TERMS AND CONDITIONS
The following terms and conditions (this "Agreement") is a legal agreement between ThinkAction ("ThinkAction"), and PUBLISHER. PUBLISHER and ThinkAction may also be individually referred to herein as a "Party" and collectively as "Parties." If there is any conflict between these Terms and Conditions and the Insertion Order(s), the Insertion Order(s) shall control.
1. Toluna hereinafter "Company", is a direct selling Company marketing telecommunications services and products to the consumer through independent representatives. The policies and procedures herein are applicable to all independent representatives of the Company.
2. A Representative, hereinafter "Representative" or "Representatives," is one who has completed a Company application and agreement or completed an online application and agreement, and has been accepted by the Company as a representative. The Company reserves the right to accept or reject any independent representative application.
3. A product or service Provider, hereinafter "Provider or Providers", is a company or companies with a formal agreement to provide product or services to the Company for sale to the general public.
4. All representatives must be the age of majority in the state and/or country in which they distribute the Company's Providers' products or services.
5. The Company Identification Number will be either the Social Security Number (SS#) in the case of an individual, or the Federal Employee Identification Number (F.E.I.N.) in the case of corporation, limited liability company, or partnership. The Company requires said number for tax reporting purposes.
6. In the event of a divorce or legal separation of married representatives, legal counsel representing the parties shall notify the Company regarding the ownership of the position. A court ordered directive or an authorization agreement signed by both parties and attested to by a notary public shall accompany any notice of change in ownership. In the event of a divorce or legal separation of married representatives, the Company shall be held harmless for any discrepancies related to the payment of commissions.
7. In the event of death or disability of a representative rendering them unable to make notice to the Company regarding dispensation of a representative's position, the executor, trustee or court appointed advocate of the representative or the representative's estate shall notify the Company regarding assignment of the representative's position. The Company shall be held harmless for any discrepancies related to the payment of commissions to any representative in the event of the death or disability of a representative.
8. The Company reserves the right to reject any new representative.
9. Representatives are independent marketing representatives of the Company and are not to be considered purchasers of a franchise or a distributorship. The agreement between the Company and its representatives does not create an employer/employee relationship, agency, partnership, or joint venture between the Company and the representatives. Each representative shall hold harmless the Company from any claims, damages or liabilities arising out of representatives' business practices. Company representatives have no authority to bind the Company to any obligation. Representatives are encouraged to set up their own hours and to determine their own methods of sale, so long as they comply with the policies and procedures of the Company.
10. In the conduct of business, the representative shall safeguard and promote the reputation of the Company, its Providers and their products or services. Representatives shall refrain from all conduct, which might be harmful to the reputation of the Company or its Providers or to the marketing of such products or acts in consistent with the public interest. Further, the representatives shall avoid all discourteous, deceptive, misleading, unethical or immoral conduct or practices.
11. Any representative who sponsors other representatives must fulfill the obligation of performing a bona fide supervisory, distributing and selling function in the sales or delivery of product services to the ultimate consumer. Representative must have ongoing contact, communication and management supervision with his or her sales organization. Examples of such supervisions may include, but are not limited to: e-mail, newsletters, written correspondence, personal meetings, telephone contact, voicemail, training sessions, and sharing genealogy information with those sponsored. When requested by the Company, representatives shall provide evidence to the Company on ongoing fulfillment of sponsor responsibilities. If on request, the representative fails to give evidence of supervisory actions; the representative will be given 30 days to take corrective action. If after reviewing the actions of the next 30 days, the representative has not performed the superisory actions, the bonuses and commissions will be withheld for thirty (30) days. If after further review, the corrective action still has not been taken, the representative's income will be withheld for six (6) months. If after final review, the representative still does not produce evidence of a supervisory capacity, the representative will be terminated.
12. Representatives are responsible for paying local, state and federal taxes due on their earnings for commissions or any other earnings generated as a seller or Company products or services.
13. Representatives shall not advertise Company products or service and/or marketing plans except as specially approved by the Company. Representatives agree to make no false or fraudulent representations about the Company, Providers and their products or services, the Company compensation plan, or income potentials.
14. The Monthly Residual Income and/or Promotion Bonuses will be paid one (1) time per month. Payment will be based on Net60 terms. The amount may change from time to time, depending on the amount of sales generate by the representative. In the event a check is lost or cannot be located after being sent to the representative, that representative might have a check re-issued by the Company. The request must be submitted in writing and signed by the representative. The Company requires (30) days before re-issuing a lost check. If a representative wishes the replacement check before the 90-day period, he/she must submit to the Company a $25 stop payment fee. A new check will be issued after receipt of the stop payment funds from the representative.
15. Trademark, Trade Names, Advertising The name of the Company, Providers and other names as may be adopted by Toluna, are proprietary trade names and trademarks of the Company and the Providers. As such, these trademarks are of great value to the Company and the Providers and are supplied to the representatives for representatives' use only in an expressly authorized manner. Representatives agree not to advertise the Company, Providers, or their products and services in any way other than the advertising or promotional materials made available to representatives by the Company. Representatives agree not to use any written, printed, recorded material, or any other material in advertising, promoting or describing the products and services of the Company's marketing program, or in any other manner, any material which has been copyrighted and supplied by the Company, unless such material has been submitted to the Company and approved in writing by the Company before being disseminated, published or displayed.
A. The Representative, as an independent contractor, is fully responsible for all of his/her verbal and written statements made regarding the products, services and the marketing program, which are not expressly contained in writing in the current representative agreement, and advertising or promotional materials supplied directly by the Company. Representative agrees to indemnify the Company and hold it harmless from any and all liability including judgments, civil penalties, refund, attorney fees, court cost or lost business incurred by the Company as a result of representative's unauthorized representations.
B. The Company will not permit the use of its copyrights, designs, logos, trade names, trademarks, etc., without its prior written permission.
C. The Company materials, whether printed, on film, videotape, or produced by sound recording, are copyrighted and may not be reproduced in whole or in part by representative or any other person except as authorized by the Company.
D. A representative may not produce, use or distribute any information relative to the contents, characteristics or properties of the Company or Providers product or services that have not been produced directly by the Company. This prohibition includes, but is not limited to, print, audio or video media.
E. A representative may not produce, sell, or distribute literature; films or sound recordings, which are deceptively similar in nature to those, produced, published and provided by the Company for the representatives. Nor may a representative purchase, sell or distribute non-Company materials, which imply or suggest that said materials originate from the Company.
F. Any display ads or institutional or trademark advertising copy, other than covered in the foregoing rules, must be submitted to the Company and approved in writing by the Company prior to publication.
G. All advertising copy, direct mailing, radio, television, newspaper and display copy must be approved in writing by the Company before being disseminated, published or displayed.
16. The Company reserves the right to approve or disapprove representative's changes of business names, formation of partnerships, corporations, and trusts for tax, estate planning, and limited liability purposes. If the Company approves such a change by a representative, the organization's name and the names of the principals of the organization must appear on the representative application agreement along with a social security number or federal identification number.
17. The representative notifying the Company in writing or their decision to cancel may cancel at any time and for any reason the Independent Representative Agreement.
18. If a representative elects to cancel his/her representative agreement, all rights to bonuses, marketing position and wholesale purchases cease.
19. The Company reserves the right to change product and service prices at any time and without notice, and to make changes in the Statement of Policy and Procedures.
20. Each Representative shall comply with all state and local taxes and regulations governing the sale of company products and services.
21. Notwithstanding the Company's retail customer guarantee policy, all retail sales must comply with the FTC three-day Cooling off Rule that requires statutory language and notice of cancellation on the retail sales receipt.
22. Representative shall not promote or sell to other Representatives, non-Company products unless the Company has expressly endorsed such programs.
23. On a periodic basis, the Company will supply data processing information and reports to the representatives, which will provide information concerning the representative's downline sales organization, product purchases and product mix. The representative agrees that such information is proprietary and confidential to the Company and is transmitted to the representative in confidence. The representative agrees that he or she shall not directly or indirectly disclose such information to any third party. The representative and the Company agree that, but for this agreement of confidentially and nondisclosure, the Company would not provide the above confidential information to the representative. The representative also agrees that the need for a current email address is required to maintain communication integrity. If the representative does NOT maintain and provide company with a current email address at all times, his or her Company agency may be terminated at the company's sole discretion.
24. This Statement of Policies and Procedures is incorporated into the independent Representative Agreement and constitutes the entire agreement of the parties regarding their business relationship.
25. The Company reserves the right to alter or amend prices rules and regulations, policies and procedures, product availability and compensation plan. Upon notification by e-mail to the most recent address listed by the representative in the records of the Company, such amendments are automatically incorporated as part of the agreement between Company and the representative.
26. With regard to corporate and partnership guarantees for owners, the Company has offered representatives the opportunity to conduct their representative position as corporate or partnership entities, it is agreed that since the representative position is under the control of its owners or principals, the actions of individual owners as they may affect the Company and the representative position are also critical to the Company's business. Therefore, it is agreed that actions of partnership partners, agents or employees that are in contradiction to the Company's policies shall be attributable to the corporation or partnership.
27. The Company reserves the right to terminate any representative position at any time for cause it is determined that the representative has violated the provisions of the Independent Representative Agreement, including the provisions of these policies and procedures as they may be amended or the provision of applicable laws and standards of fair dealing. Such involuntary termination, the Company shall notify the representative by e-mail at the latest address listed.
28. Termination A. When a decision is made to terminate a representative position, the Company will inform the representative in writing that the representative position is terminated as of the date of the written notification. B. The representative will have fifteen (15) days from the date of notification in which to appeal the termination in writing. The Company must receive the representative's appeal correspondence within twenty- (20) day period, the termination will be automatically deemed final. C. If a representative files a timely appeal of termination, the Company will review and reconsider the termination, consider any other appropriate action, and notify the representative of its decision. The decision of the Company will be final and subject to no further review. In the event the termination is not rescinded, the termination will be effective as of the date of the Company's original termination notice.
29. All representatives have the right to sponsor other representatives. In addition, every person has the ultimate right to choose his/her own sponsor. If two representatives should claim to be the sponsors of the same new representative, the Company shall regard the first application received by the corporate home office as binding. A. As a general rule, it is good practice to regard the first representative to meaningfully work with a prospective representative as having first claim to sponsorship, but this is not necessarily controlling. Basic tenets of common sense and consideration should govern. B. As a convenience to its representatives, the Company may provide various methods of registering or informing the Company of newly sponsored representatives, including telephone registration and facsimile representation. Until such time as the Company receives an application, either as a hard copy or by facsimile, containing all appropriate information, as well as the signature of the proposed new representatives, it is the responsibility of the sponsoring representative to cause delivery to the Company of a completed Independent Representative Agreement via electronic submission, if the sponsor is to expect recognition as the official sponsoring representative. C. There is no "magic" involved in the Company or in any business. Those who sponsor widely but do not help new representatives develop their business meet with limited success. Therefore, a responsibility of sponsorship is to work with new representatives, helping them learn the business and encouraging them during the critical early months.
30. Transfer of Sponsorship. Transfer is rarely permitted and is actively discouraged. Maintaining the integrity of sponsorship is absolutely mandatory for the success of the overall organization.
31. In case of unethical sponsoring practices, the individual may be transferred with any downline intact. In all other events, the individual alone is transferred without any downline representatives being removed from the original line of sponsorship.
32. Income Claims. No false or misleading income projections may be made to prospective representatives. In their enthusiasm, representatives are occasionally tempted to represent hypothetical income figures based upon the inherent power of network marketing as actual income projections. This is counterproductive since new representatives may be quickly disappointed if their results are not as extensive or as rapid as hypothetical model would suggest.
33. CAN-SPAM ACT/Slamming and Spamming. REPRESENTATIVE HEREBY ACKNOWLEDGES THAT IT IS AWARE OF THE CAN-SPAM ACT OF 2003 AND HEREBY WARRANTS ITS COMPLIANCE WITH SUCH ACT. The representative will not engage in or facilitate the practice of any spamming or slamming any customers in any way. The representative will not submit an order to change long distance service unless it has been fully and knowingly authorized by the subscriber and has been verified in accordance with Company's operating principles and guidelines. Spamming is defined as any use of unsolicited email or fax transmission to people or persons not having a prior business or personal relationship with the representative. Improper usenet newsgroup postings also fall under the prohibition against spamming. The representative has a full understanding that Company will not tolerate occurrences of slamming or spamming, and that Company will take whatever actions are necessary to protect against slamming or spamming including, without limitation, termination of the relationship with the agent. Instances of forgeries or willful violations of applicable rules will result in agent's immediate termination and a permanent ban on soliciting services on behalf of Company. This also includes all companies with whom Company has a contractual agreement. Representative hereby acknowledges that it is aware of the CAN-SPAM Act of 2003 and hereby warrants its compliance with such act.
34. Representation of Status. In all cases, any reference the representative makes to him/herself must be clearly set forth as an independent status. For example, if the representative has a business telephone, the telephone may not be listed under the Company's name or in any other manner that does not disclose the independent contractor status of the representative.
35. Business Cards and Stationary. Any printed materials, including business cards and stationary, must be purchased from the Company.
36. Telephone and FAX Solicitation. The use of the Company's name or copyrighted materials may not be made with automatic calling devises or "boiler room" operations either to solicit representatives or retail customers. The use of these methods alludes to the equivalent of the "blinds ads" and cannot be regulated by the Company to ensure legality.
37. Non Circumvention. Representative may not circumvent Company by negotiating alternative direct or indirect agreements with any Company vendor.
38. Press Inquiries. Any inquiries by the media must be referred immediately to the Company to ensure an accurate and consistent public image.
39. Federal and state regulatory agencies rarely approve or endorse direct selling programs. Therefore, representatives may not represent that the Company's program has been approved or endorsed by any governmental agency.
40. Waiver. The company never gives up its right to insist on compliance with these policies and procedures or with the applicable laws governing the conduct of a business. This is true in all cases, both specifically expressed and implied, unless an officer of the Company who is authorized to bind the Company in contracts or agreements specifies in writing that the Company waives any of these provisions. In addition, any time the Company gives permission for a breach of the rules, that permission does not extend to future breaches. This provision deals with the concept of "waiver," and the parties agree that the Company does not waive any of its rights under any circumstances short of the written confirmation alluded to above.
41. Arbitration. This Agreement is governed under the laws of the State of Connecticut. The parties agree that any claim, dispute, or other difference between them shall be exclusively resolved by binding arbitration pursuant to the Commercial Arbitration Rules of the American Arbitration Association with arbitration to occur within the state of Connecticut (unless otherwise required by applicable law). The arbitrator may award, in addition to declaratory relief, preliminary and permanent injunctive relief and compensatory damages, and shall award reasonable attorneys fees and costs to the prevailing party. The decision of the arbitrator will be entitled to enforcement in any court of competent jurisdiction. This provision shall not be construed so as to prohibit the Company from obtaining preliminary and permanent injunctive relief in any court of competent jurisdiction.
42. Partial Validity. Should any portion of these Policies and Procedures, of the representative's application and agreement, or of any other instruments referred to herein or issued by the Company, be declared invalid by a court of competent jurisdiction, the balance of such policies, applications, or instruments shall remain in full force and effect.
43. These Policies and Procedures have been developed to help you build your business legally. All Toluna Policies and Procedures were produced to comply with all state and federal regulations. They are designed to protect the integrity and legality of the Toluna opportunity for everyone, and not to be a hindrance to you building your Toluna business.
44. In the case of an affiliate’s participation resulting in a transformation rate lower than 1% (number of double opt-in registrations divided by the number of hits on the Company registration page), the Company reserves the right to stop all of the suppliers' campaigns immediately.
45. The Company carries out regular analysis to determine the quality of registrations generated per affiliate. In the case that an affiliate’s registrations are of a fraudulent nature the Company reserves the right to withhold payment for these registrations and to immediately stop the affiliate’s participation. Furthermore, if the analysis results illustrate an inactive rate of over 10% the Company reserves the right to withhold payment for all inactive registrations and to stop the affiliate’s participation immediately.
46) The affiliate guarantees to only use the advertising formats that are provided to them through the Company’s software. If the affiliate wishes to modify any of the advertising formats during or after their participation then they must seek approval from the Company. The affiliate must also seek approval for text links and email insertions from the Company before using them.
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