XENESTA INTERNATIONAL
INDEPENDENT BRAND PARTNER TERMS OF AGREEMENT
From this point forward Xenesta International Inc., will be referred to as
the "Company" while Xenesta Independent Brand Partners will be referred to
as “Independent Brand Partner” or “Brand Partners.”
The undersigned Independent Brand Partner agrees as follows:
1. I am an Independent Brand Partner. I am of legal age in the state of my
domicile,
and a legal resident in the United States of America. I am an independent
contractor and understand that this Agreement does not in any way create an
employer/employee relationship, partnership or joint venture. I will not be
treated as an employee, agent, franchisee, joint venturer, partner or owner of
the Company for federal or state tax purposes including with regard to the
Internal Revenue Code, Social Security Act, Federal Unemployment Act, Federal
Insurance Contributions Act (FICA), or with regard to workers’
compensation, any state unemployment act, or any other federal, state or local
statute, ordinance, rule or regulation.
2. As an Independent
Brand Partner, I
am responsible for payment of all federal, state and local taxes and other
premiums and license requirements and fees attributable to my sales activities
and earnings. I am responsible for all liability, health, disability,
worker’s
compensation and other insurance.
3. I do not have any authority to
bind
or incur any obligation on behalf of Xenesta International, Inc. (the
“Company”).
4. I have read and understand the Company’s Policies and Procedures and
Compensation Plan and agree to comply with them.
5. Subject to the
provisions of Section 12, this Agreement shall have a term beginning on the date
of acceptance by the Company and ending on one (1) year from the date thereof
(the “Anniversary Date”) and shall be renewed on an annual basis on
each Anniversary Date subject to acceptance by the Company which can be withheld
in its sole discretion, in accordance with the then current renewal policy of
the Company as set forth in the Policies and Procedures.
6. I must be
in
good standing and not in violation of any of the terms of this Agreement in
order to be eligible to receive any bonuses, fees or commissions.
7. As an
Independent Brand Partner of the Company I must fulfill all supervisory,
distribution, training and other functions deemed from time to time by the
Company for the Independent Brand Partners I bring into the business.
8.
I
have not received any statement or representation from the Company about my
potential earnings. I will make no statements, representations or disclosures in
promoting the Company, in sponsoring or training Independent Brand Partners or
in
selling the Company’s products and services, other than what is expressly
permitted by the Policies and Procedures and in other literature produced by the
Company.
9. I acknowledge that the Company’s trademarks, service
marks, trade names, patents and copyrighted materials are owned solely by the
Company, and that use of such marks and materials by me must be in compliance
with the Company’s written policies, as such may be amended by the Company
from time to time. I agree to use only written, recorded or other promotional or
advertising materials which have been produced by the Company and/or approved in
writing by the Company prior to use and bear its approval designation. I further
agree that the Company has the exclusive proprietary interest in its customer
lists, customer information developed by or for the Company Independent
Brand Partner lists, manufacturing procedures, formulas, source codes, product
development and in all operating, financial and marketing materials; and that
all such information is confidential. Customers I procure on behalf of the
Company are deemed to be customers of the Company. I will not use or disclose
such information to any third party except in strict accordance with this
Agreement and the Policies and Procedures. I agree to use my best efforts to
keep such information confidential and shall not use such information to sell
products or services other than the Company’s products and services or in
connection with any other business during the term of and after termination of
this Agreement. Upon termination or nonrenewal of this Agreement, I immediately
will cease all use of the Company’s trademarks, service marks and
proprietary and confidential information and, if requested by the Company,
return all such materials in my possession to the Company.
10. During
the
term of this Agreement, I will not, directly or indirectly, on my own behalf or
on behalf of any other person or entity, divert, solicit or hire any customer,
Independent Brand Partner, or employee of the Company to terminate or alter his
or
her business or contractual relationship with the Company.
11. I will
operate my Xenesta business in a lawful, ethical and moral manner and perform
all my obligations with honesty and integrity. I will abide by all applicable
federal, state and local laws or regulations, and the terms of this Agreement,
the Policies and Procedures and the Compensation Plan.
12. I may
terminate
this Agreement at any time upon 30 days written notice to the Company. The
Company may terminate this Agreement upon 30 days written notice for cause.
Immediately upon termination or nonrenewal of this Agreement, I must cease
representing myself as an Independent Brand Partner of the Company, will lose
all
rights to my participation in the Compensation Plan, including all future
commissions and earnings, and will take all other actions reasonably required by
the Company.
13. I agree to abide by the Company’s retail
customer
refund policy, as set forth in the Policies and Procedures. As more fully
set
forth in the Policies and Procedures, I acknowledge that an Independent
Brand Partner is eligible to receive a refund for products, services and
literature
purchased by an Independent Brand Partner, less a 10% handling fee, if the
Independent Brand Partner chooses to terminate the Agreement and return the
products or services in resalable currently marketable condition within 12
months of purchase. Commissions paid on returned products must be repaid to the
Company by the Independent Brand Partner earning the commission.
14.
The
Company may revise its Policies and Procedures and its Compensation plan at any
time at its sole discretion. All amendments will be published and distributed by
the Company through all its media channels. I understand that the acceptance of
any Company check for commission, bonuses or payment constitutes my agreement to
the latest revisions of the Company’s Policies and Procedures or
Compensation Plan.
15. I may not assign any rights or delegate my
duties
under this Agreement without the prior written consent of the Company. The
Company may assign the Agreement at any time.
16. I agree to indemnify
and
hold harmless the Company, its subsidiaries, affiliates, and their shareholders,
of officers, agents, employees, and directors, from and against any claim,
demand, liability, loss, cost or expense, including, but not limited to, court
costs or attorneys’ fees, asserted against or suffered or incurred by any
of them by reason of, directly or indirectly, arising out of or in any way
related to or connected with, allegedly or otherwise, my: (a) activities as an
Independent Brand Partner, including, without limitation, any unauthorized
representations made by me; (b) breach of the terms of this Agreement; or (c)
violation of or failure to comply with any applicable federal, state or local
law or regulation. The Company shall have the right to offset any amounts owed
by me to the Company (including, without limitation, the repayment of
commissions as a result of product returns) against the amount of any
commissions or bonuses owed to me.
17. This Agreement will be governed
by
and construed with the laws of the State of Texas.
18. Except as set forth
in
the Policies and Procedures, all disputes relating to the performance of either
party under this Agreement shall be settled by arbitration in the City of
Dallas, State of Texas, in accordance with the Federal Arbitration Act and the
Commercial Arbitration Rules of the American Arbitration Association, except
that all parties will have full discovery rights allowed under the Federal Rules
of Civil Procedure.
19. I agree that upon a breach of this Agreement
that
the Company will be immediately and irreparably harmed and cannot be made whole
solely by monetary damages. I agree that the remedy at law for any breach of any
provision of this Agreement shall be inadequate and that, in addition to any
other remedies, in law or in equity, it may have, the Company shall be entitled,
without the necessity of proving actual damages, to temporary and permanent
injunctive relief to prevent the breach of any provision of this Agreement
and/or to compel specific performance of this Agreement.
20. Except as
expressly set forth herein, any communication, notice or demand of any kind
whatsoever which either party may be required or may desire to give to or to
serve upon the other shall be in writing and delivered by electronic
communication, whether by telex, telegram or telecopy (if confirmed in writing
sent by registered or certified mail, postage prepaid, return receipt requested
or by personal service), or by registered or certified mail, postage prepaid,
return receipt requested. Any such communication, notice or demand shall be
deemed to have been duly given or served on the date personally served, if by
personal service, on the date of confirmed dispatch if by electronic
communication, or on the date shown on the return receipt or other evidence of
delivery, if mailed.
21. All rights, powers and remedies given to the
Company are cumulative, not exclusive and in addition to any and all other
rights and remedies provided by law. No failure or delay of the Company to
exercise any power or right under this Agreement or to insist upon strict
compliance by an Independent Brand Partner with any obligation or provision
shall
constitute a waiver of the Company’s right to demand exact compliance
therewith. Waiver by the Company can be effective only in writing by an
authorized of officer of the Company.
22. The Company shall be
entitled to
its cost and expenses, including reasonable attorneys’ fees, in enforcing
its rights under this Agreement.
23. If under any applicable law or
rule
of any applicable jurisdiction, any provision of the Agreement is held to be
invalid or unenforceable, the remainder of the Agreement will be interpreted as
best to effect the intent of the parties hereto. The remaining provisions of
this Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance from the
Agreement.
24. The covenants and obligations of an Independent
Brand Partner
to abide by the non-solicitation and confidential information covenants
contained herein shall survive termination of this Agreement.
25. This
Agreement, the Policies and Procedures and the Compensation Plan (all of which
are incorporated herein by reference), constitute the entire agreement between
the Company and an Independent Brand Partner, supersede all prior agreements and
no
other promises, representations, guarantees, or agreements of any kind shall be
valid unless in writing and signed by both parties.
26. Louisiana
residents may bring an action against the Company with jurisdiction and venue as
provided by Louisiana law.
27. A Montana resident may cancel his or
her
Brand Partner Agreement within 15 days from the date of enrollment and receive a
100% refund for all fees paid and products or services purchased prior to the
date of cancellation.
XENESTA INTERNATIONAL
STATEMENT OF POLICIES AND PROCEDURES
1. The Company. Xenesta International, Inc., hereinafter “Xenesta”
or “Company,” is a direct selling company marketing dietary
supplements, nutritional supplements, quality of life products, benefits and
financial services, to the consumer through Independent Brand Partners
(Independent Contractors) hereinafter “Independent Brand Partners.”
The
policies and procedures herein are applicable to all Independent Brand Partners
of
the Company.
2. Independent Brand Partners. An Independent
Brand Partner is one who has completed and agreed to a Company Application and
Independent Brand Partner Agreement and these Policies and Procedures, and has
been
accepted by the Company as an Independent Brand Partner. The Company reserves
the
right to accept or reject anyone as an Independent Brand
Partner.
3.
Independent Brand Partner’s Qualification. a) All Independent Brand
Partners
must be of legal age in the state in which they sell Company products or
services. The Company will consider married couples as a single Independent
Brand Partner/position. The Company does not encourage husbands and wives to
sponsor each other. However, this will be allowed with the following
stipulation; the spouse must be signed up directly to their spouse. They cannot
be placed somewhere else in the downline. b) Should a husband/wife Independent
Brand Partner divorce, they jointly should notify the Company as to how the
position is to be managed thereafter. The Company will continue to pay
commission checks in the same manner as before the divorce until it receives
written notice signed by both parties or a court decree which specifies how
future commission checks should be paid.
4. Legal Entities. a) A
partnership, corporation or limited liability company (a “Legal
Entity”)
may be an Independent Brand Partner. However, no individual may participate in
more
than one Independent Brand Partner position. An Independent Brand Partner
position
may
change status under the same sponsor from an individual to a Legal Entity with
proper and complete documentation. b) To become an Independent Brand Partner as
a
Legal Entity or to change status from an individual to one of these forms of
Legal Entities, the Independent Brand Partner must request a Legal Entity Form
from
the corporate home office. This form must be submitted detailing all partners,
stockholders, members, managers, officers or directors, as applicable, in the
Legal Entity. In addition, the Independent Brand Partner must submit (and keep
updated) a complete list of all directors, officers, shareholders, partners,
members and managers, as applicable, of the Legal Entity and such other
information reasonably requested by the Company from time to time. The
individual who submits the form must be authorized to enter into binding
contracts on behalf of the Legal Entity. In addition, by submitting the legal
entity form, Independent Brand Partner certifies that no person with an interest
in
the business has had an interest in an Independent Brand Partner’s
position
within three months of the submission of the form (unless it is the continuation
of an existing position that is changing its form of doing business). c)
Although the Company offers an Independent Brand Partner the opportunity to
conduct
his/her
Independent Brand Partner’s position as a Legal Entity, since the
Independent
Brand Partner’s Legal Entity is under the control of its owners, the
actions
of individual owners may affect the Company and the Independent Brand Partner
position. Therefore, the shareholders, officers, directors, partners, members,
managers, agents or employees, as applicable, of a Legal Entity Independent
Brand Partner are personally liable to the Company for the actions of the Legal
Entity.
5. Independent Brand Partners Status and
Responsibilities.
Independent Brand Partners are independent contractors of the Company. The
agreement between the Company and its Independent Brand Partners does not create
an
employer\employee relationship, agency, partnership, or joint venture between
the Company and the Independent Brand Partners. Each Independent Brand Partner
shall
hold harmless the Company from any claims, damages or liabilities arising out of
Independent Brand Partner's business practices. Independent Brand Partners have
no
authority to bind the Company to any obligation. Each Independent Brand Partner
is
encouraged to set up his\her own hours and to determine his\her own methods of
sale, so long as he\she complies with the policies and procedures of the
Company.
6. Independent Brand Partners Business Conduct.
In
the
conduct of his/her business, the Independent Brand Partner shall safeguard and
promote the reputation of the products and services of the Company and shall
refrain from all conduct which might be harmful to such reputation of the
Company or to the marketing of such products or inconsistent with the public
interest, and shall avoid all discourteous, deceptive, misleading, unethical or
immoral conduct or practices. Independent Brand Partners agree to conduct their
business with the highest standards of honesty and integrity. Independent
Brand Partners shall not make negative, disparaging, untrue or misleading
comments
about the Company, its owners, directors, officers, employees, other consultants
of the Company or any other company or such company’s products.
Independent Brand Partners shall not engage in any activities that may cause
harm
to the Company or any other Independent Brand Partner of the
Company.
7. Claims About Products. When discussing or promoting Xenesta products,
you may make only those representations found in literature published by
Xenesta. You may also state that the products are safe when used as directed on
the product labels. You may not state that any Xenesta product has been approved
by the U.S. Food and Drug Administration. The Independent Brand Partner agrees
not
to sell any unsealed product. Statements suggesting that Xenesta products can be
used to treat or remedy any illness, disease or medical condition are prohibited
and shall be grounds for suspension or termination of your membership, at the
sole discretion of Xenesta.
8. Marketing Products Through Retail
Establishments. Xenesta is a direct sales company. Xenesta’s success
is based upon our Independent Brand Partners selling directly (one-on-one) to
the
consumer, in a personal and caring manner. In order to maintain this
personal contact with Xenesta customers and to provide equal opportunity to all
Independent Brand Partners to sell Xenesta products to consumers, Xenesta places
certain restrictions on the sales of its products to or through commercial
establishments. a) Distribution of products is not permitted through chain
stores. Xenesta determines chain stores to be any retail establishment with more
than five (5) separate locations. b) Xenesta will be the sole judge of
whether a commercial enterprise violates the policies, spirit or intent of its
guidelines and reserves the right to modify, amend or rescind its approval
as
current business conditions may dictate. In order to sell or display
Xenesta products in a retail establishment*, an Independent Brand Partner must
adhere to the following guidelines: a) The Independent Brand Partner
must complete a Retail Request/Release Form to be provided by Xenesta,
documenting and communicating with corporate where products are being sold. b)
The Independent Brand Partner is responsible to manage and superintend all
products
sold or displayed. c) Products must be offered at the Xenesta suggested retail
and preferred customer pricing; d) The Independent Brand Partner must provide
each customer with a Xenesta Retail Receipt (available in Independent Brand
Partner’s
Back Office) at the time of sale; e) Products must not be sold to anyone under
the age of 18 without parental consent in writing; f) The Independent
Brand Partner must only use product literature or representations published or
approved by Xenesta. Brand Partners can submit their product literature or
representations to“Marketing Compliance” through
MarketingComplience@Xenesta.com. g) The Independent Brand Partner agrees not to
sell any unsealed product.
*”Retail establishment”
refers to traditional retail outlets such as health clubs, gyms, food markets,
gift shops, hair or nail salons and health professionals’ offices. Selling
or promoting of Xenesta products in mall kiosks is strictly prohibited. Fairs,
home shows, trade shows and other seasonal or annual events are not considered
to be traditional “retail establishments”. You must therefore submit
an Exhibition Request form to the Xenesta Compliance Department for approval to
sell or display products at these events. Exhibition Request forms may be
submitted to Marketing Compliance at MarketingComplience@Xenesta.com . Approval
to sell or display Xenesta products in a retail establishment can be revoked at
any time discretion of company. As a matter of fairness to all
Xenesta Brand Partners, Xenesta must strictly enforce this policy and take
appropriate action against any Independent Brand Partner who fails to comply.
Accordingly, first-time violations of this policy will result in a suspension of
your membership; any subsequent violation will result in the termination of your
membership. Xenesta does however, have the discretion to terminate upon a first
time violation.
9. Customer Refunds and Product Returns
All
first-time orders of Xenesta Products (both Preferred and Retail Customers) come
with a 30day money back guarantee. a) You must refund a Preferred or
Retail customer’s money immediately if asked to do so. (This does not
include shipping and handling costs). Failure to do so may result in the
suspension or termination of your membership, at the sole discretion of
Xenesta.
b) When you refund your Preferred or Retail customer, you will receive a
replacement for the product from Xenesta if you return the unused portion of the
product along with a copy of the Retail Sales Receipt and a completed Retail
Customer Product Return form to (forms also apply to “Preferred”
Customers); Xenesta Returns 3131 Story Road West, Irving TX 75038 c) Retail
Customer Product Return forms (also applies for “Preferred”
Customers) are available in Independent Brand Partner’s Back Office or
from
Customer Service. You must request your replacement product within 30 days of
the date you gave the refund to your Preferred or Retail
customer. d) If a Preferred or Retail customer calls the corporate office
to request a refund, Xenesta will notify the appropriate Independent Brand
Partner.
e) If the Independent Brand Partner fails to refund the Preferred or Retail
customer within seven days, the Independent Brand Partner may be suspended or
terminated at the sole discretion of the Company.
10. Consumer
Centered Services and Products. a) The Company's program is built upon
retail sales of product and services to the ultimate consumer. Independent
Brand Partners must fulfill published personal and / or down-line or group
retail
sales requirements to qualify for bonuses, overrides or advancements. b)
An Independent Brand Partner may not pay for another person’s
membership.
c) No product purchase is required to become an Independent Brand Partner.
d)
The success of the Company depends upon retail sales to the ultimate consumer;
therefore, all forms of stockpiling are prohibited. The Company strictly
prohibits the purchase of products solely in an attempt to qualify for
advancement in the Compensation Plan. Such purchases are considered “Bonus
Buying.” Independent Brand Partners engaged in this activity are subject
to
having their membership suspended without pay or terminated at Company
discretion.
11. Sponsor’s Responsibilities. Any
Independent Brand Partner who sponsors other Independent Brand Partners must
fulfill
the obligation of performing a bona fide supervisory function in the sale or
delivery of product and services and in the training of those he/she sponsors.
Independent Brand Partners must be available to provide communication and
training
with his/her sales organization. Examples of such communication may include, but
are not limited to: newsletters, written correspondence, personal meetings,
telephone contact, voice mail, electronic mail, training sessions, and
accompanying individuals to Company training and sharing genealogy information
with those sponsored.
12. Taxes. Each Independent
Brand Partner
is responsible for complying with all state and local taxes and regulations with
respect to commissions or any other earnings generated as an Independent
Brand Partner of Company products and services.
13. Company
Representation. Independent Brand Partners shall not advertise Company
products and/or marketing plans except as specifically approved by the Company.
Independent Brand Partners agree to make no false or fraudulent representations
about the Company, the products, the Company compensation plan, or income
potentials.
14. Monthly or Annual Fees. The recurring
Independent Brand Partner fee will automatically be deducted from the credit
card
provided on the application form at the time the Independent Brand Partner joins
the Company and purchases the service.
15. Trademark, Trade
Names,
Advertising. a) The name of the Company and other names and marks as may
be used by the Company are proprietary trade names, trademarks and service marks
of and owned by the Company. As
such, these marks are of great value to the Company and are supplied to an
Independent Brand Partner for Independent Brand Partner's use only as expressly
authorized in writing. Each Independent Brand Partner agrees to advertise the
Company products and services only through the advertising or promotional
materials made available to the Independent Brand Partner by the Company. Each
Independent Brand Partner agrees not to use any written, printed, recorded or
any
other material in advertising, promoting or describing any product or service of
the Company or the Company business which has not been supplied by the Company,
unless such material has been submitted to the Company and approved in writing
by the Company before being disseminated, published or displayed. Such material
can be submitted to “Marketing Compliance” through the Independent
Brand Partner’s Xenesta Life .com Business Center. b) An Independent
Brand Partner may not produce, use or distribute any information relative to the
contents, characteristics or properties of Company product or service which has
not been provided directly by the Company. This prohibition includes but is not
limited to print, audio or video media. c) An Independent Brand Partner
may
not produce, sell or distribute literature, films or sound recordings which are
deceptively similar in nature to those produced, published and provided by the
Company for its Independent Brand Partners, nor may an Independent Brand Partner
purchase, sell or distribute non-company materials which imply or suggest that
said materials originate from the Company. d) Each Independent Brand
Partner
agrees to indemnify the Company and hold it harmless from any and all liability
including judgments, civil penalties, refund, attorney fees, court costs or lost
business incurred by the Company as a result of an Independent Brand Partner's
unauthorized representation concerning the Company of its products or services
or use of its trademarks, service marks or copyrights.
16.
Internet
and Website Policy. a) The Company maintains an official corporate
website. Independent Brand Partners are allowed to advertise on the Internet
through an approved Company program which provides Independent Brand Partners
with
replicated Company websites and Company-approved marketing materials present in
Independent Brand Partners XenestaLife.com Business Center that can be
personalized
with the Independent Brand Partner's message and the Independent Brand Partner's
contact information (the “Brand Partner Website”). The Independent
Brand Partner Websites link directly to the Company website giving the
Independent
Brand Partner a professional and Company-approved presence on the Internet. Only
these approved Independent Brand Partner Websites may be used by Independent
Brand Partners in connection with their Xenesta business or unless Independent
Brand Partner Website is approved by the Company. b) Independent Brand
Partners
may not advertise or promote their Xenesta business or the Company’s
products, trademarks or marketing plan or use the Company’s name in any
electronic media or transmission, including on the Internet (such as Ebay,
Amazon, Craigslist, etc.) except via a Independent Brand Partner Website unless
media or transmission is approved by Company. No Independent Brand Partner may
use “blind” ads on the Internet making product or income claims
which are ultimately associated with Company products or services or the
Company's business plans. c) Independent Brand Partners may not use the
trademarks of the Company or any derivative or abbreviation thereof as a domain
name or email address. d) When using the Brand Partner Websites and the
Internet, Independent Brand Partners must abide by the guidelines set forth by
the
Company, including, but not limited to the following, Independent Brand Partner
shall:
1) not make offers or solicitations in the guise of research, surveys or informal
communication, when the real intent is to sell products or services or sponsor
Independent Brand Partners; 2) whether or not they collect personal
information from individual consumers, disclose to the consumer in a prominent
place on the Brand Partner Website how the consumer information will be
used;
3) provide individual consumers with an opportunity to prohibit the
dissemination of personal information collected on-line, and if any consumer
requests that his/her personal information not be shared, the Independent
Brand Partner shall refrain from sharing such information; 4) provide
individual consumers the option to terminate any further communication between
the Independent Brand Partner and the consumer and if any consumer requests that
an
Independent Brand Partner cease communication, the Independent Brand Partner
shall
immediately stop communicating upon such request; 5) abide by all laws and
regulations regarding electronic communications;6) not distribute content by
use of distribution lists or to any person who has not given specific
permission to be included in such a process; spamming or distribution of chain
letters or junk mail is not allowed; and 7) not distribute content that is
unlawful, harassing, libelous, slanderous, abusive, threatening, harmful,
vulgar, obscene or otherwise objectionable material or which could give rise to
civil liability or otherwise violate any applicable local, state, national
or international law or regulation. e) When using the Brand Partner Website,
Independent Brand Partners shall not defame, abuse, harass, stalk, threaten or
otherwise violate the legal rights (such as rights of privacy and publicity) of
others. Independent Brand Partners shall not publish, post, upload, distribute,
or
communicate any inappropriate, profane, defamatory, infringing, obscene,
indecent or unlawful topic, name, material or information. All communications
shall respect the rights, opinions and sensitivities of others. Subjects not in
support of the operation of an Independent Brand Partner’s Xenesta
business,
such as religious, political or social commentary should be
avoided.
17. No Spam Policy. It is specific Company policy to prohibit Independent
Brand Partners from sending unsolicited and/or bulk email (spamming) or
information
by facsimile relating to the Company's business and products and services. The
Company has a zero tolerance policy of spamming practices.
18.
Representation of Status. In all cases, any reference the Independent
Brand Partner makes to him/herself must clearly set forththe Independent
Brand Partner's independent status. For example, if the Independent Brand
Partner
has
a business telephone, the telephone may not be listed under the Company's name
or in any other manner which does not disclose the independent contractor status
of the Independent Brand Partner.
19. Newspaper
Advertisements.
Some Independent Brand Partners use classified advertising in the newspapers to
find prospects. All advertisements must be approved by the Company in
advance.
20. Business Cards and Stationery. Any printed materials, including
business cards and stationery, must be approved by the Company in advance.
Criteria for approving these materials will include a judgment regarding the
quality of the materials as well as properly setting forth the independent
status of the
Independent Brand Partner.
21. Telephone Solicitation. The
use
of
the Company's name or copyrighted materials may not be made with automatic
calling devices or “boiler room” operations either to solicit
Independent Brand Partners or retail customers.
22. Press
Inquiries
and
Media Interviews. Any inquiries by the media are to be referred
immediately to the Company. Independent Brand Partners are prohibited from
granting
radio, television, newspaper, tabloid, internet, or magazine interviews, or
using public appearances, public speaking engagements, or making any type of
statement to the public media to publicize the Company, its products or services
or their Xenesta businesses, without the express prior written approval of the
Company. This policy is to assure accuracy and consistent public
image.
23. Endorsements. Federal and state regulatory agencies do not endorse
direct selling programs. Therefore, Independent Brand Partners may not represent
that the Company's program has been approved or endorsed by any governmental
agency.
24. Reproductions. Independent Brand Partners may
not
produce or reproduce for sale or personal use products sold by the Company or
any Company-produced literature, audio or video material, presentations, events
or speeches, including conference calls, webinars, or video-conferences. Video
and/or audio taping of Company meetings and conferences strictly is prohibited.
Still photography is allowable at the discretion of the meeting
host.
25. Repackaging. Independent Brand Partners may not re-package products or
materials of the Company.
26. Trade Shows. With written
authorization from the Company, Company products and opportunity may be
displayed at trade shows by Independent Brand Partners. Request for
participation
in trade shows must be receivedin writing by the Company at least two weeks
prior to the show. Written authorization from the Company must be received
before participating in the trade show. Company products and opportunity are the
only products and/or opportunity that may be offered in the trade show booth.
Only Company produced marketing materials may be displayed or distributed. No
Independent Brand Partner may sell or promote the Company's products or business
opportunity at flea markets, swap meets, or garage sales, etc. without prior
Company approval. You must therefore submit an Exhibition Request form to the
Xenesta Compliance Department for approval to sell or display products at these
events. Exhibition Request forms may be submitted to Marketing Compliance at
MarketingCompliance@Xenesta.com.
27. Sales Presentations.
At
all sales presentations, Independent Brand Partners shall truthfully identify
themselves, their products, and the purpose of their business to prospective
customers. Independent Brand Partners may not use any misleading, deceptive, or
unfair sales practices. Explanation and demonstration of products and services
offered shall be accurate and complete including, but
not limited to, with regard to price, terms of payment, refund rights,
guarantees, and aftersales services and delivery. Personal or telephone contacts
shall be made in a reasonable manner and during reasonable hours to avoid
intrusiveness. Independent Brand Partners must immediately discontinue a
demonstration or sales presentation upon the request of the consumer.
Independent Brand Partners shall not directly or by implication, denigrate any
other company or product. Independent Brand Partner shall refrain from using
comparisons which are likely to mislead and which are incompatible to the
principles of fair competition. Points of comparison shall not be unfairly
selected and shall be based on facts which can be substantiated. Independent
Brand Partner shall not abuse the trust of individual consumers, shall respect
the
lack of commercial experience of consumers and shall not exploit a
customer’s
age, illness, lack of understanding or lack of language
expertise.
28. International Sales. No Independent Brand Partner may export or sell
directly or indirectly to others who export the Company's products or services,
literature, sales aids or promotional material relating to the Company, its
products or the Company's program from the United States or its possessions or
territories to any other country. Independent Brand Partners who choose to
sponsor
internationally may do so only in countries in which the Company has registered
to operate its business and must comply fully with the rules of operation of the
Company’s operation in that country.
29. Renewal.
Independent Brand Partners must renew their status annually, and the Company has
the right to decline to accept any renewal, in its sole discretion. The annual
renewal fee is due on the anniversary date of acceptance of the Independent
Brand Partner Agreement. The Company may charge a renewal fee and/or require
that
Independent Brand Partner execute a new Independent Brand Partner Agreement upon
renewal. Independent Brand Partners not renewing by the renewal date shall be
deemed to have voluntarily terminated their Independent Brand Partner
relationship
with the Company.
30. Termination. a) The Independent
Brand Partner Agreement may be canceled for any reason by either party upon a
thirty (30) day prior written notice to the other party. b) The Company
reserves the right to terminate any Independent Brand Partner at any time for
cause
when it is determined that the Independent Brand Partner has violated the
provisions of the Independent Brand Partners Agreement, including the provisions
of
these Policies and Procedures. Such involuntary termination shall be made by the
Company at its sole discretion. Upon an involuntary termination, the Company
shall notify the Independent Brand Partner by mail at the latest Independent
Brand Partner’s address listed with the Company. In the event of a
termination, the terminated Independent Brand Partner agrees to immediately
cease
representing him/herself as an Independent Brand Partner of the
Company.
31. Returns. a) An Independent Brand Partner who terminates his/her
business
relationship with the Company has the right to return for repurchase on
commercially reasonable terms currently marketable inventory, including required
Company-produced promotional materials, sales aids and kits in possession of the
Independent Brand Partner or such materials purchased by the Independent Brand
Partner
for resale prior to the date of termination. For purposes hereof,
“reasonable
commercial terms” shall mean the repurchase of marketable inventory within
12 months from
the Independent Brand Partner’s date of purchase at not less than 90% of
the
Independent Brand Partner’s original net cost less appropriate set-offs
and
legal claims, if any. In addition, for purposes of this section, products shall
not be considered “currently marketable” if returned for repurchase
after the product’s commercially reasonable usable or shelf life period
has passed; nor shall products be considered “currently marketable”
if the Company clearly discloses to the Independent Brand Partner prior to
purchase
that the products are seasonal, discontinued, or special promotional products
and are not subject to the repurchase obligation. b) A written request
must be submitted, stating the reason for the return of inventory and/or sales
materials, and accompanied by proof of payment and a copy of the purchase order
form or packing slip. c) The Company will instruct the Independent
Brand Partner where to ship the product for inventory and verification. Upon
receipt and inspection of the return, the Company will process the appropriate
refund. The Independent Brand Partner must pay the cost of return freight.
d)
All commissions, overrides and/or bonuses paid to a terminated Independent
Brand Partner and his/her up-line as a result of any product returned upon
termination must be repaid to the Company from the Independent Brand Partners
receiving such commissions, overrides and/or bonuses. The Company may deduct
such amounts from any commissions or other amounts owed to such Independent
Brand Partners.
32. Buyer’s Right to Cancel. Federal
law
grants a buyer the right to cancel certain sales without penalty prior to
midnight of the third business day after the transaction. This rule covers
retail consumer sales of $25.00 or more that occur away from the seller’s
main office. Independent Brand Partners must orally inform the buyer of the
three-day right to cancel at the time the buyer purchases the
goods.
33. Solicitation. During the term of this Agreement, an Independent
Brand Partner may not, directly or indirectly, on his/her own behalf or on
behalf
of any other person or entity, divert, solicit or hire any customer, Independent
Brand Partner, or employee of the Company to terminate or alter his/her business
or
contractual relationship with the Company.
34. Proprietary
Information. The Company will provide access via the Independent
Brand Partner’s website “back-office” to company data,
information and reports concerning the Independent Brand Partner's down-line
sales
organization. Each Independent Brand Partner agrees that such information is
proprietary and confidential to the Company and is transmitted to the
Independent Brand Partner in confidence. Each Independent Brand Partner agrees
that
he/she will not disclose such information to any third party directly or
indirectly, nor use the information to compete with the Company directly or
indirectly. The Independent Brand Partner and the Company agree that, but for
this
agreement of confidentiality and nondisclosure, the Company would not provide
the above confidential information to the Independent Brand Partner. Each
Independent Brand Partner acknowledges that the genealogy may contain
information
concerning an Independent Brand Partner, including, but not limited, to an
Independent Brand Partner’s name, address, phone number, products and
earnings, and each Independent Brand Partner consents to the dissemination of
the
genealogy.
35. Vendor Confidentiality. The Company's
business
relationship with its vendors, manufacturers and suppliers is
confidential. An Independent Brand Partner shall not contact, directly or
indirectly, or speak to or communicate with any representative of any supplier
or manufacturer of the Company except at a Company sponsored event at which the
representative is present at the request of the Company.
36.
Death
or Incapacitation. Upon the death or incapacity of the Independent
Brand Partner, his/her rights to bonuses and marketing position, together with
Independent Brand Partner responsibilities, shall pass to his/her successors in
Interest upon written application and approval by the Company. The successor
Independent Brand Partner must fulfill all responsibilities of the independent
consultant and execute the then current Independent Brand Partner
Agreement.
37. Transfer of Independent Brand Partner Position. a) An Independent
Brand Partner may not sell, assign or otherwise transfer his/her Independent
Brand Partner position, marketing position or other Independent Brand Partner
rights
without written approval by the Company. The selling Independent Brand Partner
must
provide the Company with a copy of all documents which detail the transfer,
including, without limitation, the name of the purchaser, the purchase price and
terms of purchase and payment. b) The Company possesses the right of first
refusal with respect to any sale, assignment or transfer of any Independent
Brand Partner position. An Independent Brand Partner wishing to sell, assign or
transfer his/her business must first provide the Company with the right and
option to make such a purchase or receive such transfer in writing on the same
terms and conditions as any outstanding or intended offer. The Company will
advise the Independent Brand Partner within 10 business days after receipt of
such
notice of its decision to accept or reject the offer. c) If the Company
fails to respond within the 10-day period or declines such offer, the
Independent Brand Partner may make the same offer to the Independent Brand
Partner's
sponsor. If the sponsor declines the offer, the Independent Brand Partner may
sell
the Independent Brand Partner’s position to any person or entity who is
not
an Independent Brand Partner, married to or a dependent of an Independent
Brand Partner or who has any interest in an Independent Brand Partner, but on
the
same
terms and conditions as offered to the Company and/or sponsor. d) Upon a
sale, transfer or assignment being approved in writing by the Company, the
purchaser must assume the position of the selling Independent Brand Partner and
must execute a current Independent Brand Partner Agreement and all such other
documents as reasonably be required by the Company. e) An Independent
Brand Partner who sells his/her Independent Brand Partner’s position shall
not
be eligible to re-qualify as an Independent Brand Partner for a period of at
least
six months after the sale.
38. Agreement. These Policies
and
Procedures are incorporated into the Independent Brand Partner
Agreement.
39. Amendment. The Company expressly reserves the right to alter or amend
prices, these Policies and Procedures, products and services and the
Compensation Plan at anytime. Such amendments are automatically incorporated as
part of the Independent Brand Partner Agreement and will be communicated to the
Independent Brand Partner by posting on the Company website or through other
Company communications. The cashing of a company commission check or acceptance
of bonuses or commissions constitutes acceptance and agreement of such
changes.
40. Sponsoring Rights. a) All Independent Brand Partners have the right
to
sponsor others. In addition, every person has the ultimate right to choose
his/her own sponsor. If two Independent Brand Partners should claim to be the
sponsor of the same new Independent Brand Partner, the Company shall regard the
first application received by the corporate home office as controlling. b)
As a convenience to its Independent Brand Partners, the Company may provide
various
methods of registering or informing the Company of newly sponsored Independent
Brand Partners, including telephone registration and facsimile registration.
Until
such time as the Company receives an application and an executed Independent
Brand Partner Agreement, either as hard copy, electronically, or by facsimile,
containing all appropriate information, the Company will consider an incomplete
registration in the category of “intended”
registration.
41. Transfer of Sponsorship. Once an Independent Brand Partner has been
sponsored, the sponsoring Independent Brand Partner has up to 30 days to place
that
individual. This placement is allowed only one time and is permanent, once
placed.Transfer of sponsorship is rarely permitted and is actively discouraged.
Maintaining the integrity of sponsorship is absolutely mandatory for the success
of the overall organization. Any change of sponsorship is subject to final
approval by Xenesta. A Independent Brand Partner may change sponsorship upon
written request to Xenesta, accompanied by signed letters of approval from all
eight immediate upline Independent Brand Partners. The written request must
state
clearly that all parties involved understand the consequences of the sponsorship
or placement transfer and be signed by the appropriate parties. Alternatively, a
Independent Brand Partner may change sponsorship by voluntarily terminating his
or
her existing position and maintaining no activity for a period of six months.
The Independent Brand Partner may then enroll as a new Independent Brand Partner
under
any sponsor he or she chooses. If the period of six months has lapsed with no
activity, the Independent Brand Partner may enroll as a new Independent Brand
Partner
under the sponsor of his or her choice.
42. Commissions &
Bonuses Eligibility. To be eligible for monthly override commissions and
bonuses, the Independent Brand Partner must comply by: a) Maintain an
active
position and in good standing with the Company; and b) Maintaining the
minimum number of active Xenesta customers required at the achieved
level.
43. Chargebacks. When a Brand Partner receives an “advanced”
commission on any Xenesta product, they are subject to a chargeback of
any “unearned” commissions if the membership receives a refund.
Chargebacks will be deducted from any future commission checks until chargebacks
are relieved. Bonuses received by Brand Partners are subject to a 100%
chargeback
due to fraudulent business or unethical activity.
44.
Roll-Ups.
At the end of the month (or 31 days) if an Independent Brand Partner drops below
the Personal Volume (PV) or the Personal Qualifying Volume (PQV), that
Brand Partner will be notified immediately and will have until the end of the
next
month to obtain a minimum of PV or PQV to prevent a roll-up of his or her
down-line. If that Independent Brand Partner remains below the PV
or PQV for the following month, that Independent Brand Partner will forfeit their
down-line to their active up-line Independent Brand Partner. If an Independent
Brand Partner chooses to cancel, at the end of the following month after
cancellation, their down-line will be forfeited to their active upline
Independent Brand Partner and the Independent Brand Partner that canceled will
become
inactive.
45. Income Claims. No income claims, income
projections nor income representations may be made to prospective Independent
Brand Partners. Any false, deceptive or misleading claims regarding the
opportunity
or product\service are prohibited. In their enthusiasm, Independent Brand
Partners
areoccasionally tempted to represent hypothetical income figures based upon the
inherent power of network marketing as actual income projections. This is
counter-productive and prohibited, since new Independent Brand Partners may be
quickly disappointed if their results are not as extensive or as rapidas a
hypothetical model would suggest. The Company believes firmly that the income
potential is great enough to be highly attractive in reality without resorting
to artificial and unrealistic projections.
46. Waiver. The
Company never gives up its right to insist on compliance with these Policies and
Procedures or with the applicable laws governing the conduct of the Xenesta
business. This is true in all cases, both specifically expressed and implied,
unless an officer of the Company who is authorized to bind the Company in
contracts or agreements specifies in writing that the Company waives any of
these provisions.
47. Governing Law. These Policies and
Procedures shall be governed by the laws of the State of Texas. The parties
agree that jurisdiction and venue shall lie in Dallas, Texas.
48.
Partial Validity. Should any portion of these Policies and Procedures or
the Independent Brand Partner's Agreement, or of any other instruments referred
to
herein or issued by the Company be declared invalid by a court of competent
jurisdiction, the balance of such rules, applications, or instruments shall
remain in full force and effect.
49. Customer Guarantee.
Independent Brand Partners must abide by the Company’s retail customer
return
policy.
50. Warranties. Except as expressly stated herein,
the
Company makes no warranty or representation as to the merchantability, fitness
for a particular purpose, workmanship or any other warranty concerning any
product or service purchased from or through the Company.
51.
Force
Majeure. The Company shall not be responsible for delays or failure in
performance caused by circumstances beyond a party’s control, such as
strikes, labor difficulties, fire, war, government decrees or orders or
curtailment of a party’s usual source of supply.
52. Arbitration. a) Except as expressly set forth herein, all disputes,
claims and controversies between Independent Brand Partners and the Company,
relating to or arising out of the Independent Brand Partner Agreement, the
Policies
and Procedures, the Compensation Plan or its products or services, the rights
and obligations of an Independent Brand Partner and the Company or any other
claims
or causes of action relating to the performance of any Independent Brand Partner
under the Independent Brand Partner Agreement shall be settled totally and
finally
by arbitration in Dallas, Texas, or such other location as the Company
prescribes, in accordance with Policies and Procedures and the Commercial
Arbitration Rules of the American Arbitration Association. Except as expressly
set forth herein, arbitration shall be the exclusive method available for
resolution of such claims and disputes. b) There shall be one arbitrator who
shall be an attorney who shall have expertise in business law transactions, and
preferably an attorney knowledgeable in the direct selling industry. The Company
shall select the arbitrator at its sole discretion from the panel which the
American Arbitration Association provides. Each party to the arbitration shall
be responsible for its own costs and expenses of arbitration, including legal
and filing fees. If an Independent Brand Partner files a claim or counterclaim
against the Company, an Independent Brand Partner shall do so on an individual
basis and not with any other Independent Brand Partner or as part of a class
action. The arbitrator shall have the right in his/her discretion to authorize
the obtaining of discovery, including the taking of depositions of witnesses for
the purpose of discovery. The presentations of parties in the arbitration
proceeding shall be commenced and completed within 60 days after the selection
of the arbitrator and the arbitrator shall render his/her decision in writing
within 30 days after the completion of such presentations. The decision of the
arbitrator shall be final and binding on the parties and may, if need be, be
reduced to a judgment in any court of competent jurisdiction. At the request of
any party, the arbitrator shall make and provide to the parties written findings
of fact and conclusions of law. This agreement to arbitration shall survive any
termination or expiration of the Independent Brand Partner Agreement. c)
Notwithstanding the foregoing, the arbitrator shall have no jurisdiction over
disputes relating to the ownership, validity, use or registration of any mark,
copyright, or other intellectual property or proprietary or confidential
information of the Company without the Company’s prior written consent.
The Company may seek any applicable remedy in any applicable forum with respect
to these disputes. d) Nothing in the Policies and Procedures shall prevent
the Company from terminating the Independent Brand Partner Agreement or from
applying to and obtaining from any court having jurisdiction a writ of
attachment, a temporary injunction, preliminary injunction and/or other
injunctive or emergency relief available to safeguard and protect the
Company’s
interests prior to the filing of or during or following any arbitration or other
proceeding or pending the handing down of a decision or award in connection with
any arbitration or other proceeding. e) Nothing contained herein shall be
deemed to give the arbitrator any authority, power or right to alter, change,
amend, modify, add to, or to subtract from any of the provisions of the Policies
or Procedures, Compensation Plan or the Independent Brand Partner
Agreement.
53. Sponsorship & Placement. Every Independent Brand Partner that
Sponsors a new Brand Partner will have the ability to Place that individual
under a
different Brand Partner (Enroller) in their downline. They can be both Sponsor
and
Enroller, or they can choose to sponsor them and place them under someone else
in their downline. Independent Brand Partners are entitled to sponsor other
Independent Brand Partners in the U.S. and Other Countries (as specifically
authorized). However, Independent Brand Partners
are compensated only for the generation of sales of products to end consumers,
not for sponsoring new Independent Brand Partners into the program.
54.
Notices. Unless otherwise provided, any notice or other communications
requested or permitted to be given shall be in writing and shall be delivered
personally, transmitted by facsimile or sent by first class, certified (or
registered) or express mail, postage prepaid. Notices shall be deemed given when
delivered personally, or if transmitted by facsimile, one day after the date of
that facsimile, or if mailed, five days after the date of mailing to the address
of Xenesta’s headquarters or to the Independent Brand Partner address as
provided by the Independent Brand Partner, unless notice of an address change
has
been received by Xenesta. Xenesta shall have the right, as an alternative method
of notice under this Section, to use other normal channels of communications
with Independent Brand Partner.
55. Privacy Policy.
Xenesta
is
committed to ensuring that your privacy is protected. Xenesta’s Privacy
Policy governs the manner in which we collect, use, maintain and disclose
information collected from users (each, a "User") of the www.Xenesta.com website
("Site"). Should we ask you to provide certain information by which you can be
identified when using the Xenesta corporate website, you can be assured that it
will only be used in accordance with our published privacy policy found at
www.Xenesta.com. Our privacy policy applies to the Site and all products and
services offered by Xenesta. We may change our Privacy Policy from time to time
by updating the Privacy Policy page on our website. Please visit the page
periodically to review any updates or changes.