NUTRIÉ BRAND PARTNER AGREEMENT
Upon signing the Brand Partner Application and, by reference and incorporation, this Brand Partner Agreement (“Agreement”), you hereby understand and agree as follows:
Brand Partner Compensation. You hereby agree and understand that if you are entitled to receive any compensation from Nutrié, your compensation shall be governed in all respects by the Nutrié Brand Partner Compensation Plan, as amended from time-to-time. A copy of the Nutrié Brand Partner Compensation Plan is available at http://www.nutriecompensationplan.com and incorporated herein by reference.
Territory/Non-Exclusive. Your status as a Brand Partner is non-exclusive and limited to your country of residence. As such, it is possible that other Brand Partners may reside close to you and, therefore, may be marketing and selling to people in your community.
Independent Contractor Status. You and Nutrié agree that you are an independent contractor and not an employee of Nutrié or any other Brand Partner for any purpose whatsoever, including state and federal taxes and workers' compensation insurance. Neither this Agreement, the relationship created between the parties hereto pursuant to this Agreement, nor any course of dealing between the parties hereto is intended to create, nor shall create, an employment relationship, a joint venture, partnership, a franchisor/franchisee relationship or any similar relationship. Nutrié is interested only in the results obtained and success achieved by you. You shall have sole control of the manner and means of performing under this Agreement (subject to the terms of this Agreement and Nutrié’s Brand Partner Rules and Regulations). You do not have, nor shall you hold yourself out as having, any right, power or authority to create any contract or obligation, either express or implied, on behalf of, in the name of, or binding upon Nutrié, or to pledge Nutrié's credit, or to extend credit in Nutrié's name.
Term/Duration. Subject to your and Nutrié’s right to terminate this Agreement, this Agreement and your status as a Brand Partner shall remain in full force and effect for one (1) year and shall thereafter be deemed automatically renewed for individual and consecutive additional one (1) year terms each year thereafter. Notwithstanding the above, both you and/or Nutrié have the right, upon written notice to the other, to freely terminate your Brand Partner relationship at any time with or without cause. Upon termination of your Brand Partner status, you agree that your sponsoring Brand Partner or Nutrié itself can repurchase your inventory of Nutrié products in accordance with Nutrié’s Brand Partner Rules and Regulations. You further agree that all annual and/or monthly fees, together with all product-related costs paid by you to Nutrié through the date of termination are non-refundable regardless of whether your Brand Partner status was terminated by you or Nutrié. (Montana Residents: If you terminate your Brand Partner status within 15 days hereof, you shall be entitled to a full refund for everything but unused Nutrié products that are returned to Nutrié.) Notwithstanding the above, Nutrié and you both agree that if you terminate your Brand Partner status within ninety (90) days hereof, you shall be entitled to a refund of the $39.00 initial membership fee. To terminate your Brand Partner status at any time, submit a request with the subject line “Cancel Brand Partner Membership” via http://www.nutriesupport.com. Upon termination of this Agreement, your right to receive compensation pursuant to the Nutrié Brand Partner Compensation Plan shall immediately and automatically cease. The following paragraphs of this Agreement shall survive termination hereof: 7, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, and 21.
Media Restrictions. In order to ensure that accurate and consistent information is provided to the public and to maintain the desired public image, you must strictly adhere to certain media restrictions. Specifically, you are not authorized to make any statements to the media about Nutrié, its Brand Partners, and/or the Nutrié products and programs. You are also expressly prohibited from issuing any press release or similar public statement about Nutrié, its Brand Partners, and the Nutrié products and programs. You shall direct all media inquiries to Nutrié at Media@Nutrie.com.
Brand Partner Sponsor Obligations. If you chose to enroll other Brand Partners, you agree to fulfill the obligations of performing a bona fide supervisory, distributing and selling function in the sale and/or delivery of Nutrié products to the ultimate consumer and in the training of the all Brand Partners sponsored by you. In this endeavour, you must maintain ongoing contact and communication with your sponsored Brand Partners to ensure consistent and effective management of your sales organization. This may require that you prepare and distribute newsletters, written correspondence, and emails, and that you also conduct personal meetings, telephonic calls/conference calls, and training sessions for the benefit of your sponsored Brand Partners. Upon request by Nutrié, you shall immediately provide evidence of your efforts to train and supervise your sponsored Brand Partners, as well as your efforts to support the sale of Nutrié products to the end consumer.
Trademark Restrictions. This Agreement shall not create, and you shall not have, any right in or to the use of any trademark, trade name, logo, service mark or other mark, identification or name of Nutrié. You recognize Nutrié’s ownership and exclusive right to use of all of Nutrié’s trademarks, trade names, logos and other marks and names and acknowledge that, except as hereinafter expressly set forth, you have no right in, or right to use any thereof. Notwithstanding the foregoing, and subject to Nutrié’s Brand Partner Rules and Regulations, you are permitted to use Nutrié’s trademarks, trade names, logos, and other marks and names for the limited purpose of identifying yourself as a Brand Partner. All uses by you of all names, trademarks, and trade names (or any similar marks, designs and/or names) now or hereafter used, owned or licensed by Nutrié shall be subject to the prior written approval of Nutrié.
Exclusivity of Services/Non-Solicitation. You are free to pursue any and all outside activities and/or employment as you desire. During the term of this Agreement, however, you will not, directly or indirectly, own, manage, operate or control, participate in the ownership, management, operation or control of, or be connected with, as a shareholder, director, officer, employee, sales representative, distributor, partner, agent, or consultant of any profit or non-profit business, firm, entity or organization that competes, directly or indirectly, with, or is similar to, the business of Nutrié (including, but not limited to, another multi-level marketing or direct sales organization) without Nutrié’s prior written authorization. Additionally, during the term of this Agreement and for an additional one (1) year beginning upon the termination hereof, you agree not to directly or indirectly solicit or encourage other Brand Partners, customers, and employees of Nutrié to terminate or alter their relationship with Nutrié in any way.
Confidentiality and Restrictions with Respect to Proprietary Information. As used herein, the term “Confidential Information” shall mean the following:
You shall protect and not disclose Confidential Information to any third party unless required by law. Within ten (10) days after the termination of this Agreement, you shall return to Nutrié any and all physical, electronic, and written records containing such Confidential Information then in your possession, regardless of whether such physical, electronic, or written records were prepared or supplied by you or Nutrié.
Claim Limitations. You hereby agree that you shall be precluded from bringing any claim, action, or proceeding of any kind against Nutrié, its officers, directors, employees, insurers, attorneys and Brand Partners if not brought within one (1) year of date you first knew or, through the exercise of reasonable diligence, should have known of the existence of the facts giving rise to the corresponding claim, action or proceeding.
Limitations of Liability. NUTRIÉ SHALL HAVE NO LIABILITY FOR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES OR LOSSES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, LOSS OF CUSTOMERS, LOSS OF PROFITS, OR LOSS OF GOODWILL) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND/OR THE TERMINATION OF THIS AGREEMENT BY NUTRIÉ (HOWEVER ARISING, INCLUDING, NEGLIGENCE AND WHETHER BASED ON ANY THEORY OR TORT, BREACH OF CONTRACT, OR STATUTE, AND WHETHER AT LAW OR IN EQUITY), EVEN IF NUTRIÉ WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. YOU ACKNOWLEDGE THAT THIS PARAGRAPH 14 HAS BEEN INCLUDED AS A MATERIAL INDUCEMENT FOR NUTRIÉ TO ENTER INTO THIS AGREEMENT AND THAT NUTRIÉ WOULD NOT HAVE AGREED TO ENTER INTO THIS AGREEMENT AND GIVE YOU THE OPPORTUNITY TO BE A BRAND PARTNER BUT FOR THE LIMITATIONS OF LIABILITY SET FORTH HEREIN.
Mediation. In any dispute between the Parties other than a dispute arising from paragraphs 7, 9, 10, 11, 13, 14, 17, and 20 of this Agreement, as a prerequisite to arbitration, the following procedures shall apply: either party shall give to the other a notice of dispute (the “Notice of Dispute”). In the absence of any settlement of the dispute, the party receiving the Notice of Dispute shall, within seven (7) days of receiving it, give to the other party a response in writing to the Notice of Dispute (“Response”). The party receiving the Response may, within seven (7) days of receiving it, give to the other party a reply in writing to the Response (the “Reply”). Within fourteen days of the later of the Response or the Reply, if given, Nutrié and you shall meet at Nutrié’s main corporate offices to attempt to resolve all grievances (the “Initial Meeting”) in the absence of legal representatives or any other third party, unless joint agreement is reached between them for legal representatives to be present. After the expiration of thirty (30) days of the Initial Meeting and in the absence of any settlement, either party may cause a mediator to be appointed by the American Arbitration Association in Maricopa County, Arizona; it being agreed that any such mediator shall be a retired judge or an attorney with substantial experience with commercial disputes. The mediation shall take place in Maricopa County, Arizona and shall be conducted in accordance with the mediator’s directions and shall be completed within one hundred and twenty (120) days of the Notice of Dispute. The party causing the appointment of a mediator shall solely be responsible for paying the costs for the mediator. If, at the conclusion of the one hundred and twenty (120) day period (unless such period is extended by agreement of the parties), the dispute has not been settled, either party is at liberty to commence arbitration or, if applicable, litigation pursuant to terms of this Agreement. For the avoidance of doubt, the presence of the mediation clause shall not affect the right or remedies of either party under this Agreement, except with regard to the timing of commencement of any arbitration or, if applicable, litigation. The parties do each hereby agree that the Notice of Dispute, Response, and Reply, together with all mediation discussions, are strictly confidential and shall not be produced or discoverable in any subsequent arbitration.
Binding Arbitration. With the exception of claims arising from paragraphs 7, 9, 10, 11, 13, 17, and 18, and only if the parties have failed to resolve this matter pursuant to the mediation obligations set forth in paragraph 15 above, and notwithstanding any provision herein to the contrary, you and Nutrié hereby agree that any and all disputes, controversies, demands, and/or claims, of any kind or nature whatsoever (whether in law or equity, and whether based upon statute, tort, contract, common law, or otherwise) that may hereafter arise between you and Nutrié concerning or relating to this Agreement, shall be resolved via the dispute resolution and binding arbitration procedures set forth below.
Class Action Waiver. YOU AND NUTRIÉ EACH HEREBY ACKNOLWEDGE AND AGREE THAT ANY CLAIMS AND/OR ACTIONS OF ANY KIND SHALL BE BROUGHT SOLELY IN THAT PARTY'S INDIVIDUAL CAPACITY, AND NOT AS A LEAD PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU AND NUTRIÉ FURTHER AGREE THAT THE APPOINTED ARBITRATOR (AS PER PARAGRAPH 16 ABOVE) MAY NOT CONSOLIDATE MORE THAN ONE INDIVIDUAL PERSON'S OR PARTY’S CLAIMS AND ACTIONS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
Indemnity. You shall indemnify, defend (with counsel chosen by Nutrié) and hold Nutrié and its officers, directors, shareholders, employees, Brand Partners, insurers, and attorneys harmless from and against any and all claims, liabilities, actions, losses, costs, expenses (including actual attorneys' fees) and damages arising from or relating to any or your actions and/or omissions. You shall also indemnify and hold Nutrié and its officers, directors, shareholders, employees, Brand Partners, insurers, and attorneys harmless from any and all claims, liabilities, actions, losses, costs, expenses (including attorneys' fees) and damages caused to Nutrié for non-compliance with this Agreement, including but not limited to any payroll or other employee-based taxes levied on Nutrié as a result of your failing to pay taxes as assessed by any government or quasi-governmental agency.
Assignment. This Agreement shall inure to the benefit of, and be enforceable by, Nutrié and its successors and assigns; however, this Agreement is personal to you and may not be assigned by you in whole or in part including, without limitation, by operation of law, by will, or by the applicable laws of descent and distribution.
Jurisdiction/Choice of Law. This Agreement shall be deemed to have been executed in and shall be interpreted, construed and enforced in accordance with the laws of the State of Arizona, and with respect to all claims that expressly excluded from enforcement under the terms of the Mediation and Arbitration obligations set forth above, subject to the jurisdiction and venue only in the courts of Maricopa County, Arizona.
Severability. If any provision of this Agreement shall be unlawful, void or for any reason unenforceable, it shall be deemed separable from, and shall in no way affect the validity or enforceability of, the remaining provisions of this Agreement, and the rights and obligations of the parties shall be enforced to the fullest extent possible.
Nutrié LLC Brand Partner Agreement V.131003.1