Baly Business Centers, Inc.
Affiliate* Application for Employment as an Independent Contractor
- Affiliate describes a Master Distributor, Producer, Sales Manager, Sales Representative, business entity or person who directly or indirectly solicits or refers business to the Company and who agrees by exercising this agreement to accept and abide by the terms set forth herein.
This Non-Disclosure and Non-Circumvention Agreement (the “Agreement”) is entered into as of the date on the signature page by and between Baly Business Centers (BBC) and Affiliate (collectively, “The Parties”)
A. The parties wish to exchange and review certain proprietary, confidential and/or trade secret information in order to evaluate a potential transaction between them (the “Transaction”);
B. As a condition of permitting such exchange and review, the parties have required each other to enter into this Agreement and abide by its terms;
NOW, THEREFORE, the parties hereto agree as follows:
- All information and data, in any form, supplied to one party (the “Receiving Party”) by, or at the direction of, the other party (the “Furnishing Party) relating to the transaction, including any copies, excerpts, summaries, analyses or notes thereof generated by the Receiving Party (collectively, the “Information”), will be treated as confidential as provided in this agreement.
- The Receiving Party acknowledges that information may be stored in printed or electromagnetic forms and may be furnished to it by the Furnishing Party or at the direction of the Furnishing Party. Information may relate to, among other things, the Furnishing Party’s intellectual property, business relationships, regulatory matters, and the terms and conditions of this Agreement.
- For purposes thereof, “Information” shall not include: (a) information in the public domain at the time it was provided by the Furnishing Party or which subsequently came into the public domain other than the result of breach of this agreement; (b) information obtained from a third party unaffiliated with the Furnishing Party (provided such party was not bound by confidentiality agreements with the Furnishing Party); (c) information independently developed by the Receiving Party without reference to the information; or (d) information in the possession of the Receiving Party prior to its disclosure by the Furnishing Party to the Receiving Party.
- All information: (a) shall remain the property of the Furnishing Party; (b) shall be treated as confidential by the Receiving Party, taking such action as shall be necessary or desirable to preserve and protect the confidentiality of the information and in any event using means not less than those used to protect its own confidential information; (c) shall be used solely for purposes of evaluating the Transaction as provided in this Agreement, and for no other purposes; and (d) shall not be disclosed to any party, other than the Receiving Party and such of its officers, directors, accountants or attorneys as are strictly necessary to evaluate the Transaction on a “need to know” basis (each an “Authorized Person”), without the Furnishing Party’s written consent. The Receiving Party shall implement appropriate administrative, technical and physical safeguards to protect the security, confidentiality and integrity of the information, such safeguards to be designed to ensure the security and confidentiality of the information, protect against any anticipated threats or hazards to the security or integrity of the Information and protect against unauthorized access to or use of the Information. In the event that the Receiving Party or any of its Authorized Persons becomes legally compelled (including, without limitation, by deposition, interrogatory, request for information or documents, subpoena, civil or criminal investigative demand or otherwise) to disclose any of the information, the Receiving Party shall provide the Furnishing Party with immediate written notice of such requirement so that the Furnishing Party may seek a protective order or other appropriate remedy or waive compliance with this paragraph.
- Neither party shall use or disclose any of the Information for the purpose of circumventing the intentions of this Agreement, or to avoid, bypass or otherwise exclude the other party from the opportunities under discussion.
- The parties each recognize that a breach of this Agreement may cause irreparable harm to the other party and that actual damages may be difficult to ascertain and, in any event, may be inadequate. Accordingly, the parties agree that in the event of such breach, the injured party may be entitled to injunctive relief in addition to such other legal or equitable remedies as may be available.
- The parties reserve the right to limit access to their respective premises, facilities, equipment, contractors, data and other materials information and personnel. All representatives of the Receiving Party and anyone acting on its behalf shall comply with all of the Furnishing Party’s applicable security regulations to the extent disclosed to the Receiving Party in writing.
- Neither party will use or permit the use of the other party’s names, logos, trademarks, intellectual property, trade secrets or other identifying data, or otherwise discuss or make reference to such other party, in any notices to third parties, any promotional or marketing material or in any press release or other public announcement or advertisement, however characterized, without such other party’s prior written consent.
- This Agreement constitutes the entire agreement between the parties relating to the subject matter hereof, and all prior agreements, understandings, writings, or negotiations, whether written or oral, are hereby superseded. No failure or delay by either party in exercising its rights hereunder shall operate as a waiver thereof.
AFFILIATE EMPLOYMENT AGREEMENT
This SERVICES AGREEMENT (this “Agreement”) is made and entered into as of the Registration Date (the “Effective Date”) by and between Baly Business Centers., (“Company”) and the Registrant (“Affiliate”).
A. Company is a Marketing Company that sells consumer products and services to the public and certain business entities.
B. Affiliate, is engaged in the business of providing certain education, sales, marketing, and oversight services to fellow affiliates and Clients, and desires to assist Company in expanding the client base of the company through the provision of certain education, administrative, sales, and marketing services.
C. Company and Affiliate desire to enter into this Agreement for the provision of certain education, administrative, sales and marketing services by Affiliate operating as a 1099-NEC paid person; and this agreement for both parties is founded upon the terms and conditions herein set forth.
NOW, THEREFORE, in consideration of the premises and the mutual promises and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I. ENGAGEMENT
1.1 Engagement. Company hereby retains Affiliate, on a non-exclusive basis, to perform or cause to be performed certain education, administrative, sales, and marketing and other related services necessary in connection with expanding and maintaining the customer base of the Company during the Term (as hereinafter defined) of this Agreement, and Affiliate hereby accepts such engagement on and subject to the terms and conditions set forth herein.
ARTICLE II. SERVICES
2.1 Services. During the Term of this Agreement, Affiliate shall provide Company with those education, administrative, sales, and marketing services with respect to the Company as described on Exhibit A attached hereto (collectively, the “Services”). Company and Affiliate may from time to time during the Term of this Agreement modify those Services to be provided hereunder and amend Exhibit A, as appropriate, upon the mutual agreement of such parties; provided, however, that Company reserves the right to terminate any specific Service identified on Exhibit A at any time during the Term upon prior written notice to Affiliate.
Subject to the terms and conditions set forth herein, Affiliate agrees that it will:
(i) Perform the Services in strict accordance with the terms of this Agreement and in a professional, workmanlike, prompt and commercially reasonable manner in accordance with all applicable Federal, State and local laws, rules, ordinances and regulations and comply with applicable marketing laws and regulations for the promotion of the Company; (ii) not make any false or misleading representation to others regarding the Company and its product line or make any claims, statements or representations that are inconsistent with or broader than the written representations made by Company or product manufacturer to Affiliate with respect to the Company;(iii) be solely responsible for all marketing material purchase costs including S&H, and activity shipping expenses, if any incurred in performance of the Services under this Agreement; the exception being materials with which the Company derives revenue; (iv) submit or arrange to be submitted to Company, for its written approval prior to release, any advertising, public relations material, social media posts, pertaining to the Company its product line descriptions or claims, whether oral, written or electronic, which discuss, mention or make reference to the Company; (v) during the performance of the Services hereunder, refrain from any act, practice, conduct or representation that could reasonably be inferred to harm or damage the reputation of the Company, the Company’s business and/or reputation, the Company or any of the Company’s clients; and (vi) abide by any and all written policies of Company, including, but not limited to, Company’s Code of Conduct, that are made available electronically to Affiliate from time to time.
2.2 Affiliate’s Agency Representatives. Affiliate may engage fellow Affiliates into their Agency structure as fellow affiliates to perform and/or assist in the performance of any Services required to be performed by a sponsoring Affiliate, or on their own once qualified pursuant to this Agreement. Throughout the Term of this Agreement, further defined below, active Affiliate may share their identifying link to the prospective Affiliate with which same may begin their on boarding process. Affiliates providing any Services under this Agreement must satisfactorily complete product and compliance training. In addition, notwithstanding anything contained in this Agreement to the contrary, if Affiliate engages an assistant to perform or assist in an active affiliates client activity services in accordance with this Agreement, Affiliate shall remain fully liable and ultimately responsible for (i) providing such Services and (ii) for ensuring that any and all Services by sub affiliates or assistant are provided pursuant to the terms and conditions of this Agreement; and overseeing Affiliate shall not be released from any obligations under this Agreement and are held ultimately responsible for all activity actions conducted by sub affiliate or assistant.
ARTICLE III. COMPENSATION
3.1 Commission payments and Bonuses are paid out as a 1099-NEC independent contractor commission. There currently is one commission payment date on the 15th of the month following the month in which business was received and processed by the Parent Company (EverestDefense). At month end the balance of the earned commissionable sale(s) is paid. Net Commissions are electronically deposited to the banking account of the active affiliate on or about the 15th of each calendar month net of a payroll company cost of two dollars and fifty cents ($2.50) per deposit. In the event a paper check is mailed the cost of mailing is $2.50 and is deducted from the gross check. In return for Affiliate’s or Referrer’s activity, Company shall pay to Affiliate or Referrer at a rate of compensation set forth in Exhibit B attached hereto (the “Sales Compensation”). The Sales Compensation shall be based solely upon the successful completion of the sales process including settlement of client funds into the merchant services account and any adjustments for merchant account charge backs from current or previous sales. “Roll up” debits will be absorbed by the Company and “Collected” by the Company. Any fraudulent activity that results in compensation being paid to Affiliate will be pursued legally as a “Theft of Funds” with State or Federal charge(s) appropriate to the “Act” including if appropriate RICO charges.
3.2 Payment Schedule. Notwithstanding the foregoing, all completed sales shall be reconciled by the Company following a cutoff date of the last calendar day of the month at midnight Eastern Time Zone and will qualify for compensation if found eligible and will be paid on a timely basis as defined in 3.1. The Affiliate is responsible for all State and Federal Taxes due and will abide by the city, county and state of residence licensing requirements as set forth by the named local entities of the Affiliates residence.
3.3 Reasonable Level of Activity. The parties acknowledge and agree that the aggregate services contracted for hereunder do not and will not exceed those that are reasonably necessary to accomplish the commercially reasonable business purposes of Company through assisting in expanding the customer base of the Company.
3.4 Legality of Services. The parties acknowledge and agree that this Agreement sets forth the parties understanding with respect to all of the Activity that Affiliate is to provide to Company during the Term hereof. The parties further acknowledge and agree that the Activity to be performed by Affiliate hereunder does not involve the counseling or promotion of a business arrangement or other activity that violates any state, federal or territorial law of the United Sates of America.
TERM AND TERMINATION
4.1 Term. The initial term of this Agreement shall commence on the Effective Date and end on the (1) year anniversary of the Effective Date, unless sooner terminated pursuant to the terms hereof (the “Initial Term”). Upon expiration of the Initial Term of this Agreement, this Agreement will automatically renew for additional, successive one (1) year periods (each one year additional period a “Renewal Term”), unless either party provides the other party written notice of its desire to terminate at least thirty (30) days prior to the end of the then current term. The “Initial Term” and all “Renewal Terms” are collectively referred to herein as the “Term”.
4.2 Early Termination. This Agreement may be terminated immediately at any time by mutual consent embodied in a written agreement to terminate signed by an authorized representative of each of the parties hereto.
4.3 Termination for Just Cause. Either party may terminate this Agreement immediately at any time for “just cause”. The parties expressly agree that a party will have “just cause” for termination as aforesaid upon the happening of any of the following occurrences or acts:
(i) Either party ceases to function as a going concern or conduct its operations in the normal course of business; (ii) The (x) suspension, liquidation or dissolution, or notice thereof, of substantially all of a party’s usual business without the prior written consent of the other party hereto, (y) assignment by a party for the benefit of its creditors, or (z) filing of a voluntary or involuntary petition under the provisions of the U.S. Federal Bankruptcy Act; or (iii) amendments thereto, or any application for or appointment of a receiver for the property of a party, the filing of which remains unsatisfied and discharged at the end of sixty (60) days after the occurrence of such event; (iv) Either party, without the other party’s prior written consent, attempts to partially or wholly assign its rights or delegate its duties under this Agreement; (v) Either party is prevented from substantially performing its obligations under this Agreement by any applicable law enacted or by any applicable order, rule, regulation, decree or ordinance promulgated by any appropriate governmental authority; or (vi) Either party fails to comply with any of the terms of this Agreement, and fails to cure such non-compliance to the reasonable satisfaction of the non-breaching party within ten (10) days after receipt of reasonably detailed written notice of the breach, then the non- breaching party may immediately terminate such Agreement.
4.4 No Cause Termination. This Agreement may be terminated at any time by either party by providing the other party with at least thirty (30) days written notice of such party’s intention to terminate this Agreement.
4.5 Effect of Termination. Upon expiration or termination of this Agreement, neither party shall have any further obligations hereunder, except for (i) obligations incurred prior to the date of expiration or termination, including, without limitation, the payment of the Commissions earned by Affiliate prior to the termination of this Agreement, and (ii) other obligations set forth in this Agreement that specifically survive the expiration and/or earlier termination hereof.
ARTICLE V. CONFIDENTIALITY
5.1 Confidential Information. Each party recognizes and acknowledges that, by virtue of entering into this Agreement and performing their respective obligations hereunder, each party may have access to certain information of the other party that is confidential and constitutes proprietary, valuable, special and unique property of the other party. For the purposes of this Agreement, Confidential Information means, without limitation, all information proprietary to either party, whether or not marked “confidential”, that constitutes trade secrets and/or confidential information as construed by applicable law or information that is not already available to the public, all of which the parties hereto agree constitutes trade secrets under the Uniform Trade Secrets Act, including, but not limited to, all information relating directly or indirectly to the business of either party, prospect lists, referral sources, customer lists and customer information, information concerning services and supplies, marketing programs, computer program and systems, business and supplier contracts, techniques, processes, methods, technologies, business information, financial data, financial plans, products, equipment, sales information, costs data, personnel, product tests, pricing policies, distributorship arrangements, business plans or business strategies, information regarding any acquisition or joint venture arrangements or other enterprises with whom either party has business relationships. Confidential Information does not include (i) information that is generally available to the public at the time of receipt by either party, (ii) subsequently becomes generally available to the public through no fault of the party to which the information was disclosed to hereunder or (iii) information that is properly and lawfully in the possession of either party prior to the Effective Date of this Agreement or thereafter and was not obtained, directly or indirectly, from the other party or from another source known to the other party to be bound by a duty of confidentiality.
5.2 Duty to Keep Confidential Information Confidential. Each party hereby agrees and undertakes that with respect to Confidential Information each party will: (i) Treat and keep all Confidential Information of the other party as secret and confidential.
(ii) Not divulge, reveal, publish, communicate or disclose any Confidential Information, directly or indirectly, of the other party to any other person except (1) with the prior written consent of the disclosing party, (2) as may be required by law, in which case the party to which the Confidential Information was disclosed to agrees to provide the other party prior written notice and cooperate with it in seeking such legal remedies as may be available to prevent such disclosure, and (3) to a party’s legal counsel, accountants or financial advisors.
(iii) Not use any Confidential Information of the other party in any way or for any purpose other than for the purpose of fulfilling the terms and obligations of this Agreement.
(iv) Not use any Confidential Information of the other party for personal benefit or for the personal benefit of any other person or entity.
(v) Use commercially reasonable efforts to maintain the secrecy and confidentiality of Confidential Information of the other party and ensure that Confidential Information is not disclosed by any person, in whole or in part, contrary to any of the terms of this Agreement.
5.3. Disclosure of Terms of this Agreement. Except for disclosure to a party’s legal counsel, accountants or financial advisors, neither party shall disclose the terms of this Agreement to any person who is not a party or signatory, unless disclosure thereof is required by law, decrees of a court, or otherwise authorized by this Agreement or consented to in writing by the other party. Unauthorized disclosure of the terms of this Agreement shall be a material breach of this Agreement and shall provide the non-disclosing party with the option of pursuing remedies for breach or termination of this Agreement in accordance with Section 4.3(v) hereof.
5.4 Disclosure of Third-Party Information. The parties understand that they have received, may receive and/or in the future will receive from third parties information that is confidential or proprietary, including, but not limited to, Company’s customers (“Third-Party Information”), subject to a duty on the part of the receiving party (whether contractual or statutory) to maintain the confidentiality of such information and to use it only for certain limited purposes. During the Term of this Agreement and after its expiration or termination, both parties hereto will hold Third-Party Information in the strictest confidence and will not disclose or use Third Party Information except as permitted by the agreement between the receiving party and such third party, unless expressly authorized to act otherwise by an officer of the receiving party in writing.
5.5 Non-solicitation. During the Term of this Agreement and for a period of twenty-four (24) months thereafter, neither Affiliate nor any of its sub affiliates or related entities (or any owners, partners, shareholders, members, officers, directors, managers, employees or representatives of any of the foregoing) (collectively, “Affiliate Representatives”), shall, either directly or indirectly, solicit or otherwise attempt to solicit, or intentionally induce, any customer and/or any employee, independent Affiliate, sales representative, business relationship or distributor of Company (or of any affiliated or related party thereto), for the purpose of becoming a participant in any same or similar business arrangement with Affiliate of the same or similar nature that Company is then engaged in. The Company shall not, directly or indirectly, either itself or through any employee, independent Affiliate, subsidiary or other individual or entity, solicit or intentionally induce or otherwise influence any referral sources, vendors, business relationships, or customers of Affiliate or any other individual or entity that has a business relationship with Affiliate, whether related to this Agreement or not, to work, deal, or engage in its business directly with the Company or any affiliate or subsidiary of the Company, to discontinue or reduce the extent of such relationship with Affiliate, or to otherwise take any action to circumvent the existing business relationships between Affiliate and such referral sources, vendors, business relationships, and customers, and any such other individual or entity that has a business relationship with Affiliate. Exceptions to this clause are to be handled in a timely manner on a one by one case by consensus of the Company Board of Directors including input from the Company Compliance Department, HR and the Company’s law firm.
5.6 Survival. The provisions of this Article V shall survive expiration or other termination of this Agreement, regardless of the cause of such termination.
COMPLIANCE WITH LEGAL REQUIREMENTS
6.1 General Compliance. The parties hereto enter into this Agreement with the intent of conducting their relationship in full compliance with all applicable City, County, State and Federal laws. Notwithstanding any unanticipated effect of any of the provisions of this Agreement, no party shall intentionally conduct itself under the terms of this Agreement in a manner that would constitute a violation of any regulatory laws. The parties will perform their respective obligations under this Agreement in accordance with the terms hereof. Any agreements between the parties will be in writing, and the parties will perform their respective obligations under such agreement only in accordance with the terms thereof.
6.2 Client Information. Affiliate shall not disclose to any third party, except where permitted or required by law or where such disclosure is expressly approved by Company in writing, any client information. Affiliate shall comply with all federal and state laws and regulations, and all bylaws, rules, regulations, and policies of Company regarding the confidentiality of such information. Affiliate acknowledges and agrees that Affiliate shall be deemed a 1099-NEC independent commissioned contractor of Company as such term is defined by the Internal Revenue Service (IRS). The Affiliate will execute a 1099-NEC Independent Contractor agreement with the Company and be treated in all respects as an Commissioned Independent Contractor as this descriptive term is defined by the IRS. The date stamped execution of this Independent Contractor agreement will give to the Company appropriate oversight of the Affiliate as is mandated by the Company.
6.3 Reformation. In the event that subsequent to the date of this Agreement (i) the contents or validity of this Agreement are challenged by any governmental authority under applicable law, or (ii) that either party determines, based upon advice received from legal counsel, that a violation of a law, particularly a State or Federal Labor Law has occurred as a result of this Agreement or that a violation of a law, particularly a Labor Law will occur as a result of this Agreement, then such party shall promptly notify the other party with respect thereto. The parties shall promptly use reasonable efforts to analyze, revise, reform and, to the extent necessary, restructure this Agreement and the relationship among the parties in order to fully comply with applicable law in a manner that is equitable to each party.
6.4 Failure to Reform. In the event the parties are unable to formulate a mutually acceptable plan to revise, reform and restructure this Agreement in order to fully comply with all applicable laws within twenty (20) days after the parties’ initiate negotiations with respect to such plan, then this Agreement shall automatically terminate.
ARTICLE VII. INDEMNIFICATION
7.1 Indemnification by Affiliate. Affiliate shall defend and indemnify Company and the members, managers, officers, employees, agents, other affiliates, successors and assigns of Company (each of the foregoing being hereinafter referred to individually as a “Company Indemnified Party”), from and against any and all losses, liabilities, damages, actions, costs, and expenses (including reasonable attorney’s fees and disbursements and costs of investigation, litigation, settlement, judgment, interest, and penalties) (collectively, “Losses”) of the Company Indemnified Party arising out of or resulting from any claim, demand, charge, action, cause of action, or other proceeding asserted by any third party against the Company Indemnified Party arising from or in connection with (i) the performance of Affiliates duties and obligations under this Agreement, except to the extent it is determined by a court of competent jurisdiction that a proximate cause of the Loss was the negligent or willful act or omission of Company or a Company employee, officer, manager, agent or other affiliate, or (ii) Affiliates business activities that are independent of the matters that are the subject of this Agreement. Affiliates obligation to indemnify any Company Indemnified Party will survive the expiration or termination of this Agreement by either party for any reason.
7.2 Indemnification by Company. Company shall defend and indemnify Affiliate and the members, managers, officers, employees, agents, other affiliates, successors and assigns of Affiliate (each of the foregoing being hereinafter referred to individually as a “Affiliate Indemnified Party”), from and against any and all Losses (as defined above) of the Affiliate Indemnified Party arising out of or resulting from any claim, demand, charge, action, cause of action, or other proceeding asserted by any third party against the Affiliate Indemnified Party arising from or in connection with (i) the performance of Company’s duties and obligations under this Agreement, except to the extent it is determined by a court of competent jurisdiction that a proximate cause of the Loss was the negligent or willful act or omission of Affiliate or an Affiliate sub-affiliate, officer, manager, affiliate, or (ii) any Company Indemnified Party’s business activities that are independent of the matters that are the subject of this Agreement. Company’s obligation to indemnify any Affiliate Indemnified Party will survive the expiration or termination of this Agreement by either party for any reason.
7.3 Notification of Claim. For purposes of this Section 7.2 and Section 7.3 hereof, a Company Indemnified Party and an Affiliate Indemnified Party shall be referred to as an “Indemnified Party”. Each Indemnified Party under this Article VII shall promptly, and in any event within ten (10) days after notice to such Indemnified Party of any claim as to which it asserts a claim for indemnification, notify the other party (the “Indemnifying Party”) in writing of such claim and the amount thereof; provided, however, that the failure to give such notification shall not relieve the Indemnifying Party from any liability which it may have pursuant to the provisions of this Article VII as long as the failure to give such notice within such time is not prejudicial to the Indemnifying Party. Notice to an Indemnified Party for the purpose of the preceding sentence shall mean the filing of any legal action, receipt of any claim in writing or similar form of actual notice.
7.4 Defense of Claim. The Indemnifying Party shall, by written notice to the Indemnified Party, undertake to conduct any proceedings or negotiations in connection with any claim for indemnification hereunder or necessary to defend the Indemnified Party and take all other steps or proceedings to settle or contest such claim, including without limitation, the employment of counsel; provided, however, that the Indemnifying Party shall reasonably consider the advice of the Indemnified Party as to the defense and settlement of such claim and the Indemnified Party shall have the right to participate, at its own expense, in such defense, but control of such litigation and settlement shall remain with the Indemnifying Party. The Indemnified Party shall provide all reasonable cooperation in connection with any such defense by the Indemnifying Party. Counsel and auditor fees, filing fees and court fees of all proceedings, contests or lawsuits with respect to any such claim shall be borne by the Indemnifying Party. If any such claim is made hereunder and the Indemnifying Party fails to undertake the defense thereof by written notice to the Indemnified Party, the Indemnified Party shall be entitled to indemnification with respect thereto pursuant to the terms of this Article VII.
7.5 Scope of Indemnification. The indemnification provided under this Article VII shall supplement, and not supersede or replace, any protection or rights that may be afforded to either party under any insurance policies maintained by such party that provide coverage for an act that may serve as a basis for a claim of indemnification hereunder.
ARTICLE VIII. MISCELLANEOUS
8.1 Notices. All notices, requests and other communications under this Agreement shall be in writing (including a writing delivered by facsimile transmission) and shall be deemed to have been duly given if delivered personally, or sent by either certified or registered mail, return receipt requested, postage prepaid, or by overnight courier guaranteeing next day delivery, or by facsimile, addressed as follows:
(a) If to Company: BBC, INC.
48 Selma Dr.
Mooresville, NC 28115
or at such other address or facsimile number as Company may have advised Affiliate in writing; And
(b) If to Affiliate: Name and Address of Record
or at such other address or facsimile number as Affiliate may have advised Company in writing.
All such notices, requests and other communications shall be deemed to have been received on the date of delivery thereof, if delivered by hand, on the fifth day after the mailing thereof, if mailed, on the next day after the sending thereof, if by overnight courier, and when receipt is acknowledged, if faxed.
8.2 Waivers and Amendments. No amendment or waiver of any provision of this Agreement, nor consent to any departure therefrom, shall be effective unless the same shall be in writing and signed by a duly authorized officer of each of Affiliate and Company, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given. No failure on the part of a party hereto to exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right.
The remedies provided in this Agreement are cumulative and not exclusive of any remedies provided by law.
8.3 Assignment. Neither party may assign any right, or delegate any duty under this Agreement, in whole or in part, without the prior written consent of the other party, which shall not be unreasonably withheld or delayed. Any attempted assignment without such consent shall be void and of no effect.
8.4 1099-NEC Contracted Affiliate. The parties agree and acknowledge (i) that Affiliate is a 1099-NEC Contracted Affiliate of Company pursuant to the terms and conditions of this Agreement, (ii) that Affiliate may be entitled to participate at the discretion of Company in any plans, arrangements, or distributions by Company pertaining to or in connection with any affiliate offered pension, health benefit, bonus, profit sharing plan or similar benefits available to any 1099-NEC Contractors of the Company’s, (iii) that neither Affiliate nor its sub-affiliates are covered through Company by the Unemployment or Worker’s Compensation Acts of North Carolina or any other state statute, (iv) that it is the responsibility of Affiliate to collect, withhold and pay to the proper state and/or federal authorities any and all taxes applicable to Affiliate’s business, and (v) that Company shall provide Affiliate annually with an information federal tax form (I.R.S. Form 1099-NEC “Statement for Receipt of Miscellaneous Income (Annual)”) or similar appropriate form with respect to the Sales Commissions (as hereinafter defined) paid by Company to Affiliate. As a 1099-NEC Contractor, Affiliate shall be free to dispose of Affiliate’s time, energy, and skill as Affiliate sees fit in providing Sales Activity to Company and Company shall have no right to control the manner and means by which Affiliate provides the Sales Activity under this Agreement.
8.5 Exhibits. The Exhibits attached hereto or referred to herein are incorporated herein and made a part hereof for all purposes. As used herein, the expression “this Agreement” means this document and such Exhibits.
8.6 Governing Law. THIS AGREEMENT, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO, SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF NORTH CAROLINA, WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAWS.
8.7 Arbitration. The parties shall use their respective best efforts to settle amicably any disputes, differences or controversies arising between the parties out of or in connection with or in respect of this Agreement. However, if not so settled then the same shall be submitted to arbitration and to the fullest extent permitted by law, be solely and finally settled by arbitration. The arbitration proceeding shall be held in Iredell County, and shall be conducted in accordance with the current North Carolina Statutes TITLE 9 – Civil Code-ancillaries RS 9:4201 – North Carolina binding arbitration law. The arbitration proceeding shall be held before a single arbitrator unless (i) the matter in controversy exceeds Five Hundred Thousand Dollars ($500,000), (ii) the parties cannot agree on the arbitrator, or (iii) either party requests a panel of three arbitrators. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction, or application may be made to such court for a judicial acceptance of the award and any order of enforcement as the case may be. The arbitrator shall not award any party punitive, exemplary, multiplied or consequential damages, and each party hereby irrevocably waives any right to seek such damages in arbitration or in judicial proceedings. Each party shall bear its own costs in the arbitration and the fees and expenses of the arbitration shall be shared equally by the parties. Notwithstanding the foregoing, the arbitrator shall have the right and authority to apportion among the parties all reasonable costs, including attorney’s fees and witness fees, taking into account relative fault of the parties. The foregoing provisions of this Section 8.7 do not limit the right of a party to seek injunctive or other equitable relief from a court of competent jurisdiction pending resolution of a dispute by arbitration.
8.8 Force Majeure. The obligations of the parties under this Agreement shall be suspended to the extent that a party is hindered or prevented from complying therewith because of labor disturbances (including strikes or lockouts), war, acts of God, acts of terrorism, fires, storms, accidents, governmental regulations or any other cause whatsoever reasonably beyond a party’s control. For so long as such circumstances prevail, the party whose performance is delayed or hindered shall continue to use all commercially reasonable efforts to recommence performance without delay.
8.9 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
8.10 Number and Gender. Whenever herein the singular number is used, the same shall include the plural where appropriate, and words of any gender shall include each other gender where appropriate.
8.11 Captions. The captions, headings and arrangements used in this Agreement are for convenience only and do not in any way affect, limit or amplify the provisions hereof.
8.12 Invalid Provisions. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term hereof, such provision shall be fully severable; this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; and the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or its severance from this Agreement. Furthermore, in lieu of such illegal, invalid or unenforceable provision there shall be added automatically as part hereof a provision as similar in terms, but in any event no more restrictive than, such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.
8.13 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original for all purposes and all of which shall be deemed collectively to be one agreement. Signatures given by facsimile or portable document format (or similar format) shall be binding and effective to the same extent as original signatures.
8.14 Third Party Beneficiaries. Nothing contained herein, express or implied, is intended to confer upon any person or entity other than the parties hereto and their respective successors in interest and permitted assigns (and the Indemnified Parties under Article VII) any rights or remedies under or by reason of this Agreement.
8.15 Entirety. This Agreement and the documents executed and delivered pursuant hereto, executed on the date hereof or in connection herewith, contain the entire agreement between the parties with respect to the matters addressed herein and supersede all prior representations, inducements, promises or agreements, oral or otherwise, which are not embodied herein or therein.
COMPANY: BALY BUSINESS CENTERS
Printed Name: Anthony Skinner, President & CEO
- Promotion of the Company: Affiliate will use reasonable efforts and resources to stimulate interest in and obtain orders for the Company. Affiliate will investigate and follow-up with all inquiries from potential customers, however arising, and will promptly handle all correspondence and personal contact with such potential customers as may be necessary or appropriate.
- Education of Prospective Customers: Affiliate will use reasonable efforts to educate prospective customers, as to, (i) how to incorporate the Company’s Product line into their personal or business lives, (ii) the benefits to both the client and business of utilizing the product lines of the Company, (iii) the recommended use of the product line of the Company by clients and businesses.
- Solicitation of Orders: Affiliate will solicit orders for the Company in Company’s name only and will quote only such terms as Company may authorize in writing from time to time. Affiliate will not alter, enlarge or limit any order for the Company, or offer any discounts or concessions regarding the Company, other than published order volume discounts without Company’s prior written or oral consent.
- Account Management: Affiliate will assist Company in establishing an account for all new customers generated by Affiliate and provide support to Company in maintaining accurate and up to date accounts for all customers generated by Affiliate, including ensuring that Company has correct and complete information with respect to each such customer. Affiliate will also act in a traditional customer service representative role acting to service all clients that Affiliate generates or has generated for Company, including telephone calls with clients, email availability and assistance with on site visits in a representative and continuous follow-up capacity, as determined to be advantageous by Affiliate and Company.
- Operational Assistance: Affiliate will provide assistance to Company in properly managing each customer generated by Affiliate, including performing certain day-to-day logistical oversight support with respect to monitoring and/or tracking orders. Affiliate will collaborate with Company to assure that its services are meeting the expectations of clients and businesses to whom it renders services for on behalf of the Company.
- Customer Complaints: Affiliate will promptly report to Company any complaints about the Company from customers and, at Company’s request, will investigate and report to Company about any such complaints.
- Alteration: Affiliate will not alter or modify any of the literature or packaging with respect to the Company without Company’s prior written consent.
- Records: Affiliate will maintain appropriate records for duration of Contractor’s Employment regarding Affiliate’s activity involvement of any Company service at the end of which time the records must be disposed of in a manner compliant with current privacy records disposition law. Affiliate will permit Company reasonable access to such records upon prior written notice to Affiliate.
- Customer Warranties: Affiliate will not make any warranty or representation about the Company or the use or efficacy of a product offered by the Company, except those written warranties, representations, and statements concerning use or efficacy of a particular Company product as Company may provide to Affiliate from time to time for delivery to or use with customers or potential customers.
- Advertising: Affiliate will secure Company’s prior, written approval of all advertising materials, sales marketing literature, publicity releases and all other promotional materials with respect to the Company.
- Use of Company’s name: Other than as provided in Paragraph 3 of this Exhibit A, Affiliate will not use the name “Baly Business Centers” (and/or names of its affiliated companies) or any other similar name or any of Company’s (and/or its affiliated companies) other trademarks, trade names or service marks in any way, including but not limited to in any way that may result in confusion or lead any third party to believe that Company (and/or its affiliated companies) and Affiliate are not separate and distinct entities.
- Litigation: If Company becomes involved in any proceeding and/or litigation regarding the Company, Affiliate will cooperate fully with Company and will provide any documents or information in Affiliate’s possession or under Affiliate’s control relating to the proceeding and/or litigation, at Company’s sole cost and expense.
- Expenses: Affiliate will pay when due all costs, expenses, taxes and liabilities that Affiliate incurs in connection with Affiliate’s performance under this Agreement, including but not limited to expenses associated with travel costs, marketing supplies and products, and meals and entertainment.
- Development of Marketing Plans: Affiliate will advise and consult with Company in the development of marketing plans to promote the growth of the Company.
- Advertising: Affiliate will assist in analyzing advertising media platforms and make recommendations regarding the most suitable platforms for marketing the Company.
- Development of Advertising Campaigns: Affiliate will advise in developing print, Internet, radio and television campaigns.
- Implementation of Marketing Activities: Affiliate will advise and assist Company in overseeing and implementing marketing strategies and timelines that ensures deadlines are met and work is completed, marketing budgets and billing procedures are complied with, and that takes into account cost efficiencies and deficiencies related to current and future marketing budgets. Affiliate will assist Company in taking such actions as may be necessary to comply with any requirements affecting marketing strategies.
- Industry Standards. Affiliate shall assist Company, as applicable, in maintaining compliance with industry standards and regulations related to the services offered by the Company by assisting, on an as needed basis, with preparation for regulatory audits, survey and reviews and updating, maintaining and streamlining corresponding policies and procedures related to the services offered by and at the Company. At the request of Company, Affiliate shall perform any audits required by Company, review applicable documentation and services offered by and at the Company.
- Marketing Research: Affiliate will assist Company in reviewing current research findings to determine the strengths and weaknesses of respective marketplaces and identify positioning and opportunity areas that may promote growth.
- Field Marketing: Affiliate will perform field marketing to potential referral sources and serve as a liaison between Company and such referral sources.
- Reports: Affiliate will provide written reports to Company in connection with the
marketing services performed by Affiliate hereunder as may be reasonably requested by Company from time to time.
- Compliance Program. Affiliate shall participate in and assure that Contractor representatives comply in all material respects with Company’s compliance program and the code of conduct of the Company.
- Other Services: Affiliate will perform such other marketing services as the parties shall from time to time mutually agree.
Affiliate Commission Table
As compensation for all of the Services; which constitute a product sale rendered by Affiliate or sub- affiliate under this Agreement, Company shall pay Affiliate a 1099-NEC Commission 15th day of the month following the cutoff date set for computation of said commission. Affiliate acknowledges and agrees that (i) all completed personal or sub-affiliate or referrer submitted Sales submitted for such earnings shall set forth the date stamped date of merchant services settlement as subject to the published cut off date/time expressed in this agreement.
Additional personal and/or Company Bonuses may be paid for personal or shared sales activity and/or sub-affiliate activity that exceeds a goal that may be set by the Company from time to time:
affiliate agrees to adhere to the following compliance standards.
- Do not refer to this business as Multilevel Marking (MLM) or Network Marking. Affiliates of Baly Business Centers are 1099-NEC Independent Contractors.
- Baly Business Centers Business Model is Direct Marketing with tiered compensation. It operates much like an Agency Concept.
- Do not distribute your own marketing material without prior approval from Baly Business Centers.
POINTS OF CLARIFICATION
• To host an event, contact the facility’s management office to speak with the individual in charge of special events or scheduled events. They can display your marketing material so prospects can decide to opt-in to attend your event.
• It is imperative to present yourself and represent your Company in a professional manner.
THIS AFFILIATE AGREEMENT (this “Agreement”) is made and entered into as this date of registration, by and between Baly Business Centers (“Company”) and Affiliate (“Affiliate”).
A. Company owns and operates a company that provides certain products and services for sale to consumers.
B. On or about the date hereof, the parties entered into that certain 1099-NEC Independent Contractor Affiliate Agreement (such agreement, along with any future agreements for services to be provided to Company by Affiliate, the “Affiliate Agreement”), pursuant to which Affiliate has agreed to provide Company with certain administrative, sales and marketing services.
NOW, THEREFORE, in consideration of the premises and the mutual covenants in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1.1 Certain Defined Terms. For purposes of this Agreement:
- Master Distributor is an individual or business entity who has been designated or promoted by the Company to a level of leadership responsibility called “Master Distributor”.
- Producer is an individual or business entity who has been designated or promoted by the Company to a level of leadership responsibility called “Producer”.
- Sales Manager is an individual or business entity who has been designated or promoted by the Company to a level of leadership responsibility called “Sales Manager”.
- Sales Representative is an individual or business entity who has been designated or promoted by the Company to a level of leadership responsibility called “Sales Representative”.
- Referrer is an individual who refers customers to the BBC Website with their Replicated Website Link and earns a 1099-NEC commission for that referees sales orders. A Referrer cannot build a Direct Marketing Agency.
All sales position definitions named above are defined as AFFILIATE.
- Term and Termination
6.1 Term. This Agreement will become effective on the date of this Agreement and will terminate on the date of which the Affiliate Agreement between Company and Affiliate is terminated; provided, however, that the terms and conditions of this Agreement will continue in effect until all Commissions due from the Company to Affiliate, or created or received by Affiliate on behalf of the Company, is made whole with any and all merchant services adjustments that pertain only to sales made by affiliate or overrides commission payments received by affiliate are settled by the Company.
6.2 Upon termination of this Agreement, Affiliate will return or destroy all client records then in their possession which was received from, or created or received by, Affiliate on behalf of the Company. Affiliate will retain no copies of sales records. Affiliate will not sell or share client information with/to any entity other that Company.
7.1. Further Assurances. Upon a party’s reasonable request, the other party will, at the
requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement.
7.2. Notice. Any notice or communication under this Agreement must be in writing and given by (i) deposit in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, or (ii) delivery in person or by courier service providing evidence of delivery. Any notice or communication under this Agreement must be addressed per the notices section in the Affiliate Agreement.
7.3. Assignment. Affiliate will not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Baly Business Center’s prior written consent. Baly Business Centers may assign this Agreement, in whole or in part, to a successor entity or to any current or subsequently formed affiliate of Baly Business Centers, Inc.
7.4. Relationship of Parties. The relationship between the parties is that of Independent Contractor. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties.
7.5. No Third-Party Beneficiaries. Nothing expressed or implied in this Agreement is intended to confer, nor will anything herein confer, upon any person other than the parties and their respective successors or assigns, any rights, remedies, obligations, or liabilities whatsoever.
7.6. Governing Law; Venue. The relationship of the parties and all claims arising out of or related to that relationship, including, but not limited to, the construction and interpretation of any written agreements, including this Agreement, will be governed by the Labor Laws as presented by the Company’s Counsel. Where not covered by federal law, this Agreement will be governed by and construed in accordance with the laws of the State of North Carolina, without regard to its conflicts of law principles. All disputes concerning any and all matters related to or arising under this Agreement will be construed exclusively in either the state or federal courts located in Iredell County, North Carolina, and venue of any such action will rest exclusively in Iredell County, North Carolina.
7.7. Amendments; Waiver. The parties agree to take such action as is necessary to
amend this Agreement from time to time as is required for the Company to comply with the requirements of the Privacy Standards, the Security Standards, and any other relevant State, Federal or Business Law. This Agreement may not be modified, nor any provision amended, except in a writing duly signed by both parties. No waiver of any of the provisions of this Agreement will be effective unless explicitly set forth in writing and signed by the party so waiving. A waiver with respect to one event will not be construed as continuing, or as a bar to or waiver of any right or remedy as to subsequent events.
7.8. Entire Agreement; Conflicts. This Agreement and the Affiliate Agreement contain the entire agreement between the parties and supersedes all prior and contemporaneous proposals, communications and understandings, oral or written. In the event there is a conflict between the terms of this Agreement and the terms of any of the Business agreements, the terms of this Agreement will control.
7.9. Interpretation. Any ambiguity in this Agreement will be resolved in favor of a meaning that permits the Company to comply with the Privacy Standards and the Security Standards. When this Agreement calls for Affiliate to respond to a request from the Company in conjunction with a regulation specifically cited in the section, Affiliate may rely on the Company’s request as verification by the Company that the request is made in compliance with the regulation. Affiliate is not responsible for confirming that the Company’s request is made in compliance with the specific regulation.
7.10. Regulatory Reference. A reference in this Agreement to a section in the Privacy Standards, the Security Standards or to a section of the Code of Federal Regulations will be read to include and require all subsequent, updated, amended or revised provisions relating to such regulations.
7.11. Binding Agreement; Severability. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. If any provision of this Agreement is determined to be invalid under any applicable law, it is to that extent to be deemed omitted, and the balance of the Agreement will remain enforceable. Upon such determination, the parties will negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in a mutually acceptable manner.
7.12. Counterparts. This Agreement may be executed in several counterparts, each of which will be deemed an original and all of which taken together will constitute one single agreement between the parties.
7.13 Hold Harmless. Company, Baly Business Centers, is not liable for any wrong doing by Affiliate. Company, Baly Business Centers, is not liable for the payment of, and has no say so of how Affiliate pays any party they may owe under this agreement.