BRAND AMBASSADOR TERMS AND CONDITIONS
ATTENTION: If you are currently a Brand Ambassador for The Smoo Co. (“S'moo”) or you are applying to become one, you are required to read and agree to these Brand Ambassador Terms and Conditions.
BY CLICKING “I AGREE,” you are entering into a legally binding contract with S'moo and are agreeing to be bound by these Brand Ambassador Terms and Conditions which will govern the relationship between you, as a participant in the Brand Ambassador Program (the “Program”), and S'moo.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT SUBMIT YOUR APPLICATION OR CONTINUE YOUR PARTICIPATION IN THE PROGRAM. In addition, if at any time you no longer wish to be bound by these Ambassador Terms and Conditions, you must immediately notify S'moo.
1. Definitions. The following terms will have the meanings specified below.
“Ambassador” refers to a person who has been selected by S'moo, in its discretion through its online application process, to act as a promoter of the S'moo Products via the Ambassador Accounts.
“Ambassador Accounts” refers to one or more of Ambassador’s accounts on Approved Media which has approximately 1,000 followers (or equivalent as determined by S'moo in its discretion) and is identified in the Ambassador’s initial application to the Program (or otherwise approved by an S'moo representative in writing).
“Approved Media” refers to social media outlets approved by S'moo for the Promotional Activities, as the same may be updated by S'moo from time to time upon written notice to Ambassadors. The current list of Approved Media is as follows: Facebook, Twitter, TikTok, Pinterest, Snapchat, Instagram, Tumblr and YouTube.
“Promotional Activities” refers to the advertising, marketing and promotion of S'moo Products by Ambassador on an Ambassador Account that has been approved by S'moo.
“Spam” means any unsolicited message (such as an e-mail, direct message, text message, or Internet posting) posted or sent to a recipient in which the message is not necessarily personal or relevant to the recipient, and which may cause annoyance to the recipient.
“S'moo Products” refers to the supplements and other products offered and sold by S'moo to consumers under its The S'moo Co. and S'moo brand.
“you” or “your” refers to the individual who is currently an Ambassador for S'moo or is submitting an application to become an Ambassador through the online process, together with his or her agents, business affiliates, and permitted successors and assigns.
3. Application for Enrollment. To become an Ambassador, you (a real live person) must complete and submit the online application. You may not use any “bot” or other automated method to apply for or otherwise participate in the Program. All information included in your application must be true and correct, and it is your duty to notify S'moo if anything changes after you become an Ambassador and throughout your participation in the Program. S'moo reserves the right to accept or reject your application for any or no reason.
4. Eligibility Criteria. You must satisfy the following eligibility criteria as of the date that you submit your application and throughout your participation in the Program if you are selected to become an Ambassador. Upon request of S'moo at any time, you may be required to provide documentary evidence showing that you satisfy these criteria. If you are unable to produce such evidence, you will be discharged from the Program immediately. You represent, warrant and covenant to S'moo that you meet the following criteria:
- You have read, understand, and agree to be bound by the Ambassador Terms.
- You are 18 years of age or older.
- You are free from any medical conditions and are otherwise cleared by your doctor to use the S'moo Products.
- You maintain (at least one) Ambassador Account having approximately 5,000 followers (or equivalent as determined by S'moo in its discretion), which is kept in public mode (except as authorized by S'moo) and used for the Promotional Activities.
5. Compliance. You agree to comply with all federal, state and local laws, rules and regulations applicable to you in the course of your participation in the Program and the performance of Promotional Activities, which include but are not limited to the FTC guidelines, these Ambassador Terms and all terms and conditions applicable to your use of the Approved Media.
7. Promotional Activities. Once you are selected as an Ambassador, you agree to use your best efforts to frequently engage in Promotional Activities on at least one Ambassador Account which has been approved by S'moo. All Promotional Activities must be conducted in a manner that is consistent with the authorized use for each S'moo Product as outlined on product labels and any marketing or promotional materials provided by S'moo from time to time. Promotional Activities include, without limitation, the following:
- Posting photo and video content promoting the S'moo Products as S'moo may request from time to time (“Content”);
- Sharing and promoting your personal discount code for S'moo Products to encourage followers to purchase them;
- Communicating, networking and/or collaborating with social media influencers, S'moos social media followers and customers, and any other individuals requested by S'moo, to promote the S'moo Products as a tool to achieve certain health and fitness goals;
- Participating in educational and training programs upon request of S'moo; and
- Attending events, including without limitation, photo and video shoots, appearances at pop up stores, designated events, and any other appearance(s) upon request of S'moo (collectively, “Appearances”).
- Keep your Ambassador Account public at all times (and notify S'moo before switching to private);
- Add S'moo social media accounts as a friend/ follower to your Ambassador Account(s) (including, without limitation, @thesmooco & @karaganosmann Instagram accounts and other accounts as S'moo may add from time to time);
- Advise S'moo personnel promptly of any changes to your Ambassador Accounts or other information previously submitted (whether in your application, through the portal or otherwise); and
- Read all labels on S'moo Products and use them only as directed.
Inform S'moo personnel IMMEDIATELY if you develop a medical condition that prevents you from using or promoting the S'moo Products and DO NOT USE them.
9. Use of Content. You agree that S'moo may post, re-post, upload and/ or use any and all of the Content in its advertising, in emails, on its sales pages including, without limitation, on its website and on Amazon; on social media outlets (including but not limited to the Approved Media) at its discretion, in perpetuity, with or without notice or compensation.
10. Ambassador Responsibilities. You acknowledge and agree that you are responsible for:
- Any and all activity undertaken in connection with your participation in the Program and on your Ambassador Accounts;
- Conducting yourself at all times with the highest degree of professionalism;
- Behaving in a legal, ethical and business-like manner and maintaining the highest standards of integrity, honesty and responsibility in your dealings with S'moo, its staff, customers and sales representatives;
- Presenting and demonstrating S'moo Products in a positive, truthful and sincere manner;
- Including any product disclaimer or other language provided by S'moo with respect to S'moo Products in any and all of your Content as directed by S'moo; and
- Providing your honest and truthful personal experiences with using any S'moo Product in your Content.
- Purchasing followers and/ or likes;
- Making any representations, claims or promises on behalf of S'moo, other than those contained in S'moo official marketing and promotional materials (i.e. on the label or S'moo website);
- Promoting S'moo Products through unsolicited or Spam communications (including via emails, direct messages, posting comments, providing codes on any platform);
- Engaging in, promoting, contributing to, or creating a platform for offensive, sexually explicit or distasteful materials, inappropriate images or video, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, or of any Content that is unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable to S'moo in S'moo sole discretion;
- Transmitting messages or images inconsistent with the positive images and/or goodwill of S'moo;
- Engaging in any activity that may divert commissions from other participants in the Program;
- Engaging in any activity that violates or breaches S'moo or any third party’s legal rights;
- Engaging in any advertising or marketing practices that are deceptive, misleading or fraudulent, including using Spam or sending unsolicited commercial email or direct messages, posting commercial messages or personal discount code to any forum that prohibits the same or on any account’s posts (including S'moo);
- Presenting S'moo banners, images or videos as if they are your own or any other site’s (which is usually referred to as copyright or trademark infringement, and is illegal);
- Posting any links to the S'moo website or any other S'moo platform on any website in which users can post content, including, without limitation, Reddit.com, and any sub-page, sub-domain, or sub-thread thereof;
- Posting, directly or indirectly, Ambassador’s promotional code or another S'moo ambassador’s promotional code on any website, including, without limitation, RetailMeNot.com, Coupons.com and CouponCodes.com;
- Using any promotional coupon or code that is not provided to Ambassador by S'moo for the Program, or running any ad with any of S'moo URLs offering brand ambassador commissions;
- Reading, intercepting, recording, redirecting, interpreting or filling in the contents of any electronic form or other materials submitted to S'moo by any person or entity; and
- Selling or reselling any of the S'moo Products, or offering a cash incentive or discount on S'moo Products as a means of promotion that is not within the context of the Program.
12. Monitoring; Removal of Content. S'moo reserves the right to monitor all Ambassador Accounts and to preview Ambassador’s Content. From time to time, S'moo may request changes to and/or removal of Content from any and all of Ambassador’s Accounts in its sole discretion. If you refuse to make any requested changes, S'moo may terminate or limit your participation in the Program.
13. Term; Termination. The term of the Ambassador Terms shall begin upon submission of your application and continue unless earlier terminated. The Ambassador Terms may be terminated by S'moo immediately at any time and for any or no reason, upon S'moos written notice to you; and by you upon thirty (30) days written notice by you to S'moo. Such termination constitutes your termination from the Program; you will be disqualified from receiving any further commission, recognition, communication or compensation from S'moo; you must discontinue posting about or publicizing your use of S'moo Products, and stop making any representations, publicly or privately, in which you could be construed as representing S'moo or S'moo Products. The obligations related to Confidential Information will continue perpetually after the termination of the Ambassador Terms.
14. Payment for Services. For eligible Ambassadors, in consideration of the Promotional Activities and rights granted to S'moo with respect to Content, Ambassador will be compensated as follows:
15. Independent Contractor. By entering into the Ambassador Terms, you agree that you are customarily engaged in an independent business of performing Promotional Activities, and are not an employee of S'moo. Therefore, you are not entitled to any benefits provided by S'moo to its employees, including, without limitation, worker’s compensation benefits or group insurance. Nothing in the Ambassador Terms should be construed to create an employer-employee relationship or any other relationship other than that of an independent contractor.
16. Intellectual Property. All S'moo trade names, trademarks, logos, slogans, domain names, trade dress, coupons, hypertext links, promotional codes, designs, works of authorship, and other advertising and marketing material (collectively, the “S'moo Intellectual Property”) is the property of S'moo, and you agree not to use such S'moo Intellectual Property except in the form provided to you through the Program, and solely for the purpose and in the manner specifically authorized by S'moo. Unless and only to the extent explicitly authorized by S'moo, you agree not to modify any S'moo Intellectual Property or use any modified or derivative version of any S'moo Intellectual Property. Unless and only to the extent explicitly authorized by S'moo, you agree not to purchase, use or register any domain name, or any social media profile name, handle, or moniker, that comprises or incorporates any S'moo Intellectual Property or any variations, derivatives or misspellings thereof. You agree not to publish, host, or promote any S'moo Intellectual Property or other material that misrepresents your relationship with S'moo or implies that you are an official site, authorized dealer, or otherwise specially connected with or sponsored by S'moo.
You agree that any and all content, photos, videos, verbiage, pictures, writings, other work product and/ or works of authorship generated as part of the content or otherwise related to the work that you do for S'moo (collectively, the “Content”) shall be the sole and exclusive property of S'moo, and you irrevocably assign to S'moo all right, title and interest in any Content that you create, or to which you contribute, including all intellectual property rights contained therein. You acknowledge and agree that all Content is deemed specially requested by S'moo (whether or not actually requested), and further agree that it shall be considered a work made for hire within the meaning of the copyright laws of the United States (together with any modifications, improvements or enhancements. You acknowledge and agree that S'moo is expressly authorized to use your name, likeness, voice, signature, photograph, image, distinctive appearance, gestures or mannerisms as part of any Content, such use will not constitute an infringement of any of your rights, and all your rights relating to or embodied in any Content are hereby waived.17. Confidential Information. S'moo may disclose to your confidential or proprietary information and trade secrets from time to time (collectively, “Confidential Information”). S'moos Confidential Information includes, without limitation, all non-public or proprietary information and S'moo Intellectual Property, including, but not limited to specifications, ingredients and other proprietary information relating to the S'moo Products, sales figures, software passwords, customers, names and contact information, event format, presentation content, inventions, financial information, business plans, business processes, marketing plans, marketing strategies, marketing copy, financial projections, personal information of employees and agents, sponsorship strategies, relationships with vendors, technical data, software designs, drawings, specifications, models, source code, object code, documentation, diagrams, flow charts, inventions, techniques, marketing and other future plans. You agree to hold all Confidential Information in the strictest confidence and not to disclose the Confidential Information to any third party. You agree that S'moo is (and will remain) the sole and exclusive owner of all right, title and interest in and to the Confidential Information, and all S'moo Intellectual Property. You further agree that you will not, and will cause any employees and other agents to not, use S'moos Confidential Information for the benefit of anyone other than S'moo. You agree not to use S'moos Confidential Information for any purpose except in the performance of your obligations under the Ambassador Terms.
18. Third Parties; Competing Products. S'moo recognizes that, as an independent contractor, you are available to perform services for entities other than S'moo. You agree to notify S'moo in writing (email sufficient if acknowledged by an employee of S'moo) of any other arrangements. Moreover, you warrant and represent that there is no conflict or potential conflict of interest between your performance of Promotional Activities under the Ambassador Terms and your performance of services under other contracts for services or as an employee of other entities, or under your own brand or involving any products you develop or plan to develop for commercial use or sale, alone or with others, and will ensure that no such conflict arises. If you decide to perform services for a competing brand, your status as an Ambassador will be immediately revoked and you will have no further rights under the Ambassador Terms.
19. Indemnity. You will at all times defend, indemnify and hold harmless S'moo (including, without limitation, all related and affiliated entities and their respective directors, officers, shareholders, agents and representatives) from and against any and all claims of whatever nature, including without limitation: (i) any violation of Law committed by you or your agents; and/ or (ii) your participation in the Program, and/ or your breach of any obligation, representation or warranty set forth in the Ambassador Terms. Your obligation to indemnify and defend S'moo as set forth in this Section shall include reimbursement of any and all legal fees and related costs and expenses incurred by S'moo in connection with any such claim.
20. Limitation of Liability. S'MOO WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF S'MOO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL S'MOOS CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO YOUR PARTICIPATION IN THE PROGRAM, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO YOU BY S'MOO IN THE SIX (6) MONTHS PRECEDING THE EVENT WHICH GIVES RISE TO THE CLAIM.
21. Disclaimer. S'MOO MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND TO AMBASSADOR, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED.
22. Modification. S'moo may change the Ambassador Terms in the future. Unless the Ambassador Terms specify otherwise, S'moo will give you prior notice of any significant change and if you find the change unacceptable, you have the right to terminate. However, if you continue to participate in the Program after the end of the notice period, you will be deemed to have accepted the changes. You may not modify the Ambassador Terms by making any typed, handwritten, or any other changes to them for any purpose.
23. Miscellaneous. The Ambassador Terms contain the entire agreement with respect to your independent contractor relationship with S'moo, and supersede any prior verbal and/or written agreements or representations regarding said relationship, and will be governed by the laws of the State of California (without regard to conflict of law principles). Each party agrees to do all such acts, matters and things and shall sign or execute and deliver all such documents as may in the reasonable opinion of the other party be necessary or expedient to further and more effectually carry into effect the provisions of the Ambassador Terms. All disputes, claims or controversies arising out of or in any way relating to the Ambassador Terms, shall be governed by, construed under, and enforced in accordance with the laws of the State of California, without regard to conflict of laws principles. Both you and S'moo agree to resolve all disputes related to the Ambassador Terms, to the fullest extent permitted by law, by final, binding and confidential arbitration in the County of Los Angeles, State of California, conducted by JAMS, Inc. ("JAMS") by a single neutral arbitrator. JAMS’ current streamlined arbitration rules are available at https://www.jamsadr.com/rules-streamlined-arbitration/. By agreeing to this arbitration procedure, you agree to waive the right to resolve any such dispute through a trial by jury or judge or by administrative proceeding. All claims, disputes, or causes of action under the Ambassador Terms, whether by you or S'moo, must be brought in an individual capacity, and shall not be brought as a plaintiff (or claimant) or class member in any purported class or representative proceeding, nor joined or consolidated with the claims of any other person or entity. The arbitrator may not consolidate the claims of more than one person or entity, and may not preside over any form of representative or class proceeding. The Ambassador Terms are made under the provisions of the Federal Arbitration Act (9 U.S.C., Sections 1-14) ("FAA") and will be construed and governed accordingly. Nothing herein shall prevent any party from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Both parties may conduct discovery to the same extent as would be permitted in a court of law. S'moo and you shall each be responsible for its/your own costs and expenses in connection with the arbitration.