PAPERLY’S CONSULTANT AGREEMENT
This Agreement (this “Agreement”), which is a legal agreement between you (“Consultant”) and Paperly, LLC, a JRJR Networks limited liability company with an address at 2950 North Harwood St Suite 2200 Dallas, TX 75201 (“Company”), shall govern Consultant’s provision of consulting services to the Company. By checking any “I Agree” box or clicking on any
“I Agree” button associated with this Agreement, Consultant (x) accepts this Agreement and agrees to be bound by each of its terms, and (y) represents and warrants to the Company that (i) Consultant has the authority to enter into this Agreement, and (ii) this Agreement is binding and enforceable against Consultant. If Consultant does not agree with any of the terms contained herein, Consultant should not click any buttons or check any boxes to suggest Consultant’s agreement to abide by this Agreement.
Whereas, Company desires to engage Consultant to perform certain services for Company and Consultant desires to render such services on the terms and conditions set forth herein.
Now, therefore, in consideration of the mutual covenants and agreements set forth herein, Company and Consultant agree as follows:
- Term of Engagement. The term of this Agreement shall commence on the date Company first charges the credit card provided to Company by Consultant and will conclude immediately upon written notice from either party to the other party (the “Term”).
- Consultant Arrangement. Company, upon Consultant’s acceptance of this Agreement, engages Consultant as an independent contractor and Consultant accepts such engagement, upon the terms and conditions hereinafter set forth. Paperly Consultants will not be treated as employees for federal or state tax purposes. Consultant’s responsibilities are set forth in Exhibit A. During the Term, Consultant agrees to perform services hereunder professionally, in a timely manner and in accordance with this Agreement and all applicable laws, and, in addition, Consultant agrees to adhere to the Policy Statement (as updated or amended from time to time, the “Policy Statement”) posted at http://paperly.azurewebsites.net/policystatement.asp (the “Website”) (which Policy Statement is incorporated herein by reference). Consultant shall be eligible to participate in the Paperly Consultant Recruitment Program (the “Recruitment Program”), as described in Exhibit B attached hereto (the “Recruitment Exhibit”). Consultant (i) shall be responsible, at his or her sole cost and expense, for his or her own business expenses, as well as any computer equipment, software and other tools necessary to carry out his or her responsibilities hereunder, (ii) shall have final say as to where services hereunder shall be performed, (iii) acknowledges that the relationship created by this Agreement is not necessarily a continuing relationship, (iv) shall be responsible for setting his or her own hours of work, so long as he or she adequately performs the services required of him or her hereunder, (v) acknowledges that his or her performance of services hereunder will not occupy all of his or her working hours, (vi) will perform the majority of his or her services hereunder off Company premises, (vii) is free to perform services for other companies and individuals so long as he or she otherwise complies with the terms of this Agreement, (viii) acknowledges that his or her engagement by the Company is on a non-exclusive basis, and as such, the Company is free to engage other independent contractors to perform identical services to those being performed by Consultant hereunder (including individuals residing in the same geographic region as Consultant), (ix) shall review the Policy Statement from time to time, as all changes posted at the Website shall be binding on Consultant five (5) days after posting, and (x) acknowledges that the Company may, at any time, change the prices it charges for its products. Company shall not be responsible for hiring, supervising or paying any assistants, contractors or employees of Consultant.
- Commissions, Credit Card Charges and Fees. In consideration of the services to be provided to Company by Consultant hereunder, Company shall pay to Consultant the commissions (“Commissions”) as described in Exhibit A and, as applicable, the Recruitment Exhibit. Unless otherwise expressly provided in writing andsigned by Company, and assuming Company owes Consultant no outstanding Commissions for services rendered prior to the termination of the Term, Consultant shall be entitled to no additional Commissions following the termination of the Term. In addition, Consultant hereby authorizes Company to charge any and all credit cards submitted to Company on a separate credit card authorization form or otherwise provided to Company on the Website for all amounts due and owing from Consultant to Company from time to time, including, without limitation, in connection with orders placed by Consultant with Company, the monthly subscription for a personalized Paperly website, and Company sales and/or marketing materials ordered by Consultant. In consideration of the Company providing to Consultant the Starter Kit (as defined in Exhibit A), Company will charge the Consultant the Starter Kit Fee as described in Exhibit A (“Fees”).
- Inventions, Designs and Innovations. Consultant agrees that all right, title, and interest in and to any idea or any innovation, design, drawing, character or other work product, and all copyrights, patents, trademarks and trade names which were or are developed or created in whole or in part by Consultant at any time and at any place during the term of Consultant’s engagement by the Company and which are related to the business activities of Company (collectively, “Work Product”), shall be and remain forever the sole and exclusive property of Company or its respective affiliates, unless otherwise agreed to in writing by Company, and Consultant hereby assigns to Company any and all such intellectual property. Similarly, all original works of authorship which are made by Consultant (solely or jointly with others) within the scope of the services provided by Consultant hereunder and which are protectible by copyright are “works made for hire” (as that term is defined under the United States Copyrights laws) and are the sole and exclusive property of Company.
- Covenant Not to Compete, Solicit or Interfere With Business. Consultant agrees that while engaged by Company he or she will not compete with Company or any of its affiliates in any way, and that for a period of 12 months after the termination of his or her engagement with Company for any reason, he or she will not, directly or indirectly, (i) solicit or induce or attempt to solicit or induce any employee, independent contractor, manager, customer, consultant or agent of Company to terminate his, her or its relationship or employment with Company, (ii) directly or indirectly, as an employee, agent, manager, consultant or advisor of any entity, compete with Company anywhere in the United States in the retail sale of cards, stationery, invitations and/or similar products, or (iii) otherwise interfere with any business relationships of Company.
- Protection of Confidential Information. Consultant recognizes that Company has acquired and will be developing certain advertising techniques and terms, business plans, models and strategies, training programs, customer interaction protocols, customer lists and information, contact lists and information, referral sources, databases, website information, software, marketing plans and analyses, sales techniques and strategies, financial information and projections, investor information, trade secrets, know-how, systems, methods and other information which Company regards as confidential (including the Work Product, “Confidential Information”). Consultant agrees that, upon termination from the Company for any reason, he or she will immediately deliver to Company, at his or her own expense, all Company-related sales materials, marketing materials, catalogs, albums, business cards, order forms, documentation, computer diskettes or other items containing or relating to Confidential Information as well as any other matters which may involve the business of Company, together with all copies thereof, irrespective of whether he or she created the same or was involved with the same and that he or she will neither copy nor take any such materials or items. Consultant further agrees that he or she will not at any time, either while acting as an independent contractor to Company or after termination of his or her arrangement with Company for any reason, directly or indirectly, reveal Confidential Information to any other person, corporation or entity or otherwise use the Confidential Information for his own benefit or the benefit of any other person. Consultant hereby acknowledges that he or she may become aware of confidential information of third parties with which the Company does business from time to time, and Consultant agrees to treat all such confidential information as Confidential Information hereunder. Confidential Information shall specifically exclude any information that becomes generally available to the public other than as a result of an unauthorized disclosure by Consultant or persons to whom Consultant has made the information available.
- Enforcement. Consultant acknowledges that the protections of Company set forth in Sections 4, 5 and 6 of this Agreement are of vital concern to Company, that monetary damages for any violation thereof would not adequately compensate Company and that Company is engaged in a highly competitive business. Accordingly, Consultant agrees that the restrictions set forth in Sections 4, 5 and 6 are reasonable in terms of duration, geographic area and otherwise and that, in addition to any other remedy, Company shall be entitled to enforce such Sections by injunction. If any term or condition of this Agreement shall be invalid or unenforceable to any extent or in any application, then such term or condition shall automatically, and without any further action, be reformed so as to retain the fullest extent of any restriction therein permitted by law and the remainder of this Agreement, and such term or condition, except to such extent or in such application, shall not be affected thereby, and each and every term and condition of this Agreement shall be valid and enforced to the fullest extent and in the broadest application permitted by law. Each and all of the various rights, powers and remedies of Company set forth in this Agreement shall be considered as cumulative, with and in addition to any other rights, powers or remedies of such parties, and no one of them is exclusive of the others or is exclusive of any other rights, powers and remedies allowed by law or in equity. The exercise, partial exercise or non-exercise of any rights, powers or remedies shall constitute neither the election thereof nor the waiver of any other rights, powers or remedies. All rights, powers and remedies of the parties hereto shall survive the termination of this Agreement.
- Independent Relationship. Consultant will be associated with the Company as an independent contractor solely for the purposes and to the extent set forth herein. This Agreement shall not be construed as an agreement establishing a partnership, joint venture, franchise or other form of business entity, nor an employment relationship. Consultant shall not be entitled to participate in any employee benefit plan, arrangement, distribution or other similar benefits which may be provided by Company, nor shall Consultant be treated as an employee for purposes of workers’ compensation benefits or for purposes of any employee benefit plan. Consultant shall have no authority to contract for or obligate Company in any way. Consultant shall be solely responsible for maintaining adequate insurance relating to his or her engagement by the Company, and shall also be solely responsible for the payment of all applicable Federal, state and local income, sales, use, unemployment, social security and other taxes attributable the performance of services by Consultant under this Agreement. Each party shall comply with and be solely responsible for its, his or her own compliance with all pertinent laws and regulations governing the activities performed by them.
- Prior Agreements; Other Representations. Consultant hereby confirms that he or she is not party to any oral or written agreements which would prohibit him or her from entering into this Agreement or performing the services described herein. Consultant shall not use the trade secrets, intellectual property rights, copyrights, or other proprietary rights of any third party, except to the extent any such third party has granted to Consultant a license or right to use any such rights or information in performing the services hereunder, in the performance of Consultant’s obligations under this Agreement. In addition, Consultant hereby certifies that he or she is permitted under applicable law to perform the services described in this Agreement within the United States.
- Disclaimer of Warranties; Indemnification; Limitation of Liability. Each party represents and warrants to the other party that it has the right and authority to enter into this Agreement and to perform its obligations hereunder. Except as set forth above in this Section 10, the Company does not make any warranties of any kind, either expressed or implied, including, without limitation, (a) warranties of merchantability or fitness for a particular purpose, (b) non-infringement, or (c) as to the results that Consultant may achieve by working with the Company hereunder. Consultant shall indemnify the Company, together with its officers, members and managers, for all costs, expenses, liabilities and/or claims (including, without limitation, attorney’s fees) arising out of (i) any services provided by Consultant to any third party (including, without limitation, any errors made by Consultant in working with a customer or processing an order), and/or (ii) the operation of any business by Consultant (provided, that no such indemnification shall be owing to the Company in the event a court or arbitrator of competent jurisdiction determines that any such cost, expense, liability and/or claim arose primarily as a result of the gross negligence or willful misconduct of the Company). In no event shall either party have any liability to the other party for any loss of data, lost profits, costs of procurement of substitute goods or services, or any other special, indirect, punitive, incidental, exemplary or consequential damages (whether direct or indirect) arising out of any of this Agreement, whether based in contract, tort (including negligence) or any other theory of liability, even if the applicable party has been advised of the possibility of such damages. Furthermore, no cause of action which accrued more than 1 year prior to the filing of a lawsuit alleging any claim hereunder may be asserted against the Company by Consultant.
- Miscellaneous. This Agreement is personal to the Consultant and may not be assigned or transferred in any manner whatsoever. Company may assign this Agreement at any time without the consent of Consultant. The rights and covenants of this Agreement shall inure and extend to the parties hereto, their respective heirs, administrators, executors, successors and permitted assigns. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois (without regard to its rules regarding conflicts of laws). This Agreement constitutes the entire agreement between the parties hereto and supersedes all understandings and agreements between the parties with respect to the subject matter hereof, and shall not be altered, modified, amended or terminated except by written instrument executed by both parties hereto. The parties hereby agree that any controversy or claim arising out of or relating to this Agreement or the breach thereof will be settled by arbitration in Chicago, Illinois in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. In the event of any arbitration or litigation arising out of or relating to this Agreement, the substantially prevailing party in such action shall be entitled to recover all costs and fees associated therewith including, without limitation, attorneys’ fees. Any notices and other communications required or permitted hereunder shall be in writing and deemed to have been given and received (i) when personally delivered, (ii) 1 day after being sent by a nationally recognized overnight courier with guaranteed next day delivery, (iii) 3 days after being mailed by United States certified mail, return receipt requested, postage prepaid, or (iv) upon delivery of a facsimile, as evidenced by written confirmation of transmission, in each case to the parties at the addresses listed at the beginning of this Agreement. This Agreement may be executed in one (1) or more counterparts, all of which together shall constitute only one Agreement.
By checking any “I Agree” box or clicking on any “I Agree” button associated with this Agreement, Consultant acknowledges that he/she has read, understands and agrees to the terms set forth in this Agreement.
- Name and Address of Consultant: As entered online by the Consultant.
- Consultant’s Responsibilities:
- Market and sell Company’s products primarily through in-home demonstrations and related activities anywhere in the United States;
- Place customer orders with Company in a timely manner;
- Collect payment from customers in a timely manner;
- Deliver products to customers in a timely manner once received from Company or Company’s vendors;
- At all times adhere to and comply with the Code of Ethics promulgated by the Direct Selling Association, as in effect from time to time;
- Use the Company’s online Virtual Office tool to carry out Consultant’s responsibilities hereunder; and Perform such other duties as are reasonably requested from time to time by Company.
- Optionally: Recruit new consultants.
- As described in the Agreement, Consultant shall pay to Company a one-time, start-up fee of $99.00 (the “Starter Kit Fee”). Once paid, the Company will deliver to the Consultant business materials selected by the Company at its sole discretion (the “Starter Kit”) which may be useful to Consultant in operating the business contemplated by this Agreement.
- Consultant may earn commissions via personal sales, overrides and bonuses as described in Paperly’s Commission & Career Plan, posted at http://paperly.azurewebsites.net/pdf/Paperly_Commission_Plan_ Sept2010.pdf and incorporated herein by reference. Company may update and/or modify Commission & Career Plan from time to time, and any changes thereto will be effective upon posting at the Website.
Paperly’s Consultant Recruitment Program
- Consultant is eligible to participate in the Recruitment Program so long as such a program remains in effect.
- Consultants may recruit, within the constraints set forth in the Agreement, other consultants based in the United States to work with the Company (each, a “Downline Consultant”).
- In order to qualify as a Downline Consultant, such individual must: (a) either (i) reference Consultant’s name during such individual’s first contact with the Company, (ii) be referred to the Company in writing by the Consultant prior to the Company engaging in any communications with such individual or (iii) enroll through the Consultant’s Paperly-sponsored website; (b) be accepted as a consultant by the Company in its sole discretion; and (c) execute an Consultant Agreement with the Company in form and substance satisfactory to the Company in its sole discretion.
- For purposes of clarity, Downline Consultant will, to the extent the conditions set forth above are satisfied, be engaged directly by the Company rather than the Consultant.
- 5. Company shall pay to Consultant, within thirty (30) days of the end of each calendar month during the term of this Agreement and for so long as the Recruitment Program remains in effect, an amount as described in Paperly’s Commission & Career Plan, posted at http://paperly.azurewebsites.net/pdf/Paperly_Commission_Plan_ Sept2010.pdf, as updated and/or modified by Company from time to time, and incorporated herein by reference (the “Recruitment Fee”).
- In the event the Company is required to refund any amounts on which Recruitment Fees have already been paid to Consultant, the amount of such Recruitment Fee will be deducted from future payments due and owing to Consultant under the Recruitment Program.
- Consultant shall refrain from entering into any side agreements or arrangements, either oral or written, with any Downline Consultant regarding the Company, the Company’s products or any fees payable to either Consultant or a Downline Consultant.
- Consultant shall refrain from making any false or misleading statements to any potential Downline Consultant regarding the Company or Consultant’s engagement by Company (including, without limitation, with respect to fees earned by Consultant or potential profits which can be earned by such potential Downline Consultant).
- The Company shall be permitted to terminate the Recruitment Program at any time and for anyreason by providing written or electronic notice to Consultant. Upon any such termination,Consultant, so long as this Agreement is not earlier terminated, shall continue to earn Recruitment Fees, to the extent any are owed, for a period ending three (3) months from the date on which the Recruitment Program was terminated. In addition to the foregoing, the Company may amend or modify the Recruitment Program at any time and for any reason by providing written or electronic notice to Consultant.