ByDarien LLC Consultant Terms & Conditions July 1, 2017
- I understand that as an Independent Consultant for ByDarien, LLC (“ByDarien”, “Company”, “we” or “our”): a. I have the right to offer for sale ByDarien products and services in accordance with these Terms and Conditions. b. I have the right to enroll others as ByDarien Independent Consultants (“Consultants”). c. If qualified, I have the right to earn commissions pursuant to the ByDarien Compensation Plan.
- I agree to present the ByDarien Pay Plan and ByDarien products and services as set forth in official ByDarien literature.
- I agree that as a ByDarien Consultant I am an independent contractor, and not an employee, partner, legal representative, or franchisee of ByDarien. 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 UNDERSTAND THAT I SHALL NOT BE TREATED AS AN EMPLOYEE OF ByDarien FOR FEDERAL OR STATE TAX PURPOSES OR FOR ANY OTHER REASON. ByDarien 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 ByDarien.
- I understand that I may cancel my participation in this direct sales program at any time by providing ByDarien with written notice at its principal business address.
- I have carefully read and agree to comply with the ByDarien Policies and Procedures, the ByDarien Pay Plan, and the Business Entity Addendum (the Business Entity Addendum is applicable only to those who enroll as Consultants under a business entity) which are incorporated into and made a part of these Terms and Conditions (these documents shall be collectively referred to as the “Agreement”). I understand that the Agreement may be amended at the sole discretion of ByDarien, and I agree to abide by all such amendments. Notification of amendments shall be posted on ByDarien’s website, in the Consultant Virtual Office. Amendments shall become effective 30 days after publication, but amended policies shall not apply retroactively to conduct that occurred prior to the effective date of the amendment. The continuation of my ByDarien business or my acceptance of bonuses or commissions after the effective date of the amendments shall constitute my acceptance of any and all amendments.
- Your ByDarien business shall remain in effect so long as you remain in compliance with the terms of the Agreement and meet the requirements of the ByDarien
Pay Plan, or until you voluntarily cancel your ByDarien Agreement. Notwithstanding the foregoing, ByDarien reserves the right to terminate all Consultant 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. Consultant may cancel this Agreement at any time, and for any reason, upon written notice to ByDarien at its principal business address.
- In the event of cancellation or termination, I waive all rights I have, including but not limited to property rights, to my former downline organization and to any bonuses, commissions or other remuneration derived through the sales and other activities of my former downline organization.
- I may not sell, transfer, or assign any rights under the Agreement without the prior written consent of ByDarien. Any attempt to sell, transfer or assign the Agreement without the express written consent of ByDarien renders the Agreement voidable at the option of ByDarien and may result in termination of my business.
- I understand that I must be in good standing, and not in violation of the Agreement, to be eligible for bonuses or commissions from ByDarien. I further agree that if I fail to comply with the terms of the Agreement, ByDarien 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 ByDarien independent business.
- The Parties and their respective parent and/or affiliated companies, directors, officers, share-holders, 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.
- Consultants that enroll who are less than 18 years of age (“Minor”) must list during enrollment a parent or legal guardian (“Parent”) who must also agree to comply with the Agreement. Both Parent and Minor consent to be contacted by ByDarien by telephone, text message, email, and/or social media. Parent and Minor certify that the Minor is at least 16 years of age at the time this Agreement is submitted to ByDarien. Parent and Minor are individually bound to and must comply with and agree to the terms and conditions of the Agreement. Compensation shall be paid to the Minor, and a Form 1099-MISC shall be issued to the Minor at year-end. Violation of the Agreement by Parent or Minor shall be jointly and severally imputed to Parent and Minor and their independent consultant business entity. Parent confirms that she/he has the capacity and legal right to supervise the Minor, and consents to the Minor’s participation as a ByDarien Independent Consultant. The Parent is responsible for all conduct of the Minor while the Minor is engaged in her/his ByDarien business. Once the Minor reaches the age of 18, the Minor must execute a new Agreement within 60 days to avoid involuntary cancellation of the Agreement.
- I agree to release ByDarien and its affiliates from all liability arising from or relating to the promotion or operation of my ByDarien business and any activities related to it (including, but not limited to, the presentation of ByDarien products or Pay Plan, the operation of a motor vehicle, the lease of meeting or training facilities, etc.), and agree to indemnify ByDarien for any liability, damages, fines, penalties, or other awards arising from any unauthorized conduct that I undertake in operating my business.
- The Agreement, in its current form and as amended by ByDarien at its discretion, constitutes the entire contract between ByDarien and myself. Any promises, representations, offers, or other communications not expressly set forth in the Agreement are of no force or effect.
- 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 ByDarien, 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 ByDarien. Waiver by either Party of any breach of the Agreement shall not operate or be construed as a waiver of any subsequent breach.
- 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.
- If the Consultant 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 ByDarien. 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 ByDarien business, and has not had any such interest or responsibility for at least six calendar months 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.
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 the appointment of a mediator 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 Chesterfield, Virginia, 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. 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.
All arbitration proceedings shall be held in Chesterfield, Virginia. 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 attorney’s fees 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 non-solicitation provision of the Agreement.
- Jurisdiction and venue of any matter not subject to arbitration shall reside exclusively in Chesterfield, Virginia, or the United States District Court for the District of Virginia . 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.
- 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.
- Louisiana Residents: Notwithstanding the foregoing, Louisiana residents may bring an action against the Company with jurisdiction and venue as provided by Louisiana law. Should you cancel your Consultant Agreement, ByDarien will refund 90% of your Starter Kit purchase price.
- Montana Residents: A Montana resident may cancel his or her Consultant Agreement within 15 days from the date of enrollment, and may return his or her Starter Kit for a full refund within such time.
- Wyoming and Massachusetts Residents: Should you cancel your Consultant Agreement, ByDarien will refund 90% of your Starter Kit purchase price.
- Any consultant has a right to cancel at any time, regardless of reason. Cancellation must be submitted in writing to the company at its principal business address, 9711 Spring Run Road Chesterfield, Virginia 23832 or via email at Support@ByDarien.com
- 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 or omission. The Parties waive all claims that any other statute of limitations applies.
- I authorize ByDarien 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.
- Except for Minors who enroll with a Parent, I acknowledge that I am at least 18 years of age.
Any Non-Human Visitors to these Websites shall be considered agents of the individual(s) who controls, authors or otherwise makes use of them. Such individual(s) shall be deemed responsible for the actions of their Non-Human Visitor devices in the same manner as if they personally visited the Website.
Please read this Agreement carefully before accessing or using the ByDarien Website. By accessing or using any part of the Website, you agree to become bound by the terms and conditions of this agreement. If you do not agree to all the terms and conditions of this agreement, then you may not access the Website or use any services. If these terms and conditions are considered an offer by the ByDarien, acceptance is expressly limited to these terms.
The Website is available only to individuals who are at least 13 years old. If you are not yet 13 years old, you must stop using the Website immediately or else provide ByDarien with written parental approval.
Our basic products and services are free to both Website owners & individual users. However we may offer some paid upgrades for advanced features such as domain hosting or extra disk space or bandwidth.
Our products and services are designed to give Website owners as much control and ownership over their site as possible and to encourage users/members to express themselves freely. However, each site owner must be responsible for the content of their site. In particular, as a site owner, you must make certain that none of the prohibited items listed below appear on your site or get linked to from your site (things like spam, viruses, or hate content).
SPECIAL LICENSE RESTRICTIONS FOR NON-HUMAN VISITORS
A special restriction on a visitor's license to access the Website applies to all Non-Human Visitors. Non-Human Visitors include, but are not limited to, web spiders, bots, indexers, robots, crawlers, harvesters, or any other computer programs designed to access, read, compile or gather content from the Website automatically.
Email addresses on the ByDarien are considered proprietary intellectual property. It is recognized that these email addresses are provided for human visitors alone. You acknowledge and agree that each email address the Website contains has a value not less than US $50. You further agree that the compilation, storage, and/or distribution of these addresses substantially diminishes the value of these addresses. Intentional collection, harvesting, gathering, and/or storing the Website's email addresses is recognized as a violation of this agreement and expressly prohibited.
You do not claim intellectual property right or exclusive ownership to any of our products or services, whether modified or unmodified. All products and services are the property of ByDarien. Our products and services are provided 'as is' without warranty of any kind, either expressed or implied. In no event shall our organization (or any business or individual associated with ByDarien) be liable for any damages including, but not limited to, direct, indirect, special, punitive, incidental or consequential, or other losses arising out of the use of or inability to use our products or services.
Your ByDarien Account and Site.
If you create a site with ByDarien, you are responsible for maintaining the security of your account and site, and you are fully responsible for all activities that occur under the account and any other actions taken in connection with the site. You must not describe or assign keywords to your site in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and ByDarien may change or remove any description or keyword that it considers inappropriate or unlawful, or otherwise likely to cause ByDarien to be positioned for possible liability. You must immediately notify ByDarien of any unauthorized uses of your site, your account or any other breaches of security. ByDarien will not be liable for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions.
Responsibility of Contributors.
If you operate a Website, comment on a Website, post material to the Website, post links on the Website, or otherwise make (or allow any third party to make) material available by means of the Website (any such material, 'Content'), You are entirely responsible for the content of, and any harm resulting from, that Content. That is the case regardless of whether the Content in question constitutes text, graphics, an audio file, computer software or any other type of electronic content. By making Content available, you represent and warrant that:
- the downloading, copying and use of the Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third party;
- you have fully complied with any third-party licenses relating to the Content, and have done all things necessary to successfully pass through to end users any required terms;
- the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;
- the Content is not spam, is not machine- or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material (such as spoofing);
- the Content is not obscene, libellous, defamatory, hateful or racially bigoted, does not violate the privacy or publicity rights of any third party and is not otherwise unlawful;
- your site is not named in a manner that misleads your readers into thinking that you are another person or company. For example, your site's URL or name is not the name of a person other than yourself or company other than your own; and
- you have, in the case of Content that includes computer code, accurately categorized and/or described the type, nature, uses and effects of the materials, whether requested to do so by ByDarien or otherwise.
By submitting Content to ByDarien for inclusion on the Website, you grant ByDarien a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of displaying, distributing and promoting your site or Content. If you delete Content and advise ByDarien, ByDarien will use reasonable efforts to remove said Content from the Website (generally within two business days), but you acknowledge that caching and/or other references to the Content may not be made immediately unavailable.
Without limiting any of those representations or warranties, ByDarien has the right (though not the obligation) to, in ByDarien's sole discretion (i) refuse or remove any content that, in ByDarien's reasonable opinion, violates any ByDarien's policy or is in any way harmful, unlawful or objectionable, or (ii) terminate or deny access to and use of the Website to any individual or entity for any reason, in ByDarien's sole discretion. ByDarien will have no obligation to provide a refund of any amounts previously paid.
Fees and Payment.
Optional premium paid services (such as domain purchases, etc.) may be available on the Website. By selecting a premium service you agree to pay ByDarien the monthly or annual subscription fees indicated for that service. Payments will be charged on the day you sign up for a premium service and will cover the use of that service for a monthly or annual period as indicated. Premium service fees are not refundable.
Responsibility of Website Visitors.
ByDarien has not reviewed, and cannot review, all of the material, including computer software, posted to the Website, and cannot therefore be responsible for that material's content, use or effects. By operating the Website, ByDarien does not represent or imply that it endorses the material there posted, or that it believes such material to be accurate, useful or non-harmful. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. Any user or site owner who finds content that is offensive, indecent, or otherwise objectionable, or content containing technical inaccuracies, typographical mistakes, or other errors has a responsibility to report such Content to ByDarien. In the same way, anyone who discovers Content on the Website that contains material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated, must report the same to ByDarien. ByDarien disclaims any responsibility for any harm resulting from the use by visitors of the Website, or from any downloading by those visitors of content there posted.
Content Posted on Other Websites.
We have not reviewed, and cannot review, all of the material, including computer software, made available through the Websites and WebPages to which ByDarien links, and that link to ByDarien. ByDarien does not have any control over those non-ByDarien Websites and WebPages, and is not responsible for their contents or their use. By linking to a non-ByDarien Website or webpage, ByDarien does not represent or imply that it endorses such Website or webpage. You are responsible for taking precautions as necessary to protect yourself and your computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. ByDarien disclaims any responsibility for any harm resulting from your use of non-ByDarien Websites and WebPages.
Copyright Infringement and DMCA Policy.
As ByDarien asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If you believe that material located on or linked to by ByDarien violates your copyright, you are encouraged to notify ByDarien. ByDarien will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. In the case of a visitor who may infringe or repeatedly infringes the copyrights or other intellectual property rights of ByDarien or others, ByDarien may, in its discretion, terminate or deny access to and use of the Website. In the case of such termination, ByDarien will have no obligation to provide a refund of any amounts previously paid to ByDarien.
This Agreement does not transfer from ByDarien to you any ByDarien or third party intellectual property, and all right, title and interest in and to such property will remain (as between the parties) solely with ByDarien. ByDarien, the ByDarien domain, the ByDarien logo, and all other trademarks, service marks, graphics and logos used in connection with ByDarien, or the Website are trademarks or registered trademarks of ByDarien or ByDarien's licensors. Other trademarks, service marks, graphics and logos used in connection with the Website may be the trademarks of other third parties. Your use of the Website grants you no right or license to reproduce or otherwise use any ByDarien or third-party trademarks.
ByDarien reserves the right, at its sole discretion, to modify or replace any part of this Agreement. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access to the Website following the posting of any changes to this Agreement constitutes acceptance of those changes. ByDarien may also, in the future, offer new services and/or features through the Website (including, the release of new tools, services and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement.
ByDarien may terminate your access to all or any part of the Website at any time, with or without cause, with or without notice, effective immediately. If you wish to terminate this Agreement or your ByDarien account (if you have one), you may simply discontinue using the Website. Notwithstanding the foregoing, if you have a VIP, Premium or other Paid Services account, such account can only be terminated by ByDarien if you materially breach this Agreement and fail to cure such breach within thirty (30) days from ByDarien's notice to you thereof; provided that, ByDarien can terminate the Website immediately as part of a general shut down of our service or other lawful reason. Additionally, a paid account may be temporarily terminated pending a determination of the facts relating to a possible breach of this Agreement. Upon termination, all provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Disclaimer of Warranties.
The materials on ByDarien's Website are provided 'as is'. ByDarien makes no warranties, expressed or implied, and hereby disclaims and negates all other warranties, including without limitation, implied warranties or conditions of merchantability, fitness for a particular purpose, or non-infringement of intellectual property or other violation of rights. Further, ByDarien does not warrant or make any representations concerning the accuracy, likely results, or reliability of the use of the materials on its Internet Website or otherwise relating to such materials or on any sites linked to this site.
Limitation of Liability.
In no event will ByDarien, or its suppliers or licensors, or any individuals associated with those entities, be liable with respect to any subject matter of this agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, incidental or consequential damages; (ii) the cost of procurement or substitute products or services; (iii) for interruption of use or loss or corruption of data; or (iv) for any amounts that exceed the fees paid by you to ByDarien under this agreement during the twelve (12) month period prior to the cause of action. ByDarien shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.
General Representation and Warranty.
You agree to indemnify and hold harmless ByDarien, its contractors, and its licensors, and their respective directors, officers, employees and agents from and against any and all claims and expenses, including attorneys fees, arising out of your use of the Website, including but not limited to out of your violation of this Agreement.
APPLICABLE LAW AND JURISDICTION
Each party agrees that any suit, action or proceeding brought by such party against the other in connection with or arising from the Terms of Service ("Judicial Action") shall be governed by the law of the state of residence of the registered Administrative Contact (the "Admin State") for the Website as such laws are applied to agreements between Admin State residents entered into and performed entirely within the Admin State. You consent to the jurisdiction of federal and state courts within the Admin State. You consent to the venue in any action brought against him in connection with breaches of these Terms of Service. You consent to electronic service of process regarding actions under the above agreement.
RECORDS OF VISITOR USE AND ABUSE
You consent to having your Internet Protocol address recorded. An email address may appear immediately below (the "Identifier") if we suspect potential abuse. The Identifier is uniquely matched to your Internet Protocol address. Visitors agree not to use this address for any reason.
VISITORS AGREE THAT HARVESTING, GATHERING, STORING, TRANSFERRING TO A THIRD PARTY OR SENDING ANY MESSAGE(S) TO THE IDENTIFIER CONSTITUTES AN ACCEPTANCE AND SUBSEQUENT BREACH OF THESE TERMS OF SERVICE.