peach stylist AGREEMENT

Transcription

1 peach stylist AGREEMENT As a Stylist of Peach Underneath, Inc. (hereinafter peach or the Company ), I understand and agree that my relationship with the Company will be governed by the terms herein: 1. This Agreement. The documents and materials below collectively comprise the Agreement, and are referred to throughout such documents and materials as such. The provisions, policies and procedures set forth in the Agreement (and as they may be amended or modified from time to time) apply to all peach Stylists, regardless of rank. Your agreement with peach includes: The Stylist Join form; The provisions, benefits, restrictions and requirements of Our stylist s guide to our compensation plan (the Compensation Plan ); All provisions of this document (the Agreement ), as well as all amendments, modifications and renewals thereof. As a peach Stylist, I understand I am responsible for the means and methods by which I make sales. I also understand that I must comply with the terms set forth in this agreement. To the extent not reflected in this document, my agreement with peach also requires me to employ integrity, honesty and responsibility in my behavior and actions with peach, my customers and my fellow stylists, including and without limitation, presenting and promoting the products in a truthful manner. All of the duties and obligations reflected in this agreement constitute my agreement with peach. 2. Becoming a peach Stylist. An applicant becomes a peach Stylist when the following requirements are completed: The applicant agrees to these conditions and purchases the peach Sample Sales Kit (noncommissionable and not for resale). The applicant completes a W9 form. The applicant completes a Stylist Join form. Every applicant needs to apply in good faith and demonstrate a commitment to creating a valid business as a peach Stylist with a reasonable chance of success. peach reserves the right to decline any peach Stylist application.

2 3. Independent Contractor Status. It is the express intention of both parties hereto that I am entering into this Agreement as an independent contractor and not as an employee, agent or joint venture of peach. Any contrary final determination by a board, tribunal or court of competent jurisdiction shall require the amendment of this Agreement in any way necessary to establish an independent contractor relationship. No fiduciary relationship exists between the parties. I will have and maintain control of the manner and means of my performance under this Agreement. I understand I will not be treated as an employee with respect to any services for federal or state tax purposes. I will be solely responsible for paying all expenses incurred by me, including but not limited to travel, food, lodging, secretarial, office, long distance telephone and other expenses. The Company shall report payments made to me on a calendar year basis as required using IRS Form 1099, which the Company may issue directly or through a third party administrator selected for such purpose. I agree to report all such payments to the appropriate federal, state and local taxing authorities. I understand that I must complete and submit to the Company an IRS W-9 and shall update the W-9, as required by law. I will be responsible for payment of all applicable income, self-employment and other taxes. I will not be eligible for and will not participate in any pension, or fringe benefit plan sponsored by peach and will not be covered by its workers compensation or unemployment insurance or retained coverage. I must provide my own workers compensation insurance, if required or applicable. I must provide all insurance coverage required or desired by me with respect to my business, including, without limitation, medical and hospitalization insurance, automobile insurance and general comprehensive liability insurance. The provisions of this Agreement reserving ultimate authority in peach have been inserted solely to achieve compliance with federal, state or local laws, regulations and interpretations thereof. 4. Stylist s Responsibilities. My business will sell peach products only to end customers. I will inform my customers that peach offers a 100% satisfaction, money-back guarantee return policy with respect to all peach products for a period of 30 days from date of purchase, and will assist my customers with initiating a return under such policy if requested, or if return is required under warranty, with respect to any peach products. 5. Sample Sales Kit Return Policy. I understand that a Sample Sales Kit is the only purchase required to conduct business as a peach Stylist. No other peach product or inventory purchase is required or encouraged. If I voluntarily terminate my Stylist position within 30 days of receiving the Sample Sales Kit, peach will fully reimburse me of the kit cost as long as materials are returned in usable condition as determined by peach in its sole discretion. peach recognizes that some state buyback laws extend to fees and to sales aids such as the sample kit. To the extent that such laws are applicable, the Company will honor the buyback laws of Georgia, Idaho, Louisiana, Maryland, Massachusetts, Montana, Nebraska, Oklahoma, Puerto Rico, South Dakota, Tennessee, Texas, Washington, and Wyoming. A Montana resident may cancel her Stylist Agreement within 15 days from the date of enrollment, and may return her Sample Sales Kit for a full refund of her costs to participate within such time period. Residents of other states may request a refund of any purchases made from peach within 72 hours peach stylist agreement 2

3 of enrollment. peach Stylists who certify that they are purchasing product for personal consumption purposes, as a customer, are subject to the same Satisfaction Guarantee return policy as is extended to clients. 6. Sponsoring Stylist s responsibilities. In the event I sponsor an applicant to be a Stylist and the application is accepted by peach, I will accept the duties and obligations of training, support and recognition. peach Stylists should be able to provide evidence to peach upon request of ongoing fulfillment of sponsor responsibilities. 7. Transferability. Neither this Agreement nor my peach business may be transferred or assigned by me or operated in partnership with any other person without peach s prior written consent. peach may assign this Agreement at any time. a. Succession. Upon the death of a peach Stylist, the peach Stylist position shall pass by will or intestate succession, as provided by law. peach will require the successor in interest to sign and be bound by the then current peach Stylist Agreement. The successor shall then be entitled to all the rights and subject to all the obligations, just as any other peach Stylist. 8. Conflicts of Interest. peach Stylists are free to participate in other business ventures or marketing opportunities, except business ventures or marketing opportunities that offer similar women s products as peach. peach Stylists may engage in selling activities related to non-peach approved or non-peach produced products and services if they desire to do so, but they may not take advantage of their knowledge of, or association with, other peach Stylists. Accordingly, Stylists may not: Offer peach products or promote the peach Compensation Plan in conjunction with any non-peach business plan, opportunity, product or incentive; Offer to sell any non-peach products or promote non-peach business opportunities in conjunction with offering of peach products or promoting the peach business plan at any peach meeting, seminar, launch, convention or other peach function. 9. No Conflicting Engagements at Director or Above. The parties acknowledge and agree that leading a team for another company while leading a team for Peach will result in less than satisfactory performance in both roles due to the time commitment required for effective leadership of a team. I hereby expressly agree that, while I have a peach career title of Director or above, I will not, either directly or via my spouse living at the same address, work for (as an employee) and/or lead a team in any other direct selling company. 10. Non-Disparagement. I agree not to make, and not to allow or instruct any other party to make, whether in oral, print, electronic or other form, any false, disparaging or derogatory remarks about, or refer negatively to my association with, Peach, its affiliates, their products and services, their past or present officers, directors, trustees, employees or stylists. This provision shall survive the termination of this Agreement. peach stylist agreement 3

4 11. Claims. Any claims made about my peach business shall be in compliance with this Agreement. I further agree to limit any claims I make about my peach business, including, but not limited to earnings ability or product-related claims, to those claims authorized or approved in writing by peach. I understand and acknowledge that this obligation extends to any statements I may make in response to customer inquiries about my peach business or any peach products. 12. Income Claims. The Federal Trade Commission and the laws of several states regulate claims regarding the amount of income that can or may be earned with companies such as peach. These regulations require that appropriate disclosures also be provided. Because the Company does not publish and you do not have the data necessary to comply with legal requirements for making income claims, you may not make income projections or disclose your own compensation when presenting the peach opportunity. Hypothetical income examples that are used to explain the mechanical operation of the Compensation Plan may be made to prospective Stylists, as long as it is made clear that the examples are hypothetical and not based on actual experience. Stylists must truthfully and fairly describe the Compensation Plan. No false or misleading income claims may be made to prospective Stylists. 13. Conflicting Obligations. I represent and warrant that I have no agreements, relationships, or commitments to any person or entity that conflict with the provisions of this Agreement, my obligations to peach under this Agreement and/or my ability to perform services under this Agreement. I will not enter into any such conflicting agreement during the term of this Agreement. 14. Non-Solicitation. In consideration of the mutual covenants contained herein, during the term of this Agreement and for a period of one (1) year after the termination of this Agreement, I shall not directly or indirectly, on my own behalf or on the behalf of any other person or entity, call upon or solicit or attempt to call upon or solicit any peach employee or peach Stylist to terminate or alter her business relationship with peach. Non-Solicitation includes recruiting or sharing information about another direct sales opportunity or other career with any peach Stylists. 15. peach Intellectual Property. I acknowledge that, upon peach s acceptance of the Agreement, peach has granted me a limited, non-exclusive license to use its trademarks, service marks, trade names, patents and copyrighted materials ( peach Intellectual Property ), all of which is owned solely by peach, and that my use of peach Intellectual Property is strictly limited by the terms of this Agreement. I may use peach Intellectual Property only (a) after obtaining written permission from peach prior to use, or (b) where the peach Intellectual Property appears on materials distributed by peach for use by peach Stylists. I agree to use written, recorded or other promotional or advertising materials that have been produced, distributed and approved in writing by peach. Any other promotional or advertising materials I use will be used in accordance with this Agreement. All rights and licenses granted in or under peach stylist agreement 4

5 this Agreement shall terminate automatically upon the termination of this Agreement. a) Internet and web site policy. i) No Stylist may independently design a web site that uses the names, logos, or product descriptions of peach without written permission from peach. ii) No Stylist may use blind ads on the Internet making product or income opportunity representations that are or can be associated with peach. iii) No Stylist may under any circumstance use the Internet for the purpose of indiscriminate bulk or unsolicited mailing, generally known as spamming. iv) No Stylist may violate any local, state, or federal laws regarding the Internet or any generally accepted ethical codes of Internet conduct. b) Independent communications. Stylists, as independent contractors, are encouraged to distribute information and direction to their respective downlines. peach encourages the use of newsletters, training workshops, and other organizational programs. Stylists must identify their personal communications as such, and not give the impression that such communications are the official communications of peach. 16. Ownership and Use of Confidential Information. I acknowledge that peach owns all product, Stylist and customer information and data that I may create or compile, including but not limited to product purchase information, customer and Stylist contact and profile data, Stylist lists, operating and manufacturing procedures, product development information, financial data and marketing materials (collectively, Confidential Information ), and that all Confidential Information is confidential and that its disclosure could cause great harm to peach. I will not use or disclose Confidential Information to any person except in strict accordance with this Agreement and will take all reasonable precautions to prevent its unauthorized dissemination, both during and after the term of this Agreement. I will not use Confidential Information to sell products or services other than peach products and services or in connection with any other business during the term of and after termination of this Agreement. I understand that I will be deemed to breach my obligations to peach with respect to Confidential Information or trade secrets if I work or perform services (including consulting or advisory services) for a competitor in any position in which I am required to or do use, disclose or otherwise take advantage of any Confidential Information obtained during my relationship with peach. I agree that a breach of this provision shall cause irreparable harm to peach and that peach will be entitled to injunctive relief in the event of a breach of this provision. I further agree that the terms of this Agreement shall be deemed Confidential Information and shall be subject to the provisions of this section. Upon peach s reasonable written request, I agree to return to peach all Confidential Information, including but not limited to all marketing collateral, marketing plans, documentation, notes, plans, drawings and copies thereof. All information is provided AS IS and without any warranty, express, implied or otherwise, regarding its accuracy or performance. 17. Ownership of Technology, Design, and Licenses. I acknowledge and agree that peach shall own all software coding (including source code), all technology owned or otherwise controlled by peach, all design and materials and/or information created and/or delivered by peach, and any and all rights, licenses or other permissions necessary to allow Stylists to use the site under this Agreement. peach stylist agreement 5

6 18. peach Site Downtime. Each party hereto acknowledges that the peach website may be subject to temporary shutdowns from time to time for maintenance and/or due to causes beyond the operating party s reasonable control, and that neither party shall have any liability to the other by reason of any such shutdowns. 19. Sales Tax. I understand that a sale is not final until inputted into the peach online order system and that the appropriate sales/use tax amount will be charged, collected and remitted to the appropriate agencies. When my orders are placed with the Company, sales tax is charged on the actual retail price, taking into account any discounts applied, including the discounted price for stylists. I agree to be bound by all sales tax collection agreements between the Company and all appropriate taxing jurisdictions, and all related rules and procedures. 20. Release. I hereby grant peach and its affiliates, partners, designees, agents, successors or assigns an unrestricted, perpetual, worldwide, irrevocable, royalty-free, transferable, sub licensable and fully paid-up license to use, reuse, license, reproduce, modify, adapt, publish, edit, translate, display, perform, distribute, transmit, broadcast, communicate to the public and otherwise exhibit throughout the world, create derivative works from, sublicense the same rights consistent with the terms of this Agreement, and otherwise exploit and use (collective Use ) my name, including nicknames and social media handles, likeness, image, photograph, biographical information, voice, persona, opinions, comments, and in any and all media and by any means of transmission, distribution or communication, whether now known or hereafter created, including by way of example and not limitation, any television, radio, the Internet and online forums, and in audio visual works, photographs, sound recordings, marketing and public relations materials, publications and the like (collectively, News Media Materials ) for advertising, publicizing, marketing and promotion of peach, and I waive remuneration for such use. I further waive my right to inspect or approve all preliminary, draft, beta and/or finished News Media Materials. 21. Warranty and Disclaimer. peach warrants that peach products as and when delivered by peach shall be free from material defects for a period of 90 days from date of purchase. peach s obligation for breach of this warranty shall be to accept returns of any defective peach product and to send a replacement or credit. To the maximum extent permitted by applicable law, peach hereby disclaims all other warranties with respect to peach products, the peach business opportunity, marketing materials, business supplies and any other subject matter of the Agreement, whether expressed, implied, or statutory, including any warranties or merchantability, fitness for a particular purpose, title, non-infringement, accuracy or completeness of content, results, lack of negligence or lack of workmanlike effort, and correspondence to description. 22. Indemnification/Offset. I will indemnify and hold harmless peach, its subsidiaries, managers, officers, employees, agents and assigns from and against any damages, claims or liabilities and expenses (including attorneys fees) incident to my: (a) activities as a peach stylist agreement 6

7 peach Stylist including, without limitation, any unauthorized representations made by me; (b) any negligent, reckless or intentionally wrongful act of myself or my assistants, employees, contractors or agents, including with respect to claims by third parties related to infringement of third party intellectual property rights; (c) a determination by a court or agency that I am not an independent contractor, (d) breach by me or by my assistants, employees, contractors or agents of any of the terms of this Agreement; or (e) violation of or failure to comply with any applicable federal, state or local laws or regulations. peach shall have the right to offset any amounts owed by me to peach (including, without limitation, the repayment of commissions as a result of charge backs and/or product returns) against the amount of any commissions or bonuses owed to me to the fullest extent permitted by applicable law. 23. Cumulative Remedies and/or Waiver. All rights, powers and remedies given to either party are cumulative, not exclusive and in addition to any and all other rights and remedies provided by law. No failure or delay of either party to exercise any power or right under this Agreement or to insist upon strict compliance by me with any obligation or provision shall constitute a waiver of such party s right to demand exact compliance therewith. Waiver by peach can be effective only in writing by an authorized officer of peach. 24. Injunctive Relief. Either peach or I may apply to a court of competent jurisdiction for temporary, preliminary or permanent injunctive relief on the ground that without such relief the arbitration provided in this Agreement may be rendered ineffectual. For example, any breach of the confidentiality or nonsolicitation provisions of this Agreement by me would cause peach immediate and irreparable harm that could not be made whole solely by monetary damages; therefore, seeking injunctive relief in court before or simultaneous with demanding arbitration, is appropriate. In addition, the moving party (whether peach or I) shall be entitled to recover costs and expenses, including reasonable attorneys fees, if it (or I) prevail in enforcing its (or my) rights under this Agreement. 25. Limitation of Damages. To the extent permitted by law, peach and its affiliates, officers, managers, associates and other representatives shall not be liable for, and I hereby release the foregoing from, and waive any claim of any special incidental, indirect, punitive or exemplary, or consequential damages of any kind or nature, including, without limitation, damages for lost profits, lost business, and lost opportunities, however caused, arising out of or relating to the company s performance, non-performance, act or omission with respect to the business relationship or other matters between myself and the company, whether such liability is asserted on the basis of contract, tort, or other theory of liability (including but not limited to negligence or strict liability, or otherwise, even if peach or its affiliates have been advised of the possibility of such damages. Furthermore, it is agreed that any damage to me shall not exceed, and is hereby expressly limited to the amount of unsold peach products and services owned or held by me, commissions, bonuses and overrides. peach stylist agreement 7

8 26. Term and Termination of this Agreement. a) Term. This Agreement is effective from the date of acceptance by peach and will automatically renew every twelve (12) months on the anniversary of the date I enter into this Agreement. peach may terminate this Agreement with any peach Stylist at any time and for any reasonable cause, including being inactive for 12 months, according to the Compensation Plan, by notifying you in writing of our election to terminate. b) Involuntary Cancellation. peach may immediately terminate this Agreement in the event of my death, any actual or attempted assignment of the Agreement, or my misrepresentation relating to peach or my peach Stylist business, or my breach of any provision of this Agreement. If peach terminates this Agreement, the Company may reject any future reapplications by me as a peach Stylist and pursue all applicable legal remedies. c) Voluntary Cancellation. A peach Stylist has the right to terminate this Agreement at any time, for any reason. Notice of termination must be submitted in writing to the Company at its principal place of business. 27. Events upon Termination of this Agreement. Upon termination of this Agreement, a) I will (i) within five (5) days pay all amounts due and owing to peach; (ii) immediately cease representing myself as a peach Stylist; and (iii) be ineligible to receive any compensation or benefits as a peach Stylist not earned as of the date of termination of this Agreement. I hereby authorize peach to withhold any amounts due and owing to peach to the fullest extent allowed by applicable law. b) I will immediately cease all use of peach Intellectual Property and Confidential Information and will cease holding classes, workshops and presentations or otherwise displaying, offering for sale or selling peach products. c) Appeals. An involuntarily terminated peach Stylist may appeal the termination by submitting a letter of appeal, stating the grounds of the appeal. This letter must be sent U. S. Mail or private delivery service RETURN RECEIPT REQUESTED and must be received by peach within 15 days of the date of mailing of the Company s initial termination notice. If the Company has not received a letter of appeal by that deadline, the involuntary termination shall automatically become final. If a peach Stylist files a timely appeal, peach will, in its sole discretion, review and reconsider the termination and notify the peach Stylist of its decision. The decision of the Company shall be final and subject to no further review. If the appeal is denied, the termination shall remain in effect as of the date of the Company s original termination notice. 28. Amendment of Agreement. This Agreement in its current form, and as may be amended by peach in the future, supersedes all prior communications, understandings and agreements between the parties and contains the entire agreement between the parties relating to its subject matter. I have carefully read and agree to comply with this Agreement. I understand that I must be in good standing to be eligible for bonuses or commissions from peach. I also understand that this Agreement may be amended by peach in its sole discretion, and I agree to abide by all such amendments. Notification of amendments shall be posted to peach central. Amendments shall become effective thirty (30) days after peach stylist agreement 8

9 notice of the amendment is posted, but amended policies shall not apply retroactively to conduct that occurred prior to the effective date of the amendment. The continuation of my peach business or my acceptance of bonuses or commissions after the effective date of amendments shall constitute my acceptance of any and all amendments. 29. Governing Law and Resolution of Disputes. a) Arbitration. (i) All disputes and claims relating to peach, its products, the Stylist Agreement, or the peach Compensation Plan, including but not limited to (1) the rights and obligations of the Stylist and peach, (2) any other claims or causes of action relating to the performance of either the Stylist or peach under the Stylist Agreement, and/or (3) the Stylist s purchase of peach products shall be settled totally and finally by arbitration in Weston, Massachusetts or such other location as peach prescribes, in accordance with the Federal Arbitration Act and the Commercial Arbitration Rules of the American Arbitration Association. Louisiana residents may arbitrate in New Orleans. There shall be one arbitrator, an attorney at law, who shall have expertise in business law transactions with preference being an attorney knowledgeable in the direct selling industry, selected from the panel that the American Arbitration Association provides. Each party to the arbitration shall be responsible for its own costs and expenses of arbitration, including legal and filing fees. If the Stylist files a claim or counterclaim against peach, the Stylist shall do so on an individual basis and not with any other Stylist or as part of a class action. The decision of the arbitrator shall be final and binding on the parties and may if need be, be reduced to a judgment in any court of competent jurisdiction. This agreement to arbitrate shall survive any termination or expiration of the Stylist Agreement. (ii) Notwithstanding the foregoing, the arbitrator shall have no jurisdiction over disputes relating to the ownership, validity or registration of any mark or other intellectual property or proprietary confidential information of peach without peach prior written consent. peach seek any applicable remedy in any applicable forum with respect to these disputes and with respect to money owing to peach. In addition to monetary damages, peach may obtain injunctive relief against the Stylist for any violation of the Stylist Agreement and for any violation or misuse of the peach trademark, copyright or confidential information policies. (iii) Nothing in this rule shall prevent peach from applying to and obtaining from any court having jurisdiction a writ of attachment, a temporary injunction, preliminary injunction and/ or other injunctive or emergent relief available to safeguard and protect peach interest 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. (iv) The existence of any claim or cause of action of the Stylist against peach, whether predicated on the Stylist Agreement or otherwise, shall not constitute a defense to peach s enforcement of the Stylist s covenants and agreements contained in the Stylist Agreement. b) Jurisdiction and Venue. The Stylist Agreement and the Rules shall be construed enforced in accordance with the laws of the State of Massachusetts without reference legal principles that would cause the law of another jurisdiction to be applied. Causes of action between the parties hereto of any type, whether on the Stylist Agreement, on fraud or any other tort, or peach stylist agreement 9

10 grounded in principles of strict liability or statutes of any kind, shall be heard exclusively in a court of competent jurisdiction in Weston, Massachusetts, each party hereby submitting to the jurisdiction of such courts and expressly waiving the right to bring suit inall other courts. In any cause of action the winner shall be entitled to recovery of all reasonable attorney fees, court costs and other costs of the action. Louisiana residents may choose Louisiana law, jurisdiction, and venue, and may arbitrate in New Orleans. c) Limitation of damages. To the extent permitted by law, peach and its affiliates, officers, directors, employees, and other Stylists shall not be liable for, and the Stylist hereby releases the foregoing from and waives any claim for loss of profit, incidental, special, consequential, or exemplary damages which may arise out of any claim whatsoever relating to peach s performance, non-performance, act, or omission with respect to the business relationship or other matters between the Stylist and peach whether sounding in contract, tort, or strict liability. Furthermore, it is agreed that any damage to the Stylist shall not exceed, and is hereby expressly limited to, the amount of unsold peach products and services owned or held by the Stylist and commissions owing. 30. Other. a) I have full legal capacity to enter into this Agreement in the state in which I reside. I agree to comply with all laws, rules and regulations governing the conduct of my business. b) There are no territorial restrictions on the conduct of my business within the United States or Puerto Rico. c) If any provision of this Agreement is judicially determined to be invalid or unenforceable, that determination will not affect any other provision of this Agreement and the provision in question will be modified by the reviewing court so as to be rendered enforceable. The headings in this Agreement are inserted for convenience only and are not part of the Agreement. d) All written notices required by this Agreement to be given to me will be deemed effective three (3) business days after mailing to my most current mailing address or immediately if sent to the address on file with peach. I acknowledge that I have read, understand and agree to the terms set forth in this peach Stylist Agreement. I certify that all of the information provided by me in connection with becoming a peach Stylist and in this Agreement is true and accurate. I am 18 years of age or older, I am a citizen or permanent resident of the United States or Puerto Rico, and I have a valid Social Security number or individual Taxpayer Identification number. peach stylist agreement 10