STELLA &DOT FAMILY BRANDS INDEPENDENT BUSINESS OWNER AGREEMENT

Transcription

1 STELLA &DOT FAMILY BRANDS INDEPENDENT BUSINESS OWNER AGREEMENT FOR CANADIAN RESIDENTS As a Stella & Dot Stylist, a KEEP Collective Designer or EVER Specialist (referred to herein as an Independent Business Owner or Business Owner ), I understand and agree with Stella & Dot Jewelry Corp. (a whollyowned subsidiary of Stella & Dot LLC d/b/a Stella & Dot, KEEP Collective and EVER LLC) (collectively referred to as Stella & Dot or the Company ), that our relationship will be governed by the terms herein as follows: 1. 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 Stella & Dot Family Brands Independent Business Owner Policies & Procedures (the Policies &Procedures ) and the Stella & Dot 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 Stella & Dot also requires me to employ integrity, honesty and responsibility in my behavior and actions with Stella & Dot, my customers and my fellow Business Owners, including and without limitation, presenting and promoting the products of any Stella & Dot Family Brand ( Stella & Dot Family Brands Products ) in a truthful manner. Subject to the commends under the Network Sellers Method below, I shall be responsible for obtaining all necessary licenses and permits and for complying with all applicable federal, provincial and municipal laws, codes and regulations in connection with my activities as a Business Owner. All of the duties and obligations reflected in this Agreement constitute my agreement with Stella & Dot (referred to as this Agreement ). 2. 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 Stella & Dot. 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 acknowledge that, as an Independent Business Owner, I am an independent contractor acting in the capacity of a wholly-independent marketing representative who establishes and services retail customers for Stella & Dot Family Brands Products. I understand that my status as such does not constitute either a sale of a security, franchise or a distributorship (exclusive or otherwise), and absolutely no fees have been or will be required from me for the right to distribute Company 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 myself and any other participant in the Company marketing plan and/or Company. I agree that as an independent contractor, I will: (i) comply with all applicable federal, provincial and local laws, rules and regulations pertaining to this Agreement, including the sale, distribution and advertising of Stella & Dot Family Brands Products, and (ii) at my own expense, complete all filings, and obtain such licenses as are required by applicable federal, provincial and local laws, rules and regulations, with respect to the Agreement and my activities as an Independent Business Owner. I understand that as an Independent Business Owner, I have no authority to bind Company to any obligations. It is my responsibility to pay all income, local or applicable taxes as an independent contractor, and I acknowledge that I am not eligible for employee benefits, such as unemployment compensation, worker s compensation or minimum wages. I acknowledge that the Company encourages its Independent Business Owners to set their own hours and to supply all of their own equipment and tools for operating their Company business, such as telephones, transportation, professional services, office equipment and supplies. Further, I understand that I should determine my own methods of sale, so long as I comply with the policies of the Company. Without limiting the generality of the foregoing, as an Independent Business Owner, I agree that I shall be fully responsible for (i) all applicable federal and provincial withholding taxes, source deductions, PST,

2 GST, HST, income tax, other taxes, employment insurance premiums, Canada Pension Plan contributions, worker s compensation contributions or provincial employee health tax contributions and other levies, premiums, licence requirements and fees related to my earnings and activities as an Independent Business Owner, and (ii) all expenses incurred in connection with the operation of my Company-related business, including but not limited to travel, meals, accommodation, secretarial, office, telephone and other business expenses. I will not be eligible for and will not participate in any pension, or fringe benefit plan sponsored by Stella & Dot and will not be covered by its workers compensation or unemployment insurance or retained coverage. The provisions of this Agreement reserving ultimate authority in Stella & Dot have been inserted solely to achieve compliance with federal, state or local laws, regulations and interpretations thereof. 3. Starter Kit. I agree to purchase a non-commissionable Starter Kit for one of the Stella & Dot Family Brands. I UNDERSTAND THAT THERE IS A DIFFERENT STARTER KIT FOR EACH STELLA & DOT FAMILY BRAND AND THAT I WILL BE ELIGIBLE TO PARTICIPATE ONLY IN THE SALES OF THE STELLA & DOT FAMILY BRAND ASSOCIATED WITH THE STARTER KIT THAT I PURCHASE. I further understand that a Starter Kit is the only purchase required to conduct business as a Stella & Dot Family Brands Independent Business Owner. I also agree to pay any renewal fees required to extend the term of this Agreement. Business Owners may participate in more than one Stella & Dot Family Brand program by purchasing a Starter Kit for each program in which they wish to participate. The Company provides to Independent Business Owners a commercially reasonable right to return products. These rights are further described in the Company s Policies &Procedures. 4. Network Sellers Method GST/HST. Under the Network Sellers Method ( NSM ), Stella & Dot is required to charge, collect and remit GST/HST and, if applicable, QST on all sales of the Company s select products as that term is defined in the Excise Tax Act. Stella & Dot will collect and remit all GST/HST and, if applicable, QST based on the actual selling price of the products. The Business Owner will not charge to Stella & Dot GST/HST and QST on commissions. No GST/HST or QST will be charged on sales aids (business supplies) sold to Business Owners or on hostess gifts given to Business Owners or by Business Owners beginning January 1, 2011 (SALES AIDS ARE SUBJECT TO PROVINCIAL SALES TAX WHERE APPLICABLE). I agree that I will operate under the NSM in connection with my Stella & Dot business whether or not I am registered for GST/HST or QST purposes with the Canada Revenue Agency or Revenue Quebec, respectively, for other business activities. Stella & Dot will charge and collect provincial sales tax in British Columbia, Manitoba and Saskatchewan, as applicable, on sales of Stella & Dot Family Brands Products in accordance with applicable law. 5. Services to be Performed by Business Owner. My Stella & Dot Family Brands business will promote and sell Stella & Dot Family Brands Products by conducting Stella & Dot Trunk Shows or Keep Collective Socials, as applicable, or on my personal Business Owner web site, if applicable, and community events using the Stella & Dot system of social selling described in the Policies &Procedures. My business will sell Stella & Dot Family Brands Products only to end customers. I will inform my customers that Stella & Dot offers a Return Policy with respect to all Stella & Dot Family Brands Products, and will assist my customers with initiating a return under such policy with respect to any Stella & Dot Family Brands Products. 6. Sponsoring Business Owner s Responsibilities. In the event I sponsor an applicant to be an Independent Business Owner and the application is accepted by Stella & Dot, I will accept the duties and obligations of training, support and recognition. 7. Use of Stella & Dot Intellectual Property. I acknowledge that, upon Stella & Dot s acceptance of the Agreement, Stella & Dot has granted me a limited, non-exclusive license to use its trademarks, service marks, trade names, patents and copyrighted materials ( Stella & Dot Intellectual Property ), all of which is owned solely by Stella & Dot, and that my use of Stella & Dot Intellectual Property is strictly limited by the terms of the Policies &Procedures. Examples of Stella & Dot Intellectual Property include, but are not limited to, Stella & Dot, the Stella & Dot logo, KEEP Collective EVER and the EVER logo. I may use Stella & Dot Intellectual Property only (a) after obtaining written permission from Stella & Dot prior to use, or (b) where the Stella & Dot Intellectual Property appears on materials distributed by Stella & Dot 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 Stella & Dot. Any other promotional or advertising materials I use will be used in accordance with the Policies &Procedures. All rights

3 and licenses granted in or under this Agreement shall terminate automatically upon the termination of this Agreement. 8. Site Downtime. Each party hereto acknowledges that the web site for any of the Stella & Dot Family Brands 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. 9. Ownership. I acknowledge and agree that Stella & Dot shall own all software coding (including source code), all technology owned or otherwise controlled by Stella & Dot, all design and materials and/or information created and/or delivered by Stella & Dot, and any and all rights, licenses or other permissions necessary to allow Business Owner to use the site under this Agreement. 10. Ownership and Use of Confidential Information. I acknowledge that Stella & Dot 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 Stella & Dot. I will not use or disclose Confidential Information to any person except in strict accordance with this Agreement. I will not use Confidential Information to sell products or services other than Stella & Dot Family Brands 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 Stella & Dot 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 Stella & Dot. 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 Stella & Dot and that Stella & Dot will be entitled to injunctive relief in the event of a breach of this provision. 11. 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 Stella & Dot 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. 12. Sale of Products to Stella & Dot 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 Stella & Dot Family Brands Independent Business Owners as well as Stella & Dot Family Brands end customers other than those manufactured, distributed or approved in writing by Stella & Dot, including Stella & Dot Family Brands Products. 13. 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 Stella & Dot employee or Independent Business Owner to terminate or alter his or her business relationship with Stella & Dot. Non-Solicitation includes recruiting or sharing information about another direct sales opportunity or other career with any Stella & Dot Independent Business Owners. 14. Photo and Video Release. I hereby grant Stella & Dot and its designees, agents, successors or assigns, a worldwide, irrevocable, royalty-free, non-exclusive license to use and reproduce my name, voice, photograph, video, biography, testimonial and/or likeness for any purpose, including but not limited to advertising or use in promotional materials and online forums, and I waive remuneration for such use. I further waive my right to inspect or approve all preliminary, draft, beta and/or finished materials. 15. Term and Termination of this Agreement. a) Term. This Agreement is effective from the date of acceptance by Stella & Dot and will automatically renew every twelve (12) months on the anniversary of the date I enter into this Agreement. Stella & Dot may terminate the Stella & Dot Family Brands 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.

4 b) Involuntary Cancellation. Stella & Dot may immediately terminate this Agreement in the event of my death, any actual or attempted assignment of the Agreement, or my misrepresentation relating to Stella & Dot or my Independent Business Owner business, or my breach of any provision of this Agreement. If Stella & Dot terminates this Agreement, the Company may reject any future reapplications by you as the Business Owner and to pursue all applicable legal remedies. c) Voluntary Cancellation. A Stella & Dot Family Brands 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. 16. 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 Stella & Dot; (ii)immediately cease representing myself as an Independent Business Owner of Stella & Dot Family Brands; 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 Stella and Dot to withhold any amounts due and owing to Stella & Dot to the fullest extent allowed by applicable law. b) I will immediately cease all use of Stella & Dot Intellectual Property and Confidential Information and will cease holding classes, workshops and presentations or otherwise displaying, offering for sale or selling Stella & Dot Family Brands Products. 17. Transferability. Neither this Agreement nor my Stella & Dot Family Brands business may be transferred or assigned by me or operated in partnership with any other person without Stella & Dot s prior written consent. Stella & Dot may assign this Agreement at any time. 18. Entire Agreements: Amendment. This Agreement (including the Policies & Procedures and Compensation Plan)in its current form and as may be amended by Stella & Dot 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 Stella & Dot Family Brands Independent Business Owner and will also be posted in my Business Owner Lounge. 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 Stella & Dot. I also understand that this Agreement may be amended by Stella & Dot in its sole discretion, and I agree to abide by all such amendments. Notification of amendments shall be posted to my Business Owner Lounge. 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 Stella & Dot Family Brands business or my acceptance of bonuses or commissions after the effective date of amendments shall constitute my acceptance of any and all amendments. 19. Indemnification/Offset. I will indemnify and hold harmless Stella & Dot, its subsidiaries, and its 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 Business Owner or Business Owner s 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 Business Owner is not an independent contractor, (d) breach by Business Owner or by Business Owner s assistants, employees, contractors or agents of any of the terms of this Agreement; or (c) violation of or failure to comply with any applicable federal, province or local laws or regulations. Stella & Dot shall have the right to offset any amounts owed by me to Stella & Dot (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.

5 20. Limitation of Damages. To the extent permitted by law, Stella & Dot and its affiliates, officers, directors, associates and other representatives shall not be liable for, and the Business Owner hereby releases the foregoing from, and waives any claim of loss of profit, incidental special, consequential, or exemplary damages which may arise out of any claim whatsoever relating to the Company s performance, non-performance, act, or omission with respect to the business relationship or other matters between the Business Owner and the Company whether sounding in contract, tort or strict liability. Furthermore, it is agreed that any damage to the Business Owner shall not exceed, and is hereby expressly limited to the amount of unsold Stella &Dot Family Brands Products and services owned or held by the Business Owner and commissions, bonuses and overrides. 21. Cumulative Remedies/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 Stella & Dot can be effective only in writing by an authorized officer of Stella & Dot. 22. Injunctive Relief. Either Stella & Dot 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 non-solicitation provisions of this Agreement by me would cause Stella & Dot 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 Stella & Dot or me) 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 agree that such injunction may be heard and determined by the courts of the province or territory in Canada of Stella & Dot s choosing. I irrevocably and unconditionally submit to the personal jurisdiction of the courts of the province or territory in Canada of Stella & Dot s choosing for injunctions, and each of the parties hereto irrevocably and unconditionally agrees that all injunctions may be heard and determined in such court. 23. Other Terms. a) I am of the age of majority in my province of residency. I agree to comply with all laws, rules and regulations governing the conduct of my business. Manitoba and New Brunswick Residents: I understand that I may be required to have a direct seller s license and will make the appropriate application to the Manitoba Consumer and Corporate Affairs office within five (5) days of the effective date of this Agreement. b) Except as approved in writing by Stella & Dot, I certify that there are no other Stella & Dot Family Brands Independent Business Owners in my household, and that I, nor any other individual in my household has any equitable or ownership interest in any entity that owns or operates a Stella & Dot Family Brands business. 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 or immediately if sent to the address on file with Stella & Dot. 24. Governing Law/Venue/Arbitration. Other than the arbitration agreement set forth below (which is governed by the Federal Arbitration Act), this Agreement is governed by the laws of California 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, Stella & Dot and Business Owner 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, the Business Owner s classification as an Independent Business Owner, Business Owner s provision of services to Stella & Dot or its customers, the payments received by Business Owner for providing services to Stella

6 & Dot or its customers, the termination of this Agreement, and all other aspects of the Business Owner s relationship with Stella & Dot, past or present, whether arising under federal, state or local statutory and/or common law. a) 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 Business Owner must be delivered to Stella & Dot, 1111 Bayhill Drive, Suite 375, San Bruno, CA 94066, Attn: Legal Department. b) Class Action Waiver. Stella & Dot and Business Owner 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. c) Business Owner agrees and acknowledges that entering into this arbitration agreement does not change Business Owner s status as an independent contractor in fact and in law, that Business Owner is 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. d) Any arbitration shall be governed by the JAMS Comprehensive Arbitration Rules and Procedures ( JAMS Rules ), except as follows: (1) 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. (2) The parties cannot otherwise agree on a location for the arbitration, the arbitration shall take place within twenty-five (25) miles of where Business Owner resides. If a Business Owner resides in a rural area with no suitable arbitration facilities located within twentyfive (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. (5) 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. (6) 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. (7) The arbitrator s decision or award shall be in writing with findings of fact and conclusions of law. (8) Either Company or Business Owner 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 24may be rendered ineffectual. (e) 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. (f) The JAMS Rules may be found at by searching for JAMS Comprehensive Arbitration Rules and Procedures using a service such as or or by asking for a copy through compliance@stelladot.com.

7 I acknowledge that I have read, understand, and agree to the terms set forth in this Stella & Dot Family Brands 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 of the age of majority in my province of residence or older, I am a citizen or permanent resident of Canada, and I have a valid Social Insurance number.