Sun Chaser Ambassador Terms and Conditions

KULANI KINIS SUN CHASER AMBASSADOR PROGRAM AGREEMENT

 

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”, or similar terms) and Kulani Kinis Pty Ltd (“Kulani Kinis”, “us”, “we”, or similar terms) and applies to your participation in the Kulani Kinis Sun Chaser 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.   

 

  1. Description of the Program

The Program permits you to gain rewards from your social media user-generated content by placing on your social media profiles (“Your Profiles”).  

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: aloha@kulanikinis.com

  1. 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 comply with this Agreement to participate in the Program.

You must promptly provide us with any information that we request to verify your compliance with this Agreement. 

You must be kind and respectful to all other Brand Ambassadors.

Participation in the Program does not grant you any rights to sell Kulani Kinis items at events of any kind (ex. farmer's markets, etc.) unless you have received express written permission by us.

In the event you are given a Personalised Brand Ambassador Kulani Kinis Coupon Code (‘Your Code’), you must not comment with Your Code on any Kulani Kinis 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 Code in the comments of any posts from Kulani Kinis wholesale accounts or stores who carry our products.

You must not enter into any retail stores that sell Kulani Kinis goods and share Your Code with customers. 

You must not add Your Code to coupon sites. We check these sites frequently.

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. Refersion 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 Rewards otherwise payable to you under this Agreement, whether or not directly related to such violation without notice and without prejudice to any right of Kulani Kinis to recover damages in excess of this amount. 

  1. Use of Ambassador Content by Kulani Kinis

You grant Kulani Kinis the absolute and irrevocable right and unrestricted permission to use, re-use and display, distribute, transmit, publish, re-publish, copy, or otherwise exploit, either in whole or in part, digitally, ads, in print, or in any other medium now or hereafter known, for any purpose whatsoever and without restriction, any content including photographs or videos shared to your public profile or sent by you to Kulani Kinis in which you have mentioned or referenced Kulani Kinis (including by express reference to our brand or in which you are displaying Kulani Kinis brand items).

  1. Kulani Kinis Customers

You acknowledge and agree that Kulani Kinis 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 Kulani Kinis, you will state that those customers must follow contact directions on the Kulani Kinis Site to address customer service issues.

  1. 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 not 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 government sanctions or of sanctions imposed by the governments of the country where you are using the Kulani Kinis Site; (f) you will comply with all export and re-export restrictions applicable in the country where you are using the Kulani Kinsi Site 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.

  1. Identifying Yourself As A Kulani Kinis 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 Kulani Kini’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.

  1. 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: aloha@kulanikinis.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 3, 4, 5, 6, 7, 8, 9 and 10 of this Agreement will survive the termination of this Agreement. No termination of this Agreement will  absolve you of any liability for any breach of, or liability accruing under, this Agreement prior to termination.

  1. Disclaimers

THE PROGRAM, THE KULANI KINIS SITE, ANY PRODUCTS AND SERVICES OFFERED ON THE KULANI KINIS SITE, ANY COUPON CODES, 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. 

  1. Limitations on Liability

Kulani Kinis’ 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.

 

  1. 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.

 

  1. 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 to 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 Kulani Kinis shall be in writing and sent by personal delivery registered or certified mail (return receipt requested) if such services actually provide proof of mailing, to:

 

Kulani Kinis - Legal

31 Glen Road Oatley

Sydney, NSW AUSTRALIA 2223

 

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 Kulani Kinis 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 10 is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced.

 ARBITRATION PROCEDURES: The Commercial Arbitration Act 2010 (NSW) governs the interpretation and enforcement of this dispute resolution provision. 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 Australian Law and within the Jurisdiction of Australian arbitration. 

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 Australia in Sydney, New South Wales under New South Wales law. If traveling to Sydney, New South Wales 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 Sydney, New South Wales before one arbitrator. 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 Kulani Kinis 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.

 

CHOICE OF LAW/FORUM SELECTION: In any circumstances where this Section 10 (Agreement to Arbitrate Disputes/Dispute Resolution) permits the parties to litigate in court, this Agreement shall be governed by and construed in accordance with the laws of the State of New South Wales, Australia. You further expressly consent and agree to submit to the exclusive jurisdiction and venue of a court of competent jurisdiction located in Sydney, New South Wales. 

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.

 

  1. 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 with 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 of 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, Refersion, etc.) in connection with the Program.

 

This Agreement incorporates all of the terms and conditions of the Kulani Kinis’ Terms of Use including the Privacy Policy.  To the extent there is a conflict between the Kulani Kinis’ 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 aloha@kulanikinis.

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