount of $2.70), you will be eligible to receive a 15% commission in the amount of USD $2.30.
From time to time, we may incentivize our Brand Ambassadors by offering increased commission rates for particular periods of time. For example, we may notify you that for a period of time all Brand Ambassadors will earn a twenty percent (20%) Commission on Qualifying Purchases.
Notwithstanding the foregoing, Qualifying Purchases are disqualified and no Commission shall be due whenever: (a) they occur in connection with a violation of this Agreement, or any other terms, conditions, specifications, statements, and policies that we may issue from time to time that apply to the Program; (b) any purchases that occur after termination of your Agreement; (c) any order where a cancellation, return, or refund has been initiated; (d) any purchase by a customer who is referred to the LOKAI Site through any advertisement that you purchased through participation in bidding or auctions on keywords, search terms, or other identifiers that include the word “LOKAI”, or “LOKAI Bracelets”, or any other trademark (or variations or misspellings of any of those words; (e) any purchase by a customer who is referred to the LOKAI Site by a link that is generated or displayed on a search engine (including Google, Yahoo, Bing, or any other search portal, sponsored advertising service, or other search or referral service, or any site that participates in such search engine’s network); (f) any purchase by a customer who is referred to the LOKAI Site by a link that sends users indirectly to the LOKAI Site via an intermediate site, without requiring the customer to click on a link or take some other affirmative action on that intermediate site; (f) any purchase by a customer, where such customer does not comply with the terms and conditions applicable to the LOKAI Site; or (g) any purchase that is not correctly tracked or reported because the Your Code is not properly formatted or inserted in the LOKAI checkout process.
We will use commercially reasonable efforts to accurately and comprehensively track Qualifying Purchases for the purposes of our internal tracking, and for creating and distributing your Commissions. We may hold accrued Commissions for a reasonable period of time following any termination of this Agreement to ensure that the correct amount is paid.
We will pay Commissions in United States Dollars via PayPal, to the PayPal account you have provided to us, approximately every fourteen (14) days following the end of each calendar month in which they were earned. You are solely responsible for any PayPal fees, and any and all taxes. We are not responsible for any Commissions that are not received by you due to any suspension or termination of your PayPal account.
Payments made to you, as reduced by all deductions or withholdings described in the Agreement, will constitute full payment and settlement to you of any and all amounts payable under the Agreement.
If any excess payment has been made to you for any reason whatsoever, including, for example, if a Qualifying Purchase is subsequently canceled and refunded, we reserve the right to adjust or offset the same against any subsequent Commissions or fees payable to you under the Agreement or any other agreement between you and us.
We may deduct or withhold any taxes that we may be legally obligated to deduct or withhold from any amounts payable to you under this Agreement. From time to time, we may request tax information from you. If we request tax information from you and you do not provide it to us, we reserve the right (in addition to any other rights or remedies available to us) to hold any amounts otherwise payable to you in connection with the Program until you provide this information.
- LOKAI Customers
You acknowledge and agree that LOKAI’s customers do not become your customers by virtue of your participation in the Program. You agree not to handle or address any contact with any of our customers, and, if contacted by any of our customers for a matter relating to interaction with LOKAI, you will state that those customers must follow contact directions on the LOKAI Site to address customer service issues.
You represent, warrant, and covenant that: (a) you will participate in the Program in accordance with this Agreement; (b) your participation in the Program, including, but not limited to, your creation, maintenance, or operation of Your Profile(s) will not violate any applicable laws, ordinances, rules, regulations, orders, licenses, permits, guidelines, codes of practice, industry standards, self-regulatory rules, judgments, decisions, or other requirements of any governmental authority that has jurisdiction over you (including all such rules governing communications, data protection, advertising, and marketing); (c) you are legally able to enter into contracts; (d) you have independently evaluated the desirability of participating in the Program and are not relying on any representation, guarantee, or statement other than as expressly set forth in this Agreement; (e) you will not participate in the Program if you are the subject of U.S. sanctions or of sanctions consistent with U.S. law imposed by the governments of the country where you are using the LOKAI Site; (f) you will comply with all U.S. export and re-export restrictions, and applicable non-US export and re-export restrictions consistent with U.S. law, that may apply to goods, software, technology and services; and (g) the information you provide in connection with the Program is accurate and complete at all times.
We do not make any representation, warranty, or covenant regarding the amount of traffic or Commissions you can expect at any time in connection with the Program, and we will not be liable for any actions you undertake based on your expectations.
- Identifying Yourself As A LOKAI Brand Ambassador
Except for the Disclosure, you will not make any public communication with respect to this Agreement or your participation in the Program without LOKAI’s express prior written consent. You will not misrepresent or embellish your relationship with us (including by expressing or implying that we support, sponsor, or endorse you), or express or imply any affiliation between us and you or any other person or entity except as expressly permitted by this Agreement.
- Term and Termination
The term (“Term”) of this Agreement will begin upon your submission of the application to join the Program. Following such date, either you or we may terminate this Agreement at any time, with or without cause (automatically and without recourse to the courts, if permitted under applicable law), by giving the other party prior written notice of termination.
You can provide a proper termination notice by sending the same in accordance with paragraph 12 below, and by also emailing LOKAI at: firstname.lastname@example.org.
In addition, we may terminate this Agreement or suspend your account immediately upon written notice to you for any of the following: (a) you have breached or threaten to breach any part of this Agreement; (b) we believe that we may face potential claims or liability in connection with your participation in the Program; (c) we believe that our brand or reputation may be tarnished by you or in connection with your participation in the Program; (d) your participation in the Program has been used for deceptive, fraudulent or illegal activity; (e) we believe that we are or may become subject to tax collection requirements in connection with this Agreement or the activities performed by either party under this Agreement; (f) we have previously terminated this Agreement with respect to you or other persons that we determine are affiliated with you or acting in concert with you for any reason, or (g) we have terminated the Program as we generally make it available to participants.
Upon any termination of this Agreement, all rights and obligations of the parties will be extinguished, including any and all licenses granted in connection with this Agreement, except that the rights and obligations of the parties under Sections 2, 4, 5, 6, 7, 8, 9, 10 and 11 of this Agreement will survive the termination of this Agreement. No termination of this Agreement will relieve you of any liability for any breach of, or liability accruing under, this Agreement prior to termination.
THE PROGRAM, THE LOKAI SITE, ANY PRODUCTS AND SERVICES OFFERED ON THE LOKAI SITE, ANY COUPON CODES, LINK FORMATS, CONTENT, OUR AND OUR AFFILIATES’ DOMAIN NAMES, TRADEMARKS, PATENTS, TRADE NAMES AND LOGOS, DESIGN PATENTS AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INTELLECTUAL PROPERTY RIGHTS, INFORMATION AND CONTENT, PROVIDED OR USED BY OR ON BEHALF OF US OR OUR AFFILIATES OR LICENSORS IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE OFFERINGS. WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF ANY LAW, CUSTOM, COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR: (A) ANY ERRORS, INACCURACIES, VIRUSES, MALICIOUS SOFTWARE, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR PROFILES OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE SERVICE OFFERINGS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS; (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH YOUR PARTICIPATION IN THE PROGRAM; OR (Z) ANY TERMINATION OR SUSPENSION OF YOUR PARTICIPATION IN THE PROGRAM. NOTHING IN THIS SECTION WILL OPERATE TO EXCLUDE OR LIMIT WARRANTIES, LIABILITIES, OR REPRESENTATIONS THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
- Limitations on Liability
LOKAI’s liability arising out of or related to this Agreement shall not exceed the amount of Commissions actually earned by you in the period of twelve (12) months immediately preceding the date on which you present us with a valid claim arising out of or related to this Agreement.
NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA ARISING IN CONNECTION WITH THE SERVICE OFFERINGS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED. YOU HEREBY WAIVE ANY RIGHT OR REMEDY IN EQUITY, INCLUDING THE RIGHT TO SEEK SPECIFIC PERFORMANCE, INJUNCTIVE OR OTHER EQUITABLE RELIEF IN CONNECTION WITH THIS AGREEMENT. NOTHING IN THIS PARAGRAPH WILL OPERATE TO LIMIT LIABILITIES THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE WILL HAVE NO LIABILITY FOR ANY MATTER DIRECTLY OR INDIRECTLY RELATING TO THE CREATION, MAINTENANCE, OR OPERATION OF YOUR PROFILES (INCLUDING YOUR USE OF ANY SERVICE OFFERING) OR YOUR VIOLATION OF THIS AGREEMENT, AND YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD US, OUR AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AND REPRESENTATIVES, HARMLESS FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) RELATING TO: (A) YOUR PROFILES OR ANY MATERIALS THAT APPEAR ON YOUR PROFILES, INCLUDING THE COMBINATION OF YOUR PROFILES OR THOSE MATERIALS WITH OTHER APPLICATIONS, CONTENT, OR PROCESSES; (B) THE USE, DEVELOPMENT, DESIGN, MANUFACTURE, PRODUCTION, ADVERTISING, PROMOTION, OR MARKETING OF YOUR PROFILES OR ANY MATERIALS THAT APPEAR ON OR WITHIN YOUR PROFILES; (C) YOUR USE OF ANY SERVICE OFFERING, WHETHER OR NOT SUCH USE IS AUTHORIZED BY OR VIOLATES THIS AGREEMENT OR APPLICABLE LAW; (D) YOUR VIOLATION OF ANY TERM OR CONDITION OF THIS AGREEMENT; OR (E) YOUR OR YOUR EMPLOYEES' OR CONTRACTORS’ NEGLIGENCE OR WILLFUL MISCONDUCT.
- AGREEMENT TO ARBITRATE / DISPUTE RESOLUTION
YOU AND WE AGREE TO ATTEMPT TO INFORMALLY RESOLVE DISPUTES:
In the event that there is any dispute relating this Agreement and the Program, you and we both agree that the party alleging the dispute shall send to the other party a written notice describing the dispute (“Notice of Dispute”). You and we both agree that prior to initiating any claim for arbitration or other legal proceeding, that you and we shall attempt to informally resolve such dispute for a period of thirty (30) days following the receipt by the non-claiming party of the Notice of Dispute.
All Notices of Dispute to LOKAI shall be in writing and sent by personal delivery, registered or certified mail (return receipt requested) or overnight air express (or courier shipment outside of the U.S.) if such services actually provide proof of mailing, to:
LOKAI HOLDINGS LLC
180 Varick Street, Suite 504
New York, NY 10014
Copies of all notices to LOKAI shall be sent to Scarinci Hollenbeck, LLC, 1100 Valley Brook Avenue, Lyndhurst, NJ; Attention: Ronald S. Bienstock, Esq.
In the event that a dispute is not resolved within the foregoing thirty (30) day period, then you and LOKAI agree to resolve any claims relating to this Agreement through final and binding arbitration.
The Federal Arbitration Act governs the interpretation and enforcement of this dispute resolution provision. Arbitration shall be initiated through JAMS. Any dispute, controversy, or claim arising out of or relating to these Terms shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures before one (1) arbitrator. If there is a conflict between JAMS Rules and the rules set forth in this Agreement, the rules set forth in this Agreement will govern.
The JAMS Rules and instructions for how to initiate an arbitration are available from JAMS at http://www.jamsadr.com or 1-800-352-5267.
Payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules. Each party will bear their own costs of arbitration unless the arbitrator directs that bearing such costs would be an undue burden and, in that case, we will pay for your portion of the arbitration administrative costs (but not your attorneys’ fees). Arbitration shall be held in the United States in New York, New York, under New York law, without regard to its conflict of laws provisions. The arbitrator may award on an individual basis the same damages and relief as a court (including injunctive relief). Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
AUTHORITY OF ARBITRATOR: Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of arbitration to this Agreement, shall be determined by arbitration in New York, NY, before one arbitrator. The arbitration shall be administered by JAMS, pursuant to JAMS' Streamlined Arbitration Rules and Procedures. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the Arbitration Rules, and this Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding.
NO CLASS ACTIONS: You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations are not allowed.
You acknowledge and agree that: (a) LOKAI and our affiliates may at any time (directly or indirectly) solicit traffic on terms that may differ from those contained in this Agreement; (b) LOKAI and our affiliates may at any time (directly or indirectly) operate sites or applications that are similar to or compete with Your Profiles; (c) LOKAI’s failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement; and (d) any determinations or updates that may be made by LOKAI, any actions that may be taken by LOKAI, and any approvals that may be given by us under this Agreement may be made, taken, or given in our sole discretion and are only effective if provided in writing by our authorized representative.
You may not assign this Agreement, by operation of law or otherwise, without LOKAI’s express prior written approval. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
Any information relating to us or any of our affiliates that we provide or make accessible to you in connection with the Program that is not known to the general public or that reasonably should be considered to be confidential is our “Confidential Information” and will remain our exclusive property. You will use Confidential Information only to the extent reasonably necessary for your performance under this Agreement and ensure that all persons or entities who have access to Confidential Information in connection with your participation will be made aware of and will comply with the obligations in this provision. You will not disclose Confidential Information to any third party (other than your affiliates bound by confidentiality obligations) and you will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement. This restriction will be in addition to the terms of any confidentiality or non-disclosure agreement between the parties.
Nothing contained in this Agreement shall be understood as granting to you any rights in and to any of LOKAI’s trademarks, patents, service marks, logos, design patents, or other intellectual property owned by LOKAI, or any third-party intellectual party.
No delay, failure, or default by us will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts or God or of nature, strikes, other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond our reasonable control, including, without limitation, the interruption or discontinuance of services provided by third parties (e.g., PayPal, etc.) in connection with the Program.
If you have any questions, please email email@example.com or call us at (646) 979-3489.
By submitting, I agree to the Ambassador Program Terms & Conditions.
You must agree to the terms.