Brand Ambassador Terms and Conditions
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY.
BY CLICKING “I AGREE,” you are entering into a legally binding contract with D.D. TOMOLI LLC (“TOMOLI”) 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 TOMOLI.
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 TOMOLI.
Definitions. The following terms will have the meanings specified below.
“Ambassador” refers to a person who has been selected by TOMOLI, in its discretion through its online application process, to act as a promoter of TOMOLI Products via the Ambassador Accounts.
“Ambassador Accounts” refers to one or more of Ambassador’s accounts on Approved Media identified in the Ambassador’s initial application to the Program.
“Appearances” refers to an Ambassador attending events, including without limitation, photo and video shoots, appearances at pop up stores, designated events, and any other appearance(s) upon request of TOMOLI.
“Approved Media” refers to social media outlets approved by TOMOLI for the Promotional Activities, as the same may be updated by TOMOLI from time to time upon written notice to Ambassadors. The current list of Approved Media is as follows: Facebook, Twitter, Pinterest, Instagram, and YouTube.
“Content” refers to any and all content, photos, videos, verbiage, pictures, writings, other work product and/ or works of authorship generated as part of or otherwise related to the work that you do for TOMOLI as an Ambassador.
“Promotional Activities” refers to the advertising, marketing and promotion of TOMOLI Products by Ambassador on an Ambassador Account that has been approved by TOMOLI.
“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.
“TOMOLI Products” refers to handbags and other leather products offered and sold by TOMOLI to consumers under its TOMOLI™ brands.
“you” or “your” refers to the individual who is currently an Ambassador for TOMOLI 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.
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 TOMOLI if anything changes after you become an Ambassador and throughout your participation in the Program. TOMOLI reserves the right to accept or reject your application for any or no reason.
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 TOMOLI 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 TOMOLI 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 reside in the United States.
- You are authorized to work in the United States.
- You maintain (at least) one Ambassador Account, which is active and kept in public mode (except as authorized by TOMOLI) and used for the Promotional Activities.
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.
Ambassador Portal. As an Ambassador you will be prompted to create a login for TOMOLI’s ambassador portal. TOMOLI makes no representations or warranties of any kind with respect to the Portal. TOMOLI further reserves the right to modify the Portal and/or designate a new influencer marketing platform in its discretion. You agree to log on to the Portal frequently and to keep your information maintained on the Portal current.
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 TOMOLI. All Promotional Activities must be conducted in a manner that is consistent with the intended use of TOMOLI Products. Promotional Activities include, without limitation, the following:
- Posting photo and video content promoting TOMOLI Products as TOMOLI may request from time to time (“Content”); Ambassador must create the Content by following TOMOLI’s visual guidelines:
- Take images that achieve tonal similarities to pictures posted on the TOMOLI Instagram account (@tomoli.official).
- Focus on images and styling with no busy backgrounds.
- Shoot in lighting conditions that maintain the natural color of the product. Avoid taking pictures in direct sunlight/harsh flashlight.
- Sharing and promoting your personal discount code for TOMOLI Products to encourage followers to purchase products;
- Attending events, including without limitation, photo and video shoots, appearances at pop up stores, designated events, and any other appearance(s) upon request of TOMOLI.
Other Obligations. In order to remain in good standing in the Program, you must also comply with the following:
- Keep your Ambassador Account public at all times (and notify TOMOLI before switching to private);
- Add TOMOLI’s social media accounts as a friend/ follower to your Ambassador Account(s) (including, without limitation, @tomoli.official Instagram accounts and other accounts as TOMOLI may add from time to time);
- Promptly respond to all communications from TOMOLI personnel (in no event later than within 24 hours), whether in text, email, phone or any other form;
- Advise TOMOLI personnel promptly of any changes to your Ambassador Accounts or other information previously submitted (whether in your application, through the portal or otherwise).
Use of Content. You agree that TOMOLI 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 other marketing platforms; on social media outlets (including but not limited to the Approved Media) at its discretion, in perpetuity, with or without notice or compensation.
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 TOMOLI, its staff, customers and sales representatives;
- Presenting and demonstrating TOMOLI Products in a positive, truthful and sincere manner;
- Including any product disclaimer or other language provided by TOMOLI with respect to TOMOLI Products in any and all of your Content as directed by TOMOLI; and
- Providing your honest and truthful personal experiences with using any TOMOLI Product in your Content.
Prohibitions/ Restrictions. Ambassador is expressly prohibited from taking any of the following actions, each of which shall be a material breach of the Ambassador Terms:
- Purchasing followers and/ or likes;
- Making any representations, claims or promises on behalf of TOMOLI, other than those contained in TOMOLI’s official marketing and promotional materials (i.e. TOMOLI website);
- Promoting TOMOLI 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 TOMOLI in TOMOLI’s sole discretion;
- Transmitting messages or images inconsistent with the positive images and/or goodwill of TOMOLI;
- Engaging in any activity that may divert commissions from other participants in the Program;
- Engaging in any activity that violates or breaches TOMOLI’s 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 TOMOLI’s);
- Presenting TOMOLI’s 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 TOMOLI website or any other TOMOLI 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 TOMOLI 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 TOMOLI for the Program, or running any ad with any of TOMOLI’s URLs offering brand ambassador commissions;
- Reading, intercepting, recording, redirecting, interpreting or filling in the contents of any electronic form or other materials submitted to TOMOLI by any person or entity; and
- Selling or reselling any of the TOMOLI Products, or offering a cash incentive or discount on TOMOLI Products as a means of promotion that is not within the context of the Program.
Monitoring; Removal of Content. TOMOLI reserves the right to monitor all Ambassador Accounts and to preview Ambassador’s Content. From time to time, TOMOLI 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, TOMOLI may terminate or limit your participation in the Program.
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 TOMOLI immediately at any time and for any or no reason, upon TOMOLI’s written notice to you; and by you upon thirty (30) days written notice by you to TOMOLI. Such termination constitutes your termination from the Program; you will be disqualified from receiving any further commission, recognition, communication or compensation from TOMOLI; you must discontinue posting about or publicizing your use of TOMOLI Products, and stop making any representations, publicly or privately, in which you could be construed as representing TOMOLI or TOMOLI Products; you may be required to return to TOMOLI any free products you received within the 90 days prior to the termination. The obligations related to Confidential Information will continue perpetually after the termination of the Ambassador Terms.
Payment for Services. For eligible Ambassadors, in consideration of the Promotional Activities and rights granted to TOMOLI with respect to Content, Ambassador will be compensated as follows:
Free TOMOLI Products. From time to time, TOMOLI may provide Ambassador with free TOMOLI Products, the value and amount of which shall be determined by TOMOLI.
Merchandise. Through Ambassador’s Promotional Activities, Ambassador may earn points which will be accumulated on the Portal and can be used towards the purchase of merchandise from time to time.
Appearances. If given the opportunity to participate in special events or Appearances, Ambassador may be compensated for those appearances as will be set forth in a separate written agreement signed by you and TOMOLI. TOMOLI will strive to give priority to Ambassadors for Appearances but such invitations to participate cannot be guaranteed.
Commission. Ambassadors are provided with a unique promotional code which can be provided to followers who can use it to buy TOMOLI Products at a discounted price. Ambassadors in good standing are entitled to receive a percentage commission of Net Sales made to customers who purchase TOMOLI Products using Ambassador’s unique referral link and promotional code (“Customers”), subject to the exclusions in Section 14(e). “Net Sales” shall mean the total amount actually received by TOMOLI from the purchase of TOMOLI Products by Customers, less: (i) cost of insurance, cost of freight and other shipping and handling charges; (ii) any sales tax, or other similar taxes which may be imposed by a governmental entity having jurisdiction on any such transaction; and (iii) any sales or amounts that are attributable to Spam, credit card fraud, returned TOMOLI Products, refunded payments or similar factors. Payment will be made in a form designated by TOMOLI from time to time and accepted by Ambassador, on a monthly basis in each month in which your commission is at least one hundred dollars ($100). (Your commission will roll over to the next month(s) if $100 in commissions is not reached in a given month).
Exclusions. If a sale is canceled or refunded for any reason, any amount pre-paid to Ambassador will be deducted from the amount owed to the Ambassador. Ambassador will not be paid a commission on sales or orders that are in delinquent status. Ambassador commissions are counted and final numbers are deemed final at the sole discretion and decision of TOMOLI. TOMOLI also reserves the right to change the dates of the commission payout. While TOMOLI makes every reasonable effort to accurately track and pay commissions for all Ambassador sales, TOMOLI is not responsible nor shall be held liable for any technical difficulties, outside events, actions by other Ambassadors, or other uncontrollable events that may disrupt or interfere with TOMOLI’s ability to track sales or pay commissions. TOMOLI has the right to pay commissions to any other person, in its discretion.
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 TOMOLI. Therefore, you are not entitled to any benefits provided by TOMOLI 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.
- TOMOLI will not have control or exercise direction over the methods by which you perform the Promotional Activities. You are responsible for creating content and determining when your Content will be shared, with the exception of time-sensitive projects as identified by TOMOLI.
- You are responsible for your own federal, state and local income, social security, unemployment, sales, disability and any other applicable local, state or federal taxes arising out of your performance of Promotional Activities under the Ambassador Terms. If applicable, TOMOLI will report amounts paid to you by filing Form 1099-Misc. with the Internal Revenue Service, as required by Laws.
- You understand and agree that TOMOLI will not withhold or make payments for social security, unemployment insurance or disability insurance contributions on your behalf. You agree to indemnify and defend TOMOLI against any and all such taxes or contributions. You are also responsible for all costs, liabilities and expenses you may incur in connection with performing Promotional Activities under the Ambassador Terms.
Intellectual Property. All TOMOLI 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 “TOMOLI Intellectual Property”) is the property of TOMOLI, and you agree not to use such TOMOLI Intellectual Property except in the form provided to you through the Program, and solely for the purpose and in the manner specifically authorized by TOMOLI. Unless and only to the extent explicitly authorized by TOMOLI, you agree not to modify any TOMOLI Intellectual Property or use any modified or derivative version of any TOMOLI Intellectual Property. Unless and only to the extent explicitly authorized by TOMOLI, 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 TOMOLI Intellectual Property or any variations, derivatives or misspellings thereof. You agree not to publish, host, or promote any TOMOLI Intellectual Property or other material that misrepresents your relationship with TOMOLI or implies that you are an official site, authorized dealer, or otherwise specially connected with or sponsored by TOMOLI.
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 TOMOLI (collectively, the “Content”) shall be the sole and exclusive property of TOMOLI, and you irrevocably assign to TOMOLI 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 TOMOLI (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 TOMOLI 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. TOMOLI may disclose to your confidential or proprietary information and trade secrets from time to time (collectively, “Confidential Information”). TOMOLI’s Confidential Information includes, without limitation, all non-public or proprietary information and TOMOLI Intellectual Property, including, but not limited to specifications, ingredients and other proprietary information relating to the TOMOLI 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 TOMOLI is (and will remain) the sole and exclusive owner of all right, title and interest in and to the Confidential Information, and all TOMOLI Intellectual Property. You further agree that you will not, and will cause any employees and other agents to not, use TOMOLI’s Confidential Information for the benefit of anyone other than TOMOLI. You agree not to use TOMOLI’s Confidential Information for any purpose except in the performance of your obligations under the Ambassador Terms.
18. Third Parties. Competing Products. TOMOLI recognizes that, as an independent contractor, you are available to perform services for entities other than TOMOLI. You agree to notify TOMOLI in writing (email sufficient if acknowledged by an employee of TOMOLI) 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 TOMOLI (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 TOMOLI as set forth in this Section shall include reimbursement of any and all legal fees and related costs and expenses incurred by TOMOLI in connection with any such claim.
20. Limitation of Liability. TOMOLI 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 TOMOLI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL TOMOLI’s 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 TOMOLI IN THE SIX (6) MONTHS PRECEDING THE EVENT WHICH GIVES RISE TO THE CLAIM.
21. Disclaimer. TOMOLI 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. TOMOLI may change the Ambassador Terms in the future. Unless the Ambassador Terms specify otherwise, TOMOLI 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 TOMOLI, 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 Minnesota (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 TOMOLI 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 State of Minnesota. 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 TOMOLI, 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. TOMOLI and you shall each be responsible for its/your own costs and expenses in connection with the arbitration.