Terms and Conditions of Independent Distributors
1.Subject to these terms and conditions, the Applicant Independent Distributor (“Distributor ”) is hereby appointed as a limited independent distributor of Tox Out LLC, a limited liability company organized under the laws of the state of Florida (“Company”) with authority, but no obligation, to promote and solicit potential purchasers of the products of the Company (“Products”). Distributor acknowledges that Distributor status is granted on a provisional basis until the Company issues a Distributor Identification Number, and the applicant acknowledges that the Company may seek additional information from the applicant regarding proof of identity, address, or any additional information helpful to the Company in determining the appropriateness of accepting the applicant as a Distributor.
2.The Company will sell Products to customers solicited by the Distributor. The Distributor is an independent agent and is not to be regarded as the agent of, and has no authority to bind or make any representation on behalf of the Company, under any circumstances.
3.The Distributor may only solicit potential customers on a direct selling basis and not at retail stores, in markets, trade shows, expositions, other sales forums or public places without the consent of the Company.
4.The Distributor is an independent contractor in its own business, and as such is free to select its own means, method and manner of operation, and to choose the hours and location in which to conduct activities as a Distributor, subject to all applicable laws with which the Distributor must comply (including, without limitation, consumer protection laws). The Company neither has, nor retains, any right of control over the Distributor, except as provided under this Agreement. The Distributor is not, and shall not for any purpose be deemed to be an employee or franchisee of the Company. Accordingly, the Company shall not be responsible for any sick leave, taxation or similar matters, and accepts no responsibility for the procuring or establishment of workers compensation insurance or other insurance or any superannuation in respect of the Distributor. This Agreement is not a contract for the supply of services or the performance of any work by the Distributor. The Distributor is under no obligation to recruit any new distributors, or supervise or train any recruits and the Company is under no obligation to accept any application from any person to become a new distributor.
5.The Distributor will bear all the costs and expenses incurred in connection with its activities, and will indemnify the Company against all actions, proceedings, liabilities, claims, damages, costs and expenses arising out of or in any way relating to Distributor’s activities under this Agreement, except to the extent caused by the Company’s negligence or if the Company breaches any applicable law.
6.The Distributor is under no restriction as to the territory within which its activities may be conducted, provided that the Distributor complies with the laws of the territory in which Distributor conducts business.
7.The Distributor may at its own expense engage or employ others to conduct, or assist it in conducting its activities under this Agreement as it may from time to time think fit, provided that the Company has no responsibility for those employees and the Distributor indemnifies the Company against all actions, proceedings, liabilities, claims, damages, costs and expenses arising out of or in any way relating to that employment. The Distributor remains personally responsible for adherence to the terms of this Agreement.
8.In addition to the continuing obligation to keep Company information confidential, the Distributor expressly agrees not to solicit, recruit or market to other independent distributors or preferred customers of the Company in relation to any other products or business opportunity similar to the Company’s as long as this Agreement remains in force and for a period of not less than six months after termination. This six-month non-solicitation provision does not apply in the case of a Distributor’s personal “front line” recruits or preferred customers.
9.The Distributor grants to the Company the right to use the Distributor’s name, image, likeness and personal story in any promotional or advertising material free of charge.
10.Except as required by law, the Distributor must keep confidential all information of or used by the Company relating to the Company’s selling system, the Company’s operations and affairs in general, and all other information treated by the Company as confidential —including without limitation information regarding other independent distributors—that is disclosed to the Distributor directly or indirectly by the Company or the Company’s agents, employees or advisers, and Distributor must not disclose that confidential information to persons other than the Distributor’s officer s, agents, employees or advisers. The Distributor’s confidentiality obligations under this clause continue not with standing termination of this Agreement.
11.The Distributor may not assign this Agreement to any other party without the prior written consent of the Company, which it may grant or refuse in its absolute discretion. The Distributor may terminate this Agreement at any time by written notice to the Company. The Company may terminate this Agreement immediately on written notice to the Distributor if the Distributor commits a serious breach of this Agreement or any law applying to the Distributor’s activities under this Agreement; where the Distributor becomes insolvent; where the Distributor experiences a change of ownership or control (if a business); or where the Distributor dies or becomes physically or mentally incapable of conducting his or her activities as a Distributor (if a natural person); or where the Distributor does anything which is contrary to the Company’s best interests or otherwise experiences a change in circumstances that is detrimental to the Company. Any notice of termination under this Agreement must be in writing and may be served or given by delivering the notice to or sending the notice by prepaid post addressed to the party to be served at the party’s address appearing on this Agreement, or in the case of the Distributor, at his or her place of residence last known to the Company. The termination will be without prejudice to one party’s rights and remedies relating to any breach of this
Agreement by the other party where the breach occurred before the termination of this agreement. This non- prejudice clause survives the termination or expiry of this agreement.
12.In the event of a dispute between the parties arising out of or in connection with this Agreement, the parties agree to refer such dispute to final and binding arbitration in Naples Florida, administered under rules provided by the International Chamber of Commerce. The laws of the state of Florida of the United States shall govern this agreement without respect to that state’s conflict-of law principles, and the parties agree to submit to the exclusive jurisdiction of the Courts of that state with regard to disputes in which a party seeks urgent interlocutory relief in respect of the subject matter of a dispute. Such urgent interlocutory relief may be vacated, continued or modified by the arbitral tribunal at the request of any party. Any party may seek, to the fullest extent permitted by law, judicial enforcement in a court of competent jurisdiction, of any urgent interlocutory relief granted by the arbitral tribunal.
13.The Company’s failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of the Company’s rights to subsequently enforce such provision or any other provision of this Agreement. This document constitutes the entire agreement between the Company and the Distributor. No representations or warranties have been made or given by the Company or any of its representatives to the Distributor other than those specifically set out in this Agreement.
14.This Agreement may only be changed or amended by a written document which is signed by both the Company and the Distributor and which refers to and states the intention of the parties to change or amend this Agreement. In the event that any provision of this Agreement is declared void, illegal or unenforceable by a court or arbitral body of competent jurisdiction, the remainder of the Agreement shall continue in full force and effect as if the offending provision were not contained herein, and the parties expressly agree that the offending or voided provision should be amended or interpreted by said court or arbitral bod y in a manner to give effect to the intentions of the parties in fulfillment of the purposes of this Agreement.