Consultant Agreement Terms and Conditions The Consultant Agreement.

Transcription

1 Consultant Agreement Terms and Conditions These are the Terms and Conditions you agree to when submitting a consultant application. Please note that the Terms and Conditions are subject to revision. 1. The Consultant Agreement. a. Individual of Legal Age. I am an individual of at least 18 years of age. b. Application. I understand that by submitting a consultant application to Close To My Heart, Inc. (a Utah (USA) company) ( Close To My Heart ), I am requesting approval from Close To My Heart to be a Close To My Heart Independent Consultant ( CTMH Consultant ). I understand that I am only able to be a CTMH Consultant if Close To My Heart accepts my application. If my consultant application is not accepted, Close To My Heart will send me written notice within 30 days of receiving my consultant application, and may decline to accept my application within 30 days of receiving my consultant application even if Close To My Heart has fulfilled orders submitted by me including my order for the Consultant Kit. c. Consultant Kit. I understand that my consultant application must be accompanied by an order for the Consultant Kit ( Kit ). I understand I may not submit additional consultant applications or Kit orders as long as I remain an active Consultant. I understand that no fees other than the Kit fee are required for me to be a Consultant. d. Right to Cancel. I understand I have 30 days from delivery of my Kit to cancel my application and return the Kit for a refund on any unused items, with return shipping at my expense. This right is in addition to (but not in substitution of) any right to cancel provided by law. As a Consultant selling to customers, I agree to comply with both the Australian Consumer Law which provides for a buyer s right to cancel within a 10-business-day cooling-off period for unsolicited consumer agreements and Close To My Heart s policy on cancellation of customer orders. e. Consultant Agreement. I understand that I am entering into a Consultant Agreement, and will be obligated to comply with these Terms and Conditions, the policies and procedures that apply to CTMH Consultants (the Policies ), and the compensation plan, as amended from time to time, which together constitute the Consultant Agreement, and that in return, Close To My Heart will allow me to be a CTMH Consultant and will pay me any commissions I earn under the compensation plan. I agree to read the policies and procedures and the compensation plan found in the Consultant Manual, available online, within one week of submitting my consultant application, and to review them from time to time thereafter. I acknowledge that the Terms and Conditions, the policies and procedures, and the compensation plan constitute the entire Consultant Agreement between Close To My Heart and me, and that no promises, representations, or agreements of any kind between Close To My Heart and me will be binding on Close To My Heart unless recorded in writing and signed by an officer of Close To My Heart. f. Amendments. I understand that Close To My Heart may amend the Terms and Conditions, policies and procedures, and compensation plan at its sole and exclusive discretion. I acknowledge that amendments will be published on the official Close To My Heart website for Australia ( in communications or in any other reasonable written notice to CTMH Consultants, and become effective 30 days after first publication, unless specified otherwise. I understand that voluntarily remaining a CTMH Consultant or accepting any commissions after the effective date of any amendments following publication constitutes my acceptance of any and all changes or amendments. g. Cancellation of the Consultant Agreement. i. Resignation. I may resign and cancel my Consultant Agreement at any time, for any reason, upon written notice to Close To My Heart.

2 ii. iii. iv. Termination and Remedial Action. I understand and acknowledge that my violation of any provision of the Consultant Agreement, abuse of the compensation plan, false representations, taking an adverse position relative to Close To My Heart, or any violation of the law or of others legal rights may result in remedial action by Close To My Heart, at its discretion, up to and including the termination of my Consultant Agreement, with immediate effect. Loss of Rights under the Consultant Agreement. I understand that if my Consultant Agreement is cancelled through resignation or termination I will lose all contractual rights related to the Consultant Agreement including but not limited to being able to act as a CTMH Consultant, the ability to sell, market, or promote Close To My Heart products, to have a downline organisation, or to receive commissions or benefits of any kind, whether derived from my own sales or those of my former downline organisation. Waiting Period. I understand that a Consultant who resigns or whose Consultant Agreement is terminated (including for failure to meet the quarterly sales requirement) will be required to wait for a period of time after the cancellation date before submitting a new consultant application, as specified in the Policies, and will be required to purchase a new Kit, and that Close To My Heart reserves the right to deny any new consultant application received from a previously terminated Consultant. h. Roll-Up of Downline. I understand that the following situations will result in the roll-up of my downline organisation to my qualifying upline Consultant: cancellation of my Consultant Agreement through resignation or termination; failure to meet minimum sales requirements as specified in the compensation plan or Policies; or voluntarily releasing my downline organisation. I further understand that in the event my downline organisation is rolled up, I will permanently lose all rights in the downline organisation, including the right to receive any commissions or other benefits derived from or associated with my former downline organisation, and that I will receive any earned commissions or credits up through the month prior to when the roll-up takes place, and further, that once a roll-up has taken place it cannot be undone. I also understand that Consultants cannot choose which Consultant they will be rolled up to and that a downline Consultant can only be rolled up to their second upline Consultant. The exception is that if a Consultant is rolled up to the Home Office, unless that Consultant holds the title of Director or above the Consultant can choose a new Upline to whom they would like to be assigned. Directors rolled up to the Home Office will remain direct Downline of the Home Office. I further understand that if a Consultant requests to change upline Consultants, the existing upline Consultant will be contacted first to obtain permission to make the change and that if the upline Consultant chooses to not release the downline Consultant, no roll-up can occur. i. The Close To My Heart Affiliated Companies. Close To My Heart is based in Pleasant Grove, Utah, USA, and is the parent company of Close To My Heart Australasia Pty Ltd ( CTMH Australasia ), and is an affiliate company of CTMH Co., the holder of worldwide intellectual property rights. Each of these companies has a separate identity and existence, though they are interdependent. In relation to the Australian market, Close To My Heart is the supplier of Close To My Heartbrand products and is the direct-selling company with which the CTMH Consultant has a contract. All payments to CTMH Consultants, including override bonuses and downline commissions, are paid by Close To My Heart. CTMH Australasia assists Close To My Heart by providing some of the events, training, and Consultant support services to CTMH Consultants in Australia. Operating from the United States, Close To My Heart sells its products to CTMH Consultants and Australian consumers and provides services to CTMH Consultants.

3 2. Independent Contractor Relationship. a. Personal Distribution Agreement. i. Buy and Resell. I acknowledge that the Consultant Agreement affords me, personally, the opportunity to buy and resell Close To My Heart products, and that accordingly, my rights and obligations under the Consultant Agreement are non-transferable and non-assignable. ii. No Property Rights. I acknowledge that I will not have any property rights in my Close To My iii. Heart downline organisation or customer base. No Order Effective Until Accepted. I understand that no order is effective or binding on Close To My Heart until accepted by Close To My Heart at its corporate office. b. Independent Contractor Status. I understand that as a CTMH Consultant I will be an independent contractor to Close To My Heart, and not an employee, franchisee, agent, partner, or joint venturer of Close To My Heart, even if I provide any services, information, or materials to Close To My Heart that are outside the scope of my status as a CTMH Consultant. I will not represent that I have any relationship with Close To My Heart other than that of an independent contractor. I understand that I am not authorised to, and agree that I will not incur any debt, expense, or obligation for or on behalf of Close To My Heart. I understand that as an independent contractor, I will be responsible for establishing my own goals and business activities, determining the prices at which I resell Close To My Heart products (subject to policies on public advertising and websites), and that I will have complete control over the operation of my business, subject only to compliance with the Consultant Agreement, including the Policies. I acknowledge that I am responsible for determining the hours I work, and that I am responsible for my own insurance, taxes, and any superannuation fund or arrangement I may choose to participate in. I understand that because I am an independent contractor, I will not be treated as an employee for any purpose, including for workers' compensation or for any federal or state/territorial employment law or tax law. 3. Legal Conduct. a. Compliance with Law. I understand and agree that I am responsible for complying with all laws or regulations relating to the operation of my CTMH Consultant business, including obtaining all licences, filing all reports, and paying all fees and taxes required by law or public authority for my Close To My Heart business. I also understand that if my conduct outside the operation of my CTMH Consultant business violates the law or others legal rights it may affect whether Close To My Heart wishes to continue doing business with me and may result in termination or suspension of my Consultant Agreement. b. Warranties and Business Practices. I understand that Close To My Heart makes no claims or warranties of any kind other than those specifically set forth in official Close To My Heart literature concerning Close To My Heart products, the CTMH Consultant business opportunity, or compensation. (I understand this clause is not intended to exclude the statutory guarantees in the Australian Consumer Law.) I agree not to make any claims or warranties regarding Close To My Heart products or the CTMH Consultant business opportunity, including compensation or potential earnings, other than what is expressly set forth in official Close To My Heart literature. I agree not to engage in any deceptive or unlawful trade practice, as defined by federal, state/territorial, or local law. I agree to safeguard all customer payments, place all orders in a timely fashion, and ensure delivery of all orders in my control. c. The DSAA Code of Practice. I agree to comply with the Code of Practice of the Direct Selling Association of Australia. 4. Sales. a. Territory. I understand and acknowledge that the rights granted under the Consultant Agreement do not constitute a franchise, that there is no exclusive territory granted, and that

4 each CTMH Consultant has the right to sell Close To My Heart products to, and enrol as new CTMH Consultants, individuals residing anywhere in (but not outside) Australia. I acknowledge that I must reside in Australia to be a CTMH Consultant and that my Consultant Agreement may be terminated or suspended if I live outside Australia. b. Authorised Sales Channels. I understand that Close To My Heart s only authorised channels through which product purchases can be made by customers are Close To My Heart Independent Consultants and websites authorised by Close To My Heart. c. Retail Stores. I agree not to sell Close To My Heart products as inventory in a retail store, except as may be allowed by Close To My Heart policy. d. Retail Online Selling. I understand and acknowledge that selling current Close To My Heart products (as defined in the Policies) through dedicated retail e-commerce sites (as defined in the Policies) is not allowed and is cause for remedial action, including termination. e. Third-Party Sellers. I understand that I may not sell Close To My Heart products to anyone who intends to resell those products on the retail market or through unauthorised channels, and that I am not permitted to act as a wholesaler or supplier to third parties intending to resell Close To My Heart products in unauthorised ways. 5. Competitive Restrictions. a. Competitive Selling. During the term of the Consultant Agreement I will not sell or attempt to sell or market any non-close To My Heart stamps, designed paper products, or memory-keeping or similar products or services, or the products or services of Stampin Up! (including Apostrophe S), Heritage Makers (including Our Memories for Life), Kaszazz (or a related business), or Creative Memories (CM). (To market includes participating in a multi-level marketing program even if only as a preferred customer or the like if one has a contractual right to sell competitive products or earn commissions from downline participants in a competitive multi-level marketing program even if no actual selling or downline building is engaged in.) I understand I may not in any way confuse or mislead a prospective or existing customer or CTMH Consultant into believing there is a relationship between Close To My Heart and any non-close To My Heart products or services. b. Competitive Business Interests. During the term of my Consultant Agreement, I will not, in relation to a business engaged in the creation or distribution of decorative stamps, scrapbooks or any other goods or services similar to those provided by Close To My Heart, directly or indirectly be an owner, founder, investor or upper-level management employee, or assist in or contribute to product design and development or sales and marketing without written permission of Close To My Heart, and subject to any exceptions as defined in the Policies. c. Competitive Recruiting. During the term of my Consultant Agreement, I will not recruit any CTMH Consultants for any other direct-selling business within Australia. For six months after the voluntary or involuntary cancellation of my Consultant Agreement I will not recruit or attempt or facilitate recruitment of any CTMH Consultant or former CTMH Consultant for another directselling business within Australia if: 1) that individual was ever in my downline organisation, or 2) I met, developed a relationship with, or gained knowledge of the individual by virtue of our mutual participation as CTMH Consultants. d. Spouses and Partners. I understand and acknowledge that a spouse or partner of a CTMH Consultant cannot be engaged in activities which are competitive with Close To My Heart as defined herein. I understand that if a CTMH Consultant s spouse or partner remains engaged in competitive activity as defined herein, the CTMH Consultant will be subject to the same remedial action, up to and including termination of the Consultant Agreement, as if the CTMH Consultant were engaged in such activity.

5 6. Confidentiality. a. Confidential and Proprietary Information. I understand that all commission reports, downline activity reports, and other reports, lists, and data compilations provided by Close To My Heart including, but not limited to, online or printed data compilations showing any part of the Close To My Heart distributor organisation or specific sales data (collectively CTMH Reports ) are confidential and constitute proprietary information and business trade secrets belonging exclusively to Close To My Heart. I understand Close To My Heart and CTMH Australasia own additional legally-protected trade secrets and confidential and proprietary information. b. Non-disclosure. I agree not to disclose the confidential and proprietary information of Close To My Heart or CTMH Australasia. I agree that my non-disclosure obligation will continue beyond the duration of my Consultant Agreement for as long as any such information remains confidential. I understand I may show CTMH Reports to appropriate professional advisors such as my personal accountant for legitimate and necessary purposes under a duty of confidentiality. I strictly agree not to use, or allow others to use, CTMH Reports or any other confidential and proprietary information of Close To My Heart or CTMH Australasia in any way and for any purpose other than to promote and further my CTMH Consultant business. I acknowledge that my agreement not to disclose or improperly use the confidential and proprietary information of Close To My Heart is an essential condition for being permitted to be a CTMH Consultant and for being provided with any CTMH Reports or other confidential and proprietary information. Upon cancellation of my Consultant Agreement, I will return or destroy the original and all copies of any CTMH Reports, lists, or other documents containing confidential and proprietary information of Close To My Heart, or delete electronic copies thereof. c. Privacy. i. I agree to the terms of the Close To My Heart Privacy Policy (accessible through a link at the bottom of I agree not to sell, publish, or divulge to any third party (except secure payment card processing providers and Close To My Heart or CTMH Australasia pursuant to the Privacy Policy) any personal information provided by any actual or prospective customer, Consultant, or hostess, and further agree to use such information only in my CTMH Consultant business in a manner consistent with the Privacy Policy, all other Close To My Heart policies and terms and conditions, and the Privacy Act, including the Australian Privacy Principles. ii. I acknowledge that Close To My Heart collects personal information and business information about me for the purposes of: deciding whether to enter into this Agreement; monitoring, evaluating, and otherwise administering my consultancy with Close To My Heart; direct marketing and recognition activities; and planning, product development and research, and seeking feedback on the products and services of Close To My Heart. iii. I understand that if I do not provide Close to My Heart with certain personal information, Close to My Heart will be unable to process my Consultant Application or provide me with the products and services that I have requested. iv. I agree that Close To My Heart may: exchange personal information and business information about me with my sponsor and any person in my sponsor's Upline; give my name and telephone number to a customer or potential customer in response to a request for a CTMH Consultant in their area unless I exercise opt-out from the Consultant locator service; exchange personal information and business information about me with CTMH Australasia; disclose personal information and business information about me to other CTMH Consultants including those residing in New Zealand, the United States, and Canada for the purpose of recognising sales and other achievements (for example, in newsletters and online publications, or at Conventions, meetings of Consultants, or rewards

6 presentations); and use or disclose my personal information and business information in any other way contemplated in the Consultant Manual. v. I acknowledge that Close To My Heart may also disclose information: to organisations (some of which may be located in the United States, Canada, or New Zealand) that provide services on its behalf (for example, shippers, distribution services, IT providers); if the disclosure is required or authorised by law; or if I otherwise consent to the disclosure. vi. Australian Privacy Principle (APP) 8.1 requires Close To My Heart, before it discloses personal information to an overseas recipient, to take such steps as are reasonable in the circumstances to ensure that the overseas recipient does not breach the APPs. However, I acknowledge that if I consent to Close To My Heart s disclosure of my personal information to overseas recipients, APP8.1 will not apply to that disclosure so that, if an overseas recipient handles my personal information in a manner which breaches the APPs, Close To My Heart will not be accountable under the Privacy Act for the breach, nor will I be able to seek redress under the Privacy Act. I understand that the recipient may not be subject to laws or principles which are similar to the APPs. By providing my personal information on this Application, I consent to Close To My Heart s disclosure of my personal information to overseas recipients for the purposes set out in subsection 6.c. vii. I understand that I can request access and/or seek the correction of most personal information and business information that Close To My Heart holds about me by contacting Consultant Services or the privacy contact given in the Privacy Policy (to whom I can also make a complaint regarding my privacy). Sometimes that access will not be possible, in which case I will be told why. I understand that Close To My Heart s Privacy Policy contains more information about these matters. viii. I undertake that if there is any change in my personal details, or I find that information Close To My Heart holds about me is incorrect, I will promptly inform Close To My Heart. 7. Intellectual Property. a. Intellectual Property Ownership. I acknowledge that all copyrights, trade marks, and other intellectual property rights associated with Close To My Heart designs, products, services, official literature, and all print and electronic publications are and will remain the property of Close To My Heart and/or CTMH Co., and are protected under applicable laws. I understand that Close To My Heart and CTMH Co. copyrighted materials and trade marks are to be used only as expressly permitted by Close To My Heart, and that any permission to use copyrighted materials and trade marks is immediately terminable at will by Close To My Heart or CTMH Co., and will terminate upon cancellation of my Consultant Agreement. I agree to strictly comply with all applicable Close To My Heart policies and guidelines governing copyrighted material, trade marks, and other intellectual property. b. Copyrighted Designs and Limited Licence. I acknowledge that the copyright rights in designs, art, and creative content contained in Close To My Heart products and Close To My Heart materials is held by CTMH Co. (whether or not a copyright notice appears in connection with the design). I understand that I have the right to reproduce a Close To My Heart stamp design only by hand stamping with a Close To My Heart stamp and only for non-commercial uses, except as expressly allowed by Close To My Heart policy, and that electronic or mechanical reproduction (such as computer scanning or photocopying) is prohibited. Close To My Heart grants limited permission (a licence) to purchasers of Close To My Heart stamps to create hand-stamped artwork for sale in accordance with its Angel Policy. c. The Close To My Heart Business Name. I acknowledge that the Close To My Heart business name is the property of Close To My Heart and is associated with its reputation and business goodwill. I understand that the names Close To My Heart and CTMH may be used only with

7 permission, and that Consultants have permission to use the Close To My Heart name when identifying themselves as Close To My Heart Consultants, when selling Close To My Heart products, and generally when they are talking about their business. I agree to comply with the policies that define how, where, and when Consultants are permitted to use the Close To My Heart business name. d. Submissions. I agree that if I submit any artwork or written material to Close To My Heart, it will be my own work. I further agree that my artwork or written material submitted to Close To My Heart will become the exclusive property of Close To My Heart, and that I will and hereby do assign all rights in such artwork or written material to Close To My Heart. I understand and agree that I will not be compensated for any submissions or contributions except as specifically set forth in writing by Close To My Heart. I will only submit photographs in compliance with the Photography Submission Policy. I understand that Close To My Heart may use and modify any submissions in any manner deemed appropriate, without reference or attribution, and I consent to any such use. 8. General Provisions. a. Choice of Law and Venue. I agree that the laws of the state of New South Wales govern the Consultant Agreement and that if I were to initiate a claim against Close To My Heart or Close To My Heart Australasia, the venue would be exclusively in the state or federal courts located in the state of New South Wales. b. Indemnification. I agree to indemnify Close To My Heart, Close To My Heart Australasia and their officers, employees, and affiliates against any liability, claims, losses, or costs which arise from or are in any way related to my performance under the Consultant Agreement, or any negligence or wilful misconduct on my part. I acknowledge that as an independent contractor, I will be responsible for my own CTMH Consultant business and for any liability or loss of whatever kind that may be incurred in connection with it. c. Limitation of Liability Related to Events and Trips. I acknowledge and agree that Close To My Heart and/or Close To My Heart Australasia and their officers and employees will not be responsible or liable for personal injury, death, or damage to or loss of property sustained at or in connection with company events or trips where neither Close To My Heart nor Close To My Heart Australasia exclusively controls the conditions or facilities of the event or trip which may involve hazards and risks that neither Close To My Heart nor Close To My Heart Australasia is in any position to protect against or to mitigate. d. Survival of Obligations. I agree that any obligations and duties which by their nature extend beyond the expiration or termination of my Consultant Agreement contract will survive the expiration or termination of my Consultant Agreement. e. Miscellaneous. If any portion of the Consultant Agreement is found to be unenforceable or invalid, the Agreement will be ineffective only to the extent found unenforceable or invalid, and all other provisions will remain valid and enforceable. All powers, rights, and remedies given to Close To My Heart are cumulative, not exclusive, and are in addition to any other rights and remedies provided by law. The waiver by Close To My Heart at any time of any of its rights under the Consultant Agreement will not be deemed a continuing waiver and will not preclude the subsequent enforcement of any such right or any other right. CTMH Co. 5/2016