Terms and Conditions
Perfectly Posh, LLC
Consultant Terms & Conditions
March 1, 2013
- I understand that as an Independent Consultant for Perfectly Posh, LLC (“Perfectly Posh”, “Company”, “we” or “our”):
- I have the right to offer for sale Perfectly Posh products and services in accordance with these Terms and Conditions.
- I have the right to enroll others as Perfectly Posh Independent Consultants (“Consultants”).
- If qualified, I have the right to earn commissions pursuant to the Perfectly Posh Compensation Plan.
- I agree to present the Perfectly Posh Pay Plan and Perfectly Posh products and services as set forth in official Perfectly Posh literature.
- I agree that as a Perfectly Posh Consultant I am an independent contractor, and not an employee, partner, legal representative, or franchisee of Perfectly Posh. I agree that I will be solely responsible for paying all expenses that I incur, including but not limited to travel, food, lodging, secretarial, office, long distance telephone and other business expenses. I UNDERSTAND THAT I SHALL NOT BE TREATED AS AN EMPLOYEE OF PERFECTLY POSH FOR FEDERAL OR STATE TAX PURPOSES OR FOR ANY OTHER REASON. Perfectly Posh is not responsible for withholding, and shall not withhold or deduct from my bonuses and commissions, if any, FICA, or taxes of any kind. I understand that I am not entitled to workers compensation or unemployment security benefits of any kind from Perfectly Posh.
- I understand that I may cancel my participation in this direct sales program at any time by providing Perfectly Posh with written notice at its principal business address.
- I have carefully read and agree to comply with the Perfectly Posh Policies and Procedures, the Perfectly Posh Pay Plan, and the Business Entity Addendum (the Business Entity Addendum is applicable only to those who enroll as Consultants under a business entity) which are incorporated into and made a part of these Terms and Conditions (these documents shall be collectively referred to as the “Agreement”). I understand that the Agreement may be amended at the sole discretion of Perfectly Posh, and I agree to abide by all such amendments. Notification of amendments shall be posted on Perfectly Posh’s website, in the Consultant Virtual Office. Amendments shall become effective 30 days after publication, but amended policies shall not apply retroactively to conduct that occurred prior to the effective date of the amendment. The continuation of my Perfectly Posh business or my acceptance of bonuses or commissions after the effective date of the amendments shall constitute my acceptance of any and all amendments.
- Your Perfectly Posh business shall remain in effect so long as you remain in compliance with the terms of the Agreement and meet the requirements of the Perfectly Posh Pay Plan, or until you voluntarily cancel your Perfectly Posh Agreement. Notwithstanding the foregoing, Perfectly Posh reserves the right to terminate all Consultant Agreements upon 30 days notice if the Company elects to: (1) cease business operations; (2) dissolve as a business entity; or (3) terminate distribution of its products and/or services via direct selling channels. Consultant may cancel this Agreement at any time, and for any reason, upon written notice to Perfectly Posh at its principal business address.
- In the event of cancellation or termination, I waive all rights I have, including but not limited to property rights, to my former downline organization and to any bonuses, commissions or other remuneration derived through the sales and other activities of my former downline organization.
- I may not sell, transfer, or assign any rights under the Agreement without the prior written consent of Perfectly Posh. Any attempt to sell, transfer or assign the Agreement without the express written consent of Perfectly Posh renders the Agreement voidable at the option of Perfectly Posh and may result in termination of my business.
- I understand that I must be in good standing, and not in violation of the Agreement, to be eligible for bonuses or commissions from Perfectly Posh. I further agree that if I fail to comply with the terms of the Agreement, Perfectly Posh may, at its discretion, impose upon me disciplinary sanctions as set forth in the Policies and Procedures, which may include the involuntary termination of my Perfectly Posh independent business.
- The Parties and their respective parent and/or affiliated companies, directors, officers, share-holders, employees, assigns, and agents (collectively referred to as “affiliates”), shall not be liable for, and the Parties release one another from, all claims for incidental, consequential and exemplary damages for any claim or cause of action relating to the Agreement.
- Consultants that enroll who are less than 18 years of age (“Minor”) must list during enrollment a parent or legal guardian (“Parent”) who must also agree to comply with the Agreement. Both Parent and Minor consent to be contacted by Perfectly Posh by telephone, text message, email, and/or social media. Parent and Minor certify that the Minor is at least 16 years of age at the time this Agreement is submitted to Perfectly Posh. Parent and Minor are individually bound to and must comply with and agree to the terms and conditions of the Agreement. Compensation shall be paid to the Minor, and a Form 1099-MISC shall be issued to the Minor at year-end. Violation of the Agreement by Parent or Minor shall be jointly and severally imputed to Parent and Minor and their independent consultant business entity. Parent confirms that she/he has the capacity and legal right to supervise the Minor, and consents to the Minor’s participation as a Perfectly Posh Independent Consultant. The Parent is responsible for all conduct of the Minor while the Minor is engaged in her/his Perfectly Posh business. Once the Minor reaches the age of 18, the Minor must execute a new Agreement within 60 days to avoid involuntary cancellation of the Agreement.
- I agree to release Perfectly Posh and its affiliates from all liability arising from or relating to the promotion or operation of my Perfectly Posh business and any activities related to it (including, but not limited to, the presentation of Perfectly Posh products or Pay Plan, the operation of a motor vehicle, the lease of meeting or training facilities, etc.), and agree to indemnify Perfectly Posh for any liability, damages, fines, penalties, or other awards arising from any unauthorized conduct that I undertake in operating my business.
- The Agreement, in its current form and as amended by Perfectly Posh at its discretion, constitutes the entire contract between Perfectly Posh and myself. Any promises, representations, offers, or other communications not expressly set forth in the Agreement are of no force or effect.
- Any waiver by either Party of any breach of the Agreement must be in writing and signed by the Party waiving the breach. With respect to Perfectly Posh, only officers of the Company are authorized to waive any policy. Waiver by one who is not an officer of the Company shall not be binding on Perfectly Posh. Waiver by either Party of any breach of the Agreement shall not operate or be construed as a waiver of any subsequent breach.
- If any provision of the Agreement is held to be invalid or unenforceable, such provision shall be stricken and reformed only to the extent necessary to make it enforceable, and the balance of the Agreement will remain in full force and effect.
- If the Consultant applicant is a business entity of any type (trust, partnership, limited liability company, corporation, etc.), all members, managers, shareholders, trustees, partners, or others with any ownership interest in the business entity (collectively “Owners”) shall be jointly and severally liable for all contracts entered into with Perfectly Posh. Each Owner is individually bound to and must comply with and agree to the terms and conditions of the Agreement. Violation of the Agreement by any Owner or employee of the business entity shall be jointly and severally imputed to the business entity and all Owners of the business entity. Each Owner certifies that neither he/she, nor any household family member, has any ownership, financial, or equitable interest in, or managerial responsibility for, any other Perfectly Posh business, and has not had any such interest or responsibility for at least six calendar months prior to submitting this Application and Agreement. Any breach of the Agreement by any Owner or employee of the business entity shall be grounds for disciplinary action jointly and severally against the business entity and/or each individual Owner. For claims seeking $10,000.00 or more that arise from or relate to the Agreement, prior to filing arbitration as set forth below, the parties shall meet in good faith and attempt to resolve such dispute through confidential non-binding mediation. One individual who is mutually acceptable to the parties shall be appointed as mediator. If the Parties cannot agree on a mediator, the complaining party shall request the appointment of a mediator by the American Arbitration Association (“AAA”). The mediation shall occur within 60 days from the date on which the mediator is appointed. 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 shared fees and costs at least 10 days in advance of the mediation. Each party shall pay its own attorney’s fees, costs, and individual expenses associated with conducting and attending the mediation. Mediation shall be held in Salt Lake City, Utah, and shall last no more than two business days. Except as otherwise provided in the Agreement, any controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be settled through confidential arbitration. The Parties waive rights to trial by jury or to any court. This arbitration provision applies to claims that were not successfully resolved through the foregoing mediation process as well as claims for less than $10,000.00 not subject to the mediation requirement. The arbitration shall be filed with, and administered by, the American Arbitration Association in accordance with the AAA’s Commercial Arbitration Rules and Mediation Procedures, which are available on the AAA’s website at www.adr.org. Notwithstanding the rules of the AAA, unless otherwise stipulated by the Parties, the following shall apply to all Arbitration actions:
All arbitration proceedings shall be held in Salt Lake City, Utah. There shall be one arbitrator selected from the panel that the AAA provides. Each party to the arbitration shall be responsible for its own costs and expenses of arbitration, including attorney’s fees and filing fees. The decision of the arbitrator shall be final and binding on the parties and may, if necessary, be reduced to a judgment in any court to which the Parties have consented to jurisdiction as set forth in the Agreement. This agreement to arbitrate shall survive the cancellation or termination of the Agreement. The parties and the arbitrator shall maintain the confidentiality of the arbitration proceedings and shall not disclose to third parties:
- The Federal Rules of Evidence shall apply in all cases;
- The Parties shall be entitled to all discovery rights permitted by the Federal Rules of Civil Procedure;
- The Parties shall be entitled to bring motions under Rules 12 and/or 56 of the Federal Rules of Civil Procedure;
- The Federal Arbitration Act shall govern all matters relating to arbitration. The law of the State of Utah shall govern all other matters relating to or arising from the Agreement, without regard to principles of conflicts of laws.
- The arbitration hearing shall commence no later than 365 days from the date on which the arbitrator is appointed, and shall last no more than five business days;
- The Parties shall be allotted equal time to present their respective cases;
- The arbitration shall be brought on an individual basis and not as part of a class or consolidated action.
Notwithstanding the foregoing, nothing in the Agreement shall prevent either party from applying to and obtaining from any court to which the Parties have consented to jurisdiction as set forth in the Agreement a temporary restraining order, preliminary or permanent injunction, or other equitable relief to safeguard and protect its trade secrets and intellectual property rights, trade secrets, and/or confidential information including but not limited to enforcement of its rights under the non-solicitation provision of the Agreement.
- The substance of, or basis for, the controversy, dispute, or claim;
- The substance or content of any settlement offer or settlement discussions or offers associated with the dispute;• The pleadings, or the content of any pleadings, or exhibits thereto, filed in any arbitration proceeding;
- The content of any testimony or other evidence presented at an arbitration hearing or obtained through discovery in arbitration;
- The terms or amount of any arbitration award;
- The rulings of the arbitrator on the procedural and/or substantive issues involved in the case.
- Jurisdiction and venue of any matter not subject to arbitration shall reside exclusively in Salt Lake County, Utah, or the United States District Court for the District of Utah. The Federal Arbitration Act shall govern all matters relating to arbitration. The law of the State of Utah shall govern all other matters relating to or arising from the Agreement.
- In any action arising from or relating to the Agreement, the parties waive all claims for incidental and/or consequential damages, even if the other party has been apprised of the likelihood of such damage. The parties further waive all claims to exemplary or punitive damages.
- Louisiana Residents: Notwithstanding the foregoing, Louisiana residents may bring an action against the Company with jurisdiction and venue as provided by Louisiana law. Should you cancel your Consultant Agreement, Perfectly Posh will refund 90% of your Starter Kit purchase price.
- Montana Residents: A Montana resident may cancel his or her Consultant Agreement within 15 days from the date of enrollment, and may return his or her Starter Kit for a full refund within such time.
- Wyoming and Massachusetts Residents: Should you cancel your Consultant Agreement, Perfectly Posh will refund 90% of your Starter Kit purchase price.
- Any consultant 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, Salt Lake City, UT 84126, or via email at firstname.lastname@example.org.
- If either party wishes to bring an action against the other for any act or omission relating to or arising from the Agreement, such action must be brought within one year from the date of the alleged conduct giving rise to the cause of action, or the shortest time permissible under applicable law, whichever is longer. Failure to bring such action within such time shall bar all claims against the other Party for such act or omission. The Parties waive all claims that any other statute of limitations applies.
- I authorize Perfectly Posh to use my name, photograph, personal story, testimonial, likeness, and/or any material I submit to the company in advertising or promotional materials and waive all claims for remuneration for such use.
- Except for Minors who enroll with a Parent, I acknowledge that I am at least 18 years of age.