Agreement For New HTE Americas Applicants
DISTRIBUTOR AGREEMENT (USA & CANADA & AUSTRAILIA)
USA This Distributor Agreement (the "Agreement") is made between Hsin Ten Enterprise USA, Inc. (the "Company"), hereafter known as HTEUSA, a N.Y. corporation and the distributor (the "Distributor"). WHEREAS, the company is engaged in the manufacture and sale of Aerobic Exercisers and related accessories ("Products") under the registered trademark HTEUSA; and WHEREAS, the Company desires to sell the Products to customers through nonexclusive independent agents who will maintain the company's high standards and the integrity of the Products, promote the good name of the Company's Products, and abide by all applicable laws and regulations and the highest ethical standards in soliciting sales of Products; and WHEREAS, the Company desires to appoint the Distributor as a nonexclusive independent agent for the Company, and the Distributor desires to undertake the duties of a nonexclusive independent agent for the Company, upon the terms and conditions set forth herein. NOW, HEREFORE, the parties hereto mutually agree as follows:
SECTION 1. APPOINTMENT. The Company hereby appoints the Distributor and the Distributor hereby accepts appointment as a nonexclusive independent agent authorized to sell the Products on the terms and conditions contained in the Agreement.
SECTION 2. RELATIONSHIP OF PARTIES. The Distributor is an independent contractor and not an employee of the company and all obligations of the Distributor performed hereunder shall be fulfilled as an independent contractor. In addition, except as specifically provided herein, the Representative is not the representative or agent of the Company for any purpose whatsoever and has no power or authority to incur any debt, obligation or liability on behalf of the Company.
-2.1 Except as otherwise provided, the Company neither has nor reserves any right or power to exercise any direction, control or determination over the manner, means or methods of the Distributor's activities and objectives in his operations, other than to review the sales results of the Distributor. Unsatisfactory sales results may result in termination of this Agreement pursuant to Section 7.
-2.2 As an independent contractor, the Distributor is responsible for filing all necessary federal, state and local tax returns and paying all applicable income taxes. The Distributor will not be treated as an employee with the respect to any services for federal tax purposes and for state tax purposes and warrants that he understands his federal, state and local tax obligations.
-2.3 The Distributor understands that he is not an employee of the company, that the Company is not obligated to provide any benefits to him, and that he is not entitled to any benefits except such benefits as the company chooses to provide to Distributors. The Distributor further understands that he is not entitled to any compensation in connections with the Agreement except for the commission payments provided in Section 5.
-2.4 The Distributor shall not sell the Product, nor shall sales, services or repair work be subcontracted for or with, or sales commissions shared with, or paid to, non authorized people.
-2.5 The Distributor shall not directly or indirectly promote, represent, distribute, sell or purchase for resale any products which compete with the Products.
-2.6 All sales promotion expenses, selling expenses and any other incidental expenses incurred by the Distributor in selling the Products, including but not limited to transportation costs and repair and servicing costs for any Products used by the Distributor for demonstration purposes, are the sole responsibility of the Distributor.
-2.7 Important Notice: All income examples and illustrations found in the HTEUSA Marketing Plan are included for illustration and explanatory purposes only. They are intended to show how the HTEUSA program functions and how payments within the structure of the Marketing Plan are calculated. In no way do these explanations and illustrations represent actual, historical examples of specific Distributors or groups. They are not put forward as typical expectations for Distributors and group members. Nor are they intended to suggest that achievement of this type will be easy, or even possible in all circumstances. No Distributor and/or individual group can be expected to follow precisely any of the diagrams or configurations. This Distributor's group could be higher or lower than the hypothetical cases shown. Each individual's success depends solely on his or her individual efforts.
SECTION 3. PRICES AND TERMS. -3.1 The Distributor is authorized to sell Products only at such prices and upon such terms and the Company may establish conditions as from time to time.
-3.2 Prior to the completion of any sale, the Distributor shall disclose to a prospective purchaser of a Product the company's warranty applicable to the Product and request that the prospective purchaser read it. The Distributor shall not make any other representation, warranty or guarantee with respect to any Product, unless expressly authorized in writing by the Company to do so. The distributor recognizes that the only warranty applicable to a Product is that written warranty specifically provided by the Company. The company shall have the right to modify its standard warranty on any Product from time to time.
-3.3 The distributor shall use only promotional and sales materials and forms supplied by the Company. The Distributor acknowledges that the Company's names, trademarks, patents and, trade names, slogans, symbols and color schemes are the property of the Company and the Distributor shall not use or display names, trademarks, patents, trade names, slogans, symbols or color schemes of the Company or permit the same to be displayed in connection with any other business carried on by the Distributor.
SECTION 4. PROCEEDS OF SALE. -4.1 The proceeds of sales of Products sold by the Distributor shall be for the benefit and the account of the Company.
-4.2 The Distributor shall account to the Company for each sale of Products in the manner and at the time specified by the company from time to time.
SECTION 5. COMMISSIONS. As full compensation for the distributor's performance under the Agreement, the Company shall pay to the Distributor a commission in the amount, in the manner and at the time specified by the Company in the Marketing Plan.
SECTION 6. ACCOUNTING. -6.1 Upon termination of the Agreement, the Distributor may, A. at Distributor's cost return unencumbered, unopened inventory, which is reusable and resalable, and which has been purchased within 1 year of the submission of said termination notice. The Company will refund 90% of the net cost of the Product to the Distributor. (Unless modified by any applicable state statue.) The company will also repurchase the initial mandatory sales materials that are returned, postage prepaid, in a resalable and reusable condition; and B. cease to hold himself out to the public as a person entitled to sell or service the Products or represent the Company in any other manner.
-6.2 The Company shall, within a reasonable time after the termination of the Agreement, render a detailed accounting to the Distributor of any amount to which the Distributor may be entitled from the company or any amount which the Distributor may owe to the Company. The amount so specified shall immediately become due and payable by the one party to the other.
SECTION 7. TERMINATION. Either party shall have the right to terminate the Agreement at any time, with or without cause and with the written notice to the other party. Termination of the Agreement shall not operate as cancellation of any indebtedness owing to one party by the other at the time of such termination except a noted in the Leadership Benefits section of the Marketing Plan. On termination, the Distributor and the Company shall render an accounting to each other in the accordance with Section 6.
SECTION 8. WAIVER. Neither the waiver by either party hereto of a breach of or a default under any of the provisions of the Agreement, nor the failure of either party, on one or more occasions, to enforce any of the provision of the Agreement or to exercise any right or privilege hereunder shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such provision, rights of privileges hereunder.
SECTION 9. COMPLETE AGREEMENT AND NONASSIGNABILITY. The Agreement represents the complete agreement between the parties, and supersedes all previous agreements. The Agreement is personal to the Distributor and may not be assigned by the Distributor without the written consent of the Company. The company may assign the Agreement to any successor entity to the Distributor, or to any entity that acquires substantially all of the assets and assumes substantially all of the liabilities of the Distributor.
SECTION 10. APPLICABLE LAW AND SEVERABILITY. The Agreement shall be governed and construed by the laws of the State of New York. If any provision of the Agreement is unenforceable or invalid, the Agreement shall be ineffective only to the extent of such provision and the validity of the remaining provisions of the Agreement shall not be affected. The right to amend the content of this Agreement is reserved by the Company, and amendments may be published when deemed necessary.
CANADA This Distributor Agreement (the "Agreement") is made between Hsin Ten Enterprise Canada Inc., a Canadian corporation (hereafter called "HTE CANADA?" or the "Company") and the distributor (hereafter called the "Distributor"). WHEREAS, the Company is engaged in the manufacture and sale of Health & Fitness products and related accessories ("Products") under the trade name and trademark HTE CANADA?; and WHEREAS, the Company desires to sell the Products to customers through nonexclusive independent agents who will maintain the Company's high standards and the integrity of the Products; and WHEREAS, the Company desires to appoint Distributor as a nonexclusive independent agent for the Company, and the Distributor desires to undertake the duties of a nonexclusive independent agent for the Company, upon the terms and conditions set forth herein; NOW THEREFORE, the parties hereto mutually agree as follows:
SECTION 1. APPOINTMENT. The Company hereby appoints the Distributor and the Distributor hereby accepts appointment as a nonexclusive independent agent authorized to sell the Products on the terms and conditions contained in this Agreement.
SECTION 2. RELATIONSHIP OF PARTIES. The Distributor is an independent contractor and not an employee of the Company and all obligations of the Distributor performed hereunder shall be fulfilled as an independent contractor. In addition, except as specifically provided herein, the Distributor is not the representative or the agent of the Company for any purpose whatsoever and has no power or authority to incur any debt, obligation or liability on behalf of the Company.
-2.1 Except as otherwise provided, the Company neither has nor reserves any right or power to exercise any direction, control or determination over the manner, means or methods of the Distributor's activities and objectives in his operations, other than to review the sales results of the Distributor. Unsatisfactory sales results may result in termination of this Agreement pursuant to Section 7.
-2.2 As an independent contractor, the Distributor is responsible for filing all necessary federal, provincial and municipal tax returns and paying all applicable income taxes. The Distributor will not be treated as an employee with respect to any services for federal tax purposes and for provincial tax purposes and warrants that he understands his federal, provincial and municipal tax obligations.
-2.3 In accordance with Article XVII of the Canada US Income Tax Convention, applicable withholding tax will apply on account of remuneration paid in respect of services performed by an individual Canadian or US distributor, as the case may be, in the other contracting state. Should Article XVII apply to the Distributor, the Distributor agrees to promptly report to HTE CANADA? before commencement of any business activities related to the sales or promotion of the Products to be carried on by the Distributor in the other contracting state. Furthermore, the Distributor agrees to save harmless HTE CANADA? for any withholding tax imposed by the contracting state and to reimburse HTE CANADA? for any withholding tax assessment or reassessment on account of remuneration paid to him by HTE CANADA? including any interest and penalty thereon, levied by the contracting state.
-2.4 The Distributor understands that he is not an employee of the Company, that the Company is not obligated to provide any benefits to him, and that he is not entitled to any benefits except such benefits as the Company chooses to provide to Distributors. The Distributor further understands that he is not entitled to any compensation in connection with the Agreement except for the commission payments provided in Section 5.
-2.5 The Distributor shall not sell the Products, nor shall sales, services or repair work be subcontracted for or with, or sales commissions shared with, or paid to, non-authorized people.
-2.6 The Distributor shall not directly or indirectly promote, represent, distribute, sell or purchase for resale any products that compete with the Products.
-2.7 All sales promotion expenses, selling expenses and any other incidental expenses incurred by the Distributor in selling the Products, including but not limited to transportation costs and repair and servicing costs for any Products used by the Distributor for demonstration purposes, are the sole responsibility of the Distributor.
-2.8 Important Notice: All income examples and illustrations found in the HTE CANADA? Marketing Plan (the "Marketing Plan") are included for illustration and explanatory purposes only. They are intended to show how the HTE CANADA? program functions and how payments within the structure of the Marketing Plan are calculated. They are not put forward as representations regarding the compensation actually received or likely to be received by typical participants or prospective participants in the Marketing Plan. Nor are they intended to suggest that achievement of any particular results will be easy or even possible in all circumstances. Each individual's success depends solely on his or her individual efforts. HTE CANADA? reserves the right to amend the content of this Marketing Plan as it deems necessary. Amendments will be published as appropriate.
SECTION 3. PRICES AND TERMS. -3.1 Prior to the completion of any sale, the Distributor shall disclose to a prospective purchaser the company's warranty applicable to the Product and request that the prospective purchaser to read it. The Distributor shall not make any representation, warranty or guarantee with respect to any Product, unless expressly authorized in writing by the Company to do so. The Distributor recognizes that the only warranty applicable to a Product is that written warranty specifically provided by the Company. The Company shall have the right to modify its standard warranty on any Product from time to time.
-3.2 The Distributor shall use only promotional and sales materials and forms supplied by the Company. The Distributor acknowledges that the Company's names, trademarks, patents, trade names, slogans, symbols and colour schemes are the property of the Company, and the Distributor shall not use or display names, trademarks, patents, trade names, slogans, symbols and colour schemes of the Company or permit the same to be displayed in connection with any other business to be carried on by the Distributor.
SECTION 4. PROCEEDS OF SALE. -4.1 All proceeds of sales of Products sold by the Distributor shall be for the benefit and the account of the Company.
-4.2 The Distributor shall account to the Company for each sale of Products in the manner and at the time specified by the Company from time to time. SECTION 5. COMMISSIONS. As full compensation for the Distributor's performance under the Agreement, the Company shall pay to the Distributor a commission in the amount, in the manner and at the time specified by the Company in the Marketing Plan.
SECTION 6. ACCOUNTING. -6.1 Upon termination of the Agreement, the Distributor a) may, at Distributor's cost, return unencumbered, unopened inventory, which is reusable and resalable, and which has been purchased within one (1) year of the submission of the termination notice, and the Company will refund 90% of the net cost of the Product to the Distributor (unless modified by any applicable provincial statute), and the Company will also repurchase the initial mandatory sales materials that are returned, postage prepaid, in a resalable and reusable condition; and b) shall cease to hold himself out to the public as a person entitled to sell or service the Products or to represent the Company in any other manner.
-6.2 The Company shall, within a reasonable time after the termination of the Agreement, render a detailed accounting to the Distributor of any amount to which the Distributor may be entitled from the Company or any amount with the Distributor may owe to the Company. The amount so specified shall immediately become due and payable by the one party to the other.
SECTION 7. TERMINATION. Either party shall have the right to terminate this Agreement at any time, with or without cause and with the written notice to the other party. Termination of the Agreement shall not operate as cancellation of any indebtedness owing to one party by the other at the time of such termination except as noted in the Leadership Benefits section of the Marketing Plan. Upon termination, the Distributor and the Company shall render an accounting to each other in accordance with Section 6.
SECTION 8. WAIVER. Neither the waiver by either party hereto of a breach of or a default under any of the provisions of the Agreement, nor the failure of either party, on one or more occasions, to enforce any of the provisions of the Agreement or to exercise any right or privilege hereunder shall thereafter be construed as a waiver of any subsequent breach or default of a similar nature, or as a waiver of any such provision, rights or privileges hereunder.
SECTION 9. COMPLETE AGREEMENT AND NONASSIGNABILITY. This Agreement represents the complete agreement between the parties, and supersedes all previous agreements. The Agreement is personal to the Distributor and may not be assigned by the Distributor without the written consent of the Company. The Company may, however, in its sole and unfettered discretion, and upon such terms and conditions as the Company may require, permit the assignment of this Agreement by the Distributor to a corporation controlled by the Distributor or to a person or entity which acquires all of the assets of the Distributor's business pursuant to this Agreement . In the event of any such permitted assignment, without limiting the generality of the foregoing, the assignee shall assume all of the liabilities of the Distributor's said business. The Company may assign its rights under this Agreement to any successor corporation or to any person or entity which acquires all or a substantial part of its assets and business undertaking.
AUSTRAILIA (English) 1. Relationship 1.1 The Distributor is an independent Distributor and nothing in this Agreement will be construed to establish between the Distributor and the Company any relationship of principal and agent or employer and employee. 1.2 The Distributor understands that he/she will not be covered by the Company for any personal costs such as annual leave, sick leave, long service leave, superannuation or Workers' Compensation. 1.3 The Distributor warrants that he/she is wholly responsible for withholding such amounts from his/her remuneration or the remuneration of his/her employees as are required by law for taxation purposes etc. 1.4 The Distributor will hold harmless the Company against all the claims and demands in the execution of this Agreement.
2. Consideration 2.1 The Distributor will be paid commissions monthly according to the Commission Schedule. Commissions will be paid to the above bank account. 2.2 If so required, the Company may deduct from any commissions payable to the Distributor, deductions pursuant to the Income Tax Assessment Act 1936.
3. Privacy 3.1 The Distributor agrees to the Company Collecting and storing the personal information herein and using it in relation to his/her activities as a Distributor. 3.2 The Distributor consents to the transfer by the Company of the personal information herein to his/her sponsor and/or any person in his/her sponsor`s upline organization. 3.3 The Distributor consents to the Company transferring the personal information herein to any overseas organization within the Hsin Ten International Group for any purpose arising from his/her activities hereunder. 3.4 The Distributor must ensure that the Distributor and any personnel engaged by him/her to conduct or assist in conducting his/her activities as a Distributor will, in the course of and after fulfilling his/her obligations hereunder: 3.4.1 Uer personal information collected and held by them in connection with this Agreement only for the purpose of seeking orders and selling the product of the Company; and take all reasonable measures to ensure that the said personal information is protected against loss, unauthorized access, use, modification and disclosure. 3.4.2 At the time of collecting personal information ensure that all persons from whom personal information is collected are aware of, and consent, to the purposes for which the information is to be used.
4. Other Matters 4.1 Hsin Ten Distributors consist of six positions: Member, Consultant, Senior Consultant, Supervisor, Manager and Group Manager. As long as you become a Member, it means you have become a Distributor. To become a Member is simple! It costs just A$50 to join and with this joining fee you are immediately entitled to a Business Handbook, an audio cassette and brochures. After joining you can then concentrate on collecting 58 BVP or more through selling Hsin Ten products to become eligible for consultant`s status. You will automatically qualify for all the relevant benefits including commissions after becoming a Consultant. 4.2 At any point in time, the Distributor can only have one Agreement with the Company. 4.3 This Agreement can be terminated by the Company in writing by giving 14 days notice. To be entitled to commissions on sales, Purchase Orders must be given to the Company within these fourteen days. 4.4 The Distributor will only use related Promotional Materials, Advertising Materials, Purchase Orders and Agreement documents approved and provided by the Company. Any Advertisement must have prior approval from the Company. 4.5 Distributors are required to understand and comply with all the terms of this agreement as well as those contained in the Policies and Regulations document included in the Business Handbook. 4.6 The terms and conditions in this agreement are not final and the company reserves the right to make amendments or additions to, or supercede, from time to time, the terms and conditions which appear in the Newsletter and the Business Handbook. 4.7 This Agreement will be governed by the Laws of NSW.
Australia(German) 1. Vertragsbeziehung
1.1 Der Vertriebspartner ist unabhangig und selbststandig. Dieser Vertrag schliesst ein Anstellungsverhaltnis auf Basis einer Gehalts- oder Lohnzahlung bzw. einen Arbeitsvertrag wie zwischen Arbeitgeber und Arbeitnehmer zwischen dem Vertriebspartner und dem Unternehmen aus. 1.2 Der Vertriebspartner ist daruber im Bilde, dass er von der Gesellschaft keine Entschadigung oder Zuschusse fuer personliche Ausgaben wie z.B. Urlaub, Krankheit, Rente oder irgendeine andere Aufwandsentschadigung erhalt. 1.3 Der Vertriebspartner stimmt zu, dass er die alleinige Verantwortung dafur tragt, die gesetzlich festgelegten Betrage fur stuerliche Zwecke etc. aus seiner Vergutung oder der seiner Mitarbeiter einzubehalten und abzufuhren. 1.4 Der Vertriebspartner halt das Unternehmen schadlos bezuglich aller Forderungen, die aus der Durchfuhrung dieses Vertrgs entstehen. Eine Betriebshaftpflicht ist obligatorisch und muss vom Vertriebspartner selbst abgeschlossen werden.
2. Vergutung 2.1 Der Vertriebspartner wird monatlich gemass dem Vergutungsplan bezahlt. Die Provisionen konnen nach Ubermittlung der SWIFT Nr. Ihrer Bank auf das angegebene Konto uberwiesen werden. (z. Zt. Noch per Scheck in Australischen Dollar) 2.2 Falls erforderlich, kann das Unternehmenvon jeglichen Provisionen, die an den Vertriebspartner gezahlt werden, den fur die Einkommenssteuer oder Umsatzsteuer benotigten Teil einbehalten.
3. Geheimhaltung 3.1 Der Vertriebspartner erklart sich einverstanden, dass das Unternehmen personliche Daten des Vertriebspartners fur Zwecke im Rahmen der Vertriebspartnerschaft sammelt und behalt. 3.2 Der Vertriebspartner ist damit einverstanden, dass seine personlichen Daten seinem Sponsor oder Personen in der Upline seines Sponsors zur Verfugung gestellt werden. 3.3 Der Vertriebspartner ist damit einverstanden, dass seine personlichen Daten zu anderen Hsin Ten Niederlassungen im Zusammenhang mit seiner Vertriebspartnerschaft weitergegeben werden. 3.4 Der Vertriebspartner erklart sich einverstanden, dass alle Personen, die mit ihm im Rahmen der Vertriebspartnerschaft in Kontakt sind, die personlichen Informationen anderer Vertriebspartner im Rahmen des Datenschutzgesetzes vertraulich behandeln. 3.5 Alle Vertriebspartner mussen daruber informiert sein und einverstanden sein bzw. sich bereit erklaren, dass ihre personlichen Daten im Zusammenhang mit der Vertriebspartnerschaft gesammelt und weitergegeben werden.
4. Sonstige Vereinbarungen 4.1 Die Vertriebspartnerschaft von Hsin Ten besteht aus insgesamt sechs Vertriebsstufen: Member, Consultant, Senior Consultant, Supervisor, Manager und Group Manager. Sobald Sie ein Member werden, werden Sie automatisch zum Vertriebspartner. Es ist leicht Vertriebspartner (VP) zu werden! Es kostet A$50 wobei Sie fur diese Mitgliedsgebuhr ein Vertriebspartner Handbuch sowie Broschuren erhalten. Nach Erreichen von 58BVP, durch den Verkauf von Hsin Ten Produkten, qualifizieren Sie sich vom Member zur Position des Consultant. Dies ist die zweite Stufe von sechs moglichen Provisionsstufen, welche im Handbuch erklart sind. 4.2 Zwischen dem Vertriebspartner und dem Unternehmen besteht zu jeder Zeit nur ein einziger gultiger Vertrag. 4.3 Vertriebspartner-Vertrage sind vom Unternehmen mit einer Frist von 14 Tagen schriftlich kundbar. Eine Provisionsberechtigung fur getatigte Verkaufe besteht im Kundigungsfall nur dann, wenn Auftrage innerhalb dieser 14 tage an das Unternehmen weitergegeben werden. 4.4 Der Vertriebspartner darf nur vom Unternehmen bereitgestellte Auftragsformulare oder Vertrage verwenden und nur genehmigtes Werbematerial benutzen. Anzeigen und Messen bedurfen der vorherigen Zustimmung des Unternehmnes. 4.5 Es ist erforderlich, dass die Vertriebspartner alle Bedingungen dieses Vertrags sowie die der im Handbuch dargelegten Unternehmenspolitik und-richtlinien verstehen und gemass diesen Bedingungen handeln. 4.6 Diese Vertragsbedingungen sind nicht endgultig. Das Unternehmen behalt sich vor, den Vertrag zu erganzen oder Anderungen vorzunehmen, welche entsprechenden Rundschreiben oder dem Handbuch zu entnehmen sind. 4.7 Dieser Vertrag beruft sich auf die Gesetzeslage in NSW, Australien.