This Independent Brand Partner Agreement ("Agreement") sets forth the terms and conditions governing the independent contractor relationship between LumiVitae Inc. ("LUMIVITAE" or "Company"), a company incorporated and existing under the laws of the State of Delaware, and the Independent Brand Partner ("Brand Partner"). LUMIVITAE and Brand Partner are collectively referred to below as the "Parties" and may each be referred to as a "Party."
This Agreement does not create any employer-employee relationship, joint venture, partnership, or agency relationship between the Parties. The Brand Partner shall act solely as an independent contractor in accordance with the terms of this Agreement.
Brand Partner understands that this Independent Brand Partner Agreement is subject to acceptance by LUMIVITAE, in its sole and absolute discretion. LUMIVITAE reserves the right to refuse to accept an Independent Brand Partner Agreement for any reason in its sole discretion and without any obligation to provide justification. Upon acceptance by LUMIVITAE, these terms and conditions, together with the LUMIVITAE Brand Partner Compensation Plan (the "Compensation Plan"), which is incorporated by reference, shall constitute the entire agreement between LUMIVITAE and Brand Partner (the "Agreement"). This Agreement will only become effective and binding on the date it is accepted by LUMIVITAE (the "Effective Date"). The Brand Partner further acknowledges that no verbal or written representations, promises, statements, or agreements outside of this Agreement and the Compensation Plan shall be binding or enforceable against LUMIVITAE.
LUMIVITAE agrees, subject to the terms and conditions of this Agreement: (i) fulfill purchases of Products by Brand Partner or Brand Partner's customers; (ii) provide Brand Partner with a virtual back office to assist Brand Partner's LUMIVITAE business activities; and (iii) provided that Brand Partner is in compliance with all terms of this Agreement, pay commissions and bonuses and other remuneration to Brand Partner based on sales of Products pursuant to the Compensation Plan. LUMIVITAE shall have no obligation to pay any compensation that results from error, manipulation, fraud, policy violation, or sales that are later canceled, refunded, or charged back.
As an Independent Brand Partner for LUMIVITAE, Brand Partner shall have the right to: (i) promote and refer customers to Products in accordance with the Agreement; (ii) enroll others as Independent Brand Partners; and (iii) if qualified, earn bonuses, commissions, and other remuneration pursuant to the Compensation Plan. Brand Partner agrees to market and promote the LumiVitae business, the Products, and the Compensation Plan pursuant to the terms of the Agreement and as set forth in official LUMIVITAE literature. Brand Partner acknowledges and agrees that Brand Partner has no right, interest or contractual relationship with any other Brand Partners including those sponsored or enrolled by Brand Partner or in Brand Partner's downline organization.
To be eligible for enrollment, Brand Partners must be the legal age of majority and a legal resident of the United States or U.S. territories. Brand Partners must provide a valid Social Security Number or Federal Tax ID. Failure to provide this information will result in suspension or termination of the Agreement.
Brand Partner acknowledges and agrees that Brand Partner shall at all times be an independent contractor and not an employee, franchisee, representative, agent, joint venturer or Brand Partner of LUMIVITAE. Brand Partner expressly acknowledges and agrees that the term "Brand Partner" or "Independent Brand Partner" is an anecdotal term used to identify LUMIVITAE independent sales representatives and does not imply or connote that a legal partnership exists between LUMIVITAE and Brand Partner or that Brand Partner is entitled to any rights or benefits other than those of an independent contractor and as set forth in this Agreement. The Parties agree that Brand Partner is not authorized to, and shall not, act on behalf of or obligate LUMIVITAE in any way, legally or financially. At all times Brand Partner must represent themself to others as an independent Brand Partner of LUMIVITAE and shall not make any representations that are deceptive or otherwise misleading regarding the nature of Brand Partner's relationship with LUMIVITAE.
Brand Partner acknowledges and agrees that they are operating as an independent contractor and shall not be considered, for any purpose, an employee, agent, franchisee, joint venturer, or partner of LUMIVITAE. Nothing in this Agreement shall be construed to create an employer-employee relationship, an agency, or a partnership for Federal or State taxes purposes. Brand Partner shall be responsible for Brand Partner's business expenses, self-employment taxes, estimated tax liabilities, personal property taxes and other similar obligations, whether federal, state or local. LUMIVITAE shall not pay or withhold any FICA, SDI, federal or state income tax or unemployment insurance or tax or other amounts from any commissions or bonuses paid to Brand Partner. Brand Partner shall be solely responsible for payment of all taxes, withholdings and other amounts due in regard to Brand Partner's own employees, if any. The Brand Partner agrees to indemnify and hold LUMIVITAE harmless from any liability or expense (including attorneys' fees) resulting from the Brand Partner's failure to comply with tax or labor obligations.
Brand Partner shall be solely responsible for determining, reporting and paying all sales tax, business license fees and/or any other similar taxes, fees or items required by any governing agency or taxing authority. Brand Partner shall be solely responsible for obtaining all business licenses required with regard to Brand Partner's LumiVitae business. LUMIVITAE collects sales tax on Brand Partners' orders placed through their personal account. Sales tax collected by LUMIVITAE is based on the sale occurring at the applicable "Ship To" address. Brand Partner expressly waives and releases LUMIVITAE from any liability or claims regarding the determination, collection, remittance or reporting of sales tax. If a Brand Partner has submitted, and LUMIVITAE has accepted, a current sales tax exemption certificate, LUMIVITAE will not collect sales tax on the Brand Partner's direct purchase of LUMIVITAE products, and it shall be the Brand Partner's s responsibility to collect and remit sales tax to the appropriate tax agency.
Brand Partner is responsible for their own business activities, business methods, working hours and methods of sale, so long as the Brand Partner complies with the terms of this Agreement and all applicable laws. LUMIVITAE does not maintain or grant exclusive sales areas or territories for the benefit of the Brand Partner. Brand Partner acknowledges that neither this Agreement, nor any compensation, bonuses, commissions or incentive plans or programs offered by LUMIVITAE constitutes a franchise, business opportunity, or seller assisted marketing plan. Brand Partner further acknowledges that LUMIVITAE has not expressly or impliedly stated or represented to Brand Partner that Brand Partner will earn income or that there is a market for the Products.
Ethical Business Practices. Brand Partner shall at all times, conduct their LUMIVITAE business in a manner that reflects favorably at all times on the LUMIVITAE Products and the name, goodwill, and reputation of LUMIVITAE. Brand Partner shall not engage in deceptive, misleading, or unethical conduct or practices that are or might be detrimental to LUMIVITAE, the Products, other Brand Partners or the public. Brand Partner shall comply with all laws, rules, regulations, and governmental requirements applicable to the operation of their independent LUMIVITAE business and performance of their obligations under this Agreement, including the marketing, promotion, and sale of the LUMIVITAE Products. In addition, Brand Partner shall: (i) not publish or use any misleading or deceptive advertising material regarding LUMIVITAE or its Products; (ii) honor the customer return/refund policy; (iii) not make any statements, representations, guarantees, or warranties regarding the LUMIVITAE Products that are inconsistent with those set forth in LUMIVITAE marketing materials (whether with regard to prices, quality, performance, standards, grades, contents, style or model, place of origin, availability, or otherwise); (iv) distribute the LUMIVITAE Products as shipped by LUMIVITAE, unopened and with all documentation, packaging, and other supplemental materials intact; (v) not alter or modify any LUMIVITAE Product or packaging, or take any action that affects or could affect the appearance, quality, content, or performance of any LUMIVITAE Product; (vi) not place orders for the sole purpose of achieving a title, rank, incentive, award, or bonus; (vii) not make any online postings, or link to or from any postings or other material that is sexually explicit, obscene, pornographic, offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or otherwise), is graphically violent, is solicitous of any unlawful behavior, that engages in personal attacks on any individual, group, or entity, or is in violation of any intellectual property rights of LUMIVITAE or any third party. LUMIVITAE reserves the right, in its sole discretion, to investigate any alleged violation of this Section.
Earnings Claims. Brand Partner shall not make any earnings claims or representations in connection with promoting LUMIVITAE as a business or income opportunity except as specifically set forth in materials published by LUMIVITAE. Brand Partner expressly acknowledges that LUMIVITAE does not pay any compensation, bonus, or commission for enrolling other Brand Partners.
Sales Tools. Brand Partner may create their own sales aids, presentations, advertising and promotional materials ("Sales Tools"). To ensure that Sales Tools are not deceptive and contain only substantiated claims, all Sales Tools must contain only those product claims and income claims published by LUMIVITAE, clearly identify they were created by an independent Brand Partner and identify the Brand Partner. Brand Partner shall not sell or attempt to sell such Sales Tools to other Brand Partners. LUMIVITAE reserves the right to review any Sales Tools to ensure compliance with this Agreement. Brand Partner hereby grants LUMIVITAE an irrevocable license to use the Sales Tools and make them available to other Brand Partners for use at its discretion, and waives all claims against LUMIVITAE, its officers, directors, owners, employees, agents and other Brand Partners for such use of the Sales Tools. In addition, LUMIVITAE may create Sales Tools that are available for purchase by Brand Partners.
Use of Company Trademarks. The name "LumiVitae" and other names and logos used by LUMIVITAE are proprietary trade names, trademarks and service marks solely and exclusively owned by LUMIVITAE (the "Company Marks") and are protected by applicable intellectual property and unfair competition laws in the United States and internationally. LUMIVITAE grants Brand Partner a limited, nonexclusive, non-transferable license to use the Company Marks during the term of this Agreement provided that such use complies with the provisions of this Agreement. Brand Partner shall not use anything confusingly similar to the Company Marks in any email address, website domain name, or social media name or address. Brand Partner shall also not use any Company Marks or any derivatives or variations of such marks or anything confusingly similar with any pay-per-click or other search engine optimization strategy.
Brand Partner Web Sites. LUMIVITAE will provide Brand Partner with a virtual back-office website accessible by login on LUMIVITAE's website through which Brand Partner can facilitate Product orders and sales. Brand Partner is free to create their own website to promote their LUMIVITAE business provided that the website complies with the terms of this Agreement and guidelines published by LUMIVITAE. Personal websites must link to the LUMIVITAE corporate website. If Brand Partner provides any Sales Tools or training on his or her site for other Brand Partners, Brand Partner shall password protect such content and shall make such password available to LUMIVITAE upon request. All Product orders placed through a personal website must be processed through the LUMIVITAE corporate website. Brand Partners are not permitted to enroll other Brand Partners on any other site than the LUMIVITAE corporate site.
Social Media & Digital Marketing. Should Brand Partner utilize social media and digital marketing in promoting her or his LUMIVITAE business, including but not limited to blogs/individual websites, web forums, Facebook, Instagram, Twitter, LinkedIn, YouTube, Pinterest, or other online platforms, Brand Partner agrees to each of the following:
a. Brand Partners must conspicuously identify themselves as an independent Brand Partner in all advertising, directory listings, promotional material, social media postings, and other forums in which they promote LUMIVITAE's products, services and/or business.
b. No product sales or enrollments may occur on any social media site. Brand Partner must complete all sales and enrollments in his or her virtual back office or on LUMIVITAE's corporate website.
c. It is Brand Partner's responsibility to follow the social media site's terms of use. If the social media site does not allow its site to be used for commercial activity, Brand Partner must abide by the site's terms of use, and all other rules of the site.
d. If Brand Partner creates a profile, page or other online presence solely devoted to the Brand Partner's LumiVitae business, all content on the profile, page or other online platform shall be related to Brand Partner's LumiVitae business and shall not include content or references to other brands, companies or business opportunities.
e. If Brand Partner operates an online presence featuring other companies, brands or business opportunities that is not solely dedicated to Brand Partner's LumiVitae business, Brand Partner shall fully comply with the sections of this Agreement that govern Brand Partner's obligations with respect to LumiVitae Confidential Information.
f. Brand Partner may utilize assets provided by LUMIVITAE in social media posts and as background images, but the avatar or main image may not be a LUMIVITAE logo or image utilized by LUMIVITAE. Brand Partner may use the LUMIVITAE Brand Partner logo for such purposes.
g. Brand Partner may not imply exclusivity or ownership of a specific geographical area in a social media profile, post or website.
h. Brand Partners may promote prices, special, promotions or programs offered by LUMIVITAE. Brand Partner may only advertise personal specials, prices or promotions through direct one-to-one communications in person, email, direct or private message, telephone, text or direct mail.
i. Brand Partners are prohibited from taking out paid advertisements embedding Partner Links or directly promoting LumiVitae, its products or Brand Partner Program. This includes, but not limited to paid Search Engine (i.e. Google Ads) or Social Media (i.e. Facebook or Instagram) advertisements, pay-per-click marketing, display ads, and banner advertising. Paid advertisements are only permissible if directed to personal websites or social media channels owned or controlled by Brand Partners, which may include Partner Links embedded within the content of your website or social media channel.
j. Upon any termination of this Agreement, Brand Partner must deactivate any online presence for Brand Partner's LumiVitae business.
a. Online marketplaces such as Amazon, eBay, Etsy, Walmart Marketplace, or any other third-party e-commerce or auction platforms.
b. Personal websites or online storefronts where orders are transacted directly. Brand Partners may promote LumiVitae products on their own websites or blogs, provided that all purchasing links or calls-to-action redirect customers to their official LumiVitae replicated website or another company-approved sales platform. No direct checkout, payment processing, or product fulfillment may occur via personal or third-party websites.
c. Offline retail channels including physical stores, clinics, salons, markets, trade shows, or sales to resellers, wholesalers, or distributors.
d. All sales must be made directly to end-consumer customers through LumiVitae's approved methods, in accordance with the company's direct selling model. Any resale or distribution outside these approved methods is strictly prohibited.
Enforcement and Penalties. Any violation of the resale prohibition may result in immediate suspension or termination of Brand Partner status, forfeiture of commissions and bonuses, and legal action where appropriate. LumiVitae reserves the right to take enforcement action against individuals or entities engaged in unauthorized resale, including removal of listings, cease-and-desist demands, account termination, and pursuit of injunctive relief or financial damages. Any commissions or bonuses forfeited due to violations of this provision shall be deemed permanently lost and shall not be subject to recovery under the unclaimed property process described in Clause 35 ("Effect of Termination"). Except where prohibited by applicable law, any earned but unpaid commissions, bonuses, or other compensation shall be forfeited upon termination for cause. In jurisdictions where such forfeiture is not permitted, LumiVitae reserves the right to seek legal or equitable remedies for breach.
Spam Linking, Emails and Text Messages. Spam linking is defined as multiple consecutive submissions of the same or similar content into blogs, wikis, guest books, websites or other publicly accessible online discussion boards, social media sites or forums. This includes blog spamming, blog comment spamming and/or spamdexing. Spam linking by Brand Partners, including posting links or redirects to social media profiles or the LUMIVITAE website, is strictly prohibited. In addition, LUMIVITAE does not permit Brand Partners to send unsolicited commercial e-mails or text messages unless such e-mails and text messages strictly comply with applicable laws and regulations including, without limitation, the Federal CAN-SPAM Act. Brand Partner must ensure that any e-mail or text advertisement or solicitation that promotes LUMIVITAE complies with all applicable laws and regulations.
Lumi App. Brand Partners may make use of the private community Lumi App which is available via the dedicated web application, or mobile applications available via the Apple App Store or Google Play Store. LumiVItae reserves the right to allow, reject, or remove an Brand Partner from accessing the Lumi App at any stage, in its sole discretion.
Acceptance of Mighty Networks Terms of Use. By downloading, registering, or accessing the Lumi App ("the App"), developed and managed by Mighty Networks, you expressly acknowledge and agree to abide by the Mighty Networks Terms of Use ("Terms of Use"). Access to the App is conditional upon your acceptance of these Terms of Use, which govern your interaction with the platform and its services.
Provision of Information. By using the Lumi App, you authorize the provision of all necessary information required for your registration and account creation on the Mighty Networks platform. This includes, but is not limited to, your legal name, contact details, address, email, gender, and age. Such information will be shared with Mighty Networks solely for the purpose of enabling your access to the App and its associated functionalities.
Disclaimer of Liability. LUMIVITAE expressly disclaims any liability arising from or related to your use of the Lumi App or the Mighty Networks platform, including but not limited to:
It is your responsibility to review and ensure compliance with the Mighty Networks Terms of Use and applicable laws governing your use of the platform. LUMIVITAE will not be held responsible for any loss, damage, or legal consequences resulting from your interaction with the Lumi App or Mighty Network.
Indemnity and Compliance. You agree to indemnify and hold harmless LUMIVITAE from any claims, liabilities, or damages arising from:
Binding Authorization. By downloading, registering, or using the Lumi App, you acknowledge that you have read, understood, and agreed to this clause and the Mighty Networks Terms of Use. Your registration and continued use of the Lumi App signify your acceptance of these conditions and your authorization for the transfer of necessary information to Mighty Networks for registration purposes.
Confidential Information. Brand Partner acknowledges that LUMIVITAE may provide Brand Partner with proprietary or non-public information and reports relating to Brand Partner's sales activity, other Brand Partners, Products or customers ("Confidential Information"). Confidential Information shall include, but not be limited to, downline reports and compilations generated by LUMIVITAE that are made available to Brand Partner, contact and earnings information of other Brand Partners, sales information, forecasts, projections or other materials furnished or prepared by LUMIVITAE for Brand Partner's use. Brand Partner acknowledges that LUMIVITAE is the sole owner of any and all Confidential Information provided to Brand Partner pursuant to this Agreement. In this regard, Brand Partner shall: (i) not directly or indirectly divulge, disclose, disseminate, distribute, license, sell, use or otherwise make known any Confidential Information to any third party or person or entity not expressly authorized or permitted by LUMIVITAE to receive such Confidential Information; (ii) use best efforts to prevent disclosure of any Confidential Information to any third party and exercise the highest degree of care and discretion in accordance with all express duties hereunder to prevent the same; and (iii) not directly or indirectly make any use whatsoever of the Confidential Information, except for purposes of performing services under this Agreement. The parties each acknowledge that the restrictions in this paragraph are reasonable efforts of LUMIVITAE to protect and maintain the Confidential Information. The obligation of Brand Partner regarding confidentiality shall survive for so long as LUMIVITAE may, in its sole discretion, consider the Confidential Information to be confidential.
Non-Disparagement. During the term of this Agreement, Brand Partner agrees to refrain from making negative, disparaging, untrue or misleading statements or comments about LUMIVITAE, its Products, the Compensation Plan or LUMIVITAE's officers, employees or other Brand Partners. This includes but is not limited to statements that are false, misleading, exaggerated, or omit relevant context in a way that may lead to a negative impression. Nothing in this section shall prohibit truthful statements made under subpoena or as required by law or legal process.
Non-Solicitation. At all times during the term of this Agreement, Brand Partner is free to participate in other direct sales companies or business opportunities. If Brand Partner is engaged in other direct sales companies or business opportunities, it is the responsibility of Brand Partner to ensure that her or his LUMIVITAE business is operated entirely separate and apart from all other direct sales companies or business opportunities. Notwithstanding the foregoing, during the term of this Agreement, Brand Partner agrees to not directly or indirectly solicit any LUMIVITAE Brand Partner to (i) join, enroll or affiliate with another direct sales company; or (ii) terminate or alter Brand Partner's business relationship with LUMIVITAE. Brand Partner agrees to not use any contacts or relationships developed through their LUMIVITAE network to promote other direct sales companies or business opportunities. As used in this paragraph, "solicit" means the direct or indirect, actual or attempted, solicitation, encouragement, or effort to influence another Brand Partner to participate in another direct selling company or business opportunity, even if Brand Partner's actions are in response to an inquiry made by another Brand Partner. Notwithstanding the preceding sentence, it shall not be a violation of this non-solicitation policy for Brand Partner to solicit a personally sponsored Brand Partner to another direct sales company or business opportunity. In this paragraph (i) "direct sales" company or business opportunity is defined to include any network marketing, multilevel marketing, party plan or social media company that sells products similar to or competitive with LUMIVITAE products through independent sales representatives; and (ii) "personally sponsored" shall refer to Brand Partners personally enrolled by their direct upline Brand Partner but shall not include Brand Partners that have rolled up to an upline Brand Partner's first level due to compression or termination of another Brand Partner's Independent Brand Partner Agreement.
Cross-Line Coaching, Services and Network Integrity. LUMIVITAE encourages collaboration, leadership development, and mutual support among Brand Partners. At the same time, LUMIVITAE has a legitimate business interest in protecting the integrity, stability, and sustainability of its Brand Partner network and sponsorship structure.
Except as expressly permitted herein, Brand Partner shall not directly or indirectly solicit, promote, market, or offer paid coaching, consulting, mentoring, training, or other paid services to any LUMIVITAE Brand Partner whom Brand Partner did not personally enroll.
Notwithstanding the foregoing, Brand Partner may provide paid services to a LUMIVITAE Brand Partner not personally enrolled by them only if:
a) the engagement is initiated solely by the receiving Brand Partner, without any solicitation, inducement, or promotion by the service-providing Brand Partner;
b) the services do not interfere with, disrupt, or undermine existing sponsorship relationships or leadership structures; and
c) the services are provided in a manner consistent with this Agreement, the Compensation Plan, and the LumiVitae Code of Ethics.
When providing any permitted services under this section, Brand Partner shall not:
a) promote or encourage any activity, strategy, or opportunity that diverts focus from, replaces, or undermines participation in the LUMIVITAE business;
b) use relationships developed through the LUMIVITAE network to destabilize enrollment lines or induce Brand Partners to alter their sponsorship relationships; or
c) otherwise act in a manner that LUMIVITAE reasonably determines to be inconsistent with the integrity or best interests of the Brand Partner network.
If Brand Partner determines that they cannot provide services in full alignment with the principles set forth in this section, Brand Partner must decline the engagement.
Any violation of this section shall constitute a material breach of this Agreement and may result in remedial action, up to and including suspension of commissions and termination of this Agreement, in accordance with the enforcement provisions herein.
Right of Publicity. Brand Partner grants to LUMIVITAE a revocable license to use the Brand Partner's name, photograph, likeness, personal story, testimonial, and/or LUMIVITAE business history or information in advertising and promotional materials and waives all claims for remuneration for such use. The Brand Partner waives any right to inspect or approve the same prior to publication by LUMIVITAE. Brand Partner may cancel this authorization by delivering written notice of revocation to LUMIVITAE.
Change of Placement Sponsor. The only means by which a Brand Partner may change their Placement Sponsor (other than the Gifting Sponsor Program) is by voluntarily terminating the Agreement and remaining inactive as a Brand Partner for three (3) full calendar months. Purchasing as another Brand Partner's customer does not qualify as activity. Following the three-calendar month period of inactivity, the former Brand Partner may reenroll under a new Sponsor. The Brand Partner will lose all rights to their former downline upon termination of the Agreement. Brand Partners may not entice other Brand Partners to leave their current line of sponsorship and join under a new Placement Sponsor. Brand Partners may not enroll, or partner with, a former Brand Partner who was enrolled in a different line of sponsorship, prior to them being eligible. Change of Placement Sponsor requirements is subject to change at LumiVitae's sole discretion.
Sale Receipts. A sales receipt will be sent by LUMIVITAE to the retail customer or Brand Partner at the time the order is placed.
Adjustments to Commissions. When a product is returned by a customer for a refund or a chargeback occurs, the commissions and overrides earned as a result of the corresponding sale will be deducted from the Brand Partner and upline lineage. In addition, any points, volume, or metric used to calculate eligibility or payout of commissions, bonuses, incentives, or promotions will be adjusted.
Bank Account and Payment Details. All commissions, bonuses, and other payments payable to Brand Partner under this Agreement shall be made only to a payout account held in the name of the Brand Partner. Where Brand Partner operates through a duly registered legal entity approved by the Company, payments may be made to a payout account held in the name of such entity. Brand Partner is solely responsible for providing accurate and up-to-date payout details and for ensuring that the designated payout account corresponds to the registered Brand Partner or approved entity. The Company shall have no obligation to verify the ownership or accuracy of the payout account and shall not be liable for payments made in reliance on the payout information provided by Brand Partner.
Deadlines. Month-end closing dates and published contest deadlines are firm and no exceptions are granted in the regular course of business. LUMIVITAE may, however, extend deadlines at its sole discretion in the event of extenuating circumstances such as a natural disaster.
Customer Returns. LUMIVITAE offers a generous return/refund policy for retail customers and Brand Partners who purchase Products for personal use. Brand Partner must fully comply with the return and refund policy. If a Brand Partner, in the sole discretion of LUMIVITAE, abuses the customer return/refund policy, LUMIVITAE reserves the right to terminate this Agreement. In this regard, if Brand Partner returns merchandise for a refund totaling more than $1,000 in any 12-month period, and LUMIVITAE reasonably believes that Brand Partner is engaging in abusive return practices and/or manipulating the Compensation Plan, then LUMIVITAE reserves the right to treat the refund request(s) as Brand Partner's voluntary termination of the Agreement. LUMIVITAE reserves the right to refuse returns and exchanges on Products that it reasonably suspects were purchased through unauthorized sellers or methods.
Sales in Authorized Countries Only. Brand Partner may only operate a LUMIVITAE business or engage in LUMIVITAE business activities in countries in which LUMIVITAE is authorized to conduct business. Due to legal and tax considerations, LUMIVITAE Products purchased in the United States cannot be delivered or sold in any foreign country for the purpose of resale.
No Inventory Requirements. LUMIVITAE encourages Brand Partners to place orders for their customers directly through the Brand Partner's personal virtual back-office or LUMIVITAE website. Brand Partners will receive full credit for all such sales, without the need to carry any inventory at all. Brand Partners may, at their option, purchase LUMIVITAE products for personal consumption.
Bonus Buying Prohibited. LUMIVITAE prohibits bonus buying and prohibits the purchase of products or services only or primarily to qualify or earn compensation or to achieve a specific rank. Bonus buying is any mechanism or artifice to qualify for rank advancement, incentives, prizes, commissions or bonuses that is not driven by bona fide product or service purchases by end user consumers and includes, but is not limited to:
LUMIVITAE retains the right to limit the amount of Products a Brand Partner may purchase if it believes, in its discretion, that Brand Partner has placed orders solely for compensation or qualification purposes instead of for resale to customers. LUMIVITAE may revoke a rank advancement if it was earned in violation of this policy.
One Account Per Brand Partner. A Brand Partner may hold only a single account under a single Placement Sponsor. A Brand Partner may not be a party to more than one Independent Brand Partner Agreement or hold, directly or indirectly, any interest in another LUMIVITAE business, including through a spouse or domestic Brand Partner. Any attempt to circumvent this restriction, including the use of aliases, fictitious names, family members, or corporate entities to establish additional accounts, shall be deemed a material breach of this Agreement.
Business Distribution. LUMIVITAE is not able to divide commissions among multiple parties, nor is it able to divide a downline organization. Therefore, in divorce cases, any settlement or divorce decree must award the business in its entirety to one party. LUMIVITAE will recognize as the owner of the business the former spouse to who is awarded the business pursuant to a legally binding settlement agreement or decree of the court. In the event a business entity that operates a LumiVitae business dissolves, the owners of the business entity must instruct LumiVitae on the identity of the proper party who is to receive the business. The business must be awarded to a single individual or entity that was previously recognized by LumiVitae as an owner of the business entity.
Security of Customer Data and Confidential Information. Brand Partner must adopt, implement, and maintain appropriate administrative, technical, and physical safeguards to protect against anticipated threats or hazards to the security of Confidential Information and customer data. Appropriate safeguards for electronic and paper records may include but are not limited to: (i) encrypting data before electronically transmitting it; (ii) storing records in a secure location; (iii) password-protecting computer files or locking up physical files containing Confidential Information and (iv) shredding or irretrievably deleting Confidential Information and customer data. Brand Partner must comply with all applicable privacy and data security laws, including security breach notification laws. In the event of an actual or suspected security breach affecting Confidential Information or customer data, the Brand Partner shall promptly notify the affected customers and LUMIVITAE in writing after becoming aware of such security breach and specify the extent to which Confidential Information or customer data was disclosed or compromised and shall promptly comply with all applicable security breach disclosure laws. Brand Partner, at her or his expense, shall cooperate with LUMIVITAE and affected customers and use their best efforts to mitigate any potential damage caused by a security breach, including by sending notice to the affected individuals, state agencies, and consumer reporting agencies, if such notification is required by law.
Term. The initial term of this Agreement is twelve (12) months from the date of its acceptance by LUMIVITAE. This Agreement shall automatically renew for successive 12-month terms unless either party provides written notification to the other that the party does not wish to renew the Agreement. If LUMIVITAE elects not to renew the Agreement, it shall provide Brand Partner with written notification of such election at least thirty (30) calendar days prior to the renewal date.
Termination. Notwithstanding any other provision in this Agreement, upon any breach by the Brand Partner of this Agreement, LUMIVITAE reserves the right, in addition to any available legal or equitable right or remedy, to terminate this Agreement upon written notice to the Brand Partner. LUMIVITAE additionally reserves the right to terminate this Agreement upon thirty (30) days' notice to the Brand Partner in the event LUMIVITAE elects to: (a) cease business operations; (b) dissolve as a business entity; (c) terminate the distribution of its Products via a direct selling channel; or (d) terminate this Agreement without any reason in its sole discretion. Brand Partner has the right to terminate this Agreement at any time for any reason. Notice of termination shall be submitted electronically or in writing to LUMIVITAE's corporate office. Further, LUMIVITAE reserves the right to terminate this Agreement if Brand Partner fails to engage in any business activity for a period of 12 consecutive months. As used in this paragraph, "business activity" means Brand Partner's personal purchases or purchases made by retail customers referred by Brand Partner.
Effect of Termination. If this Agreement is terminated for any reason, Brand Partner shall not be eligible to refer sales on behalf of LUMIVITAE, hold themself out to the public as a LUMIVITAE Brand Partner, utilize any Confidential Information or otherwise use any of the Company Marks. In the event of termination or non-renewal of this Agreement, all rights of the Brand Partner, if any, to any bonuses, commissions, or other compensation, whether or not related the productivity or sales activities of any other Brand Partner, or otherwise, shall terminate. Brand Partner shall have no rights to his or her downline organization, which shall compress up to the next active Brand Partner. In accordance with Delaware's Unclaimed Property Law, any commissions earned by the Brand Partner but not withdrawn within 60 days after termination, and not claimed within 5 years, shall be considered unclaimed property. LUMIVITAE will make reasonable efforts to contact the Brand Partner before remitting the unclaimed property to the state of Delaware. After 5 years of inactivity, unclaimed commissions will be remitted to the Delaware State Treasury in accordance with Delaware's unclaimed property laws.
Amendments. LUMIVITAE may, at its sole discretion, amend this Agreement, or discontinue certain compensation, bonus commissions or Products. The Brand Partner shall have no vested interest in any such plan or program, provided, however, that LUMIVITAE may not change the terms or conditions regarding compensation for any Product previously sold. The Agreement, including the LumiVitae Compensation Plan, may be amended at the sole discretion of LUMIVITAE. Notification of amendments shall be sent to the Brand Partner by email and posted in the Brand Partner's LumiVitae Back Office. Amendments shall become effective thirty (30) days after notification to the Brand Partner but amended policies shall not apply retroactively to conduct that occurred prior to the effective date of the amendment. The continuation of a Brand Partner's LUMIVITAE business after the effective date of any amendment shall constitute the Brand Partner's acceptance of such amendment. LUMIVITAE may also require Brand Partner to accept and agree to be bound by any amendments.
Limitation of Liability. The Parties agree that neither party shall be liable for, and the Parties agree to release, defend, and hold harmless the other Party from, all claims for special, indirect, incidental, punitive, consequential or exemplary damages of any kind or nature, whether in contract, tort (including negligence), or otherwise, arising from the Agreement. Notwithstanding the foregoing, nothing in this Agreement shall limit or exclude either Party's liability for: (a) fraud or intentional misconduct; (b) death or personal injury caused by the negligence of the Party; or (c) any other liability which cannot be excluded or limited by applicable law.
Indemnity. Brand Partner agrees to indemnify and hold LUMIVITAE, its directors, officers, managers and employees harmless from and against all claims, damages or liabilities (including attorney's fees) arising from or relating to (a) Brand Partner's promotion or operation of their LumiVitae business; (b) any negligent, reckless or intentionally wrongful act of Brand Partner or any person acting on Brand Partner's behalf; (c) any breach by Brand Partner of any term of this Agreement; and (d) any claim alleging that Brand Partner has violated or infringed upon any rights of third-parties, including but not limited to privacy rights or intellectual property rights.
Entire Agreement. These terms and conditions, together with the Compensation Plan, constitute the entire agreement between LUMIVITAE and Brand Partner and supersedes all prior and contemporaneous agreements, representations and understandings between the parties. To the extent that the terms or conditions of any documents incorporated into this Agreement by reference conflict with these terms or conditions, these terms and conditions shall control. No waiver of any of the provision of the Agreement shall be deemed or shall constitute a waiver of any other provision.
Severability. If any provision of this Agreement shall, for any reason, be held unenforceable, such provision shall be severed from this Agreement, and such severed provision shall be reformed only to the extent necessary to make it enforceable. The Invalidity of such severed provision, however, shall not affect the enforceability of any other provision of this Agreement and the remaining provisions shall remain in full force and effect.
No Assignment. Brand Partner may not assign this Agreement or any rights arising from this Agreement without the prior written consent of LUMIVITAE. Any attempt to transfer or assign the Agreement or any rights under the Agreement without the express written consent of LUMIVITAE shall render the Agreement void.
Indebtedness. Brand Partner agrees that LUMIVITAE may deduct, withhold, set-off, or charge any amounts owed by the Brand Partner to LUMIVITAE against any form of payment the Brand Partner has previously authorized, including but not limited to commissions, bonuses, or any other payments due to the Brand Partner. Any deductions or withholdings made by LUMIVITAE shall comply with applicable laws, including those governing wage garnishment or other similar procedures, to the extent applicable.
Warranty, Disclaimer. LUMIVITAE warrants to Brand Partner that the Products as and when delivered by LUMIVITAE shall be free from material defects. LUMIVITAE's sole obligation to Brand Partner and Brand Partner's sole and exclusive remedy for a breach of this warranty shall be to return any defective LUMIVITAE product and receive a replacement or credit as described in the LUMIVITAE return policy. To the maximum extent permitted by law, LUMIVITAE disclaims all other warranties with respect to LUMIVITAE Products, the LUMIVITAE Brand Partner program, the LUMIVITAE Compensation Plan, and any other subject matter of this Agreement, including any warranties of merchantability, fitness for a particular purpose, title, non-infringement or accuracy.
Remedial Actions. LUMIVITAE reserves the right to take remedial action as necessary to enforce the terms of this Agreement and ensure appropriate conduct by Brand Partners. Breach of this Agreement or any illegal, fraudulent, deceptive or unethical business conduct by Brand Partner may result, in LUMIVITAE's discretion, in one or more of the following: (i) a written warning; (ii) requirement that Brand Partner take immediate corrective measures; (iii) loss of rights to purchase LUMIVITAE products at discount prices or receive future commissions and bonuses; (iv) suspension of Brand Partner's right to engage in LUMIVITAE business; (v) termination of this Agreement; or (vi) any other measure or action that LUMIVITAE, in its sole discretion, determines to be appropriate.
This Agreement, including any procedural or substantive rights in any arbitration, shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to principles of conflicts of laws. The Federal Arbitration Act shall otherwise govern all matters relating to arbitration.
Negotiation and Mediation. In the event of a dispute, claim or controversy arising from or relating to this Agreement, the Parties agree to try to resolve such dispute informally. In this regard, the aggrieved Party shall send a "Notice of Dispute" to the other Party which contains a brief statement setting forth the facts giving rise to the disputed matter and the relief requested by the aggrieved Party. The Parties agree to use reasonable, good faith efforts to settle any dispute through consultation and good faith negotiations within thirty (30) days following delivery of the Notice of Dispute. If the dispute cannot be resolved through negotiation, the Parties agree to submit the dispute to non-binding mediation with a mediator mutually agreeable to the Parties. If the Parties are unable to agree on a mediator, the Parties agree that the American Arbitration Association shall designate a mediator. Unless the Parties agree otherwise, including to conduct the mediation telephonically, the mediation shall take place in Dallas, Texas within sixty (60) days following delivery of the Notice of Dispute. Brand Partner and LUMIVITAE agree that the dispute resolution procedure set forth in this paragraph is a condition precedent which must be satisfied before initiating any arbitration against the other Party.
AGREEMENT TO ARBITRATE. THE PARTIES MUTUALLY AGREE THAT ANY CLAIM OR DISPUTE BETWEEN THEM ARISING FROM OR RELATING TO THIS AGREEMENT, THE LUMIVITAE COMPENSATION PLAN OR THE RIGHTS OF THE PARTIES UNDER THIS AGREEMENT WHICH CANNOT BE RESOLVED BY NEGOTIATION OR MEDIATION SHALL BE RESOLVED BY BINDING INDIVIDUAL ARBITRATION BEFORE A SINGLE ARBITRATOR PURSUANT TO THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION (THE "AAA"). The Commercial Rules of the AAA are available at www.adr.org. BY AGREEING TO ARBITRATE, THE PARTIES EXPRESSLY WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY.
a. In the event the AAA is unwilling or unable to hear the dispute, the Parties shall agree to, or an appropriate court shall select, another arbitration provider. Unless otherwise agreed upon by the Parties, any arbitration hearing shall take place in Dallas, Texas, although either party may elect to participate in the arbitration by telephone. The Party filing the Demand for Arbitration shall be responsible for the initial filing fees and costs charged by AAA and the respondent shall be responsible for payment of filing fees for any Cross-Complaint or Counterclaim. The Parties shall share equally the costs of case management fees, arbitrator fees or other fees charged by AAA other than the filing fees referenced above. The Parties shall bear their own costs for attorney's fees, court reporter fees, transcript fees and other litigation costs.
b. Although this agreement to arbitrate is made and entered into between the Brand Partner and LUMIVITAE, LUMIVITAE's affiliates, owners, members, managers, and employees ("Related Parties") are intended third party beneficiaries of the Agreement, including this agreement to arbitrate.
c. This agreement to arbitrate shall survive the termination of this Agreement. Any issues related to the arbitrability of any claim, or the scope, validity or enforceability of this agreement to arbitrate shall be determined by the arbitrator. 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 via courier. The Demand for Arbitration must include a statement of the legal and factual basis of the claim(s) to be arbitrated. The parties shall be entitled to all discovery rights permitted by the Federal Rules of Civil Procedure and the parties shall be permitted to bring motions under FRCP Rules 12 and 56. The decision of the arbitrator shall be final and binding on the parties and may, if necessary, be reduced to a final judgment in a court of competent jurisdiction.
Class Action Waiver. Brand Partner agrees that by entering into the above agreement to arbitrate Brand Partner is waiving Brand Partner's right to have any dispute or claim brought, heard or arbitrated as a class action lawsuit or class action arbitration, any private attorney general lawsuit or private attorney general arbitration, or any joint or consolidated lawsuit or joint or consolidated arbitration of any kind. The Parties agree that an arbitrator shall not have any authority to hear or arbitrate any class or collective action. The Parties agree that any claim that all or part of this class action waiver is unenforceable shall be determined by a state or federal court located in Dallas, Texas and not by an arbitrator. The Parties further agree that if a court determines that the limitations of this paragraph are deemed invalid or unenforceable, any putative class, private attorney general, or representative action must be brought in a court of proper jurisdiction and not in arbitration.
Notwithstanding the Parties' agreement to arbitrate, either Party may bring an action in a state or federal court located in Dallas, Texas to obtain a restraining order, temporary or permanent injunction, or other equitable relief that may not otherwise be available to either party in arbitration. Failure by a Party to pursue negotiation and mediation pursuant to this Agreement shall not bar an action for equitable relief pursuant to this paragraph. The Parties may also seek judicial enforcement of an arbitration award in any court of competent jurisdiction.
The Parties agree that the state and federal courts located in Dallas, Texas shall be the sole and exclusive venue and forum for any lawsuit or court proceeding between the Parties and each Party consents to personal jurisdiction in such courts and waive any and all objections to venue, jurisdiction or forum that might otherwise be available to either Party.
Louisiana Residents: Notwithstanding any other provision of this Agreement, if the Brand Partner is a resident of Louisiana, the applicable law, jurisdiction and venue of any dispute between the parties arising from this Agreement shall be pursuant to Louisiana law.
If either Party wishes to bring an action against the other Party for any act or omission relating to or arising from the Agreement, such action must be brought within one (1) year from the date of the alleged conduct giving rise to the cause of action, or the shortest time permissible under state law. Failure to bring such action within such time shall bar all claims for such act or omission.
By clicking "I Agree" Brand Partner (i) acknowledges that she or he has read, understands and agrees to the terms set forth in this Independent Brand Partner Agreement, including the Compensation Plan; (ii) certifies that all information provided by Brand Partner in connection with Brand Partner's application to become a LUMIVITAE Independent Brand Partner is true and correct; and (iii) by clicking "I Agree" Brand Partner intends to enter into a legally binding agreement with LumiVitae Inc.
