Ambassador Program Terms & Conditions

Brand Ambassador Terms & Conditions

 

 

PLEASE READ THESE BRAND AMBASSADOR TERMS AND CONDITIONS VERY CAREFULLY. POSTING AS A ZOX AMBASSADOR WILL SERVE AS IMPLIED CONSENT TO/ACCEPTANCE OF THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, PLEASE NOTIFY ZOX IMMEDIATELY SO THAT WE CAN TERMINATE YOUR AMBASSADOR STATUS. BY ACCEPTING THESE TERMS (AS FURTHER DEFINED HEREIN), YOU EXPRESSLY AGREE TO BE BOUND BY, AND STRICTLY ADHERE TO, ALL OF THE TERMS AND CONDITIONS OF THIS BRAND AMBASSADOR AGREEMENT BETWEEN YOURSELF (ON BEHALF OF YOURSELF) AND ZOX LLC (“ZOX”). THESE TERMS WILL GOVERN YOUR RELATIONSHIP WITH ZOX AND YOUR PARTICIPATION IN THE ZOX BRAND AMBASSADOR PROGRAM (THE “PROGRAM”). IF YOU DO NOT AGREE OR DO NOT UNDERSTAND ANY OF THE TERMS AND CONDITIONS CONTAINED HEREIN, PLEASE DO NOT ACCEPT THE TERMS. IF AT ANY TIME YOU NO LONGER WISH TO BE BOUND BY THESE TERMS, YOU MUST IMMEDIATELY PROVIDE WRITTEN NOTICE TO ZOX.  

 

As used in these Terms, “Ambassador”, “you” or “your'' shall mean the individual who wishes to be a brand ambassador for ZOX, and his/her employees, agents, business affiliates, and permitted successors and assigns. Ambassador and ZOX may be referred to hereinafter individually as a “Party” or collectively as the “Parties''.

 

By accepting these Terms and participating in the Program, Ambassador agrees as follows:

 

If selected by ZOX, you will become a brand ambassador for the ZOX brand and for the products offered and sold by ZOX (“Products”). Your performance as ZOX ambassador is subject to these brand ambassador terms and conditions, and any separate agreement ZOX may require you to execute hereafter as well as any ZOX policies, standard operating procedures or guidelines provided to you from time to time (collectively, the “Terms”).  ZOX reserves the right change these terms and conditions at any time without prior notice to Ambassador.

 

ELIGIBILITY. To become a ZOX brand ambassador, you must meet the following eligibility criteria:

 

•       You have read, understand, and agree to be bound by the Terms;
•       You are eighteen (18) years of age or older;
•       You have read all ZOX.LA Terms and Conditions
•       You maintain and actively use your own personal account on at least one form of social media, including Facebook, Instagram, Twitter, Pinterest, Snapchat, Pinterest and YouTube, which have been approved by ZOX (collectively, “Approved Media”). Your accounts on Approved Media are referred to as “Accounts”; 
•       You are in good standing with the Federal Trade Commission (the “FTC”); and
•       You are in compliance with all FTC guidelines, including but not limited to the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (“FTC Guides”) and the terms and conditions of these Terms.

 

ZOX reserves the unconditional right to accept or deny any brand ambassador who applies to be a ZOX brand ambassador.

 

 

REPRESENTATIONS, WARRANTIES AND COVENANTS OF AMBASSADOR.  Ambassador represents and warrants that:

 

 

•       Ambassador has the power and authority to enter into these Terms;
•       Ambassador is not a party to any agreement or subject to any law that restricts Ambassador’s performance of Ambassador’s obligations hereunder;
•       Ambassador possesses all legal authorizations, permits and licenses necessary for the conduct of Ambassador’s obligations hereunder;
•       Ambassador has the right to assign the Content (as defined herein) to ZOX, as further set forth herein and, the Content will be original and does not and will not infringe upon any copyright, patent, trademark, right of publicity or privacy, or any other proprietary or other right of any person; and
•       Ambassador covenants and agrees as further provided herein, to market, promote and sell the Products in compliance with all applicable laws, regulations, rules, administrative guidelines, policies, codes, orders and ordinances.

 

ENGAGEMENT. In exchange for certain compensation, products and/or experiences, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Ambassador shall use its best efforts to market and promote the ZOX brand and any ZOX Products on your Accounts (the “Services”), subject to the terms and conditions contained herein.

Ambassador shall perform the following Services:

•       Create and post photo and video content promoting ZOX’s brand, ZOX’s Products and/or services and/or any related campaign as ZOX may request from time to time (“Content”). For avoidance of any doubt, Content shall include any and all content, photos, videos, pictures, writings, or any other work product that Ambassador creates as part of the Services or otherwise related to the work Ambassador does for ZOX.
•       Share and promote your unique promo link or promo code (the “Promo Code”) to encourage your followers to purchase ZOX Products.
•       Communicate, network and/ or collaborate with other social media influencers and brand ambassadors, ZOX’s social media followers and customers, and any other individuals requested by ZOX, to promote the ZOX Products.
•       Promptly respond to communications from ZOX representatives in text, email, phone or any other form.
•       Participate in educational and training programs presented.
•       If requested by ZOX, attend events.

 

Ambassador agrees that ZOX may post, re-post, embed, upload, and otherwise re-use any of your Content at any time, without compensation other than what is provided in the Terms. You acknowledge and agree that you are responsible for:

 

•         Any and all activity undertaken in connection with your participation in the Program;
•         Ensuring at all times, compliance with all applicable laws, regulations, rules, administrative guidelines, policies, codes, orders and ordinances, including without limitation, all privacy and data security laws and the terms and conditions of all applicable third party websites, platforms or applications, including by making disclosures in accordance with the FTC’s Guides as further provided herein, in rendering the Services and each applicable campaign;
•         Conducting yourself at all times with the highest degree of professionalism, providing the Services with commercially reasonable skill and care in a competent and professional manner, behaving in a legal, ethical and business-like manner and maintaining the highest standards of integrity, honesty and responsibility in your dealings with ZOX, its staff, customers, followers and representatives;
•       Presenting and demonstrating ZOX Products in a positive, truthful and sincere manner and not engaging in any activity or action that may damage or be harmful to the reputation, goodwill or interest of ZOX, any of ZOX’s Products and/or services or, any of its associates, employees, directors, officers, agents, partners or affiliates and will not commit any act which brings ZOX into public disrepute, contempt, scandal, or ridicule, or which insults or offends any of ZOX’s competitors or the general community to which ZOX’s advertising materials are directed, or which might tend to harm ZOX or any of ZOX’s Products and/or services including, without limitation, disparaging ZOX or any of ZOX’s Products and/or services;
•       Not using ZOX’s name, or any trademarks, copyrighted materials, or other ZOX Intellectual Property of ZOX in any advertising, social media, or in literature other than material published by ZOX, without first obtaining the express written permission of ZOX; and
•       Complying with the Terms, and ZOX’s website terms and conditions and privacy policy.

 

RESTRICTIONS / PROHIBITIONS.  Ambassador agrees and understands that if any Content posted by or associated with Ambassador is deemed offensive, inappropriate or used incorrectly, that Ambassador will be deemed, at the sole discretion of ZOX, ineligible to participate in the Program. Ambassador will then be disqualified from receiving any commission, recognition, communication or compensation from ZOX.  Ambassador will also be terminated in the event it takes any of the following actions, each a material breach of the Terms:

 

•         Makes any representations or warranties on behalf of ZOX, other than the ones contained in ZOX’s marketing and promotional information (under no circumstances should Ambassador make any unsubstantiated claims, including but not limited to claims that the ZOX Products are intended to diagnose, treat, cure or prevent any disease);
•         Fails to comply with any of the Terms;
•         Promotes ZOX Products through unsolicited or spam emails or otherwise violates any laws, regulations, rules, administrative guidelines, policies, codes, orders and ordinances, regulating electronic communications;
•         Engages in, promotes, links or contributes to, or creates a platform for, the publishing, hosting, or promotion of sexually explicit materials, scantily clad images or video, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, or of any content that is unlawful, illegal, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable to ZOX in ZOX’s sole discretion;
•         Transmits messages or images inconsistent with the positive images and/ or good will with which ZOX wishes to associate;
•         Engages in, promotes, or contributes to any activity, software, or materials that may divert commissions from other participants in the Program;
•         Engages in, promotes, or contributes to any illegal activity or violates ZOX’s or any third party’s legal rights, and/ or intellectual property rights;
•         Engages in “spam” advertising, sends unsolicited commercial email, posts commercial messages to any forum that prohibits such messages, or engages in any other advertising or marketing practices that are deceptive, misleading, false, fraudulent, or otherwise objectionable in ZOX’s sole discretion;
•         Generates or sends any email messages using or containing ZOX’s brand name, logos, or any variation thereof, trademarks, likeness, images, and videos, without ZOX’s express prior written permission;
•         Uses ZOX’s banners, brand name, logos, trademarks, likeness, images, and videos, on its own website(s), thus creating market and customer confusion;
•         Creates or links to a website that copies, resembles, has the look and feel of or creates the impression that it is the ZOX website or any other platform of ZOX;
•         Reads, intercepts, records, redirects, interprets or fills in the contents of any electronic form or other materials submitted to ZOX by any person or entity;
•         Uses any promotional coupon or code that is not provided to Ambassador by ZOX for the Program, or runs any ad with any of ZOX’s URLs offering brand ambassador commissions;
•         Sells or re-sells any of the ZOX Products, or offers a cash incentive or discount on ZOX Products as a means of promotion;
•         Uses own credit card to purchase Products for a customer or another brand ambassador, or places a product order using someone else’s credit card without the credit card owner’s written permission;
•         Engages in any fraudulent activity or other activity that would falsely or artificially increase or affect the number of Ambassador’s followers, “likes” or other indicators of Ambassador’s audience or reach on any applicable Approved Media;
•         Creates more than one (1) unique Promo Code to fraudulently inflate commissions;
•         Modifies price information regarding ZOX’s Products or offers on Ambassador’s own website;
•         Creates, links to or hosts any type of shopping cart between ZOX’s website and Ambassador’s own website; or
•         Takes any action (or fails to take an action), that is deemed to be unsuitable to ZOX, in its sole discretion.

 

ZOX reserves the right to preview Ambassador’s Content from time to time upon request and reserves the right to request changes to and/or removal of Content in its sole discretion.  ZOXhas the right to monitor Ambassador’s Accounts at all times to ensure compliance with the Terms. ZOX may notify you of any changes to your Content or Accounts that ZOX feels should be made. Without limitation to ZOX’s rights as stated herein, ZOX may terminate your participation in the Program if you do not make any changes to Your Account that ZOX feels are necessary or appropriate.  ZOX reserves the right to terminate your participation in the Program immediately and without notice to you should ZOX suspect that you have committed fraud or otherwise violated the Terms. If such fraud or abuse is detected, ZOX shall not be liable to you for any commissions for such fraudulent sales.

 

DISCLOSURE OF MATERIAL CONNECTION. As otherwise provided herein, Ambassador must include a disclaimer with all Content Ambassador shares publicly stating your “material connection” to ZOX and the fact that you have been compensated or otherwise incentivized to post the Content (e.g. the fact that your post is “sponsored by ZOX” (such as #sponsored) or an “advertisement” (such as #ad) or that Ambassador is an ambassador of ZOX (such as #ZOX_Ambassador)). Such disclosure must be made in close proximity to any statements that Ambassador makes about ZOX or ZOX’s Products and must comply with any instructions or directions provided byZOX and all applicable laws, regulations, administrative guidelines, codes, orders and ordinances, including but not limited to the FTC Guides. This disclosure should be clear and prominent enough for customers to view it when they are reading or otherwise viewing any of the Content. Further, under no circumstances shall Ambassador obscure, delete, modify or in any way alter the required FTC approved language. In addition, the customer should not be required to click on, scroll down or mouse over a link in order to view the disclosure. Please note that this disclosure is required regardless of any space limitations of the medium, where the disclosure can be made via hashtags, such as #sponsored, #paid or #ad.

 

Note that while ZOX may provide required disclosures and recommended promotional verbiage, ZOX shall not be responsible for any failure by Ambassador to comply with any applicable laws, regulations, administrative guidelines, codes, orders and ordinances or any failure by Ambassador to obtain all third party clearances and permissions with respect to Content Ambassador posts.

IF AMBASSADOR FAILS TO MAKE THE REQUIRED DISCLOSURES, SUCH FAILURE SHALL BE DEEMED A MATERIAL BREACH OF THE TERMS THAT IS NOT CAPABLE OF CURE AND SHALL RESULT IN IMMEDIATE TERMINATION, WITHOUT ANY COMPENSATION OR COMMISSIONS OR LIABILITY TO AMBASSADOR.

COMMISSIONS

 

PAYMENT. In consideration of the Services provided by Ambassador and the rights granted to ZOX with respect to the Content, as further provided herein, Ambassador will be compensated as follows:

 

•     10% net commission on all sales by third parties generated using your Promo Code, subject to change by the Company at any time. Payments will be made to the Ambassador via Paypal Goods and Services. Ambassador is responsible for all fees associated with accepting payments. 

 

Commissions will be paid out monthly based on the previous month’s sales, as long as your commissions earned are at least ten dollars ($10). Commissions will not be paid based on any sales or amounts for any reorders of customers or attributed to spam, credit card fraud, unauthorized use of your Promo Code, unauthorized use of ZOX’s trademarks, copyrights, logos or other intellectual property or returned Product. If a sale is canceled or refunded for any reason, any paid commission will be deducted from the amount owed to the Ambassador and any subsequent payment. Commissions are counted and final numbers are deemed final at the sole discretion and decision of ZOX. ZOX also reserves the right to change the frequency and dates of the commission payout.

 

Ambassador should clearly advise followers/customers to use the Ambassador’s Promo Code to purchase ZOX Products in order for Ambassador to receive commission. While ZOX makes every reasonable effort to accurately track and pay commissions for all Ambassador sales, ZOX 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 ZOX’s ability to track sales or pay commissions. ZOX has the right to pay commissions to any other person, at its discretion. 

 

Ambassador is solely responsible for any and all tax obligations, if any, due to any taxing authorities arising from or in connection with Ambassador’s commissions paid hereunder. ZOX reserves the right to withhold payment pending an investigation of suspected fraud or misrepresentation of associated commissions for orders or referrals that were obtained fraudulently or through misrepresentation.

 

AMBASSADOR WILL BE ABLE TO TRACK COMMISSIONS AND PAYOUT VIA THE ZOX Buzzbassador DASHBOARD.

 

INTELLECTUAL PROPERTY RIGHTS AMBASSADOR’S CONTENT AND ATTRIBUTES.  For the Services which Ambassador is providing under these Terms, and without limiting ZOX’s ownership of the ZOX Intellectual Property (as defined below) as provided herein, Ambassador hereby grants ZOX the irrevocable, sublicensable, worldwide right and permission to use any Content, in any manner, in whole or in part, and for any purpose in any and in any and all media, including and without limitation, on ZOX’s owned or controlled websites and platforms, social media, any advertising materials, publications, marketing materials, and/or presentations, and in any and all other media, in perpetuity. Content, including any statements, comments, posts and/or feedback that Ambassador provides may be paraphrased, amplified, shortened and/or put into conversational form.

 

Ambassador acknowledges that participation in the Services means ZOX has the irrevocable right to use Ambassador’s Content and include ambassador’s name, likeness, image, photograph, distinctive appearance, gestures, mannerisms, biography, statements, avatar, and/or social media name and handle and any other indicia or other Ambassador attributes in any manner that ZOX determines supports the purposes of these Terms, including use in any media that accepts advertising or promotional content or communications.

 

INTELLECTUAL PROPERTY AMBASSADOR’S RIGHTS TO ZOX INTELLECTUAL PROPERTY AND ZOX PLATFORMS. ZOX hereby grants Ambassador, a non-exclusive, non-transferable, revocable, limited license to use and display ZOX’s trade name(s), logos and trademarks, slogans, domain names, trade dress, coupons, hypertext links, promotional codes, designs, works of authorship, and other advertising and marketing material (collectively, “ZOX Intellectual Property”) solely in the form and format provided to you through the Program, and solely for the purpose and in the manner specifically authorized by ZOX. Ambassador acknowledges ZOX’s exclusive right, title and interest in and to the ZOX Intellectual Property and the goodwill pertaining thereto, that any use of the ZOX Intellectual Property by Ambassador does not create any ownership, license or other right or interest in or to the ZOX Intellectual Property by Ambassador except as specifically set forth herein and that all use of the ZOX Intellectual Property by Ambassador shall inure to the benefit of ZOX. Ambassador agrees that it shall not, challenge, or assist in any challenge to, the validity or exclusivity of ZOX’s ownership of the applicable ZOX Intellectual Property.

 

Further, ZOX and its licensors retain all ownership rights in their proprietary platforms, software, websites and technology, including any updates, enhancements, modifications thereto or any back-end technology associated therewith (“ZOX Platforms”). Ambassador agrees not to:

•         copy, rent, lease, sell, distribute, or create derivative works based on the ZOX Platforms in whole or in part, by any means, except as expressly authorized in writing by ZOX;
•         use any ZOX Intellectual Property without prior written permission;
•         use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” to send messages to the ZOX Platforms or systems;
•         use the ZOX Platforms in any manner that damages, disables, overburdens, or impairs any of ZOX’s websites or interferes with any other party’s use of the ZOX Platforms;
•         attempt to gain unauthorized access (or exceed any authorized access) to the ZOX Platforms;
•         access the ZOX Platforms other than through the ZOX interface; or
•         use the ZOX Platforms for any purpose or in any manner that is unlawful or prohibited by these Terms.

 

EXCEPT AS OTHERWISE SET FORTH HEREIN, TO THE EXTENT PERMITTED BY LAW, THE ZOX PLATFORMS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. EXCEPT AS OTHERWISE SET FORTH HEREIN, ZOX DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE ZOX PLATFORMS INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

 

THIRD PARTY LICENSES. Ambassador shall be solely responsible for obtaining, in a form acceptable to and approved in writing by ZOX, any required licenses, permissions or approvals from third parties, contributors, and/or other affected rights holders with regard to third party content incorporated into the Content by Ambassador, as necessary for ZOX to make full and unrestricted use of the Content as set forth herein, including by way of example and without limitation, requiring all individuals appearing in any Content, to sign an authorization, consent and release form and granting to ZOX all license and publicity rights necessary for ZOX to make use of the name, likeness, image, photograph, distinctive appearance, gestures, mannerisms, biography, statements, avatar, and/or social media name and handle and other indicia of such individual contained in the Content. Ambassador will provide ZOX with copies of such consents upon its written request.

 

TERM AND TERMINATION.  The term of these Terms shall begin upon ZOX’s acceptance of you as a brand ambassador and will end when terminated by either Party in writing (the “Term”).  The Terms may be terminated by ZOX immediately at any time, with or without cause, upon ZOX’s written notice to Ambassador; and by Ambassador upon thirty (30) days written notice by Ambassador to ZOX. In the event of cancellation or termination by Ambassador for any reason or by ZOX for a breach by Ambassador, in addition to the termination rights hereunder, ZOX shall be entitled to recover all costs (including attorney’s fees) in the enforcement of ZOX’s rights hereunder and, if Ambassador shall have been paid in advance, ZOX shall be entitled to a refund of any fees advanced to Ambassador; or, as applicable, Ambassador shall waive all rights it has hereunder, including but not limited to any rights to commissions otherwise earned prior to the applicable payment date. ZOX may terminate these Terms and all other agreements between ZOX and other brand ambassadors if ZOX elects to cease business operations, dissolve ZOX or terminate its business. Upon the termination of these Terms, all limited licenses granted to Ambassador hereunder shall cease and you shall cease to hold yourself out as brand ambassador of ZOX.

 

The rights and obligations related to Intellectual Property Rights, Confidentiality, Indemnification, Limitation of Liability and Miscellaneous shall survive any cancellation or termination of these Terms.

 

CONFIDENTIAL INFORMATION.  ZOX may disclose to you confidential or proprietary information and trade secrets from time to time (collectively, “Confidential Information”). ZOX’s Confidential Information includes, without limitation, all non-public or proprietary information and ZOX Intellectual Property, including, but not limited to specifications, ingredients and other proprietary information relating to the ZOX 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, financial plans, 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, product, business 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 ZOX is (and will remain) the sole and exclusive owner of all right, title and interest in and to the Confidential Information, and all ZOX Intellectual Property.  You further agree that you will not, and will cause any employees and other agents to not, use ZOX’s Confidential Information for the benefit of anyone other than ZOX.  You agree not to use ZOX’s Confidential Information for any purpose except in the performance of your obligations under these Terms. You acknowledge and agree that the disclosure of the Confidential Information to third parties or the unauthorized use of the Confidential Information or ZOX’s Intellectual Property would cause substantial and irreparable harm and injury to ZOX’s ongoing business for which there would be no adequate remedy at law. Accordingly, in the event of any breach or attempted or threatened breach of any of the terms of this Section, ZOX shall be entitled to receive injunctive and other equitable relief, without limiting the applicability of any other remedies.

INDEPENDENT CONTRACTOR. In providing the Services to ZOX, you acknowledge and agree that your relationship with ZOX is that of an independent contractor and it is expressly understood and agreed that nothing in these Terms is intended to create, and does not create, any employee, partnership, agency, joint venture or similar relationship between yourself and ZOX. You are solely responsible for all of your own income, social security, unemployment, sales, disability and any other applicable taxes arising out of your performance of the Services under these Terms, as required by applicable laws and regulations. You understand and agree that ZOX will not withhold or make payments or contributions on your behalf. You agree to indemnify and defendZOX 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 the Services under these Terms. 

 

INDEMNITY. Ambassador agrees to at all times defend, indemnify and hold harmless ZOX (including, without limitation, its parent entities, all related and affiliated entities and their respective directors, officers, shareholders, employees, agents and representatives) from and against any and all claims of whatever nature, including without limitation:  (i) any violation of any law, regulation, rule, administrative guideline, policy, code, order and ordinance committed by you or your agents; (ii) your negligence or willful misconduct and/ or (iii) your participation in the Program, and/ or your breach of any obligation, representation or warranty set forth in the Terms.  Your obligation to indemnify and defend ZOX as set forth in this Section shall include reimbursement of any and all legal fees and related costs and expenses incurred by ZOX in connection with any such claim.

 

LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ZOX OR ITS REPRESENTATIVES OR AFFILIATES BE LIABLE TO AMBASSADOR OR ANY THIRD PARTY CLAIMING THROUGH AMBASSADOR FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS) ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS REGARDLESS OF (I) WHETHER SUCH DAMAGES WERE FORESEEABLE, (II) WHETHER OR NOT AMBASSADOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE TERMS, IN NO EVENT SHALL ZOX’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THE TERMS, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED 50% OF THE COMMISSIONS PAID TO AMBASSADOR PURSUANT TO THE TERMS IN THE 1-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

 

DISCLAIMER. ZOX MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING ZOX’S WEBSITE(S) OR ANY OTHER WEBSITES MAINTAINED AND OPERATED BY ZOX OR THE PRODUCTS OR SERVICES PROVIDED THEREON OR OTHERWISE OFFERED BY ZOX, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, ZOX MAKES NO REPRESENTATION THAT THE OPERATION OF ANY ZOX WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, AND ZOX IS NOT LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

MISCELLANEOUS

 

ENTIRE AGREEMENT.  These Terms constitute the entire agreement between the Parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. In the event any provision, clause, sentence, phrase, or word hereof, or the application thereof in any circumstances, is held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder hereof, or of the application of any such provision, sentence, clause, phrase, or word in any other circumstances. The waiver by either Party of a breach of any provision of these Terms by the other Party shall not operate or be construed as a waiver of any other or subsequent breach by the other Party. ZOX may modify these Terms at any time and at its sole discretion. These modifications may include, but not limited to changes in the amount of compensation, rate of commission fees, fee schedules, payment procedures, etc. If any of the modifications are unacceptable to you, your only recourse is to terminate your relationship with ZOX. If you continue providing Services following the posting of any modification or change to any of the Terms, it will be considered as your acceptance of the change. Ambassador may not subcontract or otherwise assign, transfer or delegate any of its rights, duties or obligations under these Terms. ZOX may assign, transfer or delegate its rights, duties and obligations hereunder to any third party acquirer of the business of ZOX, and following such an assignment, transfer and delegation, ZOX shall have no further duties or obligations hereunder. The Agreement shall be governed in accordance with the laws of the State of California and subject to the exclusive jurisdiction of the courts of the judicial district of Travis County. All claims, disputes, or causes of action under these Terms, must be brought in an individual capacity, and shall not be brought as a class member in any purported class or representative proceeding, nor joined or consolidated with the claims of any other person or entity. 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 these Terms.

 

CHOICE OF LAW. This Agreement shall be exclusively governed, construed and enforced in accordance with, and subject to, the laws of the State of Texas or federal law, where applicable. Subject to the dispute resolution and Arbitration Agreement below, sole, exclusive and mandatory venue for any disputes arising from or concerning Ambassador and Company or this Agreement shall be in Travis County, Texas.

 

DISPUTE RESOLUTION AND ARBITRATION AGREEMENT

 

Informal Dispute Resolution. Mindful of the high cost of legal disputes, not only in dollars but also in time and energy, both you and ZOX, LLC agree to the following dispute resolution procedure: In the event of any controversy, claim, action or dispute arising out of or related to any transaction conducted on by virtue of this agreement  or the breach, enforcement, interpretation, or validity of this Agreement or any part of it ("Dispute"), the party asserting the Dispute shall first try in good faith to settle such Dispute by providing written notice to the other party (by first class or registered mail) describing the facts and circumstances (including any relevant documentation) of the Dispute and allowing the receiving party 30 days in which to respond to or settle the Dispute. Notice shall be sent

(1) to ZOX at: ZOX LLC Legal Department, 7701 N FM 620, Austin, TX 78726 with electronic copy sent to kara@zox.la Attn: General Counsel, or (2) to you at: your last-used billing address or the billing and/or shipping address in your online profile.

Both Ambassador and ZOX agree that this dispute resolution procedure is a condition precedent which must be satisfied prior to initiating any arbitration or filing any claim against the other party.

Arbitration Agreement.  To the extent you cannot resolve any Dispute through the informal dispute resolution procedure described above, a Dispute must be resolved through binding individual arbitration. Ambassador and ZOX, LLC agree to give up your right to go to court to assert or defend your rights under this Agreement and with respect to any Dispute. Ambassador and ZOX expressly delegate to the arbitrator the authority to determine the arbitrability of any Dispute, including the scope, applicability, validity, and enforceability of this arbitration provision.

Ambassador may begin an arbitration proceeding by sending a letter requesting arbitration to: 

 ZOX LLC Legal Department, 7701 N FM 620, Austin, TX 78726 Kara@zox.la

Ambassador agrees that the arbitration shall be conducted by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (“AAA Rules”), as modified by this Arbitration Agreement. The AAA Rules are available on the AAA’s website www.adr.org, or by calling the AAA at (800) 778-7879. In the event the AAA is unavailable or unwilling to hear the Dispute, the parties shall agree to another arbitration provider. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s applicable rules. ZOX will reimburse those fees for claims totaling less than $10,000 if the arbitrator rules in your favor on any material aspect of your claim. ZOX waives its right to seek attorneys’ fees and costs in arbitration. However, if your claim is deemed by the arbitrator to be frivolous or brought in bad faith or with an improper purpose, as measured by the standards of Federal Rule of Civil Procedure 11, then the arbitrator may award ZOX. the reimbursement of its costs and arbitration fees against you and/or your counsel. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. You further agree that if your arbitration claim is filed at or around the time of other similar claims by the same or related counsel, you agree that your claim may be temporarily stayed or phased to allow the AAA to establish efficient and fair adjudication procedures.

In lieu of arbitration, either Ambassador or ZOX may bring any individual claim in small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is brought and maintained as an individual claim. Also, even if all parties have opted to litigate a claim in court, Ambassodor or we may elect arbitration with respect to any claim made by a new party or any claim later asserted by a party in any related or unrelated lawsuit, including modifying an individual claim to assert a class, representative or multi-party claim. Arbitration may be requested at any time, even where there is a pending lawsuit, unless a trial has begun, or a final judgment entered.

Waiver of Right to Bring Class Actions and Representative Claims.  All arbitrations must proceed on an individual basis. The arbitrator is empowered to resolve the Dispute with the same remedies available in court. However, to the extent permissible by applicable law, any relief must be individualized to you and shall not affect any other customer. Ambassador and ZOX agree that each may bring claims against the other in arbitration only in your or ZOX respective individual capacities and in so doing Ambassador and ZOX hereby waive the right to a trial by jury, to assert or participate in a class action lawsuit or class action arbitration (either as a named-plaintiff or class member), and to assert or participate in any joint or consolidated lawsuit or joint or consolidated arbitration of any kind.  If it is decided that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim, then that claim (and only that claim) must proceed in court and be severed from any arbitration.

Other Terms. This Arbitration Agreement shall be governed by, and interpreted, construed, and enforced in accordance with, the Federal Arbitration Act. The terms of the Arbitration Agreement provisions shall survive after this Agreement terminates or your use of the Sites ends. Except as set forth above, if any portion of this Arbitration Agreement is deemed invalid or unenforceable, it will not invalidate the remaining portions of the Arbitration Agreement.

 

MISCELLANEOUS. These Terms constitute the entire agreement between the Parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. In the event any provision, clause, sentence, phrase, or word hereof, or the application thereof in any circumstances, is held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder hereof, or of the application of any such provision, sentence, clause, phrase, or word in any other circumstances. The waiver by either Party of a breach of any provision of these Terms by the other Party shall not operate or be construed as a waiver of any other or subsequent breach by the other Party. ZOX may modify these Terms at any time and at its sole discretion. These modifications may include, but not limited to changes in the amount of compensation, rate of commission fees, fee schedules, payment procedures, etc. If any of the modifications are unacceptable to you, your only recourse is to terminate your relationship with ZOX. If you continue providing Services following the posting of any modification or change to any of the Terms, it will be considered as your acceptance of the change. Ambassador may not subcontract or otherwise assign, transfer or delegate any of its rights, duties or obligations under these Terms. ZOX may assign, transfer or delegate its rights, duties and obligations hereunder to any third party acquirer of the business of ZOX, and following such an assignment, transfer and delegation, ZOX shall have no further duties or obligations hereunder.