PELE’S GRACE USA, INC.
INDEPENDENT MEMBER AGREEMENT
I hereby apply to become an Independent Member (hereinafter “IM;” IMs may also be referred to as “Members” or by similar nomenclature in other Company materials) of the Pele’s Grace USA, Inc., (hereinafter “Company”) marketing program.
As an IM, I understand and agree that:
- I am of legal age in the state in which I enter this Agreement.
- I shall become a Company IM upon acceptance of this application by the Company. As an IM, I shall have the right to sell the products and services offered by the Company in accordance with the Company’s marketing program and statement of policy, which may be amended and changed from time to time.
- Upon notification to IM, the Company, at its discretion, may amend the marketing plan, product pricing, statement of policy, etc.
- I have carefully reviewed the Company’s marketing plan, rules and regulations, and policies and procedures, and acknowledge that they are incorporated as part of this Agreement in their present form and as modified from time to time by the Company.
- If enrollment is as a legal entity (such as a corporation, limited liability company or partnership), “I” herein refers to such entity and, as a condition to enrollment, I will be required to complete an entity information or similar form and provide information and materials concerning the entity and its ownership. I acknowledge that failure to provide such information and materials, or inaccuracies in them, may result in an inability to enroll or the termination by the Company of this Agreement.
- The term of this Agreement is one year. Unless otherwise directed by you or the Company, your account on file will be billed and the renewal process will happen automatically on your anniversary date (every year unless you terminate your Agreement). Under all circumstances, automatic billing or payment, any renewal fee must be received no later than 30 days after your anniversary date or the Company has the option to deactivate your status, and you will need to pay a reinstatement fee to become active again. In addition, the Company reserves the right to accept or reject your application for renewal and the renewal shall be deemed accepted if it has not been rejected in writing by the Company within 30 days of receipt of the renewal fee. The renewal fee is for ongoing sales and marketing materials support in both written and electronic and online media formats, including product and service and training updates, website development, and maintenance and hosting, and accounting and technical support of management of your marketing sales activity, and management of both your business and sales force management. If you choose not to participate with the program, you must cancel in writing at least seven days prior to your renewal date or you will be charged the annual renewal fee.
- An IM shall be entitled to cancel participation in the marketing program at any time and for any reason upon notice to the Company. Upon notification of cancellation or termination, the Company will repurchase IM purchased inventory and mandatory sales kit materials, if any, in accordance with its policies as stated in the Company’s marketing program and statement of policy.
- Upon acceptance of this application by the Company, I will be an independent contractor responsible for my own business and not an employee of the Company. I will not be treated as an employee in regard to any laws covering employees, including but not limited to the Federal Insurance Contributions Act, the Social Security Act, the Federal Unemployment Tax Act, income tax withholding at source or for any federal or state tax laws. It is my responsibility to pay self-employment, state and federal income taxes as required by law.
- I will not use the Company’s trade name and/or trademark except in the advertising provided to me by the Company or in other advertising without prior written approval by the Company.
- Any IM, who sponsors other IMs, must fulfill the obligation of performing a bona fide supervisory, distributing and selling function in the sale or delivery of product to the ultimate consumer and in the training of those sponsored. The IM must have ongoing contact, communication and management supervision with his or her sales organization. Examples of such supervision may include, but are not limited to: newsletters, written correspondence, personal meetings, telephone contact, voice mail, electronic mail, training sessions, accompanying individuals to Company training and sharing genealogy information with those sponsored. IMs should be able to provide evidence to the Company semiannually of ongoing fulfillment of sponsor responsibilities. If an IM is an Enroller in the marketing program entitled to Enroller bonuses, then the Enroller is obligated to the same responsibilities of supervisory, communication and training activities with respect to IMs he or she has enrolled, irrespective of whether the Enroller is also the Sponsor of those IMs.
- The Company’s program is built upon retail sales to the ultimate consumer. The Company also recognizes that IMs may wish to purchase product or service in reasonable amounts for their own personal or family use. For this reason, a retail sale for bonus purposes shall include sales to nonparticipants, as well as sales to IMs for personal or family use which are not made for purposes of qualification or advancement. It is company policy, however, to strictly prohibit the purchase of product or service solely for the purpose of qualifying for bonuses or advancement in the marketing program. IMs must fulfill published personal and downline retail sales requirements, including requisite retail sales to nonparticipants, as well as supervisory responsibilities, to qualify for bonuses, overrides or advancements.
- The IM acknowledges that IM is a wholly independent marketing representative who establishes and services retail customers for Company products as an independent contractor. The position of IM does not constitute either a sale of a franchise or a distributorship, and absolutely no fees have been or will be required from the IM for the right to distribute the Company’s products pursuant to this Agreement. This Agreement is not intended and shall not be construed to create a relationship of employer-employee, agency, partnership, or joint venture between any IM, sponsor and/or the Company.
As an independent contractor, the IM shall:
- Abide by any and all federal, state, county and local laws, rules and regulations and applicable foreign laws pertaining to this Agreement and/or the acquisition, receipt, holding, selling, distributing or advertising of Company products.
- At the IM’s own expense, make, execute or file all such reports and obtain such licenses as are required by law or public authority with respect to this Agreement and/or the receipt, holding, selling, distributing or advertising of Company products.
- Be solely responsible for declaration and payment of all local, state and federal taxes as may accrue because of the IM’s activities in connection with this Agreement.
- No purchase or investment is necessary to become a Company IM other than the purchase of, or payment fee for, a sales kit which is sold “at Company cost.” (Purchase is optional in North Dakota). This “at cost” sales kit fee covers basic and ongoing sales and marketing materials and support in both written and electronic and online media formats, including product and service updates.
As an extension to the initial “at cost” sales kit, a modest monthly fee will be charged for expanded “at cost” ongoing sales and marketing materials support, including back office accounting review, training updates, replicated website and communication tools to support the sales and marketing process. By submitting this IM Agreement, IMs specifically authorize this monthly fee to be charged to the IM’s on-file debit or credit card (or other form of payment acceptable to the Company) each month for as long as he or she remains an IM.
- Prior written approval from the Company is required for the following:
- To advertise Company products;
- For there to be more than one IM in an immediate family in one household;
- Issuance of an IM position in a corporate name.
- The Company may immediately terminate an IM who discredits the Company’s name, violates any requirement contained in this Agreement, Company Policies and Procedures, or training manuals or misrepresents the Company’s products or business opportunity by making claims contrary to the Company’s product literature and labels.
- This Agreement constitutes the entire agreement between the IM and Company and no other additional promises, representations, guaranties or agreements of any kind shall be valid unless in writing.
- Mandatory Mediation and Arbitration:
17.1 Mandatory Non-binding Mediation. Prior to instituting any arbitration as provided in herein, the parties shall meet in good faith and attempt to resolve any dispute arising from or relating to the Agreement through non-binding mediation. One individual who is mutually acceptable to the parties shall be appointed as mediator. The mediator’s fees and costs, as well as the costs of holding and conducting the mediation, shall be divided equally between the parties. Each party shall pay its portion of the anticipated fees and costs at least ten (10) calendar days in advance of the mediation. Each party shall pay its own attorney fees, costs, and individual expenses associated with conducting and attending the mediation. Mediation shall be held in the city of the Company’s headquarters office, Los Angeles, California, and shall last no more than two (2) business days.
17.2 Mandatory Binding Arbitration. Independent Representative agree that, except as set forth herein, any claim, dispute or other difference between any current or former Independent Representative and the Company, during and after the term of the Agreement, will be exclusively resolved by binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association (the “Rules”) and the United States Arbitration Act, 9 U.S.C., sections 1-16 (the “Act”), with arbitration to occur in the city of the Company’s headquarters office, Los Angeles, California. This Section will control any conflict between this Section and the Act or the Rules. The parties agree that the arbitrator will have the primary power to decide any question about the arbitrability of any claim, dispute or other difference between them. The arbitrator may award, in addition to declaratory relief, preliminary and permanent injunctive relief and actual damages. The arbitrator will not have the authority to award attorneys’ fees, costs, or economic, consequential, punitive, exemplary or incidental damages. Each party will bear the expense of its own attorneys’ fees. The decision of the arbitrator may be enforced in any court of competent jurisdiction.
Notwithstanding the foregoing, the arbitrator shall have no jurisdiction over disputes relating to the ownership, validity, use or registration of any mark, copyright or other intellectual property or proprietary or confidential information of the Company without the Company’s prior written consent. The Company may seek any applicable remedy in any applicable forum with respect to these disputes.
Nothing in this rule shall prevent the Company from cancelling the Independent Representative Agreement or from applying to and obtaining from any court having jurisdiction a writ of attachment, a temporary injunction, preliminary injunction and/or other injunctive or emergency relief available to safeguard and protect the Company’s interests prior to the filing of or during or following any arbitration or other proceeding or pending the handing down of a decision or award in connection with any arbitration or other proceeding.
Nothing contained herein shall be deemed to give the arbitrator any authority, power or right to alter, change, amend, modify, add marketing to and to subtract from any of the provisions of the Independent Representative Agreement, the Policies and Procedures or the Company Marketing and Compensation Plan.
This provision shall survive the cancellation or expiration of the Agreement.
Any modification of this arbitration provision shall not apply retroactively to any dispute which arose or which the Company had notice of before the date of modification.
17.3 Class Action. As part of the consideration exchanged for the opportunity of being an Independent Representative, all parties expressly waive and disclaim any right to bring any claim in any and all forums as a class action or as a private attorney general. No party may serve as a class Independent Representative or as a member of a class in litigation adverse to another Independent Representative, the Company or any of their affiliates.
17.4 Indemnity. Each Independent Representative agrees to indemnify and hold the Company and its affiliates, and their respective officers, directors, shareholders, members, managers, employees and agents (the “Indemnified Parties”), jointly and severally, harmless from and against any and all alleged claims, damages, expenses, fines or penalties, including any attorneys’ fees, arising out of his or her (i) activities as an Independent Representative, including, without limitation, any unauthorized representations or prohibited conduct at the Company’s events; (ii) breach of the terms of this Agreement; or (iii) violation of or failure to comply with any applicable federal, state or local law or regulation.
17.5 Governing Law, Jurisdiction and Venue. Jurisdiction and venue of any matter not subject to arbitration shall reside exclusively in Los Angeles, California. The Federal Arbitration Act shall govern all matters relating to arbitration. The law of the state of California shall govern all other matters relating to or arising from the Agreement.
- I acknowledge that I have read and understand and agree to the terms set forth in this Agreement.
- This Agreement is not in force until accepted by the Company.
- The Company’s direct selling opportunity is available in Montana only after a formal registration is filed in Montana.
Applicant’s Signature (or agreement acceptance may be indicated online):