Last Updated: August 1, 2012
2. Independent Contractor Status. I am entering this Agreement as an independent contractor, and not as an employee of Zindigo or any Brand. I will be solely responsible for paying all expenses incurred by me, including but not limited to travel, food, lodging, secretarial, office, long distance telephone, independent marketing and advertising of my Zindigo and/or Brand Boutique(s), and other business expenses. I will have and maintain control of the manner and means of my performance under this Agreement and will not be treated as an employee with respect to any services for federal and state tax purposes. Neither Zindigo nor any Brand is responsible for withholding, and shall not withhold or deduct from my payment plan amounts, if any, FICA or taxes of any kind, unless such withholding becomes legally required. I will be responsible for payment of all applicable income, self-employment, and other taxes. I will not be eligible for and will not participate in any pension, or fringe benefit plan sponsored by Zindigo or any Brand and will not be covered by its workers' compensation or unemployment insurance or retained coverage. I am not entering into a partnership or joint venture with Zindigo or any Brand, nor will I have power or authority to incur any debt, obligation, or liability on behalf of Zindigo or any Brand. I recognize that I have no authority to make or accept any offers or representation on behalf of Zindigo or any Brand. I will not make any statement that will reasonably contradict anything in this Agreement.
3. Sales Tax. I authorize the Company, on my behalf, to collect and remit to the proper government agencies the applicable sales/use tax generated as a result of my sale of products as permitted in this Agreement. When my customers place orders, sales tax is charged when required, on the actual selling price. I agree to be bound by all sales tax collection agreements between the Company and all appropriate taxing jurisdictions, and all related rules and procedures.
4. Services to be performed by an Ambassador. I will promote and sell from each of my Brand Boutiques, and, if applicable, my Zindigo Boutique, by personally communicating with my Facebook community of friends and family. I understand that I must always promote and sell all merchandise provided to my store at the stated retail price. I understand that I am strictly forbidden from running my own sales, rebates, or any other kind of discounting program. Furthermore, I understand that I cannot use the following words in any context, unless authorized by Zindigo, when posting information online or during any public or private conversations on social media websites regarding my Zindigo and/or Brand Boutique(s) (including but not limited to): "Sale," "Sale Period," "Promotion," "Rebate," "Discount," "GOB (Going out of Business)," "Special," "BOGO (Buy One, Get One)," "Free," "Coupon," "Redemption," "Clearance," "Friends and Family." All partial or storewide sales will be defined and approved by Zindigo's Brand Partners (Brands that have products included in the Zindigo and/or Brand Boutique(s)). I will be notified and able to promote these special programs from time to time and can learn about them through Zindigo Ambassador Central. I understand that Zindigo is responsible for all communication with customers regarding their orders and will manage all aspects of customer care, refunds, and charge-backs. I also understand that Zindigo is the Merchant of Record and will bear the risk of credit card fraud. 5. Remittance of Ambassador Commissions. Ambassadors will earn 40% of retail price less any of the Ambassador opted-in commission deployment/expense options discussed in Section 6. As an Ambassador, all purchases made by me will also realize a 40% commission (less any of the Ambassador opted-in commission deployment options discussed in Section 6) payable to me. Zindigo reserves the right to change this percentage commission fee at any time, without prior notice to Zindigo Ambassadors. All commission payments, adjusted by returns and Ambassador opted-in deployments will be made by the 20th of every month. I understand that I will not receive or be entitled to any commission unless I meet the following criteria:
• I have not violated any terms of this Agreement, including without limitation, the Terms and Conditions, the Ambassador Central Postings, and the Terms & Conditions for the Payoneer Prepaid MasterCard and my Zindigo Ambassador status is in good standing, and I have a least one active Boutique; and
• I have registered with Payoneer and completed their online w9 form with accurate and up to date personal information including my social security number
6. Commission Deployment Options. Zindigo offers Ambassador multiple tools to promote their store to customers. These tools must be opted into before a sale is made in order for the allocations to be deployed. Ambassadors have four options to which they can deploy their 40% commission: a) option to offer Zindigo and/or Brand Partner approved discount codes or coupons to customers; b) option to offer free GROUND shipping to customers; c) option to surrender or reduce a percentage of my commission to a Zindigo approved charity; and d) option to allocate a percentage of my commission to purchase advertisements for my store(s) through Zindigo. I agree that all such options, if chosen, are deducted from my 40% commission. I understand that these options may or may not be used in accordance with one another, at the sole discretion of Zindigo. I understand my ability to choose these options or any combination of them can be limited without notice by Zindigo. I understand that these allocation options will not exceed my 40% commission and will be directly deducted from my 40% commission of any sale or sales I apply these allocations to. I also understand that a) discount codes are originated and limited by Zindigo and or Brand Partners only, b) free shipping is limited to GROUND shipping only, c) charitable allocations, do not constitute a donation by the Ambassador, i.e. the Ambassador will not receive a tax deduction of any kind for their allocation, and d) Zindigo will serve as the interface between the Ambassador and Facebook or any other third party for purposes of advertising purchases. I understand Zindigo has no responsibility to provide me with Advertising Analytics, and that while Zindigo encourages advertising, Zindigo does make any claims to the effects advertising may or may not have on my Zindigo and/or Brand Boutiques(s) sales. In the event of product returns, I agree that I am unable to recoup the portion of my commission spent on free shipping during the original purchase. I understand that I may remove the option to choose an allocation at any time by visiting Zindigo Ambassador Central.
7. Referring Other Zindigo Ambassadors. In the event I refer an applicant to become an Ambassador and the applicant is accepted as an Ambassador and opens a Boutique, I will be eligible for 3% of the receipts, net of returns, from the Ambassador's Boutique pursuant to the Terms and Conditions. I am only eligible for those Ambassadors whom I identify in an e-mail to Zindigo and who successfully opened a Boutique thereafter; I will not benefit from any applicant who becomes an Ambassador, other than those that I referred by e-mail to Zindigo. There is no limit to how many Ambassadors I may directly refer to open Boutiques. I understand that in order to receive monetary compensation for the active Zindigo Ambassadors I refer I must open a store myself and comply with all Agreements and Terms governing Zindigo Ambassadors including, as listed in Section 1 of this Agreement. I will have 10 days from the date of my initial referral to complete store setup and submit all necessary documentation to be eligible for payment.
8. Rules of Conduct. I agree to adhere to the following rules as an Ambassador: (a) All information that I submit to any Zindigo Website ("Submissions") will be true, accurate, complete and comply with all applicable laws, rules and regulations;
(b) I am eighteen (18) years of age or older;
(c) I will not use any Zindigo Website for any purpose other than is permitted under this Agreement; (d) My Submissions will not infringe any third party right (including without limitation third party intellectual property rights, privacy rights or the right of publicity);
(e) My Submissions will not be (i) threatening, harassing, degrading, hateful or intimidating, (ii) defamatory or libelous, (iii) fraudulent or tortious or (iv) obscene, indecent, pornographic or otherwise objectionable;
(f) My Submissions and use of any Zindigo Website and Services will not give rise to criminal or civil liability, will not encourage conduct that constitutes a criminal offense or provides instructional information about illegal activities or activities such as "hacking," "cracking," or "phreaking";
(g) I will not post, transmit or otherwise make available any virus, worm, Trojan horse, Easter egg, time bomb, spyware, or other computer code, file, or program that is harmful or invasive or that may or is intended to damage, hijack, disable, interfere with, or disrupt the operation of, or monitor the use of, any hardware, software or equipment;
(h) I will not post, transmit or otherwise make available any unsolicited or unauthorized advertisements, promotional material, "junk mail," "spam," "chain letter," "pyramid scheme" or investment opportunity, or any other form of solicitation that is not expressly approved by Zindigo in advance;
(i) I will not submit any personally identifiable information of another individual by means of any Zindigo Website without the prior consent of such individual;
(j) I will not submit or disclose any material, non-public information about a company, without the proper authorization to do so;
(k) I will not use the Zindigo Website or Services for any fraudulent or unlawful purpose;
(l) I will not use the Zindigo Website or Services to defame, abuse, harass, stalk, threaten, degrade or otherwise violate the legal rights of others, including without limitation others' privacy rights or rights of publicity, or to harvest or collect information about third parties;
(m)I will not impersonate any person or entity, including without limitation any representative of Zindigo, falsely state or otherwise misrepresent my affiliation with any person or entity in connection with any Zindigo Website or expressly state or imply that Zindigo endorses any statement I make;
(n) I will not interfere with or disrupt the operation of any Zindigo Website or Services or the servers or networks used to make the Zindigo Site and Services available or violate any requirements, procedures, policies or regulations of such networks;
(o) I will not restrict or inhibit any other person from using any Zindigo Website or Services (including without limitation by hacking or defacing any portion of the Website or Services);
(p) I will not reproduce, duplicate, copy, sell, resell, link to or otherwise exploit for any commercial purposes, any portion of, use of, or access to, any Zindigo Website or Services;
(q) I will not modify, adapt, translate, reverse engineer, decompile or disassemble any portion of any Zindigo Website or Services;
(r) I will not frame or mirror any part of any Zindigo Website;
(s) I will not create a database by downloading and storing any Zindigo Website content;
(t) I will not use any robot, spider, site search/retrieval application or other manual or automatic device to retrieve, index, "scrape," "data mine" or in any way gather any Zindigo Website content or reproduce or circumvent the navigational structure or presentation of any Zindigo Websites without Zindigo's express prior written consent; and
(u) I will not permit any other person to do anything that I may not do under this Agreement and I acknowledge that if anyone other than me uses my Zindigo Access Methods to do something that I may not do under this Agreement, even without my knowledge, that I have breached a material term of this Agreement.
8. Use of Zindigo Intellectual Property. I acknowledge that, upon Zindigo's acceptance of this Agreement, Zindigo has granted me a limited, non-exclusive license to use its trademarks, service marks, Zindigo e-commerce platform, patents, and copyrighted materials (collectively, "Zindigo Intellectual Property"), all of which is owned solely or licensed by Zindigo, and that my use of Zindigo Intellectual Property is strictly limited by the terms as stated in Zindigo Ambassador Central. Examples of Zindigo Intellectual Property include, but are not limited to, the Zindigo e-commerce platform, and Zindigo logo. I am to use Zindigo Intellectual Property only, (a) after obtaining written permission from Zindigo for its use, or (b) where the Zindigo name and Zindigo and/or Brand Boutique(s) appears on materials distributed by Zindigo for use by its Ambassadors. I agree to use only digital, written, recorded, or other promotional or advertising materials that have been produced, distributed, and approved in writing by Zindigo. All rights and licenses granted in or under this Agreement shall terminate automatically upon termination of this Agreement.
9. No Liability for Site Problems. Each party acknowledges that the Zindigo and/or Brand Boutique(s) may occasionally be unavailable. In no event shall Zindigo have any liability for (a) any errors, inaccuracies or service interruptions on any Zindigo Website, as defined in the Terms and Conditions; (b) any unauthorized access to or alteration of, or deletion, destruction, damage, or loss of, any website of yours, including without limitation any Zindigo Website, in connection with your becoming an Ambassador; (c) any consequential damage, including without limitation, loss of prospective profits or revenue, anticipated sales, or goodwill; and (d) any punitive damage for any reason.
10. Ownership. I agree that Zindigo shall own all software coding (including source code), all technology owned and otherwise controlled by Zindigo, all designs and materials, and/or information created and/or delivered by Zindigo, and any and all rights, licenses, and other permissions necessary to allow Zindigo Ambassadors to conduct sales in a manner mutually beneficial to me and to the Company. 11. Ownership and Use of Confidential Information. I acknowledge that Zindigo owns all product and customer information and data that I may create or compile, including but not limited to, product purchase information, customer profile data, Zindigo/Ambassador shoppers, operating and manufacturing procedures, product development information, financial data, and marketing materials (collectively, "Confidential Information"), and that all Confidential Information is expressly protected and inaccessible to any person except in strict accordance with this Agreement. I will not use Confidential Information to sell products or services other than Zindigo products or in connection with any other business during the term of and after the termination of this Agreement.
12. Sales of Other Products by Ambassadors in Zindigo and/or Brand Boutique(s). I understand that I may not market, sell, offer for sale to anyone, or promote any ancillary or unrelated products through my Zindigo and/or Brand Boutique(s) other than those provided in the Zindigo and/or Brand Boutique(s) by the Company and its Brand Partners, and subsequent product refreshes and updates provided by Zindigo. I also understand that I may not alter in any way the product descriptions, photography, editorial copy, prices, color selection, quantities, or any other proprietary information about any of the products populating my Zindigo and/or Brand Boutique(s). These elements are owned by the Brand Partners and are altered at their sole discretion.
13. Non-Solicitation. As an inducement to Zindigo to enter into this Agreement and in consideration of the mutual covenants contained herein, during the term of this Agreement and for one year thereafter, I shall not directly or indirectly, on my own behalf or on the behalf of any other person or entity, solicit, induce, or hire nor attempt to solicit, induce, or hire any Ambassador to terminate or alter his or her business relationship with Zindigo.
14. Photo and Video Release. I hereby give Zindigo and its Brand Partners (brands that have products included in the Zindigo and/ or Brand Boutique(s)) a non-exclusive license to use, for any purpose, photographs or videos created and submitted by me to Zindigo and/or posted to my Zindigo Boutique's Photos Albums, Videos, or Wall. Zindigo may use any photographs or video taken of me at a Zindigo event for any purpose. I hereby waive my right to inspect or approve the finished photographs or advertising copy or printed matter that may be used in conjunction therewith or to the eventual use that the photographs might be applied.
15. Termination of Agreement. This Agreement is effective upon your clicking acceptance of the Agreement and will last for one year. It will be automatically renewed for one year terms, unless either party terminates it by written e-mail notice to the other party. We may terminate this Agreement with any Ambassador at any time and for any or no reason by notifying you by e-mail of our election to terminate.
16. Events Upon Termination of Agreement. Upon termination of this Agreement, 1. I will (i) cease representing myself as an Ambassador for my Zindigo and/or Brand Boutique(s) and (ii) be ineligible to receive any benefits as an Ambassador, including monetary compensation, with the exception net commissions earned prior to date of termination.
2. I will cease to use any Zindigo Intellectual Property and Confidential Information.
3. If requested by Zindigo, I will return all Confidential Information to Zindigo.
17. Transferability. Neither this Agreement nor my Zindigo and/or Brand Boutique(s) business may be transferred or assigned by me or operated in partnership with any other person. Zindigo may assign this Agreement at any time.
18. Entire Agreements: Amendment. This Agreement supersedes all prior communications, understandings, and Agreements between the parties and contains the entire Agreement between the parties relating to this subject matter. Zindigo may amend this Agreement without prior notice, at any time, effective upon publication by posting to its website, Zindigo.com, but Zindigo will send you an e-mail notifying you of the Amendment and directing you to Zindigo.com for its content. If you continue as an Ambassador after such notice, your conduct is consent to the Amendment. In the event of any conflict between the terms of this Agreement or any other document and such Amendment, the Agreement as Amended shall control.
19. No Representations. I acknowledge that I have not received an advice or information from Zindigo or any entity or person affiliated with Zindigo other than that set forth in this Agreement and the documents incorporated by reference in this Agreement. I have not relied on any representation from anyone in accepting this Agreement, other than those set forth in this Agreement.
20. Indemnification/Offset. I shall indemnify and hold harmless Zindigo, its Brand Partners and its agents and assigns from and against any damages, claims, or liabilities and expenses (including attorneys' fees) incident to my: (a) activities as a Social Ambassador including, without limitation, any unauthorized representations made by me; (b) breach of the terms of this Agreement; or (c) violation of, or failure to, comply with any applicable federal, state, or local laws or regulations.
21. Cumulative Remedies/Waiver. All rights, powers, and remedies given to Zindigo are cumulative, not exclusive, and in addition to any and all other rights and remedies provided by law. No failure or delay of Zindigo to exercise any power or right under this Agreement or to insist upon strict compliance by me with any obligation or provision shall constitute a waiver of Zindigo's right to demand exact compliance therewith. Waiver by Zindigo can be effective only in writing from an authorized Officer of Zindigo.
22. Injunctive Relief. Upon any violation of this Agreement by me, Zindigo will be immediately and irreparably harmed and cannot be made whole solely by monetary damages. Because the remedy at law for any break of any provision of this Agreement shall be inadequate, in addition to any other remedies in law or in equity that I may have, Zindigo shall be entitled, without the necessity of proving actual damages, to temporary and permanent injunctive relief to prevent the breach of any provision of this Agreement and/or compel specific performance of this Agreement. In addition, Zindigo shall be entitled to its costs and expenses, including reasonable attorneys' fees, in enforcing its rights under this Agreement.
23. Other Terms a. I have full legal capacity to enter into this Agreement in the state or territory in which I reside, and I am of legal age to enter into a contractual obligation of this scope. I agree to comply with all laws, rules, and regulations governing the conduct of my business.
b. If any portion of this Agreement is judicially determined to be invalid, that invalidity will not affect the remaining portion of this Agreement.
c. All written notices required by this Agreement to be given to me will be deemed received if delivered to my most current email address on record with Zindigo.
24. Governing Law/Venue/Arbitration. This Agreement is entered into and is to be performed in material part in the State of New York and shall be governed by the law of the State of New York. Rules governing conflicts of laws for all states do not apply. Any claims or actions arising out of this Agreement will be submitted to binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and all arbitration hearings will be held in Manhattan, N.Y.. The party that prevails in arbitration will be entitled to reimbursement of its costs and expenses incurred by the other party, including, without limitation, the prevailing party's reasonable attorneys' fees.
25. Ambassador Payment. For approved Ambassadors with active shops, Zindigo tracks a cookie that is automatically applied to the computer of a person who becomes an Ambassador and opens a shop of her own as a result of your referral or makes a purchase in your shop. The cookie has your affiliate identity embedded within it, letting Zindigo know that you deserve commission on the sales you send our way. Upon making your first sale, you will be prompted to open a free account with Payoneer, our third-party payment partner, who will issue you a free pre-paid debit card within (45) days of your Payoneer registration. Payoneer will then pay your monthly commission by direct deposit by the 20th of each month. You are subject to Payoneer's Terms of Service. Each transaction is logged on Zindigo servers and is available for review in detail on Ambassador Central, where you can access real-time tracking of sales and commission, including Commission Reports and Sales History Totals. Please do not contact Payoneer for this information, since they cannot access your account.
I acknowledge that I have read, understand, and agree to the terms set forth in this Ambassador Agreement. I am 18 years of age or older