DISTRIBUTOR APPLICATION
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Please describe your healthcare business, where our products will be sold, and any other pertinent information to your application.
SALES TAX EXEMPTION CERTIFICATE
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AGREEMENT
Whereas, the parties to this Agreement are Tranquil Touch, LLC ("Company"), a California limited liability company, with its principal place of business at 266 Calle Pintoresco, San Clemente, California 92672, and independent contractor (Reseller). Whereas, Company markets its products through a network of independent contractors ("Resellers"); Whereas, Company desires to market and distribute its products domestically and potentially internationally; Whereas, Reseller agrees to sell and distribute Company products; Whereas, Reseller's scrupulous and zealous adherence to and compliance with federal, state, and municipal laws, regulations, and this Agreement are essential to the reputation, longevity, viability, and legality of Company and its other Resellers; Whereas, in order to incentivize Reseller to promote domestic distribution of Company Materials and to articulate appropriate standards of behaviour, the parties wish to establish their respective rights and obligations for the parties' mutual benefit; Now therefore, in consideration of the foregoing recitals and mutual promises hereinafter contained and to effectuate the foregoing objectives, the parties agree as follows: DEFINITIONS Copyrights. As used in this Agreement, "Copyrights" shall mean all copyrights of TheraPosition and Tranquil Touch, LLC, or added from time to time by mutual agreement of the parties. Resellers. The term "Reseller" refers to an individual who executes this agreement and performs special and extraordinary services for Company. The status of a Reseller carries with it special fiduciary responsibilities as well as certain behavioural standards that will be set forth in detail in this Agreement Products. As used in this Agreement, "Products" includes TheraPosition Comfort System and products included on the Company website. Trademarks. The term "Trademarks" shall mean each of the trademarks, trade names, service marks, or logos listed on the company website, products, marketing collateral, corporate images and all other identifiers of TheraPosition and Tranquil Touch, LLC. AGREEMENT Subject to all the terms and conditions of this Agreement, Reseller agrees to be bound by the terms of this Agreement as a non-exclusive distributor of the products. Reseller may distribute Products only to persons and entities located and only as packaged by Company with all labels, labelling, and packaging as provided by Company, with no portion of any labels, labelling, or packaging obscured. Company reserves the right to change, modify or discontinue any Product at any time. PAYMENT AND SUPPLY General. Products are delivered F.O.B. from the place of production. Prices payable by Reseller are those set forth on Company's then current price list. Company shall have the right, in its sole discretion, from time to time or at any time to change such prices with fifteen (15) days written notice (does not apply to sale items). New prices will apply to all shipment made after such notice period. Payment Terms. Payment shall be made at the time Reseller places an order. Fulfilment During the Term of this Agreement, subject to the other terms and conditions of this Agreement, Company shall use its reasonable commercial efforts to fill promptly Reseller's written or electronic orders for Products, which are accepted by Company at its main office, insofar as is practical and consistent with then-current Company's lead-time schedule, shipping schedule, access to supplies on acceptable terms and allocation of available products and capacity among Company Members and distributors. Company's normal lead-time requirement is approximately 5 business days. Sales Taxes The Company makes the assumption that all product ordered will be resold at the suggested retail price, and sales tax is collected and reported on that basis. The sales tax is based upon the tax rate in the jurisdiction to which the product is shipped. If you submit a current Sales Tax Exemption Certificate (STEC) from your resident state, we will not charge or collect sales tax on your orders shipped to that state. You will be responsible for tracking and reporting all sales and sales taxes due. Sales tax on orders placed before we receive a STEC will not be reimbursed. If you elect to provide an STEC, you must indemnify and hold Company harmless regarding any liability that Company incurs as a result of your failure to collect or remit sales taxes. TRADEMARKS AND COPYRIGHTS Reseller agrees to use the Trademarks and Copyrights in the form and manner and with appropriate legends as currently used and permitted by Company. Reseller represents that he, she, or it has no title to or right to use the Trademarks and Copyrights, and shall claim no title to or right to use the Trademarks and Copyrights, except pursuant to this Agreement, that use of any Trademarks or Copyrights shall not create in Reseller's favor any ownership interest therein; and that all goodwill arising out of Reseller's use of the Trademarks and Copyrights shall inure to the benefit of Company. RESELLER REQUIREMENTS General. The following are requirements with which Reseller must comply. By doing so, Reseller is assisting in the overall success of Company and helping to maintain the standards necessary for our continued operation. The following principles have been established as principles and requirements for an individual who will hold the title of Reseller. Reseller will never engage in any deceptive or misleading practices relative to the operation of their business. Reseller will always be on time with all payments and always in good financial standing with Company. Reseller will not use the Company Logo without express, written authorization from a member of the Policy Counsel and understand that Reseller is accountable for his, her, or its own marketing organization/down line. Reseller will communicate with courtesy and respect with all peers and Company home office employees at all times. Reseller understands that as a Reseller he, she, or it will be paid for his, her, or its service to Company. However, Company is not a business opportunity for any of our Members and a Reseller will never promote it as such nor will he, she, or it allow others to do so. Consultation. Reseller shall respond to reasonable requests for advice and consultation on any matters connected with Company or its products. As a part of Reseller's Services, Reseller shall make suggestions to employees of Company and review their findings concerning any matters submitted to Reseller for his, her, or its consideration. The parties anticipate that the majority of Reseller's advice and consultation will be telephonic; however, Reseller agrees to make himself available to meet in-person with employees of Company as requested by Company. Advertised Price. Reseller may not advertise any Company product at a price at or up to 10% discount LESS than the highest company published, established retail price of ONE Tranquil Touch product plus shipping and applicable taxes. No special enticement advertising is allowed. This includes but is not limited to offers of free shipping or other such offers that grant advantages beyond those available through the Company. CONSIDERATION In consideration for the services to be rendered by Reseller as a Reseller working as an independent contractor of Company, Reseller will receive the compensation set forth as outlined in the Reseller Compensation Plan Document and / or on the Company website. Reseller expressly understands and agrees that he, she, or it must be in good standing as a Company Reseller and not in violation of this Agreement to be eligible for profit sharing distributions. COVENANTS AND MISCELLANEOUS PROVISIONS Covenant Not to Disparage. Reseller has extensive access to members of Company's corporate management. This access provides him, her, or it with a suitable forum to voice any concerns or criticism regarding Company program and its products, and such constructive criticism is encouraged by Company. However, Reseller agrees not to commit any acts or make any statements, comments or remarks that directly or indirectly have a negative impact on the reputation, ability, integrity, competence, proficiency, character or operation of Company, including, but not limited to statements which defame, degrade, embarrass or disparage Company, its business, products, management, facilities, products, customers, distributors, or any other aspect of its business. Reseller's violation of this section constitutes a material breach of this Agreement, for which Company may elect to terminate pursuant to its rights (see Termination section of Agreement). Assignment or Transfer. The obligations and rights of Reseller under this Agreement are personal to Reseller and may not be assigned or transferred to any other person, firm, or corporation without the prior, express, and written consent of Company. Resellers interests under this Agreement may not be transferred by will, codicil, bequest, the laws of intestate succession, or any other after-death transfer. CONFIDENTIALITY AND NONDISCLOSURE General. Reseller will not disclose the terms of this Agreement or any attachment to any third party. Trade Secret Information. Reseller acknowledges that during the Term of this Agreement, he, she, or it will have access to and shall become aware of Trade Secret Information belonging to Company. Reseller agrees that all knowledge and information that Reseller may receive from Company, its employees, or agents or consultants of Company, or by virtue of the performance of his, her, or its obligations and duties under and pursuant to this Agreement, relating to Company resellers or customer lists or other identifying information, suppliers, vendors, advisors, inventions, products, processes, machinery, apparatus, prices, discounts, costs, business affairs, future plans, or technical data that belong to Company or to those with whom Company has contracted regarding such information shall for all time and for all purposes constitute "Trade Secret Information" and be treated by Reseller as strictly confidential and held by Reseller in confidence, and solely for Company's benefit and use, and shall not be used by Reseller or directly or indirectly disclosed by Reseller to any person whatsoever except to Company or with Company's prior written permission. Prohibitions. Reseller shall not, without the written permission of Company, use the Trade Secret Information which he, she, or it is obligated hereunder to maintain in confidence for any reason other than to enable Reseller to properly and completely perform his, her, or its duties and obligations hereunder. Reseller shall not reproduce or make copies of any Trade Secret Information, except as required in the performance of his, her, or its duties and obligations. RELATIONSHIP OF THE PARTIES Independent Contractors. Neither party is authorized to act as an agent for, or legal representative of, the other party and neither party shall have authority to assume or create any obligation on behalf of, in the name of, or binding upon, the other party. Nothing contained herein shall be construed to create any partnership, joint venture, or other business group or concerted action of any type or nature whatsoever. The parties agree that each is an independent contractor, and is not an agent or employee of the other party for any purpose. The relationship between Company and Reseller is that of supplier and customer. Each party shall comply with all applicable federal, state, provincial, county and municipal laws, ordinances, rules and regulations required of them. Reseller agrees that he, she, or it will be solely responsible for paying all federal or state taxes, including but not limited to, estimated payments of federal or state income taxes, FICA, and all other taxes of any kind. Company shall not be responsible for withholding, and shall not withhold or deduct from Resellers compensation under this Agreement FICA or taxes of any kind, unless such withholding becomes legally required. The parties hereto expressly understand and agree that Reseller is solely responsible for all of its employees and agents and its labour, costs, and expenses arising in connection therewith and is responsible for and will indemnify Company from any and all claims, liabilities, damages, debts, settlements, costs, attorneys' fees, expenses, and liabilities of any type whatsoever that may arise on account of Reseller's activities. Authority. Reseller understands that he, she, or it has no authority, either express or implied; to act, or represent that Reseller is acting on behalf of Company. Furthermore, Reseller shall refrain from any action where a third party may reasonably interpret or infer from such an action that Reseller has authority to act or represent on behalf of Company. NO INVENTORY REQUIREMENT Reseller is not required to purchase any specified amount or quota of Company inventory. In addition, Reseller may elect not to purchase any Company inventory. Reseller may choose to change the volume of his, her, or its purchases, cancel an outstanding order, or stop purchasing Company Materials at any time. RETURN AND BUYBACK Upon cancellation of this distributor agreement, Reseller may return inventory and sales aids purchased within one year from the date of cancellation for a refund if he or she is unable to sell or use the merchandise. Reseller may only return products and sales aids he or she personally purchased from the Company under his or her Reseller Identification Number, and which are in Resalable condition. Upon receipt of the products and sales aids, Reseller will be reimbursed ninety percent of the net cost of the original purchase price, less shipping charges. If the purchases were made through a credit card, the refund will be credited back to the same account. The Company shall deduct from the reimbursement paid to Reseller any commissions, bonuses, rebates or other incentives received by Reseller which were associated with the merchandise that is returned. TERM The term of the Reseller Agreement is one year from the date of its acceptance by Tranquil Touch, LLC. The Agreement must be renewed each year, however, Tranquil Touch, LLC provides an optional Automatic Renewal Program for its Resellers , all of which will be enrolled automatically, so long as a Reseller complies with the terms of this Agreement and these Policies, Tranquil Touch shall pay commissions to such Reseller in accordance with the Compensation Plan. Reseller reserves the right to cancel his, her, or its Agreement upon thirty days written notice to Tranquil Touch, LLC. TERMINATION Conditions of Termination. This Agreement may be terminated pursuant to the following: By Company, Immediately on the death or incapacity of Reseller, as determined in the sole opinion of Company. By Company, at any time, on thirty days prior written notice, if Reseller breaches any of the provisions of this Agreement. By Reseller, at any time, upon thirty days written notice to Company; By any party, if the other party ceases to do business or otherwise terminates its business operations, or if there is a material change in control of the other. Effect. Each party understands that the rights of termination hereunder are absolute and that it has no rights to a continued relationship with the other after termination except as expressly stated herein. Neither party shall incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other, or for any compensation to the other, arising from or incident to any termination of this Agreement by such party that complies with the terms of the Agreement whether or not such party is aware of any such damage, loss or expenses. NO GUARANTEES Company does not represent, warrant, or guarantee that the purchase or use of Company products will create or cause any level of success or income for Reseller. Reseller expressly acknowledges and agrees that his, her, or its success as a Company Reseller depends upon his, her, or its skills, work effort, and market conditions. REMEDIES Mandatory Conciliation. The parties have entered into this Agreement as persons who know and trust one another, and this trust is material to their decision to enter into this Agreement As a result, if any dispute, claim, controversy or dispute arises between them, unless otherwise provided in this Agreement, they agree that they will first attempt to resolve the dispute by communication and negotiation. If such negotiations are unsuccessful, the parties agree to try in good faith to pursue mandatory conciliation. The parties agree to participate in at least eight hours of conciliation. Conciliation involves each side of a dispute sitting down with an impartial person, the mediator, to attempt to reach a voluntary settlement. Conciliation involves no formal court procedures or rules of evidence, and the mediator does not have the power to render a binding decision or force an agreement on the parties. If mediation fails to resolve the dispute, the parties agree that any and all claims, controversies or disputes arising from or related to this Agreement, including, but not limited to those claims, controversies or disputes pertaining to the formation, construction, performance, applicability, interpretation, enforceability, or breach of this Agreement, or any claim or assertion that all or part of this Agreement is void or voidable, shall be settled by litigation. See SEVERABILITY section of Agreement. Equitable Relief. Reseller acknowledges and recognizes that his, her, or its violation or threatened violation of the restrictions, agreements, or covenants contained in this Agreement will cause such damage to Company as will be substantial and irreparable. Accordingly, Reseller agrees that nothing in this Agreement shall prevent Company from applying to and obtaining from any court having jurisdiction a writ of attachment, a temporary injunction, preliminary injunction, permanent injunction or other equitable relief available to safeguard and protect Companys interest prior to, during or following the filing of any arbitration or other proceeding or pending the rendition of a decision or award in connection with any arbitration or other proceeding. Choice of Law. The validity, interpretation, performance and enforcement of this Agreement shall be governed by the laws of the State of California without regard to conflicts of law principles. Enforceability. In the event finds any of the provisions of this Agreement are found to be unenforceable, it is the parties' intent that such provision be reduced in scope, but only to the extent deemed necessary to render the provision reasonable and enforceable, keeping in mind that it is the parties' intent to give Company the broadest lawful protection. Venue. Any dispute arising under or in connection with this Agreement or related to any matter which is the subject of this Agreement shall be subject to the exclusive jurisdiction of the state and/or federal courts located in the State of California or the then-current state in which Companys headquarters are located. Attorney Fees. If any party brings any action to enforce or interpret this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party his, her and/or its actual attorneys fees, costs, and expenses incurred in or in any way related to the prosecution or defence of any such action or dispute. However, the amount for attorney's fees is not to exceed fifty thousand US dollars. The prevailing party shall be that party who wins on all or substantially all of the claims at issue in any action or dispute. Binding Agreement. This Agreement shall be binding upon, and inure to the benefit of Reseller and Company and their respective permitted successors, heirs and assigns. LIMITATION OF LIABILITY NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, COMPANY WILL NOT BE LIABLE TO RESELLER WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, WARRANTY, STRICT LIABILITY, STATUTORY LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR: ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNTS PAID TO COMPANY HEREUNDER DURING THE TWELVE-MONTH PERIOD PRIOR TO DATE THE CAUSE OF ACTION AROSE, OR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR LOST DATA, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS. COMPANY SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND ITS REASONABLE CONTROL. SEVERABILITY 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, and this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision never comprised a part of this Agreement, 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 by its severance here from. GENERAL Before you accept this Agreement, you may ask questions of any authorized representative of Company or you may also have your attorney or legal counsel review it. YOUR ELECTRONIC ACKNOWLEDGEMENT REPRESENTS AND AFFIRMS THAT YOU UNDERSTAND AND AGREE TO BE BOUND BY EVERY TERM OF THIS AGREEMENT. Because federal, state, and local laws, as well as the business environment, periodically change, Company reserves the right to amend the Agreement in its sole and absolute discretion. By electronically acknowledging this Reseller Agreement, a Reseller agrees to abide by all amendments or modifications that Company elects to make. Notification of amendments shall appear in Official Company Materials. Amendments shall be effective upon publication in Official Company Materials, including but not limited to, posting on Company website, e-mail distribution, publication in Company newsletter, product inserts, or any other commercially reasonable method. The continuation of a distributors Company business or a distributors acceptance of bonuses or commissions constitutes acceptance of any and all amendments.
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