TERMS AND CONDITIONS
- Interpretation. These Terms and Conditions are a part of the Shakti Acupressure Mat Canada’s Brand Affiliate Agreement between Brand Affiliate and the Company (the “Agreement”), and all capitalized terms used but not defined herein shall have the meanings ascribed to such terms elsewhere in the Agreement, including without limitation the Policies and Procedures. The Agreement shall become effective upon acceptance by the Company. The Company may reject the Agreement without disclosing any reason therefore.
- Representations of the Company; Covenant. The Company represents and warrants that (i) the Company has the power and authority to enter into this Agreement, (ii) it is not a party to any agreement or subject to any law that restricts the Company’s performance of the Company’s obligations hereunder, and (iii) the Company possess all legal authorizations, permits and licenses necessary for the conduct of the Company’s obligations hereunder. The Company covenants and agrees to comply with all laws, regulations and codes applicable to the Company’s duties and obligations hereunder.
- Representations of Brand Affiliate; Covenant. Brand Affiliate represents and warrants that (i) he or she has the power and authority to enter into this Agreement, (ii) he or she is not a party to any agreement or subject to any law that restricts Brand Affiliate’s performance of Brand Affiliate’s obligations hereunder, and (iii) Brand Affiliate possesses all legal authorizations, permits and licenses necessary for the conduct of Brand Affiliate’s obligations hereunder. Brand Affiliate covenants and agrees to market, promote and sell the Products in compliance with all laws, regulations and codes applicable to Brand Affiliate’s duties and obligations hereunder.
- Appointment; Limited License. Upon acceptance of this Agreement by the Company, Brand Affiliate shall be appointed as a brand affiliate of the Company, and shall have the right to purchase and promote the Products pursuant to the terms and conditions hereof. Subject to the terms and conditions hereof, Brand Affiliate shall have the limited license and right to use the Company’s trademarks and trade names for the purpose of promoting and selling Products and performing Brand Affiliate’s obligations hereunder, all in accordance with the Policies and Procedures. In no event shall Brand Affiliate have or be granted any ownership in any of the Company’s intellectual property.
- Products; Minimum 1 Shakti® Mat Purchase (over lifetime) for Brand Affiliate Status; Minimum Purchase Requirement of 6 Shakti® Mats for Wholesale Resell of Products. The Company has developed and may in the future develop additional products available for sale by Brand Affiliate (the “Products”). A Brand Affiliate is authorized to purchase Products pursuant to the terms and conditions of this Agreement. The Company shall, in its sole discretion, determine the sales price and terms of sale for the Products. Brand Affiliate is required to meet minimum purchase requirements to maintain Brand Affiliate’s status as a brand affiliate hereunder. Brand Affiliate may not resell any Products purchased directly by Brand Affiliate to other retailers or Brand Affiliate at a profit, but shall refer other potential Retailers or Brand Affiliate to The Company for the on-boarding process. However, Brand Affiliate may resell Products purchased by Brand Affiliate to their own customers.
- Promotion of Products; Products Warranty. Brand Affiliate understands and agrees that the Company has expended considerable time and resources conducting testing of the Products and preparing official literature regarding the composition and performance of the Products. Brand Affiliate agrees to present the Products in a manner consistent with the official literature of the Company. In no event shall Brand Affiliate make any representations or warranties about the Products not contained in the official literature of the Company. Brand Affiliate shall conduct all marketing activities in compliance with the Policies and Procedures and in alignment with the Company's Medical Disclaimer section of their website. Brand Affiliate will indemnify and defend the Company against any third party claims asserted against the Company related to Product representations made by Brand Affiliate that are not contained in the Company’s official literature. The only warranty provided by the Company related to the Products shall be the written warranty included with shipment thereof, and any other warranties are expressly disclaimed.
- Benefits. Brand Affiliate shall be entitled to discounts for one Shakti® Mat purchase during each 12-month agreement term, all pursuant to the Benefits Plan. To be eligible for benefits, Brand Affiliate must be in good standing at the time of any applicable review period.
- Term and Termination. The term of this Agreement is at will, and may be terminated upon 30 days notice by the Company to the Brand Affiliate. It is not requisite that the Brand Affiliate submits formal written notice to terminate the agreement, as no formal activity is required. In the event of a breach of either party’s obligations hereunder, the other party may terminate this Agreement immediately. In the event of cancellation or termination by the Brand Affiliate for any reason or by the Company for a breach by Brand Affiliate, Brand Affiliate shall waive all rights he or she have hereunder, including but not limited to any rights to commissions otherwise earned prior to the applicable review date. For the avoidance of doubt, the Company may terminate this Agreement and all other agreements between the Company and other brand affiliates if the Company elects to cease business operations, dissolve the Company or terminate its business. Upon the termination of this Agreement, all limited licenses granted to Brand Affiliate hereunder shall cease and Brand Affiliate shall cease to hold himself or herself out as brand affiliate of the Company. All covenants set forth herein that by their terms survive the termination of this Agreement shall survive such termination.
- Relationship of the Parties. Nothing herein shall be construed to create a joint venture or partnership between the parties or an employer/employee, franchisor/franchisee or agency relationship. Brand Affiliate is an independent contractor and shall determine the method, details, and means of conducting the business of Brand Affiliate. There are no minimum requirements for time commitment. Brand Affiliate agrees that Brand Affiliate will be solely responsible for paying all expenses incurred by Brand Affiliate, including but not limited to travel, food, lodging, secretarial, office, long distance telephone and other expenses. BRAND AFFILIATE UNDERSTANDS THAT BRAND AFFILIATE SHALL NOT BE TREATED AS AN EMPLOYEE OF THE COMPANY FOR FEDERAL OR PROVINCIAL TAX PURPOSES. The Company is not responsible for withholding, and shall not withhold or deduct from my commissions, if any, or taxes of any kind.
- Confidentiality. Brand Affiliate acknowledges and agrees that this Agreement is confidential, and may not be disclosed to third parties without the Company’s consent. In addition, in the course of Brand Affiliate’s relationship with the Company, Brand Affiliate may receive confidential information regarding the Products and/or the business and affairs of the Company which is not generally known or made available to the public and is treated as confidential by the Company (the “Confidential Information”). Brand Affiliate agrees not to use the Confidential Information for any purpose other than the performance of Brand Affiliate’s obligations hereunder and agrees not to disclose the Confidential Information to any third parties without the prior written consent of the Company.
- Restrictive Covenants. During the term of the Agreement, Brand Affiliates agrees that he or she will not promote, market or sell other products that are competitive with the Products. Brand Affiliates agrees that he or she will not solicit any customers of the Company with whom the Brand Affiliate had a relationship during the term of the Agreement to purchase other products competitive with the Products.
- Assignment. Brand Affiliate may not assign any rights or delegate its duties under this Agreement without the prior written consent of the Company. Any attempt to transfer or assign Brand Affiliate’s rights or duties under this Agreement without the express written consent of the Company renders the Agreement voidable at the option of the Company and may result in termination of this Agreement. The Company may assign its rights and delegate its duties hereunder to any third party acquirer of the business of the Company, and following such an assignment and delegation; the Company shall have no further duties or obligations hereunder.
- Remedies. Brand Affiliate understands that if he or she fails to comply with the terms of the Agreement, the Company may, at its discretion, impose disciplinary action as set forth in the Policies and Procedures.
- No Consequential Damages. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY OR ITS REPRESENTATIVES OR AFFILIATES BE LIABLE UNDER THIS AGREEMENT TO BRAND AFFILIATE OR ANY THIRD PARTY CLAIMING THROUGH BRAND AFFILIATE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT BRAND AFFILIATE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
- Limitation of Damages. IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED 80% OF THE TOTAL OF THE AMOUNTS PAID TO BRAND AFFILIATE PURSUANT TO THIS AGREEMENT IN THE 1-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Indemnification. Brand Affiliate (as “Indemnifying Party”) shall indemnify, hold harmless, and defend the Company and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, that are incurred by Indemnified Party, arising out of any third-party claim alleging a breach by Brand Affiliate of the terms of this Agreement, any negligent or more culpable act or omission of Indemnifying Party, any bodily injury, death or damage to real property caused by the negligent or more culpable acts or omissions of Indemnifying Party, any failure of Indemnifying Party to comply with all applicable federal, state or local laws, regulations or codes.
- Entire Agreement. This Agreement, in its current form and as amended by the Company at its discretion, constitutes the entire contract between the Company and Brand Affiliate. Any promises, representations, offers, or other communications not expressly set forth in the Agreement are of no force or effect.
- Waiver. Any waiver by the Company of any breach of the Agreement must be in writing and signed by an authorized officer of the Company. Waiver by the Company of any breach of the Agreement by Brand Affiliate shall not operate or be construed as a waiver of any subsequent breach.
- Severability. If any provision of the Agreement is held to be invalid or unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable and the balance of the Agreement will remain in full force and effect.
- Governing Law; Binding Arbitration. This Agreement will be governed by and construed in accordance with the laws of the Province of British Columbia without regard to principles of conflicts of laws. All disputes and claims relating to this Agreement, including the Commission Plan, the Products, the Company, or any other claims or causes of action relating thereto shall be settled totally and finally by binding arbitration in Vancouver, British Columbia, and shall be administered by the Canadian Arbitration Association (“CAA”) under its Commercial Arbitration Rules and Mediation Procedures (the “Commercial Rules”). There shall be one arbitrator agreed to by the parties within twenty (20) days of receipt by respondent of the request for arbitration or in default thereof appointed by the CAA in accordance with its Commercial Rules. Except as may be required by law, neither a party nor the arbitrator may disclose the existence, content or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. The award rendered by the arbitrator shall be final and binding on the parties and may be entered and enforced in any court having jurisdiction, and any court where a party or its assets is located (to whose jurisdiction the parties consent for the purposes of enforcing the award). Judgment on the award shall be final and non-appealable. Each party shall be responsible for its own costs and expenses of arbitration, including legal and filing fees. This agreement to arbitrate shall survive any termination or expiration of the Agreement. Nothing in the Agreement shall prevent the Company from applying to and obtaining from any court having jurisdiction a writ of attachment, garnishment, temporary injunction, preliminary injunction, permanent injunction or other equitable relief available to safeguard and protect its interest prior to, during or following the filing of any arbitration or other proceeding or pending the rendition of a decision or award in connection with any arbitration or other proceeding.
- Statute of Limitations. To the extent permitted by applicable law, any action arising under this Agreement must be brought within 1 year from the date of the alleged conduct giving rise to the cause of action. Failure to bring such action within such time shall bar all claims against the Company for such act or omission. Brand Affiliate waives all claims that any other statutes of limitation apply.
- Authorization. Brand Affiliate authorizes the Company to use his or her name, photograph, personal story and/or likeness in advertising or promotional materials and waive all claims for remuneration for such use.
- Counterparts. This Agreement may be executed in one or more counterparts, each of which is an original, and all of which together constitute only one agreement between the parties. Delivery of an executed counterpart signature page of this Agreement by facsimile, portable document format (.pdf), electronic mail, or any other electronic means intended to preserve the original graphic has the same effect as delivery of an executed original of this Agreement.
Survival. Any provision of the Agreement which, by its terms, is intended to survive termination or expiration of the Agreement shall so survive, including, without limitation, the arbitration, non-competition, non-solicitation, trade secrets and confidential information covenants contained in the Agreement.
- Territory. Brand Affiliate will sell and promote the Products in the geographic location of Brand Affiliate’s choosing. Brand Affiliate understands and agrees that the Company may appoint other brand affiliates within the geographic location where Brand Affiliate promotes Products, and nothing herein grants Brand Affiliate the exclusive right to promote Products within any geographic area.
- Products Return Policy. The Company stands behind the Shakti® Mats and will provide a refund if returned as resalable condition. Refunds to the purchasing customer who purchased products at www.shaktimat.ca in accordance with the Policies and Procedures: 30-day 100% refund of purchase price of The Shakti® Mat (less the cost of shipping). No other products qualify for this guarantee. All other products have a 14-day return policy for refund of the purchase price, less the cost of shipping. All returned Products must be unopened and in resalable condition.
- Credit Card Purchases. Brand Affiliate agrees that it is against the Policies and Procedures to use another individual’s credit card without the individual’s prior written approval, and Brand Affiliate must provide a copy of such written approval upon request from the Company.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.
- Attorneys’ Fees. In the event that any party institutes any legal suit, action, or proceeding, including arbitration, against the other party arising out of or relating to this Agreement, the prevailing party in the suit, action or proceeding shall be entitled to receive, in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action, or proceeding, including actual attorneys’ fees and expenses and court costs.
- No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and assigns nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
POLICIES AND PROCEDURES
The Company’s current Policies and Procedures are available at WWW.SHAKTIMAT.CA. The Company’s Policies and Procedures are a part of Shakti Acupressure Mat Canada’s Brand Affiliate Agreement between Brand Affiliate and the Company (the “Agreement”).
Section 1. Code of Ethics
Shakti Acupressure Mat Canada expects and requires its independent Brand Affiliates to conduct themselves in accordance with the highest standards of ethical behavior. Brand Affiliates are expected to practice the following ethical behavior when introducing people to, and representing the Company and its products. Violations of the Code of Ethics may subject the Brand Affiliate to disciplinary action by the Company depending on the materiality of the violation. The following guidelines help ensure a uniform standard of excellence throughout the Shakti Acupressure Mat Canada organization. All Brand Affiliate should:
- Be respectful of every person while conducting Shakti Acupressure Mat Canada-related business.
- Conduct themselves and their business activities in an ethical, moral, legal and financially honest manner. Brand Affiliates should not engage in activities and behavior that would bring disrespect or embarrassment to Shakti Acupressure Mat Canada, its corporate officers, employees, themselves, or other Brand Affiliates.
- Refrain from making negative or disparaging statements about other companies, their employees, or their products.
- Refrain from making negative or disparaging statements about other Shakti Acupressure Mat Canada Brand Affiliates.
- Be truthful in representations of Shakti Acupressure Mat Canada products. Do not make diagnostic, therapeutic, curative or exaggerated claims.
- Give support and encouragement to customers to ensure that their experience with Shakti Acupressure Mat Canada is meaningful and rewarding.
- Accurately teach and represent the Shakti Acupressure Mat Canada Commission and/or Benefit's Plan. Make no claims related to past, present, or future earnings. The Brand Affiliate should not use their own income as an indication of other’s potential success, or use compensation checks as marketing materials.
- Abide by all of Shakti Acupressure Mat Canada policies and procedures as they are currently found in the Policies and Procedures and the other Contract documents, and as they may be amended in the future.
Section 2. Purchasing Products
- One-Off Requirement to Purchase Products. A Brand Affiliate is only required to purchase 1 Shakti® Acupressure Mat in full time of their contract with the Company, in order to be a Shakti Mat Canada Brand Affiliate.
- Reselling of Shakti Acupressure Mat Canada Products. Brand Affiliates are not permitted to purchase Shakti Acupressure Mat Canada products for resale to retailers or other Brand Affiliates BUT they are permitted to purchase products for resale to personal clients & customers.
- Credit Card Use. Brand Affiliates are strongly discouraged from using their own credit cards to purchase products for another Brand Affiliate or Customer. Brand Affiliates may not place a product order using someone else’s credit card without the credit card owner’s written permission. In those rare circumstances where it is necessary to purchase product for another Brand Affiliate, the Company must receive written permission from the Brand Affiliate for whom the product order is being placed. Failure to produce such permission upon request of the Company may result in cancellation of the sale, forfeiture of commissions resulting from the sale, and other disciplinary action.
- Repackaging Prohibited. Brand Affiliates may not print their own labels or repackage Shakti Acupressure Mat Canada products. Products are to be sold in their original packaging only. For instance, Brand Affiliates may not resell individual parts of a product separately from the original product packaging.
Section 3. Product Return Policy
- Returns on Products Within 30 Days.
- Shakti Acupressure Mat Canada will refund one hundred percent (100%) of the purchase price (plus applicable tax if prepaid) Currently Marketable Shakti® Mats only, providing they are returned by a Brand Affiliate within thirty (30) days of purchase from the Company’s website WWW.SHAKTIMAT.CA, less shipping costs and paid Bonuses.
- Currently Marketable. Products shall be deemed currently marketable if each of the following elements is satisfied:
- they are unopened and unused;
- packaging and labeling have not been altered or damaged including shrink wrap;
- the product and packaging are in a condition such that it is a commercially reasonable practice within the trade to sell the merchandise at full price; and
- the product contains current Shakti Acupressure Mat Canada labeling. Products shall not be considered Currently Marketable if the Company discloses prior to purchase that the products are seasonal, discontinued, limited time offers, or special promotion products not subject to the Return Policy.
- Return of Damaged or Incorrectly Sent Products. Shakti Acupressure Mat Canada will exchange products if the returned products were received by the purchaser in damaged condition or were incorrectly sent. Such products must be returned within fifteen (15) days of receipt. Whenever possible, returned products will be replaced with undamaged products. However, when an exchange is not feasible, the Company reserves the right to issue a credit for the amount of the exchanged products.
- Refund Alternatives. The Company in its discretion may determine the acceptable refund alternatives for product returns, including but not limited to the following: Shakti Acupressure Mat Canada Company Credit, Product Credit, bank check, bank transfer, or credit card charge back. The actual form of refund will be based upon the original form of payment. Refunds will only be paid to the original payer.
- Return Procedure. To obtain a refund for returned products, a Brand Affiliate must comply with these procedures:
- Approval for the return must be received prior to the return of the shipment to the Company. This approval must be obtained, either by telephone or in writing, and the actual return shipment must be accompanied by the Brand Affiliate’s unique code.
- The Company will provide the Brand Affiliate with the correct procedures and location for returning the products. All return shipping costs must be paid for by the Brand Affiliate.
- Products returned to the Company without prior authorization will not qualify for a product credit or refund and will be returned to the Brand Affiliate at the Brand Affiliate's expense.
- This return/refund procedure may vary in jurisdictions where different repurchase requirements are imposed by law.
- Applicable laws may dictate the terms of the refund policy.
- The Company may charge a $15 fee for shipments that are refused at the point of delivery and returned to the Company.
- Company’s Right to Recoup Unearned Bonuses. Rewards are awarded to Brand Affiliates based on the purchase of Company products by customers. When products are returned, the Company has the right to recoup the commission points that were paid based on the purchase of the products that were returned.
- Return of Sales Aids. Personalized Sales Aids are not returnable or refundable.
- Credit Card Charge Backs. Brand Affiliates are required to return products under the Company’s product exchange and return policies rather than doing a credit card charge-back.
Section 4. Enrolling a Brand Affiliate
- Duty to Accept Contractual Responsibilities. Before a Brand Affiliate may act, the Brand Affiliate must meet all requirements and accept all responsibilities described in the Agreement.
- Placement. A Brand Affiliate may refer Persons to the Company as applicants to become Brand Affiliates. Upon acceptance by the Company of the Brand Affiliate Application, applicants are assigned a unique code for their personal product purchases and a unique code to share with potential customers.
- Training and Support. In order to aid in building a successful company, Shakti Acupressure Mat Canada will assume training and support obligations where possible.
- Open Local Markets. A Brand Affiliate is entitled to sell or promote only in Open Local Markets.
Section 5. Benefits Plan
See Brand Affiliate Compensation plan attachment 1 below.
Section 6. Product Claims
- Canadian Code of Advertising Standards. Advertising is regulated by the Canadian Code of Advertising Standards (Code). The Code is administered by Advertising Standards Canada (ASC). The ASC Act requires that all advertising claims and representations must be supported by competent and reliable evidence, which the advertiser, the company, or spokesperson for the Company will disclose to ASC upon its request. If the support on which an advertised claim or representation depends is test or survey data, such data must be reasonably competent and reliable, reflecting accepted principles of research design and execution that characterize the current state of the art. “Competent and reliable scientific evidence” means tests, analyses, research and/or studies using procedures generally accepted by experts in the relevant scientific field that yield accurate and reliable results and that have been conducted and evaluated in an objective manner by persons qualified to do so.
- Permissible Claims. A Brand Affiliate may represent Shakti Acupressure Mat Canada products as represented on WWW.SHAKTIMAT.CA
- ASC Disclaimer. When discussing the benefits of Shakti Acupressure Mat Canada products, a Brand Affiliate should refer to the ASC Disclosure statement on WWW.SHAKTIMAT.CA/pages/medical-disclaimer: “Products and Services are not intended to diagnose, treat, cure or prevent any disease and do not replace medical advice. Advice on treatment or care of each individual should be obtained through consultation with a physician or trained health care practitioner who has examined that individual or is familiar with that individual’s medical history.”
- No Curative or Medical Claims. A Brand Affiliate may not make any medical claim for any product nor specifically prescribe any given product as suitable for any specific ailment, as that type of representation implies the products are medical products rather than personal products. Under no circumstance should these products be likened to medical products prescribed for the treatment of specific ailments. While the Company makes every effort to achieve full compliance with complicated and periodically amended ASC regulations, no Brand Affiliate should state or infer that any product is approved by the ASC.
- Disclosure. When promoting Shakti Acupressure Mat Canada products, a Brand Affiliate must disclose the fact that the Brand Affiliate is a Shakti Acupressure Mat Canada Brand Affiliate who receives remunerations from the Company.
Section 7. Trade Show and Events Policy
Shakti Acupressure Mat Canada may participate in trade shows and Events. Affiliates may occasionally be allowed to participate. If the option is available a sign up request form will be emailed to the Brand Affiliate Team. It will be at Shakti Acupressure Mat Canada’s sole discretion who they allow to participate at these Trade Shows and/or Events.
Section 8. Payment of Taxes
- Income Tax. A Brand Affiliate accepts sole responsibility for all self-employment and income taxes due to income earned. As a Shakti Acupressure Mat Canada Brand Affiliate, Brand Affiliate are not employees and thus will not receive any company tax form from the Company.
Section 9. Product Liability Claims
- Company Defense of Claims. Subject to the limitations set forth in this provision, Shakti Acupressure Mat Canada shall defend Brand Affiliates from claims made by third-party customers alleging injury from use of a product, or injury due to a defective product. Brand Affiliates must promptly notify the Company in writing of any such claim, no later than ten (10) days from the date of the third-party claimant’s letter alleging injury. Failure to so notify the Company shall alleviate any obligation of the Company respecting such claim. Brand Affiliates must allow the Company to assume the sole and absolute discretion respecting the defense of the claim, and use and choice of counsel as a condition to the Company’s obligation to defend them.
- Exceptions to Indemnification of Brand Affiliate. The Company shall have no obligation to indemnify a Brand Affiliate if:
- the Brand Affiliate has not complied with the Contract respecting obligations and limitations covering the distribution and/or sale of the products;
- the Brand Affiliate has repackaged, altered or misused the product, made claims or given instructions or recommendations respecting the use, safety, efficacy, benefits or results, which do not comply with the approved literature of the Company; or,
- The Brand Affiliate settles or attempts to settle a claim without the Company’s written approval.
Section 10. Authorized Use of Brand Affiliate’s Information
- Brand Affiliate Lists. Lists of Brand Affiliate and all contacts generated there from ("Lists") are the confidential property of Shakti Acupressure Mat Canada. The Company has derived, compiled, configured, and currently maintains the Lists through the expenditure of considerable time, effort, and monetary resources. The Lists in their present and future forms constitute commercially advantageous assets and trade secrets of the Company. The right to disclose Lists and other Brand Affiliate information maintained by the Company is expressly reserved by the Company and may be denied at the Company's discretion.
- Confidentiality of Lists. Vendors, suppliers, or other persons obtaining access to Lists of Brand Affiliates through their production or distribution of that material contractually agree to the confidentiality and proprietary nature of those mailing lists and that any use of those lists or contacts generated therefrom, except for the sole purpose of furthering the Company's business, is expressly forbidden. They also agree that the information is the property of the Company and any materials offered to the Brand Affiliates, which make any reference to the Company or its programs, may be done so only with the prior written consent of the Company for each separate offer.
- Limitations on Use. These Lists are provided for the exclusive and limited use of the Recipient to facilitate the training, support, and servicing of the Recipient's Team for furtherance of the Company-related business only. Each Recipient agrees that each use, within its intended scope, constitutes a separate exclusive license agreement between the Recipient and the Company.
- Lists Belong to Company. These Lists remain, at all times, the exclusive property of the Company, which may, at any time and in the Company's sole discretion, reclaim and take possession of the Lists. Accordingly, each Brand Affiliate agrees:
- To hold confidential and not disclose any Lists or portion thereof to any third Person, including, but not limited to, existing Brand Affiliates, competitors, and the general public;
- To limit use of the Lists to there intended scope of furthering the Brand Affiliate’s Shakti Acupressure Mat Canada-related business. The Lists may not be used to identify and solicit Shakti Acupressure Mat Canada Brand Affiliates to other commercial opportunities and activities;
- That any use or disclosure of the Lists outside of those authorized herein, or for the benefit of any third Person, constitutes misuse, misappropriation, and a violation of the Recipient's license agreement, which causes irreparable harm to the Company;
- That, upon any violation under this section, the Recipient stipulates to injunctive relief as an appropriate remedy enjoining that use under applicable national or local laws, and will immediately retrieve and return to the Company all Lists previously provided to the Recipient upon the Company's request, and that the obligations under this section will survive the termination of the Recipient's Contract.
- Company Remedies for Violation. The Company reserves the right to pursue all appropriate remedies under applicable national or local laws to protect its rights to the above-stated proprietary and trade secret information covered by the Lists. Any failure to pursue any applicable remedies will not constitute a waiver of those rights.
Section 11. Limitation of Liability
Except as provided in this Policy Manual, Shakti Acupressure Mat Canada makes no express or implied representations or warranties with respect to the Shakti Acupressure Mat Canada products to be provided hereunder or their condition, merchantability, fitness for any particular purpose or use by Brand Affiliates. The Company shall not be liable for any:
- Special, indirect, incidental, punitive, or consequential damages, including loss of profits, arising from or related to the operation or use of the products including, without limitation, damages arising from loss of revenue or profits, failure to realize savings or other benefits, damage to equipment, and claims against the Brand Affiliate by any third person, even if the Company has been advised of the possibility of such damages;
- Damages (regardless of their nature) for any delay or failure by the Company to perform its obligations under the Contract due to any cause beyond its reasonable control; or
- Claims made a subject of legal proceeding against the Company more than One year after the alleged violation. Notwithstanding any other provision of the Contract, the Company's total liabilities hereunder shall not be greater than the amounts actually received by the Company pursuant to the terms of the Contract.
Section 12. Disciplinary Actions
- Issue an oral and/or written warning or admonition to the Brand Affiliate;
- Closely monitor the conduct of the Brand Affiliate over a specified period of time to ensure performance of the contractual duties;
- Require the Brand Affiliate to provide the Company with additional assurances that the Brand Affiliate’s performance will be in compliance with the Contract. Further assurances may include requiring the Brand Affiliate to take certain actions in an effort to mitigate or correct non-performance;
- Deny or suspend privileges that are awarded from time to time by the Company or cease performing the Company's obligations under the Contract, including but not limited to, awards, recognition at corporate events or in corporate literature, participation in Company-sponsored events, placement of product orders, access to Company information and business organization, or the Brand Affiliate’s participation in other Company programs or opportunities;
- Discontinue or limit payments from all or any part of the sales of the Brand Affiliate or the Brand Affiliate’s organization;
- Impose a fine, which may be imposed immediately or withheld from future commission payments;
- Reassign all or part of the Brand Affiliate’s Organization;
- Adjust the Brand Affiliate's status in the company;
- Suspend the Brand Affiliate, which may result in termination or reinstatement with conditions or restrictions;
- Terminate the business of the Brand Affiliate;
- Seek injunctive relief or other remedies available by law.
- The Company will either provide the Brand Affiliate with a verbal notice and/or send a written notice of the alleged breach of Contract. Each Brand Affiliate agrees that the relationship between a Brand Affiliate and the Company is entirely contractual. Accordingly, the Company will neither honor nor respect any claim by a Brand Affiliate that the relationship is or has been quasi-contractual, has arisen by implication from any continuing practice or course of action, has been verbally authorized by an employee of the Company in contradiction of the terms of the Contract, or is otherwise implied in fact.
- In a case when written notice is sent, the Company will give the Brand Affiliate ten business days from the date of dispatch of a notification letter during which the Brand Affiliate may present all information relating to the incident for review by the Company. The Company reserves the right to prohibit activity (e.g. placing orders, participating in events, modifying Brand Affiliate information, receiving sales commissions, etc.) by the Brand Affiliate in question from the time the notice is sent until a final Company decision is rendered.
- On the basis of any information obtained from collateral sources and from the Company's investigation of the statements and facts taken together with information submitted to the Company during the response period, the Company will make a final decision regarding the appropriate remedy, which may include the termination of the Contract with the Brand Affiliate. The Company will promptly notify the Brand Affiliate of its decision. Any remedies will be effective as of the date on which notice of the Company's decision is dispatched.
- Additional information outlining an appeal of the decision by the Company and the Company's Dispute Resolution policy will be provided upon request from the Company.
Section 13. Contract Changes
Section 14. Miscellaneous
- The Contract is the final expression of the understanding and agreement between the Company and a Brand Affiliate concerning all matters touched upon in the Contract and supersedes all prior and contemporaneous agreements of understanding (both oral and written) between the parties. The Contract invalidates all prior notes, memoranda, demonstrations, discussions and descriptions relating to the subject matter of the Contract. The Contract may not be altered or amended except as provided therein. The existence of the Contract may not be contradicted by evidence of any alleged prior contemporaneous oral or written agreement.
- Should any discrepancy exist between the terms of the Contract and verbal representations made to any Brand Affiliate by any employee, the express written terms and requirements of the Contract will prevail.