SCRUNCHIED
BRAND AMBASSADOR PROGRAM AGREEMENT
Updated: 5/11/2020
IMPORTANT: THIS BRAND
AMBASSADOR PROGRAM AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND WAIVER
OF THE RIGHT TO JURY TRIALS AND CLASS ACTIONS.
PLEASE READ THIS ENTIRE
AGREEMENT CAREFULLY.
BY SUBMITTING AN
APPLICATION TO THE BRAND AMBASSADOR, YOU ARE AGREEING THAT YOU HAVE READ AND
UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU
UNEQUIVOCALLY AGREE TO BE LEGALLY BOUND EACH AND EVERY TERM AND CONDITION.
This
BRAND AMBASSADOR Program Agreement (the “Agreement”) is a legally binding contract
between you (“Brand Ambassador”, “you”, “affiliate”, or similar terms) and Scrunchied.
(“Scrunchied”, “us”, “we”, “merchant”, or similar terms) and applies to your
participation in the Scrunchied Brand Ambassador Program (the “Program”).
Any person or entity that participates or attempts to participate in the
Program must accept this Agreement without change. By registering for the
Program, you agree to this Agreement. By participating in the Program,
Affiliate agrees to use the Program in the manner specified in, and are bound
by, these Terms and Conditions. If you do not agree to these Terms and Conditions
in their entirety you are not authorized to register as an Affiliate or
participate in the Program in any manner.
1.
Description of the Program
The Program permits you to
monetize your social media user-generated content by placing on your social
media profiles (“Your Profiles”) a personalized Brand Ambassador Link (“Your Link").
When our customers purchase eligible goods from www.scrunchied.com (the “Scrunchied
Site”) using Your Link you be eligible to receive a commission for “Qualifying
Purchases”, as further described (and subject to the limitations in) Section 3
below.
We periodically modify the
terms of this Agreement. We might also choose to replace these terms in their
entirety if, for example, the Program changes, ends, or becomes part of an
existing program, including our partner programs. If you don’t agree to
the modification or replacement, you can choose to terminate your participation
in the Program. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING ANY
CHANGES TO THIS AGREEMENT WILL CONSTITUTE YOUR ACCEPTANCE OF THE MODIFICATIONS.
IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE
YOUR PARTICIPATION IN THE PROGRAM.
You and we are independent
contractors, and nothing in this Agreement will create any partnership, joint
venture, agency, franchise, sales representative, or employment relationship
between you and us or our respective affiliates. You will have no authority to
make or accept any offers or representations on our or our affiliates’ behalf.
You will ensure that the
information in your Program application and information otherwise associated,
including your email address, mailing address, and other contact information,
is at all times complete, accurate, and up-to-date. We may send notifications
(if any), approvals (if any), and other communications relating to the Program
and this Agreement to the email address then-currently associated with your
Program account. You will be deemed to have received all notifications,
approvals, and other communications sent to that email address, even if the
email address associated with your account is no longer current.
You can update your
information by emailing us at: update@scrunchied.com
2.
Eligibility To Participate In The Program & Prohibited Activities
You must be at least 18
years of age. If you are the parent or legal guardian of a person under
the age of 18, you represent and warrant that the minor is of legal age to
participate in the Program, you are the legal parent or guardian of the minor
whose rights are covered by this Agreement, that you have read the terms of
this Agreement and consent to the terms herein and you will not revoke your
consent.
You must have an Instagram
account.
You must have a PayPal
account.
You must comply with this
Agreement to participate in the Program and to receive Commissions.
You must promptly provide
us with any information that we request to verify your compliance with this
Agreement.
You must clearly state the
following, or any substantially similar statement (the “Disclosure”) on Your
Profiles: “As a Scrunchied Brand Ambassador, I earn from qualifying purchases.
You must be kind and
respectful to all other Brand Ambassadors.
Your Link is for you to
post solely in Your Profiles. Participation in the Program does not grant
you any rights to sell Scrunchied items at events of any kind (ex. farmer's
markets, etc.) have received express written permission by us.
You must not comment with
Your Link on any Scrunchied social media posts or channels (i.e. Instagram,
Twitter, Facebook, etc.), even if you see another Brand Ambassador doing it.
You must not post Your Link
in the comments of any posts from Scrunchied wholesale accounts or stores who
carry our products.
You must not enter into any
retail stores that sell Scrunchied goods and share Your Code with customers.
DO NOT add Your Link to
coupon sites, it’s cheating! We check these sites frequently.
Remember that the purpose
of the Program is to bring new clients to the brand and help spread the word of
Scrunchied!
Your breach of any of the
terms of this Agreement, or any other agreement between you and us, or in
connection with the Program (e.g. the PayPal User Agreement, Secomapp Terms of
Use, Google Terms of Use and Privacy Policy) then, in addition to any other
rights or remedies available to us, we reserve the right to permanently (to the
extent permitted by applicable law) withhold (and you agree you will not be
eligible to receive) any and all Commissions otherwise payable to you under
this Agreement, whether or not directly related to such violation without
notice and without prejudice to any right of Scrunchied to recover damages in
excess of this amount. We
reserve the right to approve or reject ANY Affiliate Program Registration in
our sole and absolute discretion. You will have no legal recourse against us
for the rejection of your Affiliate Program Registration.
3.
Commissions on Qualifying Purchases
We
will pay you a commission with a base amount of no less than 10% of the price
paid by the customer and actually received by Scrunchied, before taxes and
shipping, on all Qualifying Purchases (your “Commission”). A “Qualifying
Purchase” occurs when (i) a customer uses Your Link to purchasing eligible
goods from the Scrunchied Site; (ii) the customer’s payment is successfully
processed.
For
example, if a customer uses Your Code to purchase a single scrunchie priced at
USD$9.95, then once Scrunchied receives that customer’s payment of USD$9.90,
you will be eligible to receive a 10% commission in the amount of USD$0.90.
From
time to time, we like to incentivize our Brand Ambassadors by offering
increased commission rates for particular periods of time. For example,
we may notify you that for a period of time all Brand Ambassadors will earn a 20%
Commission on Qualifying Purchases.
Notwithstanding
the foregoing, Qualifying Purchases are disqualified and no Commission shall be
due whenever (a) they occur in connection with a violation of this Agreement,
or any other terms, conditions, specifications, statements, and policies that
we may issue from time to time that apply to the Program; (b) any purchases
that occur after termination of your Agreement; (c) any order where a
cancellation, return, or refund has been initiated; (d) any purchase by a
customer who is referred to the Scrunchied Site through any advertisement that
you purchased through participation in bidding or auctions on keywords, search
terms, or other identifiers that include the word “Scrunchied”, or “Scrunchied
Scrunchies”, or any other Scrunchied trademark (or variations or misspellings
of any of those words, (e) any purchase by a customer who is referred to the Scrunchied
Site by a link that is generated or displayed on a search engine (including
Google, Yahoo, Bing, or any other search portal, sponsored advertising service,
or other search or referral service, or any site that participates in such
search engine’s network); (f) any purchase by a customer who is referred to the
Scrunchied Site by a link that sends users indirectly to the Scrunchied Site
via an intermediate site, without requiring the customer to click on a link or
take some other affirmative action on that intermediate site; (f) any purchase
by a customer, where such customer does not comply with the terms and
conditions applicable to the Scrunchied Site; or (g) any purchase that is not
correctly tracked or reported because the Your Link is not properly formatted
or inserted in the Scrunchied Site’s checkout process.
For an Affiliate to receive
a commission, you need to specify the payment details on Settings. Payment
schedule will be notified on Affiliate Guide page. Payments will only be sent
for transactions that have been successfully completed. Use of the Affiliate
Program is subject to a fair use policy which gives merchant the right to
review each and every referral order. Status of commission if displayed in
Commission tab, any paid commission will be listed on Payment tab. Transactions
that result in charge backs or refunds will not be paid out.
We use a cookie to track
people who have clicked on your link, so they need to be using cookies for us to
track them. If a person doesn't allow cookies or clears their cookies then we
can't track them so can't pay earnings on that person's activity. Cookies day
is said on the Affiliate registration form. The tracking day will start from
the time a customer clicks on the affiliate’s link or use the coupon. Within
the cookie time, every order made by this customer at merchant website will
automatically result in commissions to the affiliate (There’s no need for the
customer to click on the affiliate link then).
We will use commercially
reasonable efforts to accurately and comprehensively track Qualifying Purchases
for the purposes of our internal tracking, and creating and distributing your
Commissions. We may hold accrued Commissions for a reasonable period of time
following any termination of this Agreement to ensure that the correct amount
is paid.
We will pay Commissions in
United States Dollars via PayPal approximately 30 days following the end of
each calendar month in which they were earned. You may be permitted to elect to
receive payment in a currency other than United States Dollars. If you choose
to do so, you agree that the conversion rate will be determined in accordance
with PayPal’s operating standards. You are solely responsible for any
PayPal fees, and any and all taxes. We are not responsible for any Commissions
that are not received by you due to any suspension or termination of your
PayPal account.
Payments made to you, as
reduced by all deductions or withholdings described in the Agreement, will
constitute full payment and settlement to you of amounts payable under the
Agreement.
If any excess payment has
been made to you for any reason whatsoever, we reserve the right to adjust or
offset the same against any subsequent fees payable to you under the Agreement
or any other agreement between you and us.
4.
Taxes
We
may deduct or withhold any taxes that we may be legally obligated to deduct or
withhold from any amounts payable to you under this Agreement. From time to
time, we may request tax information from you. If we request tax information
from you and you do not provide it to us, we reserve the right (in addition to
any other rights or remedies available to us) to hold any amounts otherwise
payable to you in connection with the Program until you provide this
information or otherwise satisfy us that you are not a person from whom we are
required to obtain tax information.
5.
Scrunchied Customers
You acknowledge and agree
that Scrunchied’s customers do not become your customers by virtue of your
participation in the Program. You agree to not handle or address any contact
with any of our customers, and, if contacted by any of our customers for a matter
relating to interaction with Scrunchied, you will state that those customers
must follow contact directions on the Scrunchied Site to address customer
service issues.
6.
Warranties
You represent, warrant, and
covenant that (a) you will participate in the Program in accordance with this
Agreement, (b) your participation in the Program, including without limitation,
your creation, maintenance, or operation of Your Profile(s) will violate any
applicable laws, ordinances, rules, regulations, orders, licenses, permits,
guidelines, codes of practice, industry standards, self-regulatory rules,
judgments, decisions, or other requirements of any governmental authority that
has jurisdiction over you (including all such rules governing communications,
data protection, advertising, and marketing), (c) you are lawfully able to
enter into contracts, (d) you have independently evaluated the desirability of
participating in the Program and are not relying on any representation,
guarantee, or statement other than as expressly set forth in this Agreement,
(e) you will not participate in the Program if you are the subject of U.S.
sanctions or of sanctions consistent with U.S. law imposed by the governments
of the country where you are using the Scrunchied Site; (f) you will comply
with all U.S. export and re-export restrictions, and applicable non-US export
and re-export restrictions consistent with U.S. law, that may apply to goods,
software, technology and services, and (g) the information you provide in
connection with the Program is accurate and complete at all times.
We do not make any
representation, warranty, or covenant regarding the amount of traffic or
Commissions you can expect at any time in connection with the Program, and we
will not be liable for any actions you undertake based on your expectations.
7.
Identifying Yourself As A Scrunchied Brand Ambassador
Except for the Disclosure,
you will not make any public communication with respect to this Agreement or
your participation in the Program without Scrunchied’s express prior written
consent. You will not misrepresent or embellish your relationship with us
(including by expressing or implying that we support, sponsor, or endorse you),
or express or imply any affiliation between us and you or any other person or
entity except as expressly permitted by this Agreement.
8.
Term and Termination
The term of this Agreement
will begin upon your submission of the application to join the Program. Either
you or we may terminate this Agreement at any time, with or without cause (automatically
and without recourse to the courts, if permitted under applicable law), by
giving the other party written notice of termination.
You can provide termination
notice by emailing us at: update@scrunchied.com
In addition, we may
terminate this Agreement or suspend your account immediately upon written
notice to you for any of the following: (a) you have breached or threaten to
breach any part of this Agreement; (b) we believe that we may face potential
claims or liability in connection with your participation in the Program; (c)
we believe that our brand or reputation may be tarnished by you or in
connection with your participation in the Program; (d) your participation in
the Program has been used for deceptive, fraudulent or illegal activity; (e) we
believe that we are or may become subject to tax collection requirements in
connection with this Agreement or the activities performed by either party
under this Agreement; (f) we have previously terminated this Agreement with
respect to you or other persons that we determine are affiliated with you or
acting in concert with you for any reason, or (g) we have terminated the
Program as we generally make it available to participants.
Upon any termination of
this Agreement, all rights and obligations of the parties will be extinguished,
including any and all licenses granted in connection with this Agreement,
except that the rights and obligations of the parties under Sections 2, 4, 5,
6, 7, 8, 9, 10 and 11 of this Agreement will survive the termination of this
Agreement. No termination of this Agreement will you of any liability for any
breach of, or liability accruing under, this Agreement prior to termination.
9.
Disclaimers
THE PROGRAM, THE SCRUNCHIED
SITE, ANY PRODUCTS AND SERVICES OFFERED ON THE SCRUNCHIED SITE, ANY COUPON
CODES, LINKS, LINK FORMATS, CONTENT, OUR AND OUR AFFILIATES’ DOMAIN NAMES,
TRADEMARKS AND LOGOS, AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA,
IMAGES, TEXT, AND OTHER INTELLECTUAL PROPERTY RIGHTS, INFORMATION AND CONTENT
PROVIDED OR USED BY OR ON BEHALF OF US OR OUR AFFILIATES OR LICENSORS IN
CONNECTION WITH THE PROGRAM (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED
“AS IS” AND “AS AVAILABLE”. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS
MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SERVICE OFFERINGS. WE AND OUR
AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE
OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY,
SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND
ANY WARRANTIES ARISING OUT OF ANY LAW, CUSTOM, COURSE OF DEALING, PERFORMANCE,
OR TRADE USAGE. WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE
NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT
ANY TIME AND FROM TIME TO TIME. NEITHER WE NOR ANY OF OUR AFFILIATES OR
LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL
FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE
UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER WE
NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR (A) ANY ERRORS,
INACCURACIES, VIRUSES, MALICIOUS SOFTWARE, OR SERVICE INTERRUPTIONS, INCLUDING
POWER OUTAGES OR SYSTEM FAILURES OR (B) ANY UNAUTHORIZED ACCESS TO OR
ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR PROFILES OR
ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR
INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR
THROUGH THE SERVICE OFFERINGS WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN
THIS AGREEMENT. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL
BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN
CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED
SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR
COMMITMENTS BY YOU IN CONNECTION WITH YOUR PARTICIPATION IN THE PROGRAM, OR (Z)
ANY TERMINATION OR SUSPENSION OF YOUR PARTICIPATION IN THE PROGRAM. NOTHING IN
THIS SECTION WILL OPERATE TO EXCLUDE OR LIMIT WARRANTIES, LIABILITIES, OR
REPRESENTATIONS THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
10.
Limitations on Liability
Scrunchied’s liability
arising out of or related to this agreement shall not exceed the amount of
Commissions actually earned by you in the period of twelve (12) months
immediately preceding the date on which you present us with a claim arising out
of or related to this agreement.
NEITHER WE NOR ANY OF OUR
AFFILIATES OR LICENSORS WILL BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL, EXEMPLARY DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, GOODWILL,
USE, OR DATA ARISING IN CONNECTION WITH THE SERVICE OFFERINGS, EVEN IF WE HAVE
BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE
LIABILITY ARISING IN CONNECTION WITH THE SERVICE OFFERINGS WILL NOT EXCEED THE
TOTAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS
IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST
RECENT CLAIM OF LIABILITY OCCURRED. YOU HEREBY WAIVE ANY RIGHT OR REMEDY IN
EQUITY, INCLUDING THE RIGHT TO SEEK SPECIFIC PERFORMANCE, INJUNCTIVE OR OTHER
EQUITABLE RELIEF IN CONNECTION WITH THIS AGREEMENT. NOTHING IN THIS PARAGRAPH
WILL OPERATE TO LIMIT LIABILITIES THAT CANNOT BE LIMITED UNDER APPLICABLE LAW.
11.
Indemnification
TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, WE WILL HAVE NO LIABILITY FOR ANY MATTER DIRECTLY OR
INDIRECTLY RELATING TO THE CREATION, MAINTENANCE, OR OPERATION OF YOUR PROFILES
(INCLUDING YOUR USE OF ANY SERVICE OFFERING) OR YOUR VIOLATION OF THIS
AGREEMENT, AND YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD US, OUR AFFILIATES AND
LICENSORS, AND OUR AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS,
SHAREHOLDERS, AND REPRESENTATIVES, HARMLESS FROM AND AGAINST ALL CLAIMS,
DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES)
RELATING TO (A) YOUR PROFILES OR ANY MATERIALS THAT APPEAR ON YOUR PROFILES,
INCLUDING THE COMBINATION OF YOUR PROFILES OR THOSE MATERIALS WITH OTHER
APPLICATIONS, CONTENT, OR PROCESSES, (B) THE USE, DEVELOPMENT, DESIGN,
MANUFACTURE, PRODUCTION, ADVERTISING, PROMOTION, OR MARKETING OF YOUR PROFILES
OR ANY MATERIALS THAT APPEAR ON OR WITHIN YOUR PROFILES, (C) YOUR USE OF ANY
SERVICE OFFERING, WHETHER OR NOT SUCH USE IS AUTHORIZED BY OR VIOLATES THIS
AGREEMENT OR APPLICABLE LAW, (D) YOUR VIOLATION OF ANY TERM OR CONDITION OF
THIS AGREEMENT, OR (E) YOUR OR YOUR EMPLOYEES' OR CONTRACTORS’ NEGLIGENCE OR
WILLFUL MISCONDUCT.
12.
AGREEMENT TO ARBITRATE / DISPUTE RESOLUTION
PLEASE
READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS,
INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR
CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS
ACTION WAIVER.
YOU
AND WE AGREE TO ATTEMPT TO INFORMALLY RESOLVE DISPUTES: In the event that there
is any dispute relating this Agreement and the Program, you and we both agree
that the party alleging the dispute shall send to the other party a written
notice describing the dispute (“Notice of Dispute”). You and we both
agree that prior to initiating any claim for arbitration or other legal
proceeding, that you and we shall attempt to informally resolve such dispute
for a period of thirty (30) days following the receipt by the non-claiming
party of the Notice of Dispute.
All
Notices of Dispute to Scrunchied shall be in writing and sent by personal
delivery registered or certified mail (return receipt requested) or overnight
air express (or courier shipment outside of the U.S.) if such services actually
provide proof of mailing, forward a copy to update@scrunchied.com.
YOU
AND WE BOTH AGREE TO ARBITRATE: In the event that a dispute is not resolved
within the foregoing thirty (30) day period, then you and Scrunchied agree to
resolve any claims relating to this Agreement through final and binding,
arbitration.
WHAT
IS ARBITRATION? Arbitration is more informal than a lawsuit in court and seeks
to resolve disputes more quickly. Instead of a judge or a jury, the case will
be decided by a neutral arbitrator who has the power to award the same damages
and relief that a court can. If any provision of this Section 12 is found
unenforceable, the unenforceable provision shall be severed, and the remaining
arbitration terms shall be enforced.
ARBITRATION
PROCEDURES: The Federal Arbitration Act governs the interpretation and enforcement
of this dispute resolution provision. Arbitration shall be initiated through
JAMS. Any dispute, controversy, or claim arising out of or relating to these
Terms shall be referred to and finally determined by arbitration in accordance
with the JAMS Streamlined Arbitration Rules and Procedures in front of one
arbitrator. If there is a conflict between JAMS Rules and the rules set forth
in this Agreement, the rules set forth in this Agreement will govern.
The
JAMS Rules and instructions for how to initiate an arbitration are available
from JAMS at http://www.jamsadr.com or
1-800-352-5267. To initiate arbitration, you or Scrunchied must do the
following:
1.
Write a demand for Arbitration. The demand must include a
description of the claim and the amount of damages sought to be recovered. You
can find a copy of a "Demand for Arbitration" at www.jamsadr.com;
2.
Send three copies of the "Demand for Arbitration", plus
the appropriate filing fee to your local JAMS office or to JAMS, 401 B Street,
Suite 2100, San Diego, CA 92101; and
3.
Send one copy of the "Demand for Arbitration" to the
other party.
Payment
of all filing, administration and arbitrator fees will be governed by the JAMS
Rules. Each party will bear their own costs of arbitration unless the
arbitrator directs that bearing such costs would be an undue burden and, in
that case, we will pay for your portion of the arbitration administrative costs
(but not your attorneys’ fees). Arbitration shall be held in the United States
in Racine, Wisconsin under Wisconsin law without regard to its conflict of laws
provisions. If traveling to Racine, Wisconsin is a burden, you may participate
in the arbitration by phone or via document submission to the fullest extent
allowable by the arbitrator. The arbitration may award on an individual basis
the same damages and relief as a court (including injunctive relief). Any
judgment on the award rendered by the arbitrator may be entered in any court of
competent jurisdiction.
AUTHORITY
OF ARBITRATOR: Any dispute, claim or controversy arising out of or relating to
this Agreement or the breach, termination, enforcement, interpretation or
validity thereof, including the determination of the scope or applicability of
this agreement to arbitrate, shall be determined by arbitration in Racine, Wisconsin
before one arbitrator. The arbitration shall be administered by JAMS pursuant
to JAMS' Streamlined Arbitration Rules and Procedures. The arbitrator shall
have the authority to grant motions dispositive of all or part of any claim. The
arbitrator shall have the authority to award monetary damages and to grant any
non-monetary remedy or relief available to an individual under applicable law,
the Arbitration Rules, and this Agreement. The arbitrator shall issue a written
award and statement of decision describing the essential findings and
conclusions on which the award is based, including the calculation of any
damages awarded. The arbitrator has the same authority to award relief on an
individual basis that a judge in a court of law would have. The award of the
arbitrator is final and binding.
NO
CLASS ACTIONS: You may only resolve disputes with us on an individual basis,
and may not bring a claim as a plaintiff or a class member in a class,
consolidated, or representative action. Class arbitrations, class actions,
private attorney general actions, and consolidation with other arbitrations are
not allowed.
WAIVER
OF JURY TRIAL: THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY
RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY, instead
electing that all claims and disputes shall be resolved by arbitration.
Arbitration procedures are typically more limited, more efficient and less
costly than rules applicable in court and are subject to very limited review by
a court. In the event any litigation should arise between you and Scrunchied in
any state or federal court in a suit to vacate or enforce an arbitration award
or otherwise, YOU AND WE WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing
that the dispute be resolved by a judge. YOU ACKNOWLEDGE THAT YOU HAVE BEEN
ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING TO ACCEPT THIS
AGREEMENT TO ARBITRATE.
SMALL
CLAIMS OPTION: You and Scrunchied agree that if a claim is within the
jurisdiction of a small claims court, either party may choose to take the claim
to that court instead of arbitration as follows: (a) The parties may take their
claims to small claims court without first filing with the JAMS. (b) After a
case is filed with JAMS, but before the arbitrator is formally appointed to the
case by the JAMS, a party can send a written notice to the opposing party and
the JAMS that it wants the case decided by a small claims court. After
receiving this notice, the JAMS will administratively close the case. (c) After
the arbitrator is appointed, if a party wants to take the case to small claims
court and notifies the opposing party and the JAMS, it is up to the arbitrator
to determine if the case should be decided in arbitration or if the arbitration
case should be closed and the dispute decided in small claims court.
CHOICE
OF LAW/FORUM SELECTION: In any circumstances where this Section 12 (Agreement
to Arbitrate Disputes and Choice of Law) permits the parties to litigate in
court, this Agreement shall be governed by and construed in accordance with the
laws of the State of Wisconsin, excluding its conflict of law rules. You
further expressly consent and agree to submit to the exclusive jurisdiction and
venue of a court of competent jurisdiction located in Wisconsin.
STATUTE
OF LIMITATIONS: You agree that regardless of any statute or law to the
contrary, any claim or cause of action arising out of or related to these Terms
of Use, including without limitation, access and/or use of the Site and/or
Service must be filed within one (1) year after such claim or cause of action
arose or be forever barred.
13.
Miscellaneous
You
acknowledge and agree that (a) we and our affiliates may at any time (directly
or indirectly) solicit traffic on terms that may differ from those contained in
this Agreement, (b) we and our affiliates may at any time (directly or
indirectly) operate sites or applications that are similar to or compete with
Your Profiles, (c) our failure to enforce your strict performance of any
provision of this Agreement will not constitute a waiver of our right to
subsequently enforce such provision or any other provision of this Agreement,
and (d) any determinations or updates that may be made by us, any actions that
may be taken by us, and any approvals that may be given by us under this
Agreement can be made, taken, or given in our sole discretion and are only
effective if provided in writing by our authorized representative.
You may not assign this
Agreement, by operation of law or otherwise, without our express prior written
approval. Subject to that restriction, this Agreement will be binding on, inure
to the benefit of, and be enforceable against the parties and their respective
successors and assigns.
Any information relating to
us or any of our affiliates that we provide or make accessible to you in
connection with the Program that is not known to the general public or that
reasonably should be considered to be confidential is our “Confidential
Information” and will remain our exclusive property. You will use Confidential
Information only to the extent reasonably necessary for your performance under
this Agreement and ensure that all persons or entities who have access to
Confidential Information in connection your participation will be made aware of
and will comply with the obligations in this provision. You will not disclose
Confidential Information to any third party (other than your affiliates bound
by confidentiality obligations) and you will take all reasonable measures to
protect the Confidential Information against any use or disclosure that is not
expressly permitted in this Agreement. This restriction will be in addition to
the terms of any confidentiality or non-disclosure agreement between the
parties.
Nothing contained in this
Agreement should be understood as granting you any rights in and to any of our
trademarks, service marks, logos, or other intellectual property owned by us or
by any third party.
No delay, failure, or
default by us with constitute a breach of this Agreement to the extent caused
by acts of war, terrorism, hurricanes, earthquakes, other acts or God or of
nature, strikes other labor disputes, riots or other acts of civil disorder,
embargoes, or other causes beyond our reasonable control, including, without limitation,
the interruption or discontinuance of services provided by third parties (e.g.
PayPal, Secomapp, etc.) in connection with the Program.
This Agreement incorporates
all of the terms and conditions of the Scrunchied Site’s Terms of Use including
the
Privacy Policy. To the extant there is a conflict between the Scrunchied Site’s
Terms of Use and this Agreement, the terms of this Agreement shall
control. If any portion of this Agreement is found invalid or unenforceable,
that portion may be severed from the Agreement and shall not affect the
validity of the remainder of the Agreement. This Agreement constitutes the
entire agreement and understanding between you and us in connection with the
Program, superseding any prior or contemporaneous agreements, communications
and proposals, whether oral or written, between you and us (including, but not
limited to, any prior versions of this Agreement).
If you have any questions,
please email legal@scrunchied.com
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