Independent Sales Associate Agreement

Transcription

1 16390 Dia del Sol, Valley Center, CA, Page 1 of 9 Independent Sales Associate Agreement THIS AGREEMENT (the "Agreement") is made and entered into this day of, 20 by and between ph Miracle, Inc., a Nevada Corporation, of Dia del Sol, Valley Center, CA (hereinafter "ph Miracle"), and, of,,, (hereinafter "Sales Associate"). WHEREAS, the purpose of this agreement is to establish that the Sales Associate is an authorized ph Miracle, Inc. ("ph Miracle") Sales Associate for the sales of ph Miracle products, events, and opportunities pursuant to the terms and conditions set forth herein. WHEREAS, Sales Associate has elected to enter into this Agreement, with ph Miracle having confidence in ph Miracle's integrity and expressed intention to deal fairly with its Sales Associates, and with knowledge of the broad customer acceptance of products, goods and services of ph Miracle. WHEREAS, ph Miracle has elected to enter into this Agreement with Sales Associate with recognition that ph Miracle s success depends on financially sound, responsible, efficient, vigorous and successful independent Sales Associates, whose business conduct is free of false, deceptive or misleading advertising, merchandising, pricing and practices, and with confidence in Sales Associate s integrity and ability, and in the Sales Associate s expressed intention to deal fairly with ph Miracle and its customers, and to perform and carry out Sales Associate s duties, obligations and responsibilities as set forth in this Agreement. WHEREAS, it is the expectation of each of the parties that by entering into this agreement, and by the full and faithful observance and performance of their respective duties, obligations and responsibilities, a mutually satisfactory relationship between them will be established and maintained. NOW THEREFORE, in consideration of these premises, and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties have agreed, each with the other, as follows: W I T N E S S E T H: Sales Agreement. I (Sales Associate) understand that I am entering into an Independent Sales Associate agreement, and will be obligated to comply with the terms and conditions of this

2 16390 Dia del Sol, Valley Center, CA, Page 2 of 9 Agreement and that in return, ph Miracle will allow me to be an Independent Sales Associate and Representative and to represent ph Miracle in the wholesale and retail sales of its goods, products and services, pursuant to the specific terms and conditions of this Agreement, and to earn commissions on such sales and receipts generated by my efforts.. Independent Sales Agent Relationship. I understand that as Independent Sales Associates to ph Miracle that I am not an employee, franchisee, agent, partner or joint venture of, or licensor to ph Miracle, even if I provide any services, information or material to ph Miracle, which are outside the scope of my status as an Independent Sales Associate. I will not represent that I have any relationship with ph Miracle other than that of an Independent Sales Associate. I understand that I am neither authorized to, nor will I for any reason, incur any debt, expense or obligation for or on behalf of ph Miracle. I understand I will have discretion in conducting my sales of the products of ph Miracle, and structuring events and opportunities for ph Miracle, along with the sales of any of my other business products and other product representations, provided I comply with the Terms and Conditions of this Agreement. As an Independent Sales Associate, I understand and acknowledge that I will be responsible for my own business activities and that I will have absolute control over the operation of my business. I will be responsible for establishing my own goals and business methods including purchasing any business materials and tools that I determine are necessary for the operation of my business. I further affirm that I will positively represent ph Miracle, and the products, goods and services that they market, and provide quality service to potential customers. Sales Agreement. I acknowledge that this Sales Agreement allows me, as an authorized Sales Associate ("Sales Associate"), the opportunity to sell the products, goods and services offered by ph Miracle. Marketing policies. Sales Associates will at all times promote vigorously and effectively the sale of ph Miracle s products, goods and services through all channels of distribution available to Sales Associate without limitation by marketing area or territory, in conformity with ph Miracle s established marketing policies and programs. Commitment to Personal Sales. I understand that ph Miracle is a direct marketing Company, which distributes its products on-line, through person to person sales, through retail and wholesale outlets, and through seminars and conventions. Sales Associate is allowed the opportunity to sell the products, goods and services of ph Miracle, and to promote events and gatherings, to their customers for a profit. I agree that as a ph Miracle Sales Associate, I will actively develop personal customers, promote and represent ph Miracle with Integrity in sales negotiations, whether it is to individuals, companies, or whatever entity, or through networks, events, programs or otherwise,

3 16390 Dia del Sol, Valley Center, CA, Page 3 of 9 Ability to sell to Sub Sales Associates. I understand that I can also have "Sub-Sales Associates". A Sub-Sales Associate is one who purchases the products, goods and /or services of ph Miracle and sells them directly through me as a Sales Associate. They will purchase only through me and will not contact ph Miracle for any reason. They are my Sub-Sales Associate(s). I decide what commissions my Sub-Sales Associate(s) will receive per sale, e.g., some Sales Associates do a 50/50 split; some do a 60/40 split, etc. I understand that all of my Sub-Sales Associates MUST sign ph Miracle's. Sales Associate terms and agreement, and acknowledge that they are a Sub-Sales Associate. If I have Sub-Sales Associates, I must train them. I understand that I am the point of contact between my Sub Sales Associate(s), their customers and ph Miracle, and I will only contact ph Miracle when I have not been able to troubleshoot a problem for my Sub Sales Associate or their customer or when there needs to be a return for repair or replacement. Referred Sales Associates. I understand that I can refer other potential Sales Associates to ph Miracle. For that referral I will receive a set commission on any such referred Sales Associates, which are accepted by ph Miracle, and who generate at least $2, in the sales of goods and services of ph Miracle, in the first six-months (6 mos.) after becoming such a Sales Associate. The current commission for referring a new Sales Associate who is accepted by ph Miracle and who qualifies under this paragraph, is $ The Commission amount is subject to change, without notice, at the sole discretion of ph Miracle. I also understand I may refer larger Sales Associates called distributors who purchase large amounts of the products, goods and services of ph Miracle, operate their own warehouses and handle their own shipments. If I refer a potential Distributor to ph Miracle, who is accepted as such, a commission will be given to Sales Associate based on the volume of business generated by such Distributor in the first six-months (6 mos.) after becoming such Distributor, and the amount of such commission shall be at the sole discretion of ph Miracle, but shall not be less than $500.00, if such Distributor generates at least $5, of sales of goods and services of ph Miracle, in the first six-months (6 mos.) after becoming such a Distributor. Health Claims. Sales Associates are forbidden to make health claims about the products, goods and services of ph Miracle. Sales Associates are however allowed to use testimonials and or doctor quotations, if approved by ph Miracle in advance of any such use.. Websites. If I have my own web site, I must display the Approved Sales Associate seal linking back to the ph Miracle approved Sales Associate page. Sub-Sales Associate(s) will not use that logo, but will have another logo for their use. I may copy images and information from the ph Miracle web site for my web site, BUT.. the information must be re written into original content for Search Engine Optimization purposes. People not familiar with web sites and search engines

4 16390 Dia del Sol, Valley Center, CA, Page 4 of 9 should understand this provision as don t directly copy our content, or it damages you and us in the search engines. Domain and Business names. The name "ph Miracle" is Registered Trade Mark and may not be used in a domain name, or business name, without the express written consent of ph Miracle. Marketing Materials. Any marketing materials that I design, or have designed, must be preapproved by ph Miracle prior to printing. Any of the ph Miracle marketing materials that I choose to use may have my personal contact information added to them, but no other changes are allowed to be made. Marketing of private label products. Sales Associate understands that all products introduced to them by ph Miracle are either created, manufactured or trademarked property of ph Miracle, and may not duplicated, reverse engineered or otherwise reengineered in any way to compete with ph Miracle, subject to specific penalties and damages set forth herein. Use of name prohibited. On termination, or expiration, of this agreement, Sales Associates will remove and not subsequently use any sign or advertising containing the name and trademark ph Miracle or any other trademark owned or licensed by ph Miracle and will immediately destroy all stationery, advertising matter and other printed matter in its possession or under its control containing the word ph Miracle or such other trademarks. Sales Associate will not at any time after such termination, or expiration, use, or permit any such trademark to be used, in any manner in connection with any business conducted by it, or in which it may have an interest, or to be used in any other manner as descriptive of or referring to anything other than merchandise or products of ph Miracle. Regardless of the cause of termination, or in the case of normal expiration, of this Agreement, Sales Associates will immediately take all appropriate steps to remove and cancel any listings in telephone books, and other directories, and public records, or elsewhere that contains the name ph Miracle or other such trademarks of ph Miracle. If Sales Associate fails to obtain such removals or cancellations promptly, ph Miracle may make application for such removals or cancellations on behalf of Sales Associate, and in Sales Associate s name, and in such event Sales Associate will render every practical assistance, and be responsible for the costs of such efforts. Territory. I understand and acknowledge that the rights of Independent Sales Associate under this Agreement do not constitute a franchise; that there is no exclusive territory granted, and that each ph Miracle Independent Sales Associate has the right to sell ph Miracle products, good and services, events and opportunities, and recruit other Independent Sales Representatives anywhere in the United States..

5 16390 Dia del Sol, Valley Center, CA, Page 5 of 9 Sales / Representation of competitive Companies and Organizations. It is specifically understood and agreed between the parties that Independent Sales Associates may not represent other company or entities in the same or similar business as ph Miracle, and doing so, without the express written consent of ph Miracle shall be cause for termination of this Agreement, with or without damages. Sales Associate will not, under any circumstances, show test data, video comparisons, Audio clips or charts of any kind comparing ph Miracle products, goods and services to competing brands, unless ph Miracle is shown as equal or superior. If Sales Associate cannot show ph Miracle products, goods and services as equal or superior to competing products, ph Miracle's name or logos shall not be shown or mentioned in any way. Payment Policy. All earned Commission, or bonuses, shall be paid on a monthly basis, with checks mailed no later than the 15th day of each month. Commissions. It is understood and agreed that Sales Associate will be promoting and selling a wide variety of products, goods and services of ph Miracle, including staging a variety of events and promoting seminars, etc.. Some of these representations will have set commission structures, and others will be negotiated on a case by case basis. Therefore, the parties have agreed to make the attached "Schedule A", an expandable, Collective Attachment, which will grow by the addition of a separate numbered Attachment for each new undertaking (event, seminar, etc.), each properly signed by the parties and referencing this Independent Sales Associate Agreement, and each made a part of this Agreement by reference, as if fully set forth herein. Term. This Agreement shall have a term of Five (5) years, and thereafter shall continue from year to year unless and until either party shall give the other at least Thirty (30) days advance notice of intent to terminate this Agreement on any subsequent anniversary date thereof. Competitive Recruiting. Following the voluntary or involuntary termination, or expiration, of this Independent Sales Associate Agreement, and for twelve (12) months thereafter, I will not recruit, or attempt to recruit, or facilitate recruitment of any ph Miracle Sales Associate, Representative or employee. Additionally I will not attempt any contact with any of ph Miracle's Suppliers or Manufacturers of which I may gain knowledge. Confidential and Proprietary Information. I understand that all reports and marketing literature/ material and proprietary data base information, provided to me by ph Miracle are confidential, copyrighted and/or constitute proprietary information and business trade secrets belonging exclusively to ph Miracle, unless obtained from independent outside sources, or from information in the public domain.

6 16390 Dia del Sol, Valley Center, CA, Page 6 of 9 Non-Disclosure. I agree not to disclose the confidential and proprietary information of ph Miracle, whether directly or indirectly, or whether explicitly or implicitly. I strictly agree not to use or allow others to use, any confidential and proprietary information of ph Miracle in any way and for any purpose other than to promote and further my business and association with ph Miracle. Status for Purposes of Tax and Employment Laws. BECAUSE I AM AN INDEPENDENT SALES REPRESENTATIVE / SALES ASSOCIATE, I UNDERSTAND THAT I WILL NOT BE TREATED AS AN EMPLOYEE FOR FEDERAL OR STATE TAX PURPOSES, NOR FOR PURPOSES OF ANY OTHER APPLICABLE LAWS, including, without limitation, the Social Security Act, the Federal Unemployment Act, the Federal Insurance Contributions Act, any state industrial insurance act and/or federal employment law. Accordingly, as an independent sales associate / representative and operator of my own business, I will be responsible for the payments of my own taxes including federal and state income or business taxes, selfemployment taxes, and any other taxes relating to or arising from operation of my business or from commissions paid on sales ph Miracle products, goods or services. ph Miracle may issue me a Form 1099 at the end of each calendar year, provided my compensation meets the minimum amount established by IRS Regulations and the policy ph Miracle establishes regarding taxes. Warranties I understand that ph Miracle makes no claims or warranties of any kind other than those specifically set forth by the manufacturers of the products, goods or services being sold. I agree not to make any claims or warranty assertions regarding ph Miracle products, goods, service or events or business opportunities. Trade Practices. I also understand and agree that I will be responsible for complying with any and all laws and regulations relating to the operation of my business, and I agree not to engage in any deceptive or unlawful trade practice, as defined by federal state or local law. I further agree not to do or communicate anything, which would damage ph Miracle, unless compelled by law or subpoena. Resignation. I may resign and cancel my Sales Representative / Sales Associate status at any time, and for any reason upon written notice to ph Miracle. I understand that even upon resignation, I am obligated to abide by all terms and conditions of this agreement, which provisions will survive any such resignation. Termination and Suspension. I understand that my violation of any provision of this Sales Agreement or Compensation plan of ph Miracle, as amended from time to time, may result in remedial action by ph Miracle at its discretion, up to and including the termination of this Sales Agreement and my status as a independent ph Miracle Representative / Sales Associate, which will result in the loss of all rights and privileges to participate in the ph Miracle business

7 16390 Dia del Sol, Valley Center, CA, Page 7 of 9 opportunity, including the ability to sell or promote its products, goods and services. Notwithstanding anything herein contained to the contrary, ph Miracle may terminate this Independent Sales Associate Agreement at any time, with or without cause. Mediation. Any disputes between the parties, which the parties cannot resolve between themselves shall first be submitted to informal mediation, with a party or parties mutually agreeable. Such mediation shall continue until a resolution is reached, or for a period of Thirty (30) days whichever shall be the shorter period. Arbitration. Any disputes between the parties, which shall not be resolved through mediation as set forth herein, shall be submitted exclusively to binding Arbitration, under the Commercial Rules of the American Arbitration Association. Choice of Law and Venue. This Independent Sales Associate Agreement shall be governed by the laws of the State of California. All mediations, and /or Arbitrations initiated hereunder, shall be held exclusively in San Diego County, California and in the City of Valley Center. If it should be necessary to establish venue and/or jurisdiction for any cause not contemplated hereunder, such venue and jurisdiction shall lie exclusively in the State of California, except that any claims cognizable only in federal court venue shall lie in the U.S. District Court for the Southern District of California. Notices. Any notices or delivery required, or permitted, under this Agreement will be deemed completed when hand delivered, delivered by agent, or seven (7) days after being placed in the U. S. Mail, postage prepaid, properly addressed to the parties at the addresses set forth below, or as the parties may later designate from time to time in writing. If to "ph Miracle": If to "Sale Associate": Attn: Legal Office ph Miracle, Inc Dia del Sol Valley Center, CA Amendments. I understand that ph Miracle reserves the right to amend the Terms and Conditions and Compensation Plan set forth in this Agreement at its sole discretion, and at any time. Amendments will be published and provided to all Independent Sales Representatives / Sales Associates. The changes will become effective within fifteen (15) days after the first notification and publication, unless specified otherwise. I understand that voluntarily remaining a Sale Representative / Sales Associate, or accepting any discounts or commissions for new sales

8 16390 Dia del Sol, Valley Center, CA, Page 8 of 9 or purchases following such publication and notice constitute my acceptance of any and all such changes or amendments. Entire Agreement. I acknowledge the Terms and Conditions and Compensation Plan as amended from time to time, constitute the entire Sales Agreement between ph Miracle, and Sales Representative / Sales Associate., and that no promises, representations or agreements of any kind between ph Miracle and Sales Representative / Sales Associate shall be binding upon the parties, unless in writing and signed by an authorized representative of ph Miracle, and agent of Sales Representative / Sales Associate. If any portion of this Independent Sales Associate Agreement is found to be unenforceable or invalid, all other provisions shall survive such determination, and shall remain valid and enforceable. All powers, rights, and remedies given to ph Miracle. are cumulative, not exclusive, and are in addition to any other rights and remedies provided by law, or equity. The waiver by ph Miracle at any time of any of its rights under this Independent Sales Associate Agreement shall not be deemed a continuing waiver and shall not preclude the subsequent enforcement of any such right or any other right. All Headings in this Sales Agreement are for convenience of the parties and are for reference only and shall not be considered in determining the legal effect of any provision. IN WITNESS WHEREOF, the parties have executed this Independent Sales Associate Agreement at Valley Center, California, on the day and year first above written. Print Sales Associate Name E mail address Phone Address City State Zip Code Type of current business if any Signature of Sales Associate Title (Additional Signature Next Page)

9 16390 Dia del Sol, Valley Center, CA, Page 9 of 9 ph_miracle, Inc. john.baird@phmiraclelivng.com (760) Print ph Miracle Name E mail address Phone Address City State Zip Code Signature: ph Miracle, Inc. Title