Consultant Agreement

Notice: Updates to the General Terms and Conditions will be instituted November 10, 2020.  This serves as a notice to All Consultants joining after October 11, 2020.    
General Terms and Conditions:

1. 

Definition of This Agreement. In addition to this document, my agreement with Swirly Me Sweets, LLC (hereafter referred to as “Swirly Me Sweets” or “Company”) includes the policies herein and Compensation Plan (both of which are referred to jointly as “this Agreement”) as well as any other agreement I may sign as a Consultant. I understand that the Compensation Plan and these General Terms and Conditions may be amended from time to time with 30 days notice, and I agree to continually abide by this Agreement during the operation of my Swirly Me Sweets business. To the extent not reflected in those documents, I agree to maintain the highest standards of integrity, honesty and responsibility in my behavior and actions with Swirly Me Sweets, my clients and my fellow consultants, including and without limitation, presenting and promoting Swirly Me Sweets products in a truthful manner.

 

2.

Term and Termination of this Agreement. The term of this Agreement will commence upon acceptance of me as a consultant by Swirly Me Sweets and shall continue unless terminated with or without cause as defined herein. Either I or the Company may terminate this Agreement:

a. by giving thirty (30) days written or electronic notice;

b. by my failing to have and place the required minimum monthly sale(s). I agree to maintain a minimum of one sale per month to remain an active consultant. In the event that I fail to have and place the required monthly minimum, the Company need not provide any written or electronic notice that this Agreement may been terminated;

c. immediately upon written or electronic notice in case of material breach. Upon notice of termination, I agree and understand I will no longer be considered an active consultant and I will lose all benefits associated with being an active consultant, including but not limited to, product discounts, company correspondence and commissions.

 

3. 

Post Termination Obligations. Upon expiration or termination of this Agreement, regardless of the reason, I agree:

a. I will return or destroy all Confidential Information;

b. I will not use any Confidential Information to sell any product or service;

c. I will within five (5) days after termination, pay all amounts due and owing to Swirly Me Sweets and comply with all other application provisions of this Agreement;

d. I understand the Company may assign my clients to other consultants or otherwise provide service to clients;

e. Provisions of paragraphs 3, 6 and 8-16 survive the termination of this Agreement.

 

4.

Independent Contractor. I understand I am an independent contractor, not an employee, and I have knowledge as to what the term “independent contractor” means. I understand that Swirly Me Sweets shall not control or direct the details, manner or means by which I execute my obligations and responsibilities under this Agreement. I understand any and all expenses I incur in executing my obligations under this Agreement are my sole responsibility, and I shall provide all supplies, personnel, equipment and vehicles necessary to execute my obligations under this Agreement. I also understand I will not be treated as an employee for federal or state tax purposes. I further understand because I am engaged in my own independent business, I am not eligible for and shall not participate in any pension, health, workers’ compensation or other fringe benefit plans sponsored by Swirly Me Sweets. I understand I am responsible to pay, according to law, my income taxes and to the extent I do not perform services through a corporation, I agree I am liable for paying self-employment tax. As an independent contractor, I agree and acknowledge I have no power or authority to incur any debt, obligation or liability on behalf of the Company. I agree not to hold myself out as an employee of Swirly Me Sweets, or as having the power or authority to incur any debt, obligation or liability on behalf of Swirly Me Sweets.

 

5

My Responsibilities. I understand and agree that:

a. In exchange for the compensation outlined in the Compensation Plan in effect at the time I place each order, I agree to conduct in-person informational presentations for individual clients and/or groups through online resources (Facebook, Instagram, etc.), home parties or business/local/club/organization presentations as my main source of sales, sponsoring and promotion;

b. I agree to sell Swirly Me Sweets products to ultimate clients through Swirly Me Sweets online store using my consultant link, I agree not to sell or display those products on retail or auction type internet websites, retail stores or service establishments. I agree that I will not sell products, business enhancers or services to other Swirly Me Sweets consultants;

c. I agree to pay in advance for any products I order either by check, money order or credit card acceptable to Swirly Me Sweets. I also agree to inform hosts and clients of any applicable Company sponsored specials or events and provide the Company incentives or other host/ client rewards;

d. I agree this Agreement and my Swirly Me Sweets business may not be transferred or assigned to anyone else.

 

6.

Company Responsibilities. Company agrees that in exchange for my responsibilities and abiding by this Agreement:

a. to compensate me according to the Compensation Plan in effect at the time I or my clients place each order;

b. not to create geographical territories or physical limits of sales or recruiting within the U.S. or Puerto Rico;

c. not to control or direct my actions except as specified in this Agreement other than the right to question the results;

d. accept termination of this Agreement as specified in paragraph 2;

e. release my name, telephone number and/or email address in response to a client’s request for a Swirly Me Sweets consultant in my area.

 

 7.

Leadership Responsibilities. In addition to the obligations set out above, in the event I choose to sponsor consultants who are accepted by the Company and activated:

a. I agree to mentor my downlines, which involves training, answering questions, guiding them to become leaders themselves, etc;

b. I agree to present Swirly Me Sweets’ information to potential consultants in a truthful and sincere manner and to accept the training and ongoing support responsibilities of a sponsoring consultant. I will be compensated for these additional responsibilities as outlined in the Compensation Plan in effect at the time such responsibilities are conducted. The Company, in its sole discretion, may remove some or all downline consultants or otherwise change my status and/or my level as a sponsoring consultant or leader if the Company (in its sole discretion) determines that I am not satisfactorily meeting contractual objectives or requirements for such status or level;

c. I agree that the Company owns all downline and upline information and that I may use such downline information solely for purposes of fulfilling my sponsor responsibilities.

 

8. 

Non-Solicitation and Non-Competition. As an inducement to the Company to enter into this Agreement and in consideration of the mutual covenants contained herein, during the term of this Agreement and for a period of one year thereafter, I will not directly or indirectly (on my own behalf or on the behalf of any other person or entity) solicit, induce or hire or attempt to solicit, induce or hire any consultant to terminate or alter his or her business relationship with the Company.

 

9.

Use of Swirly Me Sweets Intellectual Property. Upon acceptance of this Agreement, the Company will grant me a limited, non-exclusive license to use its trademarks, service marks, trade names, patents and copyrighted materials (“Swirly Me Sweets Intellectual Property”), all of which is owned solely by Swirly Me Sweets. I understand my use of Swirly Me Sweets Intellectual Property is strictly limited by this Agreement including the Business Policies. Examples of Swirly Me Sweets Intellectual Property include, but are not limited to, Swirly Me Sweets®, the Swirly Me Sweets logo, or Swirly Me Sweets product names. I may use Swirly Me Sweets Intellectual Property only after obtaining written permission from Swirly Me Sweets prior to use, or where the Swirly Me Sweets Intellectual Property appears on materials distributed by Swirly Me Sweets for use by Consultants. I agree that in connection with being a Consultant under this Agreement, I will use only written, recorded or other promotional or advertising materials that have been produced, distributed and approved either electronically or in writing by the Company. All rights and licenses granted in or under this Agreement shall terminate automatically upon the termination of this Agreement under paragraph 2.

 

10.

Releases. I grant Swirly Me Sweets a non-exclusive license to use, for any purpose in any format, without additional notice or compensation, photographs and/or other written or electronic material submitted by me to Swirly Me Sweets. I represent that I am the exclusive owner of such photographs or written or electronic material and am able to grant such a non-exclusive license. I also waive my right to inspect or approve the finished photographs or advertising copy or other printed or electronic matter that may be used in conjunction therewith. Any photographs taken of me at a Swirly Me Sweets event may be used by the Company for any purpose and in any format without further notice.

 

11.

Indemnification/Offset. I will indemnify and hold harmless Company and its agents and assignees from and against any damages, claims or liabilities and expenses (including attorneys’ fees) incidental to my: (a) activities as a consultant including, without limitation, any unauthorized product or income 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.

 

12.

Ownership and Use of Confidential and Other Information. All creative works related to the business of Swirly Me Sweets that I create as a Consultant and which use or refer to Company’s Intellectual Property are works for hire and will be the property of the Company. In the event that the works are not considered works for hire, by signing this Agreement I assign my rights in those works to Swirly Me Sweets. In addition, I acknowledge and agree that the Company owns all the product and client information and data related to Swirly Me Sweets, its business, or this Agreement, including but not limited to creative works, product purchase information, client profile data, downline lists, operating and manufacturing procedures, product development information, financial data and marketing materials, whether such information or data is created or compiled by me or by others (collectively, “Confidential Information”), and that disclosure of the Confidential Information could cause great harm to Company. I will not use or disclose Confidential Information to any person except in strict accordance with this Agreement. I will not use Confidential Information to sell products or services other than Swirly Me Sweets products and services or in connection with any other business during (or after termination of) this Agreement.

 

13.

Injunctive Relief/Remedies. Upon any breach of this Agreement by me, Swirly Me Sweets will be immediately and irreparably harmed and cannot be made whole solely by monetary damages. Because the remedy at law for any breach of any provision of this Agreement shall be inadequate, in addition to any other remedies in law or in equity that 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. In addition, the Company shall be entitled to reimbursement of its costs and expenses, including reasonable attorneys’ fees, in enforcing its rights under this Agreement. Nothing in this Agreement shall preclude the Company from seeking any remedy against me, including but not limited to, damages suffered as a result of my breach of the Agreement or other conduct detrimental to the Company and its interests and goals.

 

14.

Other Terms. I have full legal capacity to enter into this Agreement in the state in which I reside. If any portion of this Agreement is determined by an arbitrator to be invalid, that invalidity will not affect the remaining portion of this Agreement. All written notices required by this Agreement to be given to me will be deemed received if delivered to my most current address on file with Swirly Me Sweets. If I elect to enter into a Swirly Me Sweets Leadership Agreement, a website/online agreement and/or any other agreement for services, those agreements are incorporated herein.

 

15.

Applicable Law/Binding Arbitration. This Agreement and the parties relationship is governed by and construed in accordance with the laws of the State of Idaho, except to the extent that Idaho law conflicts with or is preempted by the Federal Arbitration Act, 9 U.S.C. 1-14, in which event the Federal Arbitration Act shall apply. Any dispute or claim arising under or relating to this Agreement or to the relationship between the parties shall be submitted to arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Any arbitration hearings shall take place in ADA County, Idaho. The decision of the arbitrator shall be final.

 

16.

Risks of Loss. I acknowledge and agree that title to all product passes to me after the product is ordered and leaves Swirly Me Sweets’ facility to be delivered to the identified “ship to” addressee or made available for me to pick up. I understand that I assume all risk of loss and assume total responsibility to deliver product to the ultimate client in a timely fashion. In the event the client does not receive product or if the client receives damaged product, Company may (solely at its discretion) elect to ship replacement product directly to the client.