TERMS & CONDITIONS
This Agreement (“Agreement”) is entered into between Hidden Treasure, a California company, with a business office at 11251 Sierra Ave #2E-534, Fontana, CA 92337 (“Company”) and the prospective Contractor filling out this online form.
1. The Company has designed and developed a program (the “program”) for the sale of personal entertainment goods through home parties, which has become well known and established a reputation for quality. As a part of this program, the Company provides training, services, materials, and goods, including certain goods and materials bearing the Company’s HIDDEN TREASURE trademark or its HIDDEN TREASURE service mark and certain copyrighted materials for use in the businesses of individuals interested in owning a business that promotes and sells goods provided by the Company.
2. The Contractor desires to own and operate a business that will sell goods provided by the Company.
In view of the foregoing background and of the following obligations, the Contractor and the Company agree:
Requirements. To become a Contractor you must satisfy and comply with all of the requirements set forth in the Policies and Procedures, including:
(a) Be 18 years of age or older
(b) Reside in the United States of America
(c) Provide the Company with a valid Social Security or Federal Tax ID number – US citizens only;
(d) Read and agree to abide by the Policies and Procedures and Compensation Outline
1. Relationship. The Contractor is a self-employed individual and Independent Contractor, and not an employee of the Company, in the business of selling merchandise provided by the Company. The Contractor is not a corporation, limited liability company, or other form of entity. The Contractor is the sole owner of her business. The Company is a supplier of training and a consultant of merchandise for the Contractor’s retail sales business. There is no partnership, joint venture, or franchise business conducted together by the Company and the Contractor, except as expressly and specifically provided by this Agreement. This Agreement is not intended to create and does not create any agency relationship. The Contractor and the Company do not have any authority to act for the other or to undertake, incur, and will not undertake or incur, any obligations or debts binding upon the other. The Contractor acknowledges that she has investigated, to her full satisfaction, all aspects of the program, the business and the merchandise to be sold and is not in any way relying on any representations or warranties of the Company in entering into this Agreement. Specifically, the Company has made no representations, directly or indirectly, about retail outlets, account locations, the ability to earn a gross or net profit in excess of any payments made for merchandise, the existence of any market for the goods, that the Company has knowledge about the Contractor’s relevant market, that the Company will supply to the Contractor names of locator companies or provide assistance with or supply names of or collect a fee on behalf of or for a locator company or that any buy-back arrangement exists.
2. Laws and Taxes. The Contractor will observe all laws and regulations and will meet all standards set by any federal, state, local, or other governmental authority or entity regulating or pertaining to the business of the Contractor. As an Independent Contractor, Contractor is liable for all Social Security, Medicare, and other self-employment taxes, all income taxes, and other returns required by any local, state, or federal tax authority for the Contractor’s business. When required or advisable due to override awards, sponsor awards, product awards, prizes or gifts, the Company may issue appropriate tax forms, including federal Form 1099 to the Contractor, reporting these to tax authorities as income to the Contractor.
3. Promotion and Sales. The Contractor will use her best efforts to learn the Company’s merchandise and to promote and sell the Company’s merchandise solely through home parties. The Contractor will display and promote the Company’s merchandise tastefully and honestly. The Contractor will maintain the highest standards of integrity, honesty, professionalism, and responsibility in promoting and selling the Company’s merchandise. The Company will make available to the Contractor training programs to educate the Contractor regarding the Company’s products and recommended sales techniques and will provide promotional materials, forms, and sales aids to the Contractor. The Company will provide to the Contractor all of its lines of merchandise, but the Company will not have any liability and the Contractor hereby waives any claim against the Company for lack of availability of any particular product due to uneven demand, inability to obtain a product from its manufacturer or Consultant, or any other condition beyond the control of the Company. The Contractor will only display, promote, and sell merchandise distributed by the Company at home parties at which HIDDEN TREASURE merchandise is displayed, promoted, or sold. The Contractor will not sell, market, promote or display the merchandise of any other companies through her HIDDEN TREASURE business. Contractor will not sell, market, or promote merchandise sold by the Company on any web site not specifically authorized by the Company, including without limitation, E-Bay, Amazon or any similar site. Contractor agrees to the liquidated damages provision set forth in paragraph 13 if Contractor sells, markets, advertises for sale, or promotes the merchandise sold by the Company on any web site not approved by the Company, including but not limited to E-Bay, Amazon or any similar site. The Contractor will display, promote, and sell the Company’s merchandise in accordance with all policies and procedures set forth in the Company’s products, on a nonexclusive basis throughout the United States.
4. Release and Indemnification. The Contractor will defend, hold harmless, and indemnity the Company from any claim or liability for any misrepresentation, act or omission by the Contractor or any negligence, misconduct or intentional act of the Contractor in promoting or selling the Company’s goods.
The Contractor hereby agrees to release, discharge, and hold harmless Hidden Treasure, its members, managers, affiliates, successors, and assigns, and anyone directly affiliated with Hidden Treasure (employees, board of directors, officers, etc.) from any losses or damages, including costs and fees, incurred or suffered by you as a result of:
(a) your breach of the HT Consultant Agreement;
(b) the improper promotion or operation of your Hidden Treasure business and any related activities (e.g., the presentation of Hidden Treasure products or Compensation Outline, the operation of a motor vehicle, the lease of meeting or training facilities, etc.);
(c) any incorrect data or information provided by a HT Consultant to Hidden Treasure;
(d) your failure to provide any information or data necessary for Hidden Treasure to operate its business; and/or
(e) any personal injury, damages or loss of life that results during or while engaging in any activity related to acting as a HT Consultant, unless such personal injury, damages or loss of life are caused by the gross negligence of the Company.
5. Trademarks and Advertising. The Company owns certain trademark and trade name rights to its HIDDEN TREASURE trademarks and its HIDDEN TREASURE service marks (collectively, the “Marks”) and to its HIDDEN TREASURE trade name. The Contractor will use the Marks, in connection with all home parties and sales of HIDDEN TREASURE merchandise, but only in accordance with the standards and procedures set forth in the Company’s Business Building Guide. The Contractor will not use any other trademarks or trade names in connection with the Contractor’s HIDDEN TREASURE business. The Contractor will not use Marks in connection with any other business of the Contractor. After one year from the date that the Company has signed this Agreement, provided the Contract has remained active according to the policies and procedures in the Business Building Guide, then the Contractor shall be given the limited and nonexclusive permission to use the format “HIDDEN TREASURE by ________________________________________________________[insert first, given, or nickname]” in local telephone directory and yellow page listings. Except for this limited permission for use in local telephone directories, the Contractor will use the Marks in advertising only after the Company has approved the advertising in writing. The Contractor will promptly notify the Company in writing of any third-party use of the Marks or trade name, of any equivalent or variation of them, or of any similar mark or name. The limited permissions granted in this section 5 shall terminate immediately upon the termination of the consultant-retail dealer relationship provided for by this Agreement.
6. Confidential Materials and Copyrights. The Business Building Guide is the property of the Company, contains some material that is trade secrets or confidential information of the Company, and is protected by copyright laws, trade secret laws, unfair trade practices law, and other laws. The Company may also publish other materials from time to time, including materials describing incentive programs and contests that contain trade secrets or other confidential or proprietary information. The Company will provide access to the Business Building Guide and the Company’s other printed materials to the Contractor for the Contractor’s use only during the relationship governed by, and the permissions granted by, this Agreement. The Contractor will not disclose or reveal the contents of the Business Building Guide and other printed materials that are designated “Confidential” (the Business Building Guide and other designated materials being referred to collectively as “Confidential Information”) to anyone, will not discuss the contents of Confidential Information with anyone other than the Company, other Contractors, or the Contractor’s lawyer (and will only disclose and discuss Confidential Information with a lawyer engaged to provide legal advice with regard to her business or because of a conflict or disagreement with the Company). The Contractor will not copy any Confidential Information. The Contractor will return all of the Confidential Information to the Company promptly upon the termination, for any reason, of the relationship provided for by this Agreement. The Contractor will promptly notify the Company in writing of any third-party use of the Confidential Information, including making or using copies of any Confidential Information, using extracts from any Confidential Information, or otherwise infringing any of the Marks.
7. Sales and Payment. The Contractor will conduct all sales to customers and payment to the Company in accordance with the policies and procedures in the Business Building Guide.
8. Incentives. The Company will provide certain sales and recruiting performance incentives to the Contractor in the form of programs and contest opportunities for discounts from the purchase price for the Company’s merchandise, override awards, fast start awards, product awards, and prizes, all in accordance with the policies and procedures set forth in the Business Building Guide, newsletter, incentive program announcements, and contest announcements. The Contractor will not be entitled to payment for any discounts, override awards, fast awards, or prizes earned or accrued after the termination of the consultant-retail dealer relationship provided for by this Agreement.
9. Privacy and Right of Publicity. The Contractor will not disclose the name or communications or contact information (including, but not limited to, addresses, telephone numbers, and e-mail addresses) of HIDDEN TREASURE customers to anyone except the Company. The Company may disclose the Contractor’s name and her HIDDEN TREASURE business telephone number to potential customers and potential new contractors. The Company may use the Contractor’s name and photograph and quotes from the Contractor about HIDDEN TREASURE merchandise and the Company’s HIDDEN TREASURE business in the Company’s newsletter, in promotional materials, and in similar materials.
10. Policies and Procedures. The Contractor will act in accordance with all policies and procedures set forth in the Business Building Guide, whether or not they are referred to in this Agreement, as the Company may revise its Business Building Guide from time to time. The Company may make reasonable changes to its policies and procedures at the Company’s discretion.
11. Duration, Termination, and Surviving Provisions. This Agreement will be effective on the date signed by the Company below. Either party may terminate the relationship and the permissions granted in this Agreement upon fifteen days written notice, provided that paragraphs 2, 3, 5, 6, 9, 12, and 13 of this Agreement will survive the termination of the relationship and the permissions. Notwithstanding the foregoing, either party may terminate this Agreement immediately upon written notice for any material breach of the Agreement. This Agreement will be terminated, immediately and automatically, without notice, if the Contractor fails to purchase the minimum amounts of merchandise set forth in the then current Business Building Guide.
12. Competition Restriction. The Contractor will not, during the relationship provided by this Agreement and for a period of one year from the termination of the relationship, within any County in which the Contractor has at any time displayed, promoted, or sold HIDDEN TREASURE merchandise (1) engage in a business similar to the Company’s business, including owning, operating, organizing, managing, directly, supervising, consulting with, or otherwise working for or being employed by such a business; (2) solicit any Contractor of the Company to become a sales representative, dealer, Consultant, or contractor for the Contractor for a business similar to the Company’s business; or (3) solicit any customers of the HIDDEN TREASURE network of contractors or any person who is or was a customer of the Contractor during the Contractor’s relationship with the Company to purchase merchandise similar to the Company’s merchandise from the Contractor. If the Contractor breaches this provision, then in addition to any legal or equitable actions available to the Company, the one-year noncompetition period will be tolled for the duration of the breach so that the Company obtains the benefit of this provision for a noncompetition period of one year. After the termination of the relationship, the Company will attempt to service the HIDDEN TREASURE customers of the Contractor with another contractor.
13. Legal Actions and Liquidated Damages. If the Company files a legal action to enforce any of the Contractor’s obligations or the Company’s rights set forth in this Agreement, then the Contractor will pay the Company’s reasonable attorneys’ fees, court costs, and legal expenses. Because monetary damages are difficult to determine for the breach of the obligations in paragraphs 3, 5, 6, 9, or 12, the Contractor consents to any preliminary and permanent injunctive relief, including temporary restraining orders that may be necessary to enforce these obligations. Furthermore, Contractor agrees that if Contractor violates the provisions of paragraphs 3 relative to the sale, marketing, advertising for sale, or promoting of products on any web site not authorized by the Company, including E-Bay or Amazon, then Contractor shall pay a liquidated amount of $5,000 per violation. Company shall continue to have all equitable rights and remedies that may be available to it for a violation of the foregoing prohibitions.
14. Assignment. This Agreement is personal to the Contractor and the Contractor may not assign or otherwise transfer any right, interest, or obligation of the Contractor under this Agreement, in whole or in part, in any manner. The Company will have the right to assign or transfer all rights in its HIDDEN TREASURE trademarks, service marks, and trade name and to assign or transfer any interest of the Company in the Marks and Confidential Information. The Company will have the right to assign or transfer any or all rights, interests, and obligations of the Company arising from this Agreement. This Agreement is binding upon, and will inure to the benefit of, the Company and the Contractor, their legal representatives, and their successors in interest.
15. Amendment, Waiver, and Applicable Law. This Agreement constitutes the entire understanding of the Company and the Contractor concerning the subject matter of this Agreement and supersedes any prior oral or written and any contemporaneous oral agreements, understandings, promises, or representations. This Agreement may be amended only by an agreement in writing signed by the Company and the Contractor. No waiver of any obligation or provision in this Agreement will constitute a waiver of any other obligation or provision and no waiver of a breach of any obligation or provision will constitute a waiver of another breach of the same obligation or provision. This Agreement, including its interpretation and jurisdiction for enforcement, will be governed by the laws of the United States of America and the State of California, and both Company and Contractor agree to jurisdiction and venue in Fontana, California. If any provision or part of a provision of this Agreement is held unenforceable, the remaining provision will remain enforceable and any court of competent jurisdiction may reform this Agreement to accomplish the intent of the parties.
16. RESTRICTION ON COMPETITION, DISCLOSURE OF PROPRIETARY INFORMATION, AND BUSINESS RELATIONSHIPS. I UNDERSTAND THAT THIS AGREEMENT AFFECTS MY RIGHT TO DISCLOSE OR USE THE COMPANY’S PROPRIETARY INFORMATION DURING OR SUBSEQUENT TO THE TERMS OF THIS AGREEMENT. I ACKNOWLEDGE THAT I AM NOT GENERALLY RESTRAINED BY THE COVENANTS CONTAINED IN SECTIONS 2, 3, 5, 6, 9, 12 AND 14 ABOVE FROM ENGAGING IN DEVELOPMENT, SALES AND MARKETING ACTIVITIES IN THE SALE OF PRODUCTS SOLD BY THE COMPANY AND SPECIFICALLY, WITHOUT LIMITATION THE SALE OF LOTIONS, SOAPS, LINGERIE, AND RELATED PRODUCTS. THE COMPANY AND I HEREBY ACKNOWLEDGE AND AGREE THAT THE COVENANTS CONTAINED IN THIS AGREEMENT ARE FAIR, REASONABLE AND NECESSARY AS CONSIDERATION FOR THE COMPANY’S EXTENSION OF THE VALUABLE TRADEMARK RIGHTS, BUSINESS METHODS, COMPENSATION AND BENEFITS AND IN ORDER TO PROTECT THE COMPANY’S TRADE SECRETS AND OTHER CONFIDENTIAL INFORMATION. IT IS THE DESIRE AND INTENT OF THE PARTIES THAT THE PROVISIONS OF THIS AGREEMENT SHALL BE ENFORCED TO THE FULLEST EXTENT PERMISSIBLE UNDER THE LAWS OF THE STATE OF CALIFORNIA, OR ANY OTHER STATE WHERE COMPANY DOES BUSINESS. I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS.
17. Signatures. Contractor and Company agree that this Agreement can be accepted by any of the following methods: (a) by electronic transmission of the “I Agree” displayed on the internet web site or the Company; or (b) facsimile transmission of the signed Agreement and that such will be adequate to bind the Company and Contractor; (c) by original signature. Company shall return a copy of the signed Agreement to Contractor upon request.