CLS International IBO Policies and Agreement
This CLS International IBO Agreement (the "Agreement") is made by and between CLS International Inc., with offices at 5818 Balcones Drive #101, Austin, Texas 78731 ("CLS International"), and the applicant, any co-applicant, and each of his/her/their affiliated companies and businesses, as identified and defined below (collectively "Member").
BACKGROUND:
WHEREAS, CLS International engages in the sale of business support materials, namely the products and services made available by CLS International, including promotional and training materials, literature, books, magazines, audio tapes, CDs, video tapes, DVDs and other literature and electronic media ("BSMs");
WHEREAS, CLS International wishes to provide its participating members with the opportunity to purchase BSMs directly from CLS International;
WHEREAS, Member wishes both to become a member of CLS International and to purchase, use, or distribute BSMs that CLS International sells and distributes;
NOW THEREFORE, in consideration of the terms of this Agreement, the continuing relationship between the parties, the mutual covenants and promises made herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, CLS International and Member agree as follows:
1. Scope of Agreement.
This Agreement, and Member's Membership in CLS International, allows Member to purchase independently produced BSMs from CLS International. Member represents that it is a Amway.com-affiliated Independent Business Owner ("IBO") and now wishes to purchase CLS International Business Support Materials ("BSMs") in accordance with the terms and conditions of this Agreement. Member understands and agrees that this Agreement will become effective only upon acceptance by CLS International as evidenced by the signature of its authorized representative below.
2. Rights And Obligations Of Member.
(a) CLS International Terms and Conditions. Member accepts and agrees to abide by "CLS International's Terms and Conditions," which explain how CLS International works, which are attached as Exhibit 1, and which are expressly incorporated into this Agreement.
(b) Exclusive sales to Personally Sponsored IBOs. Member has the right with CLS International to sell BSMs to its Personally Sponsored IBOs and Member understands and agrees that it may not and will not sell BSMs to any IBO other than its Personally Sponsored IBOs.
(c) No exclusive right to sell to end users. Except as otherwise provided herein, Member is free to resell BSMs to any end-user consumer except another IBO who is not personally sponsored by Member. If Member wishes to sell BSMs to any party or parties that are not Members of CLS International, Member agrees to do so only if and when such party has first signed the CLS International Business Support Materials Purchase Agreement ("Purchase Agreement"), a copy of which is attached as Exhibit 2. CLS International may revise or amend this Purchase Agreement from time to time, and a copy of the Agreement is available from CLS International's web-site. Member agrees to provide CLS International with a copy of all Purchase Agreements signed by all parties that are not members of CLS International to which Member sells BSMs purchased from CLS International.
(d) Exclusive sale of CLS International's Business Support Materials. Member will not promote or sell products or services that compete with CLS International BSMs, with the exception that Member is not prohibited from promoting, selling, or otherwise dealing in any products, services or materials marketed or otherwise supplied by Amway.com.
(e) IBO business operations. CLS International will not provide you with a place of business, and if you desire a place of business other than your own residence, you will be responsible for procuring, furnishing, and paying the rental for such place of business. With respect to services performed by you for CLS International, your Sponsoring IBO, and Platinum IBO, you will not be treated as an employee for federal or state tax purposes, and you will be responsible for payment of any self-employment and other income taxes.
(f) No guarantee of results. Your success as an IBO and Member of CLS International depends on your own hard work. No one can promise or guarantee that the use of any specific method, approach, or sales aid will result in a more profitable Independent Business or the achievement of any specified level of success. No one can guarantee that the techniques, attitudes, or approaches suggested in BSMs will work for you, and you agree not to make any such claim in selling BSMs to others.
3. Prices, Discounts And Terms.
(a) CLS International's selling prices. CLS International will issue to Member a current BSMs price list (hereinafter referred to as the "Price List") setting forth the member prices at which CLS International sells BSMs to all member IBOs and the suggested retail prices of those BSMs. CLS International, in its sole discretion, may, with or without advance notice, (1) withdraw, supersede or add lines or items of BSMs available for purchase, and/or (2) change prices, discounts, and terms and conditions applicable to the purchase of BSMs.
(b) IBO free to set its own resale prices. Although CLS International may from time to time suggest wholesale or retail prices to its members, Member is under no obligation to follow CLS International's suggestions and is free to determine the price at which it resells Business Support Materials to its Personally Sponsored IBOs or retail customers. Member may not require, pressure, or coerce its Personally Sponsored IBOs to follow CLS International's or IBO's pricing suggestions, or enter into any agreement with Personally Sponsored IBOs to that effect.
4. Compliance With Amway.com BSM Rule.
(a) Compliance with Amway.com Rules. Member agrees to comply with all provisions of the Amway.com Rules of Conduct, which are expressly incorporated into this Agreement, and which may be published from time to time by Amway.com in its Business Reference Guide or any successor publication. All of the terms, conditions, and provisions of the Amway.com Rules, as issued and from time to time modified or reissued with or without advance notice to Member, will be applicable to and expressly incorporated into this Agreement. To the extent there is any conflict between the Rules and this Agreement, this Agreement governs with respect to the relationship between CLS International and Member. CLS International will supply BSMs packaged and labeled in conformity with the Amway.com Rules, and whose content complies with those Rules. Member understands and agrees that CLS International may revoke all or a portion of Member's membership rights in CLS International, including membership suspension and membership termination at CLS International's sole discretion, if Member fails to comply with any material term of his/her/their Amway.com Registration Agreement, including the Independent Business Ownership Plan, the IBO Rules of Conduct, and all regulations and procedures outlined in the Amway.com Business Reference Guide.
(b) CLS International return policy. Within 180 days from the date of purchase, all Business Support Materials purchased for the Member's personal use, in resalable condition (i.e., unopened and non-obsolete) may be returned by IBO to CLS International with proof of purchase for a 100% refund of the original purchase price. Business Support Materials purchased for stock or inventory, or for any reason other reason than the buyer's personal use, are not subject to this policy, and may be returned only at CLS International's sole discretion. CEP CDs are not returnable unless defective (for a replacement only). Digital Subscriptions and downloaded files may not be returnable to CLS International as it may not be commercially reasonable to accept such a return. Note: some items may require a restocking fee.
5. Independent Contractor Status And Rules.
(a) IBO is an independent contractor. The parties acknowledge that this Agreement does not create any employment relationship, partnership, joint venture, or agency relationship between the parties, and they are independent principals in all relationships and actions arising under this Agreement. IBO will independently determine his or her own work hours, place of work and level of effort, and has sole discretion to determine the selection and inventory of BSMs Member will carry. Member is not required to purchase any specified amount or quota of BSMs and is free to change its volume of purchases, to cancel outstanding orders, and/or to cease purchasing BSMs at any time.
(b) Parties Bound By This Agreement. Member acknowledges and represents that it enters into this Agreement in both his/her/its individual and corporate capacities and that the term "Member" as used in this Agreement includes the individual(s) who sign this Agreement ("IBO") and any of his/her/their respective companies, businesses or entities which are involved in selling or promoting the sale of Amway.com products or involved in building or promoting the Amway.com business or in selling or distributing business support materials or in sponsoring or participating in functions or conventions, including but not limited to, any such corporation, partnership or entity which is an independent business ("IB") under the Amway.com Rules of Conduct or which is otherwise a Amway.com Independent Business or Distributor ("IB"), and any such corporation, partnership or entity which is involved in selling or distributing business support materials or tools, or which is involved in promoting, arranging, conducting or sponsoring functions, conventions, rallies and meetings to promote the Amway.com business of IBOs and IBs.
(c) No agency created. Except as CLS International may specifically authorize in writing, Member will have no right and will not attempt to enter into contracts or commitments in the name of, or on behalf of, CLS International or to bind CLS International in any respect whatsoever.
(d) Amway.com Compensation Plan. The BSMs of CLS International are not required by Amway.com and earn no "BV," "PV," or other compensation or incentive under the IBO Compensation Plan.
(e) Availability. CLS International is available anywhere Amway.com and the "IMC" business model are available. It is available in the U.S., Canada, Puerto Rico, U.S. Virgin Islands, Guam, and the Pacific Islands of American Samoa, Federal States of Micronesia, Marwill, Northern Mariana, Palau, and Wake. Amway.com is available only to IBOs in all authorized Atlantic & Caribbean Islands operating under the U.S. Independent Business Ownership Plan (Member and Client categories not available).
(f) Expiration and Renewal. You must maintain a current authorization in order to preserve your rights as a member. Your authorization expires at midnight of the last day of the month of your current paid in full month. Your membership will automatically renew, unless you ask to be removed from membership. When you automatically renew, you agree to continue to abide by the terms of your Registration Agreement, terms/conditions/policy of the website, including these terms and conditions, and the CLS International Terms and Conditions.
(g) Authorization and Contract. By signing this Agreement, you apply to become an CLS International member. By signing this Agreement you further acknowledge that prior to signing you understand and agree to abide by all terms set forth in this Agreement and the CLS International Terms and Conditions (which CLS International may amend from time to time).
6. Termination.
(a) Term of agreement. This Agreement, once accepted by CLS International, will continue in full force and effect until terminated by CLS International or Member, with or without cause, on 30 days written notice to such effect given to each other party, or such shorter period as may be provided for in the CLS International Terms and Conditions. This Agreement, and Member's membership in CLS International, may also expire as provided in Paragraph 5(f) above.
(b) Return of materials upon termination. In the event of termination of this Agreement by either party, IBO will retain for 30 days its rights, if any, to return BSMs in accordance with Paragraph 4(b) above.
7. Non-Competition.
If this Agreement is terminated for any reason, Member agrees for a period of six months not to sell any product or service that competes with CLS International's Business Support Materials (except Amway.com products and services, if Member continues as an IBO affiliated with Amway.com) to any Personally Sponsored IBO or any other Amway.com IBO. Further, Member agrees not to encourage, solicit or otherwise attempt to recruit or persuade any other IBO to compete with CLS International's Business Support Materials for two years following termination of this Agreement.
8. Remedies.
(a) Agreement provides exclusive remedies. The exclusive remedies of the parties arising under this Agreement are limited to such remedies as are specifically enumerated in this Agreement.
(b) Seller's liability limited to purchase price. With respect to Member's sale of BSMs to others, or with respect to Member's own purchase and use of BSMs, THE LIABILITY OF CLS INTERNATIONAL WILL NOT EXCEED THE PURCHASE PRICE OF THE BSMs UPON WHICH SUCH LIABILITY ARISES, WHETHER THE CLAIM IS BASED ON CONTRACT, WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHERWISE.
(c) Consequential, incidental and other special damages excluded. Except for claims by third parties, IN NO EVENT WILL EITHER PARTY TO THIS AGREEMENT BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE LOSS OR DAMAGE ARISING OUT OF THIS AGREEMENT, WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED ON CONTRACT, WARRANTY, NEGLIGENCE, INDEMNITY, STRICT LIABILITY OR OTHERWISE. Member acknowledges and agrees to the limitations on liability and warranty that, except as may be set forth elsewhere in this Agreement, CLS INTERNATIONAL MAKES NO WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO ANY BSM OR OTHER SERVICE FURNISHED HEREUNDER. CLS INTERNATIONAL EXPRESSLY DISCLAIMS ANY WARRANTIES IMPLIED BY LAW, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. Miscellaneous Provisions.
(a) Indemnification. Member will indemnify, defend, and hold harmless CLS International, its officers, directors, affiliates, subsidiaries, shareholders, employees, and agents from and against any and all claims, costs, damages, attorneys fees, expenses, or causes of action that arise directly or indirectly from any claims, suits or proceedings against CLS International, its officers, directors, affiliates, subsidiaries, shareholders, employees, and agents, that arise out of or in any way relate to Member's use, marketing, or sales of the BSMs purchased from CLS International, or Member's use, marketing or sales of any BSMs, or that arise out of or in any way relate to any of Member's business activities, practices, or conduct, including but not limited to claims of unfair trade practices, interference with contract, interference with prospective business advantage, unfair competition, disparagement, or any other business torts or similar causes of action. Such indemnification and hold harmless protection will include reimbursement of CLS International's attorneys' fees and costs associated with the defense or resolution of any such claims, disputes or causes of action.
(b) Survival. The provisions of Section 6(a) and 6(b), Section 7, Section 8, Section 9(a), Section 10 will survive the termination of this Agreement.
(c) Notice. Any notice to be given pursuant to this Agreement will be sent by first class U.S. mail, postage prepaid, to the respective parties at the address set forth in CLS International database records.
(d) Entire agreement. This Agreement, including its attachments and exhibits, and the CLS International Terms and Conditions, the IBO Rules of Conduct and the other items expressly incorporated hereby by reference, contains the entire agreement between the parties respecting the sale to and the purchase by Member of BSMs, and any representation, promise or condition not incorporated herein will not be binding on either Member or CLS International. Member may not transfer or assign the Agreement, or any part thereof, or any rights there under without the written consent of CLS International. No addition to, deletion from, or modification of any of the provisions of this Agreement will be binding upon the parties unless it is made in writing, references this Agreement, and is signed by both parties, except as may be otherwise provided herein.
(e) Non-waiver. All waivers under this Agreement will be in writing. The delay or omission by CLS International in exercising any right or remedy hereunder will not be a waiver thereof or of any other right or remedy in the future. All rights and remedies of CLS International under and pursuant to this Agreement are cumulative.
(f) Severability. If any provision of this Agreement or the application of any such provision to any party or circumstances is determined by any court or tribunal of competent jurisdiction to be invalid and unenforceable to any extent, such provision shall be severed from the Agreement, and the remainder of this Agreement or the application of such provision to such person or circumstances other than those to which it is so determined to be invalid and unenforceable, will not be affected thereby, and each provision hereof will be validated and will be enforced to the fullest extent permitted by law.
(g) Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original but all of which taken together will constitute one and the same instrument. Member's signature on and return to CLS International of one copy of this Agreement will constitute evidence of the Agreement's receipt by Member and Member's agreement to be bound by the terms hereof.
10. Conciliation, Mediation and Arbitration.
(a) Disputes; Conciliation. The parties (including Sponsor, IBO, and their respective Amway.com IB and distributor companies, businesses and entities, their respective Business Support Materials and tools companies, businesses and entities, and their respective functions, conventions and meetings companies, businesses and entities) agree to give notice in writing of any dispute or claim arising out of, relating to, or concerning CLS International or the contractual or business relationship with CLS International, or arising out of, relating to, or concerning any IBO or the contractual or business relationship with any IBO or their respective Amway.com IB or distributor companies, businesses or entities, or their respective Business Support Materials or tools companies, businesses or entities, or their respective functions, conventions or meetings companies, businesses or entities, to the other party or parties involved in the dispute, specifying the basis for the claim and the amount claimed or relief sought. During a period of not less than 90 days after the written notice is received, the parties shall attempt to resolve the dispute amicably through direct discussions.
(b) Mediation. If agreement is not reached by the parties through the conciliation process, then any dispute, controversy, or claim arising out of, relating to, or concerning CLS International, its officers, directors or employees, or the contractual or business relationship with CLS International, or the purchase, sale or distribution of any products or services provided by CLS International, or the interpretation or performance of any agreement with CLS International, or the breach thereof, or arising out of, relating to, or concerning any IBO or the contractual or business relationship with any IBO or their respective Amway.com IB or distributor companies, businesses or entities, or their respective Business Support Materials or tools companies, businesses or entities, or their respective functions, conventions or meetings companies, businesses or entities, shall be submitted to mediation administered by the American Arbitration Association under its Commercial Mediation Rules before resorting to binding arbitration. The mediator(s) at the conclusion of the mediation shall decide whether the parties to the mediation should bear the costs and expenses of the mediation equally, or whether the party instituting mediation should bear such costs, or whether such costs should be allocated in some other proportion or percentage between the parties.
(c) Binding Arbitration. Any dispute, controversy or claim arising out of, relating to, or concerning CLS International, its officers, directors or employees, or the contractual or business relationship with CLS International, or the purchase, sale or distribution of any products or services provided by CLS International, or the interpretation or performance of any agreement with CLS International (including this Agreement), or the breach thereof, or arising out of, relating to, or concerning any IBO or the contractual or business relationship with any IBO or their respective Amway.com IB or distributor companies, businesses or entities, or their respective Business Support Materials or tools companies, businesses or entities, or their respective functions, conventions or meetings companies, businesses or entities, not resolved by the foregoing mediation shall then be submitted to final and binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules then in effect at the time the arbitration is commenced, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. Should any such arbitration relate to intellectual property issues, the arbitrator(s) will be attorneys specializing in intellectual property law. The arbitration will be conducted in Orlando, Florida.
The parties acknowledge and agree that the prevailing party in any such arbitration proceeding shall be entitled to recover its reasonable attorneys' fees, costs and expenses in an amount to be determined by the arbitrator(s), unless the arbitrator(s) at the conclusion of the arbitration decide that the parties should bear their own respective costs and attorneys' fees, or decide that such costs and attorneys' fees shall be allocated in some other proportion or percentage between the parties. The parties also agree to pay the attorneys' fees, costs and related expenses incurred by CLS International or any of its officers, directors, or employees in connection with any lawsuit filed in any court, including any lawsuit filed against CLS International or any of its officers, directors or employees, in which the court determines that the claim or claims asserted are subject to arbitration under either this provision or any other arbitration agreement.
The parties acknowledge that this Agreement and the contractual and business relationship with CLS International evidences a transaction involving interstate or interprovincial commerce, as the case may be in the United States or Canada. The Federal Arbitration Act shall govern the interpretation, enforcement and proceedings in any state or federal court of the United States. The Ontario Arbitrations Act (1991) or any Canadian arbitration statute that may supersede it, shall govern the interpretation, enforcement and proceedings in any federal or provincial court in Canada. The parties agree that this provision shall survive the termination or expiration of their agreement and/or contractual and business relationship.
I HAVE CAREFULLY READ AND UNDERSTAND THESE CONCILIATION, MEDIATION AND ARBITRATION PROVISIONS AND IN EXCHANGE FOR THE RIGHT TO BUY, SELL, DISTRIBUTE, RECEIVE AND USE BUSINESS SUPPORT MATERIALS WHICH ARE PURCHASED FROM CLS INTERNATIONAL, I AGREE TO ABIDE AND BE LEGALLY BOUND BY THE CONCILIATION, MEDIATION AND ARBITRATION TERMS SET FORTH HEREIN, AND TO CONCILIATE AND MEDIATE AND THEN TO ARBITRATE ANY DISPUTES, CONTROVERSIES, OR CLAIMS THAT HAVE NOT BEEN RESOLVED WITH CLS INTERNATIONAL OR ANY OTHER ENTITY. IN CONSIDERATION OF CLS INTERNATIONAL'S AGREEMENT TO SELL BUSINESS SUPPORT MATERIALS, I EXPRESSLY AGREE THAT THESE CONCILIATION, MEDIATION AND ARBITRATION PROVISIONS ARE APPLICABLE AND FULLY AND LEGALLY BINDING UPON ME (AND MY SPOUSE) AS AN INDEPENDENT BUSINESS OWNER ("IBO"), AND ARE ALSO APPLICABLE AND FULLY AND LEGALLY BINDING UPON ANY CORPORATION, PARTNERSHIP, ENTITY OR BUSINESS WHICH I OWN OR IN WHICH I HAVE A MAJORITY OWNERSHIP INTEREST, OR IN WHICH I AM AN OFFICER, DIRECTOR OR EMPLOYEE, OR WHICH IS INVOLVED IN SELLING OR PROMOTING THE SALE OF AMWAY.COM PRODUCTS OR INVOLVED IN BUILDING OR PROMOTING THE AMWAY.COM BUSINESS OR IN SELLING OR DISTRIBUTING BUSINESS SUPPORT MATERIALS, INCLUDING BUT NOT LIMITED TO, ANY SUCH CORPORATION, PARTNERSHIP OR ENTITY WHICH IS AN INDEPENDENT BUSINESS ("IB") UNDER THE AMWAY.COM RULES OF CONDUCT OR WHICH IS OTHERWISE A AMWAY.COM INDEPENDENT BUSINESS ("IB") OR DISTRIBUTOR, AND ANY SUCH CORPORATION, PARTNERSHIP OR ENTITY WHICH IS INVOLVED IN SELLING OR DISTRIBUTING BUSINESS SUPPORT MATERIALS OR TOOLS, OR WHICH IS INVOLVED IN PROMOTING, ARRANGING, CONDUCTING OR SPONSORING FUNCTIONS, CONVENTIONS, RALLIES AND MEETINGS TO PROMOTE THE AMWAY.COM BUSINESS OF IBOs AND IBs.
11. Member Information.
Member expressly acknowledges and agrees that this Agreement, and in particular the conciliation, mediation, and arbitration provisions of this Agreement, are fully and legally binding upon Member and Member's spouse as an Independent Business Owner ("IBO") and are also applicable and fully and legally binding upon any corporation, partnership, entity or business which Member owns or in which Member has a majority ownership interest, or in which Member is an officer, director or employee, or which is involved in selling or promoting the sale of Amway.com products or involved in building or promoting the Amway.com business or in selling or distributing business support materials, or involved in sponsoring or participating in functions or conventions, including but not limited to, any such corporation, partnership or entity which is an independent business ("IB") under the Amway.com rules of conduct or which is otherwise a Amway.com independent business or distributor ("IB"), and any such corporation, partnership or entity which is involved in selling or distributing business support materials or tools, or which is involved in promoting, arranging, conducting or sponsoring functions, conventions, rallies and meetings to promote the Amway.com business of IBOs and IBs.