independent business owner agreement
FOR UNITED STATES RESIDENTS
As a PLAE Corps Member or PLAE Ambassador (referred to herein as an “Independent Business Owner” or “Business Owner”), I understand and agree with PLAE, Inc. (collectively referred to as “PLAE” or the “Company”), that our relationship will be governed by the terms herein as follows:
Definition of this Agreement.
That as an Independent Business Owner, 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, including the PLAE Independent Business Owner Policies & Procedures (the “Policies & Procedures”) and the PLAE Compensation Plan (the Policies & Procedures and the Compensation Plan are incorporated into and form a part of this Agreement). To the extent not reflected in this document, my agreement with PLAE also requires me to employ integrity, honesty and responsibility in my behavior and actions with PLAE, my customers and my fellow Business Owners, including and without limitation, presenting and promoting the products of any PLAE (“PLAE Products”) in a truthful manner. All of the duties and obligations reflected in this agreement constitute my agreement with PLAE (referred to as this “Agreement”).
Protecting the Brand.
I understand that protecting and improving PLAE’s brand reputation is of primary importance. I will present PLAE at all times in accordance with PLAE brand guidelines, which may be updated from time to time. I will take no action that diminishes, discounts, or undermines the PLAE brand or its goodwill. That includes, but is not limited to, offering product at a discount, affiliating the brand with non-approved organizations or causes, or displaying any inappropriate content or actions. I understand that violations in protecting the brand may result in immediate termination in accordance with section 17 of this agreement.
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 PLAE. 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 PLAE and will not be covered by its workers’ compensation or unemployment insurance or retained coverage. The provisions of this Agreement reserving ultimate authority in PLAE have been inserted solely to achieve compliance with federal, state or local laws, regulations and interpretations thereof.
I understand that a sale is not final until inputted into the PLAE 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. 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.
Services to be Performed by Business Owner.
My PLAE business will promote and sell PLAE Products by conducting any variety of approved Sales Events or on my personal Business Owner website, if applicable, and community events using the PLAE system of social selling described in the Policies & Procedures. My business will sell PLAE Products only to end customers. I will inform my customers that PLAE offers a Return Policy with respect to all PLAE Products, and will assist my customers with initiating a return under such policy with respect to any PLAE Products.
Sponsoring Business Owner’s Responsibilities.
In the event I sponsor an applicant to be an Independent Business Owner and the application is accepted by PLAE, I will accept the duties and obligations of training, support and recognition.
Use of PLAE Intellectual Property.
I acknowledge that, upon PLAE’s acceptance of the Agreement, PLAE has granted me a limited, non-exclusive license to use its trademarks, service marks, trade names, patents and copyrighted materials (“PLAE Intellectual Property”), all of which is owned solely by PLAE, and that my use of PLAE Intellectual Property is strictly limited by the terms of the Policies & Procedures. Examples of PLAE Intellectual Property are provided in the Policies & Procedures. I may use PLAE Intellectual Property only (a) after obtaining written permission from PLAE prior to use, or (b) where the PLAE Intellectual Property appears on materials distributed by PLAE for use by Independent Business Owners. I agree to use written, recorded or other promotional or advertising materials that have been produced, distributed and approved in writing by PLAE. Any other promotional or advertising materials I use will be used in accordance with the Policies & Procedures. All rights and licenses granted in or under this Agreement shall terminate automatically upon the termination of this Agreement.
Each party hereto acknowledges that the websites for PLAE 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.
I acknowledge and agree that PLAE shall own all software coding (including source code), all technology owned or otherwise controlled by PLAE, all design and materials and/or information created and/or delivered by PLAE, and any and all rights, licenses or other permissions necessary to allow Business Owner to use the site under this Agreement.
Ownership and Use of Confidential Information.
I acknowledge that PLAE owns all product, Business Owner and customer information and data that I may create or compile, including but not limited to product purchase information, customer and Business Owner contact and profile data, Business Owner 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 PLAE. 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 PLAE 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 PLAE 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 PLAE. I understand and agree that this provision does not prohibit me from working for a competitor, but requires me not to use, share or otherwise communicate Confidential Information or trade secrets to perform services for a competitor. I agree that a breach of this provision shall cause irreparable harm to PLAE and that PLAE 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 9. Upon PLAE’s reasonable written request, I agree to return to PLAE 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.
Authorized Business and Product Claims.
Any claims made about my PLAE business shall be in compliance with the Policies & Procedures. I further agree to limit any claims I make about my PLAE business, including, but not limited to earnings ability or product-related claims, to those claims authorized or approved in writing by PLAE. I understand and acknowledge that this obligation extends to any statements I may make in response to customer inquiries about my PLAE business or any PLAE Products.
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 PLAE 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.
Sale of Products to PLAE Business Owners and Customers.
I understand that I may not market, sell, offer for sale or promote products of any other direct selling companies to PLAE Independent Business Owners as well as PLAE’s end customers other than those manufactured, distributed or approved in writing by PLAE.
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 PLAE employee or Independent Business Owner to terminate or alter his or her business relationship with PLAE. Non-Solicitation includes recruiting or sharing information about another direct sales opportunity or other career with any PLAE Independent Business Owners.
I hereby grant PLAE and its affiliates, partners, designees, agents, successors or assigns an unrestricted, perpetual, worldwide, irrevocable, royalty-free, transferable, sublicensable 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 PLAE, 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.
Warranty and Disclaimer.
PLAE warrants that PLAE Products as and when delivered by PLAE shall be free from material defects. PLAE’s sole obligation, and my sole and exclusive remedy, for breach of this warranty shall be to return any defective PLAE Product and receive a replacement or credit as described in the Policies & Procedures. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PLAE HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO PLAE PRODUCTS, PLAE BUSINESS OPPORTUNITY, MARKETING MATERIALS, BUSINESS SUPPLIES AND ANY OTHER SUBJECT MATTER OF THE BUSINESS OWNER AGREEMENT, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABLITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, ACCURACY OR COMPLETENESS OF CONTENT, RESULTS, LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, AND CORRESPONDENCE TO DESCRIPTION.
Term and Termination of this Agreement.
- Term. This Agreement is effective from the date of acceptance by PLAE and will automatically renew every twelve (12) months on the anniversary of the date I enter into this Agreement. PLAE may terminate the PLAE Independent Business Owner Agreement with any Independent Business Owner at any time and for any reason by notifying you in writing of our election to terminate.
- Involuntary Cancellation. PLAE may immediately terminate this Agreement in the event of my death, any actual or attempted assignment of the Agreement, or my misrepresentation relating to PLAE or my Independent Business Owner business, or my breach of any provision of this Agreement. If PLAE terminates this Agreement, the Company may reject any future reapplications by me as a Business Owner and pursue all applicable legal remedies.
- Voluntary Cancellation. A PLAE Independent Business Owner 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 or by contacting Business Owner Relations.
Events upon Termination of this Agreement.
Upon termination of this Agreement, I will (i) within five (5) days pay all amounts due and owing to PLAE; (ii) immediately cease representing myself as an Independent Business Owner of PLAE; and (iii) be ineligible to receive any compensation or benefits as an Independent Business Owner not earned as of the date of termination of this Agreement. I hereby authorize PLAE to withhold any amounts due and owing to PLAE to the fullest extent allowed by applicable law. I will immediately cease all use of PLAE Intellectual Property and Confidential Information and will cease holding classes, workshops and presentations or otherwise displaying, offering for sale or selling PLAE Products.
Neither this Agreement nor my PLAE business may be transferred or assigned by me or operated in partnership with any other person without PLAE’s prior written consent. PLAE may assign this Agreement at any time.
Entire Agreements: Amendment.
This Agreement (including the Policies & Procedures and Compensation Plan) in its current form, and as may be amended by PLAE 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 and the Policies & Procedures and Compensation Plan, each of which are incorporated into and made a part of this Agreement. If I have not yet reviewed the Policies & Procedures at the time I execute this Agreement, I understand that they are provided prior to formal submission of my application to become a PLAE Independent Business Owner and will also be made available upon reqeust. I will review the Policies & Procedures within three (3) days from the date on which I execute this Agreement. If I do not agree to the Policies & Procedures, my sole recourse is to notify the Company and terminate this Agreement. Failure to terminate constitutes my acceptance of the Policies & Procedures. I understand that I must be in good standing to be eligible for bonuses or commissions from PLAE. I also understand that this Agreement may be amended by PLAE in its sole discretion, and I agree to abide by all such amendments. Notification of amendments shall be made available via written communication at time of any amendment. Amendments shall become effective thirty (30) days after 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 PLAE business or my acceptance of bonuses or commissions after the effective date of amendments shall constitute my acceptance of any and all amendments.
I will indemnify and hold harmless PLAE, 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 Business Owner 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 the 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. PLAE shall have the right to offset any amounts owed by me to PLAE (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.
Limitation of Damages.
TO THE EXTENT PERMITTED BY LAW, PLAE 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 PLAE 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 PLAE PRODUCTS AND SERVICES OWNED OR HELD BY ME, COMMISSIONS, BONUSES AND OVERRIDES.
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 PLAE can be effective only in writing by an authorized officer of PLAE.
Either PLAE 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 PLAE 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 PLAE 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.
- 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.
- There are no territorial restrictions on the conduct of my business within the United States or Puerto Rico.
- Except as approved in writing by PLAE, I certify that I am not in any other household member who is a PLAE Independent Business Owner.
- 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.
- 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 or immediately if sent to the email address on file with PLAE.
Other than the arbitration agreement set forth below (which is governed by the Federal Arbitration Act), this Agreement is governed by the laws of the state in which I reside without regard to any state’s conflicts of laws rules that may result in the application of the laws of any other jurisdiction. Except in situations in which injunctive relief is sought, PLAE and I mutually agree to resolve any justiciable disputes between them exclusively through final and binding arbitration before a single arbitrator instead of filing a lawsuit in court. This arbitration agreement is governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16) and shall apply to any and all claims arising out of or relating to this Agreement, my classification as an Independent Business Owner, my provision of services to PLAE or its customers, the payments received by me for providing services to PLAE or its customers, the termination of this Agreement, and all other aspects of the my relationship with PLAE, past or present, whether arising under federal, state or local statutory and/or common law.
- If either party wishes to initiate arbitration, the initiating party must notify the other party in writing via certified mail, return receipt requested, or hand delivery within the applicable statute of limitations period. This demand for arbitration must include (1) the name and address of the party seeking arbitration, (2) a statement of the legal and factual basis of the claim, and (3) a description of the remedy sought. Any demand for arbitration by me must be delivered to PLAE, Inc., 220 Montgomery Street, Suite 860, San Francisco, CA 94104, Attn: Legal Department.
- Class Action Waiver. PLAE and I mutually agree that by entering into this agreement to arbitrate, both waive their right to have any dispute or claim brought, heard or arbitrated as a class action, collective action and/or representative action, and an arbitrator shall not have any authority to hear or arbitrate any class, collective or representative action (“Class Action Waiver”). Notwithstanding any other clause contained in this Agreement or the JAMS Rules, as defined below, any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.
- I agree and acknowledge that entering into this arbitration agreement does not change my status as an independent contractor in fact and in law, that I am not an employee of Company or Company’s customers and that any disputes in this regard shall be subject to arbitration as provided in this agreement.
- Any arbitration shall be governed by the JAMS Comprehensive Arbitration Rules and Procedures (“JAMS Rules”), except as follows:
- The arbitration shall be heard by one arbitrator selected in accordance with the JAMS Rules. The arbitrator shall be an attorney with experience in the law underlying the dispute.
- The parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place within twenty-five (25) miles of where I reside. If a Business Owner resides in a rural area with no suitable arbitration facilities located within twenty-five (25) miles of such Business Owner’s residence, arbitration shall occur at the nearest location where arbitration services are reasonably available.
- (3) Unless applicable law provides otherwise, as determined by the arbitrator, the parties agree that Company shall pay all of the arbitrator’s fees and costs.
- 4) The arbitrator may issue orders (including subpoenas to third parties) allowing the parties to conduct discovery sufficient to allow each party to prepare that party’s claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
- Except as provided in the Class Action Waiver, the arbitrator may award all remedies to which a party is entitled under applicable law and which would otherwise be available in a court of law, but shall not be empowered to award any remedies that would not have been available in a court of law for the claims presented in arbitration. The arbitrator shall apply the state or federal substantive law, or both, as is applicable.
- The arbitrator may hear motions to dismiss and/or motions for summary judgment and will apply the standards of the Federal Rules of Civil Procedure governing such motions.
- The arbitrator’s decision or award shall be in writing with findings of fact and conclusions of law.
- Either the Company or I may apply to a court of competent jurisdiction for temporary or preliminary injunctive relief on the ground that without such relief the arbitration provided in this Section 26 may be rendered ineffectual.
- Regardless of any other terms of this Agreement, claims may be brought before and remedies awarded by an administrative agency if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate.
- The JAMS Rules may be found at www.jamsadr.com or by searching for “JAMS Comprehensive Arbitration Rules and Procedures” using a service such as www.Google.com or www.Bing.com or by asking for a copy through firstname.lastname@example.org.
I acknowledge that I have read, understand and agree to the terms set forth in this PLAE Independent Business Owner Agreement. I certify that all of the information provided by me in connection with becoming an Independent Business Owner 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 have a valid Social Security number or individual Taxpayer Identification number.