POLICIES And
PROCEDURES
January 2009 UNITED STATES OF AMERICA
AGEL ENTERPRISES, LLC 3400 Ashton Boulevard, Suite 500 Lehi, Utah 84043
TABLE OF CONTENTS INTRODUCTION
3
SECTION 1 - DEFINITIONS
3
SECTION 2 - BECOMING A TEAM MEMBER
5
SECTION 3 - TEAM MEMBER AGREEMENT AND RESTRICTIONS
5
SECTION 4 - SPONSORING
11
SECTION 5 - CONFIDENTIAL INFORMATION AND TEAM MEMBER LIST
12
SECTION 6 - ORDERING AND SHIPPING
14
SECTION 7 - PRODUCT RETURN POLICY
17
SECTION 8 - PRODUCTS, RETAIL SALES AND PRODUCT CLAIMS
19
SECTION 9 - INCOME REPRESENTATIONS
21
SECTION 10 - SALES TAX, VAT AND GOVERNMENTAL LEVIES
21
SECTION 11 - ETHICS
21
SECTION 12 - TERMINATION
23
SECTION 13 - TEAM MEMBER TERMINATION
26
SECTION 14 - PAY PERIOD
26
SECTION 15 - ADVERTISING AND PROMOTION, TRADE SHOWS, ONLINE AUCTIONS
26
SECTION 16 - LEGAL RELATIONSHIP BETWEEN THE COMPANY AND THE TEAM MEMBER
31
SECTION 17 - GENERAL PROVISIONS
32
2
POLICIES AND PROCEDURES AGEL ENTERPRISES, LLC January 2009 INTRODUCTION These Policies and Procedures (“P&P”), the Team Member Application and Agreement, the Terms and Uses and Privacy Policy, the Terms and Conditions, and Sales Compensation Plan, constitute the complete Agreement (hereinafter referred to as “the Agreement”) between a Team Member and Agel Enterprises, LLC (referred to herein as “the Company”). The Company has sole discretion to modify any of these documents at any time. These Polices and Procedures, or any changes, alterations, additions, deletions or amendments thereto will be posted on the Company’s website and will be effective concurrent with the date of posting. It is the responsibility of each Team Member to regularly review the most current version of the documents constituting their Agreement with the Company and to operate under same. SECTION 1: DEFINITIONS 1.1
Team Member. An individual or entity that has been accepted for membership by the Company and who has agreed to abide by the Agreement.
1.2
Active Team Member. A Team Member who has met the requirements to receive commission or bonus income.
1.3
Agreement. A compilation of documents that include these Policies and Procedures, the Team Member Application and Agreement, the Terms and Uses, the Privacy Policy, the Terms and Conditions, and the Sales Compensation Plan.
1.4
Autoship. A standing product order automatically shipped each calendar month.
1.5
Commission. Compensation that can be earned by following the Agel Compensation Plan at www.agel.com/pdfs/comp_plan.pdf.
1.6
Commissionable Volume. Total volume used in calculating commissions.
1.7
Business Center. An income earning position that is registered to a Team 3
Member with the Company. Also referred to herein as a distributorship. 1.8
Business Center Registration. Submitting online or sending by mail or fax, based upon the country of residence, a “Team Member Application and Agreement Form” to the Company.
1.9
Group CV. The amount of Commissionable Volume produced by a Team Member’s organization in a given pay period.
1.10
Initial Order. A product order required to participate in the Agel Pay Plan.
1.11
Organization. All Team Members located under a Team Member’s Business Center(s).
1.12
Personal CV The Team Member’s personal product purchases that reflect Commissionable Volume attached to the product.
1.13
Placement. A Team Member positions a new Team Member into his or her Organization.
1.14
Preferred Customer. A customer who orders product without signing up as a Team Member.
1.15
Retail Sales. The sale of products purchased at the wholesale or Team Member price and sold to customers at retail.
1.16
Sales Tax. Governmental imposed taxes on the sale of products, and may include a sales tax or a Value Added Tax (VAT).
1.17
Sponsor. The Team Member who is identified as such in another Team Member’s Application and Agreement, which has been accepted by the company.
1.18
Suspension. The act of placing on hold a Team Member ID number which may include a hold on commissions produced under the sales compensation plan.
1.19
Team Member ID Number. The number assigned to a Team Member at the time the Team Member’s application is completed and accepted into the company.
1.20
Termination. The permanent cancellation of a Team Member’s access to his/her ID number.
1.21
Upline/Downline. All Team Members above/below a Team Member’s Organization. 4
SECTION 2: BECOMING A TEAM MEMBER 2.1
A person may become a Team Member after submitting a completed Team Member Application Agreement form which has been accepted by the Company. The Company reserves the right to reject or accept the Team Member Agreement.
2.2
To become a Team Member, a person shall be at least eighteen (18) years of age or an emancipated minor within the proper jurisdiction.
2.3
An enrollment fee is required to become a Team Member. This fee must be paid within thirty (30) days of the enrollment date or the Team Member’s distributorship may be suspended.
2.4
To remain a Team Member, a Team Member must purchase an initial order before the end of the second commission period from date of enrollment and purchase product every ninety (90) days, or the Team Member’s distributorship may be suspended.
2.5
The Team Member agrees that placing an order for product, enrolling another Team Member or receiving a commission payment shall act as a confirmation that the Team Member has read, understood and agreed to the Agreement.
SECTION 3: TEAM MEMBER AGREEMENT & RESTRICTIONS 3.1
Team Members must file a Team Member Agreement for their country of residence.
3.2
Unless otherwise specified, the Team Member Agreement must be submitted online at www.agel.com. The Company may permit the submission by fax, mail or other manner. A Team Member Agreement that is incomplete, incorrect in any respect or filed in the wrong country may be considered invalid.
3.3
Upon request by the Company, a Team Member must provide proof of residency, proof of age and proof of his or her ability to legally conduct business in the country that corresponds with the Team Member’s Team Member Agreement.
3.4
A Team Member Identification number will be issued upon acceptance of the Team Member Agreement. Social Security and Corporate Tax Identification Numbers or other government identification numbers (depending on the country of residence) must be provided to the Company for tax purposes. All bonuses and commissions are paid in the name of the first applicant on the Team 5
Member Agreement. 3.5
The requirements for a partnership, corporation or other legal entity (other than an individual) are as follows: 3.5.1
The Team Member Agreement must include the name of each participant and, upon acceptance by the Company, is binding upon all participants.
3.5.2
Upon request by the Company, each participant of the Corporation must provide proof of residency and proof of the ability to legally conduct business in the country that corresponds with the Corporation’s Team Member Agreement.
3.5.3
A Team Member Application Form provided by the Company must contain the names and Social Security Numbers, or other relevant identification number, of the principal officers (president, vice president(s), secretary, and treasurer), members of the board of directors, and all shareholders. In the case of a partnership, the Team Member Application Form must contain the names and Social Security Numbers, or other relevant identification number, of all general and limited partners, or members.
3.5.4
A corporation must provide the Company with a Federal Employer’s Identification Number or an identification number provided by appropriate governmental agency in the country of incorporation.
3.5.5
A Team Member may not convey, assign, or otherwise transfer any right conveyed by the Team Member Agreement to any person without the express, prior written consent of the Company. The Team Member may delegate his responsibilities but is ultimately responsible for insuring compliance with the Agreement and applicable laws and regulations.
3.5.6
A Team Member must inform the Company of any changes affecting the accuracy of the Team Member Agreement or Team Member Application Form. Changes to an organization must be submitted on a new Team Member Agreement or Team Member Application Form with “Amended” checked on the top. The document must include all of the participants in the organization and be signed by all parties and returned to the Company. The Company reserves the right to charge a fee to change a Team Member Identification Number. There is no charge for a change of 6
address, telephone number, addition of person(s), or the correction of clerical error(s). 3.5.7
A person or entity becomes an approved Team Member on the date the Team Member Agreement is received and accepted at the Company’s corporate office. A person or entity must become an approved Team Member by the last working day of a bonus period in order to be included in that Bonus and qualification computation.
3.6
A Team Member may not have a simultaneous beneficial interest or participate in more than one (1) organization without the written consent of the Company. A beneficial interest includes but is not limited to, any ownership interest, equitable interest, any rights to present or future benefits, financial or otherwise. Unless otherwise approved by the Company, a Team Member shall not have an ownership interest in, operational or management control of, or derive any benefit directly or indirectly from any subsequent Team Membership not in the same line of sponsorship as the individual’s initial Business Center(s).
3.7
If a spouse or co-habitant of a Team Member wishes to become a Team Member, he/she must be added to the Distributorship that was previously formed by the spouse or co-habitant.
3.8
Any person who should be listed on the Team Member Application Form of a Corporation is considered to have a beneficial interest in the organization existing in the name of that Corporation. If that person wishes to become a Team Member, that person must be added to the organization previously formed with that Corporation.
3.9
A Corporation is considered to have a beneficial interest in the organization existing in the name of any person listed on its Team Member Application Form. To become a Team Member, that Corporation must be added to the Team Member Agreement previously formed with that listed person.
3.10
No Corporation may become a Team Member if any person who should be listed on the Corporation’s Team Member Application Form is already a Team Member under another Team Member Agreement.
3.11
A Team Member (including a Corporation or any person therein who is or should be listed on the Team Member Application Form) may re-enroll and create a new organization under a different sponsor only by resigning his/her original organization and then waiting six (6) months prior to re-enrolling. The six (6) month waiting period will begin upon receipt by the Company of a termination notice in writing from the Team Member. 7
3.12
As used herein, “Active in the Business” includes signing a Team Member Agreement, purchasing products from the Company, sponsoring new Team Members, or other activities the Company, in its sole discretion, determines to be a meaningful promotion of the Company’s business.
3.13
Unless otherwise approved in writing by the Company, a Team Member who has engaged in business activity is prohibited from acquiring any interest in or to merge with a pre-existing organization under a different Sponsor. A Team Member may not have or acquire a present or future ownership interest in or establish another organization in the name of a family member or an unrelated individual.
3.14
A Team Member may not encourage, entice, or otherwise assist another Team Member to transfer to a different sponsor. This includes, but is not limited to, offering financial or other tangible incentives for another Team Member to terminate an existing organization and then re-sign under a different sponsor.
3.15
A Team Member who wishes to change his/her status from that of an individual Team Member to a participant in a corporation under the same sponsor may do so at any time, subject to applicable law and upon completion and delivery to the Company of the requisite Team Member Application Form.
3.16
A Team Member may dispose of, transfer, or otherwise assign his/her/its organization assets in any manner allowed by applicable law (including sale, gift, or bequest) with the prior written consent of the Company, which will not be unreasonably withheld, and with written approval from his/her/its immediate sponsor upline (seven (7) levels). Any assets that take the form of claims to compensation or satisfaction of contractual obligations, from or by the Company, will not be recognized as assets of the transferee on the records of the Company until the Company has received written notification of the transfer and has given its formal written approval. The organization transferred is subject to all remedial measures under the Agreement that may have arisen prior to the transfer. Notwithstanding the other requirements set out herein, Agel will permit you to sell your Team Member position only if your position has been operating at and paid as a Corporate Director for at least six (6) months. 3.16.1
A Team Member is permitted to Will his/her position or business to those clearly defined as beneficiaries in the Will. In addition, the Will must be deemed valid and legal by the court where the Will is legally probated. The beneficiary or beneficiaries must submit to Agel’s compliance department a copy of the Team Member’s death certificate and Probated Will as evidence for the change requested. This can be either sent by regular mail or through e-mail to compliance@agel.com. 8
3.16.2
A Team Member is permitted to include the Agel business in a trust. The trust must be legally and properly set up. In order for any transfer, disposing, or assigning in a trust Agel must have a true and correct copy of the trust before any changes can be made.
3.16.3
When a Team Member meets all of the qualifications stated above in Section 3.16 for transferring, disposing, selling or assigning an Organization to another individual or entity; a copy of the transaction or agreement between the parties must be submitted to Agel’s compliance department as evidence of the transaction.
3.17
A Team Member may not convey, assign, or otherwise transfer any right conveyed by the Agreement to any person or entity without the express, prior written consent of the Company, which consent will not be unreasonably withheld. A Team Member may delegate his/her/its responsibilities but is ultimately responsible for ensuring compliance with the Agreement and applicable laws. Any person or entity working with or for the Team Member as part of his/her/its organization will do so only under the Team Member’s direct supervision.
3.18
A Team Member is prohibited from fabricating information or signing-up any individual as a Team Member without their knowledge and/or consent.
3.19
The Company may reject a Team Member Agreement, declare any agreement void from its inception, or terminate a distributorship if a Team Member:
3.20
3.19.1
Fails to provide documentation requested or required by the Company; or
3.19.2
Provides to the Company false or inaccurate information or fails to correct false or inaccurate information; or
3.19.3
Violates any provision of this Section.
A Preferred Customer is not required to enroll as a Team Member or pay the membership enrollment fee. A Preferred Customer does not qualify for commissions. The purchase price of the product shall be established by the Company. The sponsor shall place the Preferred Customer to the side of business center two (2) or three (3) that they designate. Once the side is selected, the Preferred Customer cannot be moved. The volume will roll upline. If a Preferred Customer becomes a Team Member he/she is required to pay the membership enrollment fee and place an initial order, and the new Team Member will be placed in the downline. 9
3.21
3.22
Current and Post-Team Member Non-Solicitation Non-Service Agreement. During the term of the Agreement and for a period of two (2) years thereafter, a Team Member shall not, without the prior written authorization of the Board of Managers of the Company, directly or indirectly: 3.21.1
solicit or provide strategic, design or development services to any entity or person who is/was a customer, distributor or supplier of the Company; or
3.21.2
contact any person, through any means, who is/was a customer, employee, distributor or supplier of the Company; or
3.21.3
solicit or provide such services to anyone known to him/her to have been a distributor or targeted distributor of the Company. Targeted Distributor shall be defined as a prospective distributor to whom the Company, or any distributor in the Company, had made a new business presentation or similar offering of services at any time during the one-year period immediately preceding the termination of the Agreement.
Noninterference with Company Employees, Distributors, and Customers. During the term of the Agreement and for a period of two (2) years thereafter, a Team Member shall not, without prior written authorization of the Board of Managers of the Company, directly or indirectly: 3.22.1
induce or attempt to induce any company employee, distributor, consultant or independent contractor to quit the Company’s employ or relationship;
3.22.2
recruit or hire away any company employee, distributor, consultant or independent contractor;
3.22.3
hire or engage any Company employee, former employee, distributor, consultant or independent contractor whose employment or other relationship with the Company ended less than one year before the date of such hiring or engagement; or
3.22.4
induce or attempt to induce any person who is a distributor of the Company or who otherwise is a contracting party with the Company to terminate any written or oral agreement or understanding or other relationships with the Company.
10
SECTION 4: SPONSORING 4.1
When offering the Company’s program to prospects, Team Members are required to present the program in its entirety, without omission, distortion or misrepresentation. Any additional offers, representations or agreements made by a Team Member in connection with the Company’s program are prohibited and may result in the termination of the Team Membership.
4.2
Occasionally, one or more individuals may contact the same prospect, resulting in a dispute of the sponsoring rights. A new Team Member has the right to choose his/her sponsor. The Company will not mediate such disputes and will recognize as sponsor the person whose name appears as sponsor on the first order form sent in by the new Team Member. In the event that more than one (1) order form is sent in with conflicting sponsor information, the form received first by the Company will be recognized as binding and changes will not be allowed.
4.3
If a Team Member falsely represents that the Company failed to honor this policy, the Company may, at its sole discretion, terminate the Team Member making the false representation.
4.4
Placement in Organization. A Team Member builds a sales organization by sponsoring new members and placing them in the Organization. The sponsor of any new Team Member is responsible to place the new Team Member into his/her/its Organization. Following the placement by the sponsoring Team Member, the new Team Member may not be moved to any other location in the Organization, except as authorized by the Company under the provisions herein.
4.5
If the Team Member makes a mistake in a placement, the sponsoring Team Member shall complete and send the “Correction to Placement” form provided by the Company. This form shall be sent to the Company within seven (7) days of the date of placement of the new Team Member. The Company reserves the right to accept or reject the request. The Company also has the right to seek reimbursement from any Team Member of any commissions or bonuses resulting from the correction, and any time expended by the Company to correct any errors.
4.6
A sponsor is prohibited from making changes to information or product orders under a personally sponsored account.
4.7
Upline Team Members who sponsor new members may place them in another Team Member’s Organization in an attempt to maximize the Company’s Compensation Plan. This process is vital in building of a downward Team Member’s upline and Organization. The Company acknowledges that a Team 11
Member may be building the same leg at the same time as being built by the upline. If at the time of placement of a new Team Member the placement position has already been filled, the new Team Member will be placed in the next available spot on that same leg. 4.8
The changing of sponsor’s is generally not permitted. Upon receipt and acceptance of the Team Member Agreement by the Company, the new Team Member’s sponsor cannot be changed, without the consent of the Company and without approval from seven (7) levels of the Team Member’s immediate sponsor upline. If the sponsoring Team Member becomes inactive, that sponsorship is not assigned to and does not roll up to the upline sponsor. In other words, if A sponsors B, and B sponsors C, and then B becomes inactive, the sponsorship of C does not revert to A. Also, C does not move up into the position of B if B becomes inactive.
4.9
Unless otherwise agreed to in writing by the Company, a Team Member desiring to change sponsors can do so by resigning and then waiting six (6) months prior to rejoining with a new sponsor. The six (6) month waiting period will begin upon receipt by the Company of a termination notice in writing from the Team Member.
4.10
A Team Member may not sponsor another Team Member into any other network marketing or direct selling company, except as provided above in Sections 3.21 and 3.22.
4.11
A Team Member may not participate in any action that causes another Team Member to be sponsored through someone else into another network marketing or direct selling company.
4.12
The Team Member acknowledges that the Company has made an important investment when a sponsorship occurs and when a Team Member joins the Company, thus forming a valuable business relationship between two (2) Team Members and the Company. The Team Member agrees that the Company has a legal and equitable right to protect these relationships.
4.13
The Company, in its sole discretion, may terminate a Team Member who is involved, in any manner, in cross-sponsoring or cross-recruiting, and the Team Member agrees that the Company may seek legal recourse to enjoin such conduct.
SECTION 5: CONFIDENTIAL INFORMATION & TEAM MEMBER LIST 5.1
Team Member Lists. All Team Member organization lists, names, addresses, emails addresses, and telephone numbers contained in the Company’s 12
database (hereinafter referred to as the “Lists”) are confidential and are the proprietary property of the Company. The Team Member acknowledges that the Company has derived, compiled, configured, and currently maintains the Lists through the expenditure of considerable time, effort, and monetary resources and has a legal right and interest to protect this valuable asset. 5.2
The Lists in their present and future forms constitute commercially advantageous proprietary assets and trade secrets of the Company.
5.3
These Lists are provided for the exclusive and limited use of the Team Member to facilitate the training, support, and servicing of the Team Member’s Organization for furtherance of Company related business only. Each Team Member agrees that each use, within its intended scope, constitutes a separate exclusive license agreement between the Team Member and the Company.
5.4
Each Team Member agrees to keep the Lists confidential, and to use the Lists for the exclusive purposes as set out herein.
5.5
These Lists remain, at all times, the exclusive property of the Company, and each Team Member agrees: 5.5.1
To hold confidential and not disclose any Lists or portion thereof to any third person or entity, including, but not limited to, existing Team Members competitors, and the general public;
5.5.2
To limit use of the Lists to their intended scope of furthering the Team Member’s Company-related business;
5.5.3
That any use or disclosure of the Lists outside of those authorized herein, or for the benefit of any third person or entity, constitutes misuse, misappropriation, and a violation of the Team Member’s license agreement, which causes irreparable harm to the Company;
5.5.4
That, upon any violation under this section, the Team Member stipulates to injunctive relief as an appropriate remedy enjoining that use under applicable national or local laws, and will immediately retrieve and return to the Company all Lists previously provided to the Team Member upon the Company’s request; and
5.5.5
That the obligations under this section will survive the termination of the Team Member’s Agreement and any other agreement between the Company and any Team Member. The Company reserves the right to pursue all appropriate remedies under 13
applicable federal or local laws to protect their rights to the abovestated proprietary and trade secret information covered by the Lists. Any failure to pursue any applicable remedies will not constitute a waiver of those rights. 5.6
The Team Member who makes a wrongful disclosure of the Lists, assists others in wrongfully obtaining the Lists, or in any way violates this Section, agrees to pay the court costs and attorney fees (including the cost of any appeal) if the Company files a protective order or injunction action.
5.7
To protect the confidential nature of these Lists, the Team Member agrees that it is a violation of this Section if they are employed by any other Network Marketing or Direct Selling company or if their access to the Lists could be compromised.
SECTION 6: ORDERING & SHIPPING 6.1.
Online Ordering. Unless otherwise specified, the Company requires all Team Member Applications, Order Forms, and other forms to be submitted online. In certain countries where internet access is not readily available, the Company may permit the Team Members to mail or fax all forms directly to the Company.
6.2
All purchases of product inventory, sales aids, literature and supplies are strictly optional and are made available online. Customer Service can only process product orders over the phone and cannot process orders for sales aids, literature and supplies. In the event a Team Member is required to use the order form, due to the country of residence, the order form must be filled out completely and must include the Team Member’s Identification number, name, address, telephone number and signature for payment authorization.
6.3.
The Company does not condone “inventory loading” by any Team Member in excess of the Team Member’s actual immediate needs for resale or personal use.
6.4
To prohibit “inventory loading,” the Team Member agrees to the following inventory rules: 6.4.1
A Team Member shall not order any product for inventory unless at least seventy percent (70%) of Member’s previously ordered inventory of that product has been sold or consumed.
6.4.2
The Company will not issue any refunds on any products previously certified as sold under the seventy percent (70%) rule, unless required by law. 14
6.4.3
There are no inventory requirements to become a Team Member or to maintain a distributorship or membership.
6.5
The Seventy Percent (70%) Rule. The Company Sales Program is based on sales at retail and not on maintaining an inventory of products. At the time of each order, a Team Member must have sold or consumed at least seventy percent (70%) of their previous inventory of that product before re-ordering and must be able to certify to such if demanded by the Company or by any regulatory agency.
6.6
Each Team Member, upon request from the Company should be able to furnish a statement documenting such sales and listing at least four (4) individual customers. Team Members are required to maintain all Retail Sales Receipts for a period of two (2) years and must furnish them to the Company, upon request. If a Team Member does not comply with this requirement, the Team Member is subject to discipline by the Company.
6.7
Pick-Up Orders may be picked up at the Company headquarters or at an Authorized Distribution Center. A Team Member is required to contact the Company prior to arranging for the pick-up order to insure that inventory is available.
6.8
Acceptable Methods of Payment. Payment may be made for all online orders through the use of a Company approved major credit card, bank draft or other form of payment acceptable online. In certain countries, as specified by the Company, payment may be made for orders not submitted online by money order, cashier’s check, traveler’s check, cash, major credit card, wire transfer or debit card. Personal checks are not accepted.
6.9
On shipments from the United States to an address located outside of the continental United States or in the event that there is a request for non-standard Company shipping, the recipient shall be subject to any additional rate and handling charges. Shipping rates may change without notice.
6.10
A Team Member agrees not to operate in any unauthorized market, and agrees not to ship or import products into a country that is not officially open. No Team Member shall export, or sell to others who export, products from the United States, its possessions or territories or any other country that the Company is operating in, to any country or from the Team Member’s country of residence. The Company reserves the right to refuse shipment into any country, jurisdiction or locale in which the Company has not officially opened.
6.11
The Company may require an adult signature receipt at the time of delivery to protect against theft and lost packages. Any Team Member may request the 15
cancellation of this procedure. However, the Company shall not accept responsibility for a missing order if the recipient waives the signature requirement. 6.12
Incomplete or Damaged Orders. It is the responsibility of the Team Member to verify that an order is complete. Shipping discrepancies must be reported online or in writing, either by mail or fax, within ten (10) business days of receipt of the order. Failure to report this information may result in forfeiture of any missing or damaged items.
6.13
The Team Member is responsible to verify the condition of all orders and refuse delivery of damaged shipment(s). Should damage be discovered after delivery is accepted, the Team Member shall contact Customer Service within ten (10) calendar days of receipt of the order. Prior to returning product, the Team Member is required to contact Customer Service for instructions.
6.14
Tracing Shipments. Should a Team Member not receive an order within an expected delivery time (typically twenty (20) days for U.S. and Canada), an email must be sent or a call should be made to Customer Service to request a trace on the shipment. The Team Member shall provide the name, Agel Identification Number, and the date of the order. Transport companies consider each package as a separate shipment and multiple packages may not all arrive on the same day.
6.15
Back Orders. If the Company is temporarily out of stock on ordered merchandise, a “Back Order” notice will be sent with the current shipment, by email, by regular mail, or otherwise. Back orders are filled first when new inventory arrives.
6.16
Credit for Commissionable Volume is applied at the time the products are ordered to maintain Business Center qualification. Therefore, credit card and debit card deductions, as well as money order deposits, are made at the time of placement of orders and not the shipping of product.
6.17
The Team Member is responsible to provide the correct mailing address to the Company. The Company will send product to the address provided. In the event that the Company mistakenly sends product to an address not provided by the Team Member, the Company will not reassess shipping charges when the product is sent to the correct address. However, when the Company sends product to the address provided by the Team Member, and that address is incorrect, the Team Member is required to pay all costs of shipping to fulfill that order.
6.18
The product return policy set forth below does not apply to any third party 16
vendors and the products that they supply to Team Members. The company has no responsibility for returns/corrections and the Team Member should contact the vendor directly on any such issues. SECTION 7: PRODUCT RETURN POLICY 7.1
First Product Purchase. Unless otherwise stated by the Company for a specific country or region, a new Team Member who is dissatisfied with his/her first product purchase shall request a refund, credit or exchange within thirty (30) calendar days after the date of shipment of the product. If the Company is notified within the thirty (30) calendar-day period, and if the product is in resalable condition, the Company will refund the full price of the product purchase less shipping charges, bonuses, taxes and commissions paid. The enrollment fee of thirty-five dollars ($35.00) is not refundable. A Team Member’s request of a one hundred percent (100%) refund on their first order will be notice to the Company as a cancellation of that Team Member’s organization.
7.2
Customer Return Policy. The Company requires that Team Members provide a one hundred percent (100%) money-back guarantee for all products they sell to third parties. It is the responsibility of each Team Member to refund the purchase price to any unsatisfied customer. The customer’s request must be made within thirty (30) calendar days of the date of the product purchase to be valid unless a longer period of time is required by law, and the product must be in resalable condition.
7.3
After the first product purchase, and for an auto-ship order, the Company will repurchase, on reasonable commercial terms, currently marketable inventory in the possession of the Team Member and purchased by the Team Member for resale prior to the date of termination of the Team Member’s business relationship with the Company or its independent Team Membership. For purposes of this Section "reasonable commercial terms" shall include the repurchase of marketable inventory within twelve (12) months from the Team Member’s date of purchase at not less than ninety (90%) percent of the Team Member’s original net cost less appropriate set offs (including but not limited to shipping charges, bonuses, taxes or commissions paid to the Team Member) and legal claims, if any. For purposes of this Section, products shall not be considered "currently marketable" if returned for repurchase after the products' commercially reasonable usable or shelf life period has passed; nor shall products be considered "currently marketable" if the company clearly discloses to the Team Member prior to purchase that the products are seasonal, discontinued, or special promotion products and are not subject to the repurchase obligation.
7.4
Refund. All Team Members desiring to return product and receive a refund, 17
must comply with the following procedures: 7.4.1
The Team Member or customer desiring to return product for a refund must call the Company’s Customer Service and receive a Return Merchandise Authorization number (hereinafter referred to as the “RMA”).
7.4.2
The Team Member or customer must provide the following in a letter to the Company (1) the reason for the return, (2) the RMA number on the company’s return request form to be completed, filled out by the Team Member and (3) a copy of the original dated Agel invoice.
7.4.3
The shipping to the Company must be prepaid by the Team Member. The Company does not accept shipping-collect packages.
7.5
The Company does not provide a refund for any sales aids, promotional materials, sales kits or any other marketing materials purchased by the Team Member’s, because purchase of these items is not required and because there is no financial benefit related to the purchase of these materials.
7.6
In no event shall the Company refund shipping expenses for the delivery or the return product.
7.7
The Company must receive the returned product within fifteen (15) calendar days of providing to the Team Member an RMA.
7.8
In order for the product to be in resalable condition, the carton containing the product must not be damaged, the shrink wrap shall not have been opened, the carton shall not have been opened or damaged, and the product must be returned no later than three months prior to its expiration date.
7.9
The Company agrees to post the return policy for a specific country or region that differs from the return policy set out herein.
7.10
The Company’s return policy may be modified to comply with applicable laws, regulations or ordinances.
7.11
The Team Member agrees that the Company shall not provide a refund for product returned after the specified period set out in the return policy.
7.12
If a Team Member returns product to the Company, and no refund is due, the Team Member authorizes the Company to re-inventory the product for resale or to use the product for samples. 18
7.13
Team Members are subject to adjustments of commissions paid on product returned by Team Members in their organization.
7.14
The Company will not make cash refunds. Refunds will be credited to the credit or debit card charged by the Company for the same order.
7.15
A Team Member who disputes the payment of product on their credit card and the product has been sent by the Company, will be immediately terminated.
SECTION 8: PRODUCTS, RETAIL SALES & PRODUCT CLAIMS 8.1
The Company shall have the exclusive right to set the retail and wholesale price of the product. Factors such as costs of production, market conditions, competitive pricing and access to the markets are considered when determining the price. From time to time, changes will occur in the price of the products. The Company will provide notice to Team Members prior to officially changing the price. Such notice will be posted on the Company’s website.
8.2
Team Members shall not repackage or re-label the product.
8.3
Any reports of missing product or problems with product received shall be reported to Agel at help@agel.com within thirty (30) days of the date the product was or should have been delivered.
8.4
Team Members are not permitted to make any claims, verbal or written, regarding the Company’s products, unless such claims are pre-approved by the Company and posted on the Company’s website. All claims must have a reasonable basis in fact and must be consistent with the claims and representations made in current Agel marketing publications or on current Agel product labels.
8.5
Team Members may make only those structure/function claims that appear on Agel’s labels and marketing materials for the product in question. A structure/function claim is one that the product may “assist” or “support” an existing healthy bodily function or organ. Medical claims are prohibited. The Company does not represent or imply that: 8.5.1
Any product is intended to diagnose, treat, cure or prevent any disease; or
8.5.2
Any ingredient, or combination of ingredients, will have results other than what is medically known and accepted. 19
8.6
All structure/function claims, including testimonials, must be accompanied by the following disclaimer, placed adjacent to the claims on every page on which the claims appear: These statements have not been evaluated by the Food and Drug Administration. This product is not intended to diagnose, treat, cure, or prevent any disease.
8.7
A new Team Member’s primary source of business income is derived from selling the products at the suggested retail price. The retail profit is the difference between the Retail Price and the Team Member price of the product, less shipping costs.
8.8
When a retail sale is made, Team Members will provide their customers a complete Retail Sales Receipt and will honor any customer request to cancel the transaction within three (3) business days of the date of purchase, if required by law.
8.9
The Company recognizes no exclusive territories. Team Members will not be limited from conducting business in any state, country, or jurisdiction declared “open” by the Company. The Company will place a drop-down list on its website designating areas that are open. Team Members are prohibited from shipping products, organizing and conducting events or pre-launching in a country not opened by the Company.
8.10
Each country has rules and procedures unique to that country. Team Members must follow the rules established for legal operation in the country in which they reside or in which they conduct business.
8.11
Autoship Program. The Autoship Program or “Autoship” permits a Team Member to receive a standing product order to meet their personal consumption and inventory needs as well as qualification and bonus requirements.
8.12
Autoship order changes are made on the Product Order Form and submitted online depending on the country of residence. On the Product Order Form the box entitled “Revised Autoship” must be marked. The Revised Autoship Order must be indicated on the form. It is required that any change be received by the Company no less than two (2) weeks prior to the normal Autoship billing date. Changes received after that date will be processed for the following cycle. Any requested order change prior to the completion of three (3) months with the same Autoship order may be assessed with a processing charge.
8.13
Cancellation of the Autoship Program must be made online by the Team Member. Cancellations are subject to the same time requirements as Autoship changes. If a Team Member’s Autoship order fails to process for three (3) 20
consecutive months the Company has the right to take the Team Member off of Autoship. SECTION 9: INCOME REPRESENTATIONS 9.1.
Actual, implied or potential income representations or claims regarding the Company’s program are strictly prohibited.
SECTION 10: SALES TAX, VAT AND GOVERNMENTAL LEVIES 10.1
Many state and local governments levy sales taxes, VAT and other fees (hereinafter referred to as “Sales Tax”) that apply to the sale or import of the Company’s products. In some jurisdictions, certain products may be exempt from taxes. The Company’s tax policy addresses the complexity in dealing with the thousands of local and state taxing agencies.
10.2
Sales Tax on Pick-Up Orders. Each Team Member who picks up an order directly from the Company or Authorized Distribution Centers must pay Sales Tax on those orders that require such tax, according to the tax rate of the state, county and city where the order was picked up. Unless otherwise determined by the Company, the order will be taxed at the Retail Price. Once collected, these taxes will be paid by the Company to the proper authorities. A Team Member who has a Sales Tax Identification Number or its equivalent, a copy of which is on file with the Company and who accepts responsibility for payment of the taxes, may be granted an exception to the payment of the sale tax.
10.3
Sales Taxes on Mail Orders. When ordering by mail or fax, the Team Member shall include with the order the correct amount of state, county and city taxes applicable in the location to which the order is being shipped. Team Members with a Sales Tax Identification Number may be exempt if the appropriate documentation is on file with the Company. The Company will check to determine if the amount of tax shown on the order form is correct. If incorrect, the difference will be added to or subtracted from the cost of the order and noted accordingly on the order form. Overpayments will be corrected by crediting the account; under-payments will be charged accordingly. Taxes will be deposited with the appropriate authorities. In no event shall the Company be liable for the repayment to the Team Member of any Sales Tax collected and that has been remitted to and retained by any taxing entity.
SECTION 11: ETHICS 11.1
Team Members shall comply with all country, federal, state and municipal laws relating to Team Members’ businesses and shall not engage in any unlawful or illegal trade practices or business activity. Team Members shall conduct their 21
businesses in a manner that reflects the highest standards of honesty, integrity and responsibility towards customers. 11.2
The Company prohibits a Team Member from participating in any activity that is unethical. The Company has an unfettered right to intercede when unethical behavior is evident and when such behavior violates the Agreement. The Company reserves the right to use its best judgment in deciding whether certain Team Member activities are unethical and, if determined to be so, to act accordingly.
11.3
Although not intended to be an inclusive/exclusive list, the Company provides the following examples of activities and conduct that is considered unethical: 11.3.1
Developing, promoting or selling product in a retail outlet;
11.3.2
Directly or indirectly supplying products via another person for the promotion or sale of product in a retail outlet;
11.3.3
Cross-sponsoring or cross-recruiting;
11.3.4
The unauthorized use of another person’s credit card;
11.3.5
Misrepresenting or exaggerating the efficacy of the products;
11.3.6
Making income representations or intentionally misrepresenting the Pay Plan;
11.3.7
Engaging in any deceptive or unlawful trade practice or other illegal or unlawful activity;
11.3.8
Failing to submit advertisements or proprietary sales material bearing the Company’s name for approval prior to publication;
11.3.9
The use or misuse of the Company’s name, likeness or logo in print or electronic media advertising without express written consent of the Company;
11.3.10
The use or misuse of the Company’s logo or trademark in any sponsoring or recruitment advertising or any financing activity without the express written consent of the Company;
11.3.11
The misuse of the Company’s corporate name;
11.3.12
Any unauthorized duplication of Company literature; 22
11.3.13
Any violation of the Company’s Policies and Procedures;
11.3.14
Intentionally circumventing the Agreement to perform, effectuate or accomplish indirectly what is prohibited directly;
11.3.15
Making derogatory remarks regarding the Company, other Team Members, the Company’s products, the Sales Compensation Plan, or the Company’s executives, directors, officers, or employees;
11.3.16
Representing or implying that the Company’s products or Sales Compensation Plan has been reviewed, endorsed or approved by any regulatory agency; and
11.3.17
In no case shall the name of Agel appear in any URL except those owned by the corporation.
11.4
Team Member may not sell, offer, barter or facilitate the sale of products or Agel Team Memberships on websites where an auction is the mode of selling/buying. A Team Member may not employ or contract with others to violate this policy.
11.5
Spam. The act of spamming is strictly prohibited by the CAN-SPAM Act of 2003 (add hyperlink here). For a more information on spam please visit, www.ftc.gov/spam/. Spamming is considered and is not limited to: 11.5.1
Websites that attempt to gain a higher listing by submitting hundreds of almost identical pages whereby inserting hundreds of key words within a web document;
11.5.2
Inappropriate attempts to use a mailing list;
11.5.3
Sending massive amounts of e-mail promotions or advertisement to people that have not asked for it; and
11.5.4
Unethical techniques; such as cloaking, mirror sites, and doorway pages to trick the search engine into giving the webpage a higher ranking or priority.
SECTION 12: TERMINATION 12.1
A Team Member’s rights under the Agreement are conditioned upon and subject to the Team Member’s continued performance in accordance with the terms of the Agreement. Upon failure by a Team Member to perform his/her/its obligations as set forth in the Agreement, the Team Member’s rights cease. The 23
Company may excuse a Team Member’s non-performance in whole or in part without waiving its rights and remedies under the Agreement. Furthermore, or in lieu of terminating the Agreement, the Company may: 12.1.1
Provide verbal and/or written notification to the Team Member of the Company’s concerns and of the Company’s intent to discontinue the Team Member’s rights under the Agreement if the Team Member’s non-performance continues;
12.1.2
Closely monitor the Team Member’s conduct over a specified period of time to ensure performance of the contractual duties by the Team Member;
12.1.3
Require additional assurances by the Team Member that performance will be in compliance with the Agreement. Further assurances may include requiring the Team Member to take certain actions in an effort to mitigate or correct the Team Member’s non-performance;
12.1.4
Deny privileges that are awarded to Team Members from time to time by the Company or cease performing the Company’s obligations under the Agreement, including but not limited to, awards, recognition at corporate events or in corporate literature, participation in Company-sponsored events, and placement of product orders;
12.1.5
Discontinue or limit payment of Commissions and Bonuses from all or any part of the Team Member’s and Organization’s sales based on the premise that because of the Team Member’s noncompliance, the Team Member is not entitled to Bonuses and Commissions;
12.1.6
Reassign part or all of the Organization to a different Sponsor; and
12.1.7
Seek injunctive relief or other remedies available by law and in accordance with the Agreement.
12.2. The following procedure applies when the Company investigates an alleged violation of the Agreement: 12.2.1
The Company will either provide verbal notice or send a written notice of the alleged breach of the Agreement to the Team Member. Each Team Member agrees that the relationship between a Team Member and the Company is entirely contractual. 24
Accordingly, the Company will neither honor nor respect any claim by a Team Member that the relationship is or has been quasicontractual, has arisen by implication from any continuing practice or course of action, has been verbally authorized by an employee of the Company in contradiction of the terms of the Agreement or is otherwise implied in fact;
12.3
12.2.2
In a case when written notice is sent, the Company will give the Team Member an opportunity to present all his/her/its information relating to the incident for review by the Company; the Company reserves the right to prohibit activity (e.g. placing orders, sponsoring, modifying Team Member information, receiving Bonuses and Commissions, etc.) by the Distributorship in question from the time notice is sent to the Team Member until a final Company decision is rendered;
12.2.3
On the basis of any information obtained from collateral sources and from the Company’s investigation of the statements and facts taken together with information submitted to the Company during the response period, the Company will make a final decision regarding the appropriate remedy, which may include the termination of the Agreement. The Company reserves the right to impose remedies for similar violations on a case-by-case basis. The Company will promptly notify the Team Member of its decision. Any remedies will be effective as of the date on which notice of the Company’s decision is dispatched; and the Team Member may terminate his/her/its Agreement at any time, and for any reason, by sending a written notice of intent to terminate to the Company. Termination becomes effective as of the date the Company receives written notice of termination. Certain obligations regarding confidentiality of information and the Team Member network survive termination of the Agreement as outlined herein.
The act of any participant of a Team Member or spouse or partner of a Team Member is attributable to the distributorship, and all remedies, including termination of the Agreement, necessitated by that act may be applied to the organization generally.
12.4. The Company will not review any violation of the terms and conditions of the Agreement not brought to the Company’s attention within ninety (90) days of the initiation of the alleged violation unless the alleged violation did not become known or reasonably should have been known to the person(s) reporting the matter. Failure to report a violation within the ninety (90) day period will result in the Company not pursuing the allegations in order to prevent stale claims from 25
disrupting the ongoing business activities of distributorship. All reports of violations must be in writing and sent to the Company. SECTION 13: TEAM MEMBER TERMINATION 13.1
A Team Member has a right to cancel at any time, regardless of reason. Cancellation must be submitted in writing to the Company at its principal business address or must send an email to help@agel.com.
13.2
A Team Member shall be eligible to re-apply for a distributorship after the six (6) month period has elapsed that begins from the date the notice of termination is sent to the Company.
SECTION 14: PAY PERIOD 14.1
Commission checks are issued once a month. Orders received Monday through Friday will be processed for payment within forty-eight (48) hours.
14.2
If a Team Member organization believes any errors have been made regarding commission, bonuses, business reports or charges, the organization must notify the Company in writing within thirty (30) days of the date of the purported error or incident in question. The Company will not be responsible for any errors, omissions or problems not reported within this thirty (30) day period.
14.3
Under no circumstances will the Company split organization commission and bonus checks between divorcing spouses or members of dissolving entities.
SECTION 15: ADVERTISING & PROMOTION, TRADE SHOWS, ONLINE AUCTIONS 15.1
The Company encourages advertising and promotion as a viable method for Team Members to build their businesses. However, strict guidelines are necessary to maintain an ethical marketing effort. Therefore, these guidelines are a part of the agreement between the Company and its Team Members. Team Members are independent contractors, not employees of Agel the Company, or its affiliates, and cannot represent themselves as such. Further, a Team Member can in no way state or otherwise imply that such Team Member, or any new Team Member, will be employed by the Company.
15.2
Corporate approved audio recordings and phone message recordings must identify the Team Member as an Independent Team Member at the BEGINNING of the message.
15.3
Company Names, Trademarks and Logos. Agel Enterprises, LLC, employee names, corporate names, trademarks or logos are proprietary and may not be 26
used in any matter, including the reproduction of literature, or in any advertisement. Any approved advertisements must indicate that the Team Member is an “Independent Contractor” or “Independent Team Member” of Agel Enterprises, LLC. The Agel Enterprises, LLC name and Independent Team Member logo and the names and logos of products can only be used in retail product advertising. Advertisements to attract Team Members and business opportunity advertising must be run “blind”, i.e., without reference to the Company or its products. Use of the Agel Enterprises, LLC company name or logo alone is strictly prohibited. In no case shall the name of Agel appear in any URL except those owned by the corporation. 15.4
The Company strictly prohibits the use of its corporate name, logo or trademark or any statements with respect to Company business, products or operations in any financing activity by a Team Member. The Company does not approve or condone any such financing activities and any violation of this policy could lead to the termination of a Team Member.
15.5
Websites. Team Members may not, without prior written authorization by the Company, use the name “Agel,” Agel trade names, Agel products or other intellectual property of Agel (or any variations thereon) in domain names (URLs) or the titles for any pages within websites (including but not limited to home pages). However, the name “Agel” and product names may be used by Team Members in search engine Meta tags and title tags. In the case of a domain name violating this Rule, Agel shall have the right to require the owner to transfer it to Agel immediately and at no cost to Agel. This shall be in addition to Agel’s other rights and remedies. 15.5.1
Team Members may not use third parties’ trademarks, trade names, or product names (or any variations thereon) in domain names (URLs), the titles for any pages within websites (including, but not limited to home pages), email addresses or Meta tags, unless they have sought and obtained prior written consent from the owner.
15.5.2
Team Members operating websites related to their Agel business may feature only the Agel Independent logo and product images on their websites.
15.5.3
Team Members may not use any misleading or deceptive tactics (as determined by Agel, in its sole and absolute judgment) in order to improve their index preference with search engines.
15.5.4
Team Members may link their websites to Agel’s official home page or any other website produced or maintained by Agel and any other 27
websites maintained by that same Team Member to promote Agel’s product line and income opportunity.
15.6
15.5.5
Team Members conducting or seeking to conduct business in international markets via their own or other websites must comply with Agel’s Policies and Procedures and any other Agel rules, as wells as the laws and regulations of each country which has jurisdiction over their commercial and internet activities, including, but not limited to, rules, laws and regulations pertaining to the confidentiality of consumer data, privacy rights, restrictions on telemarketing and restrictions on marketing over the Internet. Product references may include only those products that are for sale in the particular country to which such communications are directed.
15.5.6
Team Member websites that promote Agel’s products or income opportunity, or any other relationship with Agel, must maintain the confidentiality of consumers and site users by complying with the privacy laws in each country from which they receive consumer information. Team Members must post in a prominent location a “Privacy Statement” that informs consumers whether or not personal information is being collected about them and how such information will be used.
15.5.7
Team Members may not sell, trade or use consumer or site user information, except in connection with Agel’s products or Agel’s income opportunity. If any person or entity requests that their information not be used, the Team Member must immediately honor such request.
15.5.8
Team Members may not publish, post or distribute any materials on or via the internet, whether or not in connection with Agel that are, in Agel’s sole and absolute judgment, defamatory, libelous, disparaging, threatening, offensive, harassing, abusive, obscene or pornographic.
15.5.9
Team Members may not interfere or take any action that results in interference with or disruption of agel.com, agelcares.com or other websites maintained by Agel or its Team Members, nor may they gain or attempt to gain access to computer systems or networks connected to those sites or any other sites without prior written permission or authorization from Agel.
Advertising Approval. Any uses of Company names, trademarks or logos of its 28
products must be submitted in writing for approval to the Company, prior to use in any form, including but not limited to newspapers, magazines, flyers or any type of printed media, letters and proposals, including those for or by fund-raising organizations, electronic media, including the internet, audio or video tapes or CD’s, and promotional items at approvalcode@agel.com. 15.7
Recorded Messages. All recorded messages that are referenced in ANY form of advertising that include the Company products, names, trademarks or logos MUST be submitted in written script form to the Company for approval prior to use at approvalcode@agel.com.
15.8
General Promotions. Team Members can promote their business in any legal and ethical manner they desire if they do not use of any of the Company’s names or logos. No reproduction of the Company’s literature or labels is allowed. Reproduction of product labels is a violation of state law. Only original materials as furnished by the Company may be used. All Company literature is copyrighted and cannot be duplicated in any form without express written consent from the Company. This restriction includes, but is not limited to, photocopies, graphic reproductions, translated verbiage, corporate/product photos and copy taken in part and/or out of context. Team Members must not state or imply that the Company approves or endorses any privately produced motivational literature or training materials used within their own organization. The Company will provide marketing and other material at www.agel.com. This material can be used by Team Members at any time.
15.9
Public Advertising Media. Public advertising media is prohibited. Any radio or television (network or cable) broadcast or other electronic media, including the Internet, billboards bus stops and/or park benches are prohibited, without express written consent from the Company. Advertising or sales over the Internet is allowed, provided that the Team Member uses the Company sponsored replicating website. The Team Member will make no attempt to alter or modify the content of the Company’s replicating website to reflect literature, images, photocopies, graphic reproductions, translated verbiage, corporate/product photos and copy taken in part and/or out of context and that will violate the Company’s Policies and Procedures as well as any and all other Agreements associated with the Agel business.
15.10 Interviews with Media. Team Members are prohibited from granting interviews with any broadcast media including, but not limited to, television, radio, newspaper, magazines, trade journals, or over the internet regarding the Company. Such interviews will only be granted by authorized employees of the Company. 15.11 Team Member Audio and Video Recordings or CDs. Only Team Members who 29
have received written authorization from the company in advance can promote, for distribution, audio and video tapes, CDs or other recordings that they produce themselves. The recordings must meet the following criteria: 15.11.1
They must be approved in writing by the Company prior to duplication. A hard copy script must be submitted for approval. The cover and/or label must identify the Team Member who has recorded it and clearly indicate that he/she/it is an Independent Team Member. A similar statement is necessary as an introduction at the beginning of the recording.
15.12 Retail Outlets. The Company does not permit its products to be sold or displayed in most retail outlets. However, there are exceptions to this policy. Those retail exceptions are businesses that operate “by appointment only” (i.e. beauty salons, tanning salons, doctors’ or chiropractors’ offices) and private clubs (i.e., figure salons and health clubs). 15.12.1
The following retail outlets are examples of those retail outlets that definitely CANNOT sell the Company products or display literature: health food stores, mall booths, and drug stores.
15.12.2
This policy does not prohibit any retail store owner from being a Team Member for the Company.
15.12.3
The purpose of this policy is to protect both Team Members and customers.
15.13 Fair & Trade Shows. Team Members can promote the Company products at Fairs and Trade Shows with conditions that the products are not shown or displayed with any other products that are sold via Network Marketing. Flea Markets and Swap Shops are not allowed locations for the sale and/or display of the Company products, names, trademarks, opportunities, literature or services. 15.14 Team Members may not sell, offer, barter or facilitate the sale of products or Agel Team Memberships on websites where an auction is the mode of selling/buying. A Team Member may not employ or contract with others to violate this policy. 15.15 Telemarketing. Team Members are individually responsible for understanding and following the federal laws and regulations relating to telemarketing practices, as well as those in each state or jurisdiction in which they intend to conduct business. Please visit the Federal Trade Commission website at ftc.gov and the Federal Communications Commission website at fcc.gov for more information. 30
SECTION 16: LEGAL RELATIONSHIP BETWEEN THE COMPANY AND THE TEAM MEMBER 16.1
The Policies and Procedures herein are not intended to create third-party rights in any organization regarding the conduct of any other Team Member.
16.2
Independent Contractor Status. A Team Member shall be and is an “independent contractor” and shall have the relationship of such to the Company. No Team Member shall make any representations to third parties which would suggest that he/she/it is an employee or acts on behalf of the Company. A Team Member acknowledges and agrees that the Company shall not withhold any governmental, federal or state income taxes, FICA or other taxes from commissions, bonus, or promotions paid to the Team Member. A Team Member agrees, in light of his/her/its status as an “independent contractor”, to timely pay all self-employment taxes and similar or related governmental taxes or charges, as are required under applicable laws of an “independent contractor”, on any and all economic benefits being provided hereunder.
16.3
A Team Member has no authority to bind the Company to any obligation.
16.4
A Team Member has no authority to take any steps in any country or other political jurisdiction to introduce or further the Company’s business.
16.5
A Team Member has no authority to take any steps in any country to register or reserve Company names, trademarks, or trade names; to secure approval for products or business practices; or to establish business or governmental contacts of any kind on behalf of the Company. A Team Member agrees to assign immediately any registration of Company names, trademarks, service marks or trade names registered or reserved in violation of this section to the Company.
16.6
Each Team Member must provide a tax identification number to the Company. If the Team Member is an individual, then a Social Security number (or equivalent tax identification number) is required. A tax identification number issued by a national or federal taxing authority (Form W-9, or equivalent, in the U.S.) is required for individuals and business entities such as partnerships, organizations, corporations, trusts, limited liability companies, etc.
16.7
Each Team Member agrees to indemnify and hold harmless the Company for any tax related penalties and charges incurred.
16.8
The provisions of this Section survive the termination of the Agreement.
31
SECTION 17: GENERAL PROVISIONS 17.1
Indemnification. To the extent permitted by law, the Company, its directors, officers, shareholders, employees, assigns and agents (collectively referred to as “affiliates”), shall not be liable for, and the Team Member expressly releases the Company and its affiliates from and waives all claims for any loss of profits, indirect, direct, special or consequential damages or any other loss incurred or suffered by said Team Member as a result of: 17.1.1
The Team Member’s breach of the Team Member Agreement including the Company’s Policies and Procedures and the Terms and Conditions;
17.1.2
The promotion or operation of a Team Member’s business and any activity, relating thereto including but not limited to the following examples: (e.g., the presentation of Company product or the Company Sales Compensation Plan, the operation of a motor vehicle, the lease of meeting or training facilities, etc.);
17.1.3
Any incorrect or wrong data or information provided by the Team Member; or
17.1.4
The failure to provide any information or data necessary for the Company to operate its business. The Team Member agrees that the entire liability of the Company and the Team Member, including, but not limited to, any cause of action sounding in contract, tort or equity shall not exceed, and shall be limited to, the amount of products the Team Member has purchased from the Company under this Agreement or any other agreement, that are in resalable condition.
17.2
Each Team Member shall defend and hold the Company harmless from any claim, damages, or liability arising out of a Team Member’s business or advertising, or resulting from statements that may be illegal and or claims not approved by the Company.
17.3
The terms of the Agreement, as set forth herein, shall be deemed severable. The invalidity or unenforceability of any provision shall not affect the validity or enforceability of any of the other provisions.
17.4
The Company provides services, promotions and information to its Team Members without charge. Requests by Team Members that fall outside of the day to day activities of the Company, and which require special time and effort to fulfill, including, but not limited to making copies research and reissue of 32
payments, the Company shall charge a fee of fifty dollars ($50.00) (USD) per hour, plus actual costs, with a minimum charge of fifty dollars ($50.00) (USD) per project, plus actual costs. 17.5
Privacy Policy. Information provided by a Team Member will be used for the purposes set out herein. No other use of the information will be made.
17.6
The Agreement is to be construed, with respect to its validity and performance obligations hereunder, in accordance with the laws of Utah. The Fourth District Court for Utah County shall have jurisdiction over any and all matters raised under this Agreement or between the parties. In addition, it is acknowledged and agreed that a breach of the obligations of this Agreement is likely to cause irreparable harm to the Company, that money damages alone would be inadequate as a remedy for a breach of such obligations, and that the Team Member agrees to waive and hereby does waive any objection to equitable relief for the Company based upon a breach or threatened breach of this Agreement. In the event of breach, the non-breaching party shall be entitled to attorney fees and court costs. Team Member waives the requirement of any notice and posting of bond and/or security should a claim be filed for breach of the Agreement.
17.7
Arbitration. The company and Team Member may, upon mutual written agreement, agree to resolve any breach of this Agreement by binding arbitration. The arbitration proceedings shall take place at the Company’s headquarters and in accordance with the existing rules of the American Arbitration Association.
17.8
Waiver. Any waiver by the Company of any breach of this Agreement must be in writing and signed by an authorized Company officer. Waiver by the Company of any breach of the Agreement by a Team Member shall not operate or be construed as a waiver of any subsequent breach.
17.9
Force Majeure. The Company will not be responsible for delays or failures in its performance of its obligations when performance is made impracticable due to circumstance beyond its reasonable control, such as war, strikes, riots, fire, earthquake and other natural disasters, curtailment of a party’s source of supply, or government decrees or orders.
33