Wine Decadence Consulting Agreement

Transcription

1 Wine Decadence Consulting Agreement THIS CONSULTING AGREEMENT (this Agreement ) is made and entered into as of this day of 20, by and between the undersigned consultant (hereinafter the Consultant ) and Wine Decadence, LLC, a limited liability company (hereinafter Company ) WITNESSETH: WHEREAS, Company is engaged in the business of direct selling wine and wine related products (hereinafter called Products ); and WHEREAS, the parties desire that Consultant provide certain sales and consulting services to the Company as an independent contractor in accordance with the terms and conditions set forth herein; NOW, THEREFORE, for and in consideration of mutual promises herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, both parties agree and covenant as follows: 1. Services. a) The Company hereby engages Consultant, and Consultant hereby accepts such engagement as an independent contractor to sell the Products at tasting events in homes and other appropriate venues and to recruit other persons to become consultants for the Company (the Services ). Consultant may sell the Products only to consumers. Consultants may not sell Products to third parties for resale, to or through any business entity or to any type of retail establishment. Additionally, Consultant may not make any international sales, or export shipments of Products, nor may they knowingly sell products to other individuals who intend to export these materials without prior written authorization from a senior officer of the Company. If the Consultant has an international customer who orders products for export through the Company s website, that order will be filled only if the order includes the Consultant s Company identification number. b) Consultant s Services shall be performed in a competent and professional manner and consistent with Company procedures as set forth in the Policies & Procedures for Wine Consultants (Attached as Exhibit A ) and such other written directions as the Company may provide from time to time. The Company may amend the Policies & Procedures for Wine Consultants, and as amended, shall replace Exhibit A upon written notification by the Company. c) This engagement is not exclusive, and nothing in this Agreement shall be construed to preclude Consultant from performing services and duties for others, provided it is not in conflict with the provisions of this Agreement or with any of Consultant s other legal obligations as an independent contractor for the Company. Nothing in this Agreement shall be construed to preclude the Company from soliciting or engaging others to perform similar duties and services. d) The Consultant is referred to in this Agreement as the First Level Consultant. Any person who certifies that they were endorsed and recruited to the Company by the Consultant pursuant to Section 14 of the Agreement shall be referred to in this Agreement as a Second Level Consultant, and any person who certifies that they were endorsed and recruited to the Company by a Second Level Consultant pursuant to Section 14 of the Agreement shall be referred to in this Agreement as a Third Level Consultant. e) The Company shall set the price of all Products and Consultant may not alter the price without the Company s prior written consent. f) Consultant shall pay the standard Consultant Fee set forth in Exhibit A upon execution of this Agreement. The

2 Page 2 of 7 fee will cover the provision of a Wine Decadence Consultant Initiation Set, along with business cards, required Company forms, publications, technology, and a small initial supply of wine. g) Consultant shall obtain the written consent from a Company officer prior to using Company s trademarks or trade name in any advertising (including but not limited to the Internet) or literature other than Company published material or as listed in the Policies & Procedures for Wine Consultants. Consultant understands that the display of Products in or to a public, retail or service establishment of any kind that is not in accordance with the Company s Policies & Procedures for Wine Consultants is prohibited. h) Consultant shall submit a weekly sales report listing all pending sales as accounts receivables, and all sales in which the proceeds have been received for the Products shall be listed as amounts collected. Each weekly sales report shall be due on or before seven (7) days following the last day of the weekly sales report (Friday). i) Consultant shall be responsible for collecting payment of Products in the form of cash, check, by credit card. All collections must be provided to the Company s office the following business day for the order to be completed. 2. Term. The term of this Agreement shall commence as of the date provided above and may be terminated in accordance with the provisions of Section 4 of this Agreement. 3. Compensation. a) Consultant shall be compensated for providing the Services in the amount of twenty-five percent (25%) of the Consultant s Products sales. b) In addition, Consultant shall be compensated for providing the Services in the amount of five percent (5%) of the Second Level Consultant s Products sales and of Third Level Consultant s Products sales. c) The Company may, at its discretion, provide additional incentives for the Services. It is understood that the payments of incentives does not create the right to future incentive payments. d) Compensation shall be paid to Consultant four weeks following Company s receipt of sales amounts. e) Consultant shall not receive any compensation for Products sales, including Product sales of Second Level Consultants and Third Level Consultants, for: i. amounts received after the effective date of Termination of this Agreement established in accordance with the provisions of Section 4 of this Agreement. ii. monthly sales periods wherein Consultant personally generates, from all sources, aggregate revenue to the Company of less than $200. f) Consultant shall be responsible for paying all ordinary and incidental business expenses incurred in carrying out Consultant s duties and shall provide all appropriate automobile, liability and business insurance. g) As an independent contractor and not an employee, Consultant acknowledges, understands and agrees that the Company is not required to withhold federal or state income taxes from any compensation paid to Consultant hereunder, or to otherwise comply with any state or federal law concerning the collection of income taxes at the source of payment of wages and that the Company is not required under the Federal Unemployment Tax Act or the Federal Insurance Contribution Act to withhold taxes for unemployment compensation or for social security on behalf of Consultant, and the Company is not required to obtain workers compensation insurance or to make state unemployment tax contributions on behalf of Consultant. Consultant expressly releases the Company from any liability arising from its failure to withhold such taxes, to provide such unemployment compensation, social security benefits, and workers compensation insurance,

3 Page 3 of 7 and Consultant shall indemnify and hold the Company harmless from all liability it may incur as a result of any such failure. Consultant assumes full responsibility for the payment of all federal, state and local taxes, including contributions imposed or required, under unemployment insurance, social security and income tax laws with respect to Consultant s performance under this Agreement, and Consultant shall comply with all workers compensation laws. h) Company retains the right to amend any of the terms in this Section at its sole discretion, including but not limited to the Compensation terms. In the event of a change in terms, the Company will provide written notice to the Consultant ten (10) days prior to the change becoming effective. 4. Termination of Agreement. a) The Company may immediately terminate this Agreement at any time for Cause, as used herein, shall mean the determination by the Company that: I. Consultant has engaged in conduct amounting to fraud, misrepresentation, dishonesty, negligence, criminal acts or conduct, or willful or reckless misconduct: II. Consultant has demonstrated inattention to, or failure to properly and adequately perform, the Services, such performance to be judged in the Company s sole and exclusive discretion, or III. Consultant has engaged in any act or activity prohibited under the terms of this Agreement or engaged in acts which are detrimental to the Company and its business reputation. IV. Notwithstanding anything else herein, this Agreement may be terminated by either party at any time, without cause or reason, and without any obligation after the date of termination, by giving thirty (30) days advance written notice to the other party. b) Upon the termination of this Agreement, for whatever reason, Consultant shall not at any time represent Consultant to still be connected with, affiliated with, or to have any connection or relationship with the Company or any of its parents, subsidiaries or affiliates. c) Sections 6, 7, 8, 9, 10, 12, 13, 14 of the Agreement shall survive the termination of the Agreement. 5. Notice. Any notice, schedule or other document or communication permitted or required to be given to Consultant pursuant to the terms hereof shall be deemed given if in writing and personally delivered or sent to Consultant, postage prepaid, by registered or certified mail, or delivered by overnight delivery service addressed in each case, to Consultant at. Any notice required or permitted to be given to the Company shall be deemed given if in writing and personally delivered to an officer of the Company or sent to it, postage prepaid, by registered or certified mail or delivered (and receipted for) by overnight delivery service addressed in each case to the Company at 601 Riverside Ave, Jacksonville, FL Either party may change its address for receiving notice by notifying the other party in the above-stated manner. 6. Non-Disclosure. a) Trade Secrets. Consultant agrees not to use, disclose or exploit any Trade Secret of the Company at any time except as necessary to perform the Services. Trade secret(s) means information, without regard to form, including, but not limited to, technical or non-technical data, a formula, a pattern, a compilation, a program, a device, a method, a technique, a drawing, a process, financial data, financial plans, product plans, or a list of actual or potential customers or suppliers which is not commonly known by or available to the public and which information: I.derives economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and

4 Page 4 of 7 II.is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. b) Confidential Information. While engaged by the Company as a Consultant, Consultant will not use or disclose Confidential Information of the Company except to the extent necessary to perform the Services. Following the termination of this Agreement, Consultant agrees not to use, disclose or exploit, for any reason, any Confidential Information of the Company. Confidential information means data and information relating to the business of the Company (which may not rise to the level of a trade secret under applicable law) which is or has been disclosed to Consultant or of which Consultant became aware as a consequence of or through Consultant s relationship with the Company and which has value to the Company and is not generally known to the public or to the Company s competitors. Confidential information shall not include any data or information that has been voluntarily disclosed to the public by the Company (except where public disclosure has been made by Consultant without authorization) or that has been independently developed and disclosed by others, or that otherwise enters the public domain through lawful means. c) Notice of Trade Secrets and Confidential Information. Consultant acknowledges that the Company hereby designates Trade Secrets and Confidential Information to include, without limitation, confidential customer and prospective customer lists; information provided to the Company by its customers or clients or prospective customers or clients; customer preferences; client contacts; marketing plans; presentations and strategies; sales data and information; methods of operation and costs data; internal policies and procedures; contracts; personnel information; credit terms; financial information (including without limitation, information regarding fee and pricing structures, assets, status of clients accounts or credit); or any other information designated as a trade secret, confidential or proprietary by the Company. d) Return of Company Property. All Company property, including, but not limited to, Products, equipment, devices, records, correspondence, documents, files, reports, studies, manuals, compilations, drawings, blueprints, sketches, videos, memoranda, computer software and programs, computer data or any other information, including Trade Secrets and Confidential Information as set forth herein, (whether originals, copies or extracts), whether prepared or developed by Consultant or otherwise coming into Consultant s possession, whether maintained by Consultant in the facilities of the Company, at Consultant s home, or at any other location is, and shall remain, the exclusive property of the Company and shall be promptly delivered to the Company, with no copies or reproductions retained by Consultant, in the event of the termination of Consultant s engagement with the Company for any reason, or at any other time or times that the Company may request. 7. Non-Solicitation. For the Term of this Agreement and for a period of twenty four (24) months immediately following Termination of this Agreement for any reason, Consultant shall not, solicit any customer or prospective customer of the Company, or any representative of any customer or prospective customer of the Company, with a view to selling or providing any product, equipment or service competitive with Company s Products, or the Company s business, during the twelve (12) month period immediately preceding Termination of the Agreement, provided that the restrictions set forth in this Section shall apply only to customers and prospective customers of the Company, or representatives of customers and prospective customers of the Company, with whom Consultant had material contact during such twelve (12) month period. Material contact exists between Consultant and each of the Company s existing or potential customers: (i) with whom Consultant dealt on behalf of the Company, such as any communication (either in person, by telephone, or by or other electronic communication) for purposes of accepting or handling customer orders, discussing existing or potential business, or providing technical assistance; (ii) whose dealings with the Company were coordinated or supervised by Consultant; (iii) about whom Consultant obtained confidential information in the ordinary course of business as a result of this Agreement; or (iv) who receives Products by reason of this Agreement, the sale or provision of which results or resulted in compensation for Consultant within two years prior

5 Page 5 of 7 to the date of the termination of this Agreement. 8. Non-Competition. Consultant acknowledges that by reason of the character and nature of the Company s business activities and operations, and further by reason of the scope of the territory in which Consultant performs and will perform their Services, in order to protect the Company s legitimate business interests it is necessary for Consultant to agree not to engage in certain specified activities in such territory at any time during this Agreement and for a period of time thereafter. Therefore, at all times during this Agreement, and for a period of twelve (12) months thereafter, Consultant will not, directly or indirectly, (a) for themselves, (b) as a consultant, manager, supervisor, employee or owner of a Competing Business (as defined below), or (c) as an independent contractor for a Competing Business, engage in any business in which Consultant provides services which are the same as or substantially similar to the sale of Company s Products. Competing Business shall mean any person, business or entity who or which sells, manufactures, markets or distributes products and/or sells, furnishes or provides services substantially the same as the Company s Products during the two year period prior to the termination of my employment with the Company. 9. Relationship. a) It is distinctly understood and agreed that the Consultant is retained and engaged by the Company only for the purposes and to the extent set forth in this Agreement, and his relation to the Company shall be that of an independent contractor in the performance of each and every part of this Agreement. The Consultant shall not be considered by reason of any of the provisions of this Agreement or otherwise as having an employee status or as being entitled to participate in any plans, benefits, arrangements, or distributions by the Company pertaining to or in connection with any employment benefits enjoyed by the Company s regular employees. b) Consultant shall have no authority to bind the Company by any promise or representations, whether written or oral, express or implied, made by him. Consultant shall not have the right to make or enter into any contracts or agreements of any nature whatsoever for or on behalf of the Company, or any corporation of which the Company is the parent, affiliate, or subsidiary. c) Consultant agrees to indemnify and hold the Company harmless from and against any and all loss, cost and damage to the Company arising out of or as a direct or indirect result of: I. any representation or promise made by Consultant, or anyone in his employ or control, in violation of the provisions of subparagraph (a) of this Section; and II. any contract or agreement entered into on behalf of the Company without the approval of the Company. d) The Consultant further agrees to release, indemnify and hold forever harmless the Company from any and all claims for damage to person or property and for any and all liability of any other nature arising out of the gross negligence or willful misconduct on the part of the Consultant in connection with the performance of the Services under this Agreement. 10. Equitable Relief. The parties to this Agreement acknowledge that a breach by Consultant of any of the terms and conditions of this Agreement will result in irrevocable harm to the Company and that the remedies at law for such breach may not adequately compensate the Company for damages suffered. Accordingly, Consultant agrees that in the event of such breach, in addition to and not in limitation of any other rights, remedies or damages available to the Company at law or in equity, the Company shall be entitled to injunctive relief or such other equitable remedy as a court of competent jurisdiction may provide.

6 Page 6 of Governing Law. This Agreement is entered into and in all respects shall be interpreted, construed and governed by and in accordance with the laws of the State of Florida. 12. Severability. Except as noted below, should any part, term or provision of this Agreement be declared or determined by any court of competent jurisdiction to be unenforceable or invalid for any reason, the validity of the remaining parts, terms or provisions of this Agreement shall not be affected thereby and the invalid or unenforceable part, term or provision shall be deemed not to be a part of this Agreement. 13. Arbitration. a) Except for possible equitable relief sought pursuant to Section 11 above, all disputes arising under this Agreement shall be submitted for resolution and settled by arbitration before a neutral arbitrator through arbitration administered by the American Arbitration Association ( AAA ) in Jacksonville, Florida in accordance with the United States Arbitration Act (9 USC, 1 et seq.) and the applicable rules of the American Arbitration Association in effect on the date of initiation of arbitration. All arbitration proceedings shall take place in Jacksonville, Florida Judgment upon the award rendered by the arbitrator may be entered in the courts located in Jacksonville, Florida and shall be final and legally binding. b) The party which intends to initiate an arbitration proceeding shall notify the other party or parties of such intention by written notice, describing the matter in dispute. An arbitrator shall be selected in accordance with applicable AAA rules and procedures. c) The arbitrator shall resolve disputes in accordance with the laws of the State of Florida and shall have the power to order, among other things, specific performance, damages, injunctive relief and provisional relief to enforce the terms of this Agreement. Upon application of any party, the arbitrator may require specific performance of any provision of this Agreement, including the award of emergency, temporary, or preliminary injunctive relief. In the event injunctive reef is sought, the AAA Optional Rules for Emergency Measures of Protection may be invoked. d) The fees of the arbitrator and the expenses incident to the arbitration proceedings shall be borne equally by the parties to such arbitration. All other expenses shall be borne by the party incurring such expenses. We have reviewed and specifically approve of the preceding arbitration provision Consultant Initials Company Representative Initials 14. Endorsement. [To be completed if the Consultant is a referral of another Consultant] I certify that I was endorsed and recruited to enter into this Agreement by. 15. Entire Agreement. This Agreement embodies the entire agreement of the parties hereto relating to the subject matter hereof, except that the parties acknowledge and agree that those provisions of the Separation Agreement which were and are specifically intended to remain in effect shall remain in effect by their stated terms. No amendment or modification of this Agreement shall be valid or binding unless it is made in writing and signed by the parties hereto. 16. Waiver. The waiver by either party of a breach of any provision of this Agreement by the other shall not operate or be construed as a waiver of any subsequent breach of the same or any other provision by the breaching party.

7 Page 7 of Successors and Assignment. The Services shall be performed only by the Consultant. The Consultant may not assign or subcontract to another entity or person any of the Services to be performed hereunder without the express prior written consent of Consultant. Subject to the foregoing provision regarding the assignment of this Agreement, this Agreement shall be binding on the heirs, executors, administrators, successors, and assigns of the parties. 18. Headings. Section headings are included solely for convenience, are not intended as full and accurate descriptions of the contents thereof and are not part of the Agreement. 19. Third Party Beneficiaries. There are no third party beneficiaries to this Agreement. IN WITNESS WHEREOF, Consultant has set his hand and seal, and the Company has caused this Agreement to be duly executed by its duly authorized officer and has caused its corporate seal to be affixed hereto, and the parties have caused this Agreement to be delivered, all on the day and year first above written. COMPANY By: Title: CONSULTANT Date: