STATEMENT OF POLICIES AND PROCEDURES Posted December 10, 2013 Effective 30 days from Posting (January 10, 2014)
1. I understand that as an Independent Business Owner (“IBO”) for WakeUpNow, Inc. (“WAKEUPNOW” , “Company”, “we” or “our”):
a. I have the right to offer for sale WAKEUPNOW products and services in accordance with these Terms and Conditions.
b. I have the right to enroll others as WAKEUPNOW Retail Customers and IBOs.
c. If qualified, I have the right to earn commissions pursuant to the WAKEUPNOW Compensation Plan.
2. I agree to present the WAKEUPNOW products and services and WAKEUPNOW Compensation Plan as set forth in official WAKEUPNOW literature.
3. I agree that as a WAKEUPNOW IBO I am an independent contractor, and not an employee, partner, legal representative, or franchisee of WAKEUPNOW. I agree that I will be solely responsible for paying all expenses that I incur, including but not limited to travel, food, lodging, secretarial, office, long distance telephone and other business expenses. I agree that any other expenses that occur with purchasing WakeUpNow products and services, or any other package on my account, are solely my responsibility and will be paid for by me. I UNDERSTAND THAT I SHALL NOT BE TREATED AS AN EMPLOYEE OF WAKEUPNOW FOR FEDERAL OR STATE TAX PURPOSES OR FOR ANY OTHER REASON. WAKEUPNOW is not responsible for withholding, and shall not withhold or deduct from my bonuses and commissions, if any, FICA, or taxes of any kind. I understand that I am not entitled to workers compensation or unemployment security benefits of any kind from WAKEUPNOW.
4. I understand that I may cancel my participation in this direct sales program at any time by providing WAKEUPNOW with written notice at its principal business address or by contacting WakeUpNow Support at 801.769.3723.
6. Your WAKEUPNOW business shall remain in effect so long as you remain in compliance with the terms of the Agreement, pay your monthly IBO Marketing Suite fee, and meet the requirements of the WAKEUPNOW Compensation Plan, or until you voluntarily cancel your WAKEUPNOW Agreement.
7. In the event of cancellation or termination, I waive all rights I have, including but not limited to property rights, to my former WakeUpNow organization and to any bonuses, commissions or other remuneration derived through the sales and other activities of my former WakeUpNow organization. WAKEUPNOW reserves the right to terminate all IBO Agreements upon 30 days notice if the Company elects to: (1) cease business operations; (2) dissolve as a business entity; or (3) terminate distribution of its products and/or services via direct selling channels. IBO may cancel this Agreement at any time, and for any reason, upon written notice to WAKEUPNOW at its principal business address or by cancelling through contacting WAKEUPNOW Support at 801.769.3723 or via email email@example.com.
8. I may not sell, transfer, or assign any rights under the Agreement without the prior written consent of WAKEUPNOW. Any attempt to sell, transfer or assign the Agreement without the express written consent of WAKEUPNOW renders the Agreement voidable at the option of WAKEUPNOW and may result in termination of my business.
9. I understand that I must be in good standing, and not in violation of the Agreement, to be eligible for bonuses/payouts or commissions from WAKEUPNOW. I further agree that if I fail to comply with the terms of the Agreement, WAKEUPNOW may, at its discretion, impose upon me disciplinary sanctions as set forth in the Policies and Procedures, which may include the involuntary termination of my WAKEUPNOW independent business.
10. The Parties and their respective parent and/or affiliated companies, directors, officers, shareholders, employees, assigns, and agents (collectively referred to as “affiliates”), shall not be liable for, and the Parties release one another from, all claims for incidental, consequential and exemplary damages for any claim or cause of action relating to the Agreement.
11. I agree to release WAKEUPNOW and its affiliates from all liability arising from or relating to the promotion or operation of my WAKEUPNOW business and any activities related to it (including, but not limited to, the presentation of WAKEUPNOW products or Compensation Plan, the operation of a motor vehicle, the lease of meeting or training facilities, etc.), and agree to indemnify WAKEUPNOW for any liability, damages, fines, penalties, or other awards arising from any unauthorized conduct that I undertake in operating my business.
12. The Agreement, in its current form and as amended by WAKEUPNOW at its discretion, constitutes the entire contract between WAKEUPNOW and myself. Any promises, representations, offers, or other communications not expressly set forth in the Agreement are of no force or effect.
13. Any waiver by either Party of any breach of the Agreement must be in writing and signed by the Party waiving the breach. With respect to WAKEUPNOW, only officers of the Company are authorized to waive any policy. Waiver by one who is not an officer of the Company shall not be binding on WAKEUPNOW. Waiver by either Party of any breach of the Agreement shall not operate or be construed as a waiver of any subsequent breach.
14.If any provision of the Agreement is held to be invalid or unenforceable, such provision shall be stricken and reformed only to the extent necessary to make it enforceable, and the balance of the Agreement will remain in full force and effect.
15. If the IBO applicant is a business entity of any type (trust, partnership, limited liability company, corporation, etc.), all members, managers, shareholders, trustees, partners, or others with any ownership interest in the business entity (collectively “Owners”) shall be jointly and severally liable for all contracts entered into with WAKEUPNOW. Each Owner is individually bound to and must comply with and agree to the terms and conditions of the Agreement. Violation of the Agreement by any Owner or employee of the business entity shall be jointly and severally imputed to the business entity and all Owners of the business entity. Each Owner certifies that neither he/she, nor any household family member, has any ownership, financial, or equitable interest in, or managerial responsibility for, any other WAKEUPNOW business, and has not had any such interest or responsibility for at least 90 days prior to submitting this Application and Agreement. Any breach of the Agreement by any Owner or employee of the business entity shall be grounds for disciplinary action jointly and severally against the business entity and/or each individual Owner.
16. I agree to the WakeUpNow dispute resolution and discrepancy procedures as displayed in section nine of the Policies and Procedures. For claims seeking $10,000.00 or more that arise from or relate to the Agreement, prior to filing arbitration as set forth below, the parties shall meet in good faith and attempt to resolve such dispute through confidential non-binding mediation. One individual who is mutually acceptable to the parties shall be appointed as mediator. If the Parties cannot agree on a mediator, the complaining party shall request a mediator be appointed by the American Arbitration Association (“AAA”). The mediation shall occur within 60 days from the date on which the mediator is appointed. The mediator’s fees and costs, as well as the costs of holding and conducting the mediation, shall be divided equally between the parties. Each party shall pay its portion of the anticipated shared fees and costs at least 10 days in advance of the mediation. Each party shall pay its own attorney’s fees, costs, and individual expenses associated with conducting and attending the mediation. Mediation shall be held in Orem, Utah and shall last no more than two business days.
Except as otherwise provided in the Agreement, any controversy or claim arising out of or relating to the Agreement, or the breach thereof, shall be settled through confidential arbitration. The Parties waive rights to trial by jury or to any court. This arbitration provision applies to claims that were not successfully resolved through the foregoing mediation process as well as claims for less than $10,000.00 not subject to the mediation requirement. The arbitration shall be filed with, and administered by, the American Arbitration Association in accordance with the AAA’s Commercial Arbitration Rules and Mediation Procedures, which are available on the AAA’s website at www.adr.org. Copies of the AAA’s Commercial Arbitration Rules and Mediation Procedures will also be emailed to IBOs upon request to WAKEUPNOW’s Compliance Department. Notwithstanding the rules of the AAA, unless otherwise stipulated by the Parties, the following shall apply to all Arbitration actions:
- The Federal Rules of Evidence shall apply in all cases;
- The Parties shall be entitled to all discovery rights permitted by the Federal Rules of Civil Procedure;
- The Parties shall be entitled to bring motions under Rules 12 and/or 56 of the Federal Rules of Civil Procedure;
- The Federal Arbitration Act shall govern all matters relating to arbitration. The law of the State of Utah shall govern all other matters relating to or arising from the Agreement, without regard to principles of conflicts of laws.
- The arbitration hearing shall commence no later than 365 days from the date on which the arbitrator is appointed, and shall last no more than five business days;
- The Parties shall be allotted equal time to present their respective cases;
- The arbitration shall be brought on an individual basis and not as part of a class or consolidated action.
- The parties waive all claims to consequential, incidental, and exemplary damages.
All arbitration proceedings shall be held in Utah County, Utah. There shall be one arbitrator selected from the panel that the AAA provides. Each party to the arbitration shall be responsible for its own costs and expenses of arbitration, including legal and filing fees. The decision of the arbitrator shall be final and binding on the parties and may, if necessary, be reduced to a judgment in any court to which the Parties have consented to jurisdiction as set forth in the Agreement. This agreement to arbitrate shall survive the cancellation or termination of the Agreement.
The parties and the arbitrator shall maintain the confidentiality of the arbitration proceedings and shall not disclose to third parties:
- The substance of, or basis for, the controversy, dispute, or claim;
- The substance or content of any settlement offer or settlement discussions or offers associated with the dispute;
- The pleadings, or the content of any pleadings, or exhibits thereto, filed in any arbitration proceeding;
- The content of any testimony or other evidence presented at an arbitration hearing or obtained through discovery in arbitration;
- The terms or amount of any arbitration award;
- The rulings of the arbitrator on the procedural and/or substantive issues involved in the case.
Notwithstanding the foregoing, nothing in the Agreement shall prevent either party from applying to and obtaining from any court to which the Parties have consented to jurisdiction as set forth in the Agreement a temporary restraining order, preliminary or permanent injunction, or other equitable relief to safeguard and protect its trade secrets and intellectual property rights, trade secrets, and/or confidential information including but not limited to enforcement of its rights under the confidentiality, trade secret, and/or nonsolicitation provisions of the Agreement. Jurisdiction and venue of any matter not subject to arbitration shall reside exclusively in Utah County, State of Utah or the United States District Court for the District of Utah. In any action arising from or relating to the Agreement, the parties waive all claims for incidental and/ or consequential damages, even if the other party has been apprised of the likelihood of such damage. The parties further waive all claims to exemplary or punitive damages.
17. Jurisdiction and venue of any matter not subject to arbitration shall reside exclusively in Utah County, State of Utah, or the United States District Court for the District of Utah
18. Louisiana Residents: Notwithstanding the foregoing, Louisiana residents may bring an action against the Company with jurisdiction and venue as provided by Louisiana law.
19. Montana Residents: A Montana resident may cancel his or her IBO Agreement within 15 days from the date of enrollment, and may receive a full refund on his or her Marketing Suite fee if cancelled with-in such time.
20. A participant in this direct sales business has a right to cancel at any time, regardless of reason. Cancellation must be submitted in writing to the company at its principal business ad-dress, 504 West 800 North, Orem, UT, 84057, via email at firstname.lastname@example.org, or through contacting Support at 801.373.2600.
21. If either party wishes to bring an action against the other for any act or omission relating to or arising from the Agreement, such action must be brought within one year from the date of the alleged conduct giving rise to the cause of action, or the shortest time permissible under applicable law, whichever is longer. Failure to bring such action within such time shall bar all claims against the other Party for such act of omission. The Parties waive all claims that any other statute of limitations applies.
22. I authorize WAKEUPNOW to use my name, photograph, personal story, testimonial, likeness, and/or any material I submit to the company in advertising or promotional materials and waive all claims for remuneration for such use.
23. I certify that I have reached the age of majority in my state of residence.