MKC GLOBAL, LLC INDEPENDENT RETAILER AGREEMENT
PLEASE CAREFULLY READ THE TERMS OF THIS RETAILER AGREEMENT ("AGREEMENT") AND ONLY CLICK ON THE "I AGREE" BUTTON IF YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU CLICK, YOU AGREE.
WHEN YOU CLICK ON THE "I AGREE" BUTTON, YOU AGREE TO BECOME AN MKC GLOBAL, LLC (hereinafter “MKC” or “Company”) INDEPENDENT SALES REPRESENTATIVE OR RETAILER (HEREINAFTER REFERRED TO AS A "RETAILER") AND (1) THIS MEANS YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND TO THE TERMS OF THIS AGREEMENT THAT FOLLOWS, (2) YOU CONFIRM THAT YOU ARE 18 YEARS OF AGE OR OLDER, (3) YOU RESIDE IN THE UNITED STATES, AND (4) YOU ARE AUTHORIZED TO WORK IN THE UNITED STATES.
IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS RETAILER AGREEMENT, OR IF YOU DO NOT MEET THESE CRITERIA, THEN DO NOT CLICK THE “I AGREE” BUTTON.
YOU UNDERSTAND AND ACKNOWLEDGE THAT WHEN YOU CLICK "I AGREE TO BECOME AN MKC RETAILER AND AGREE TO THE TERMS AND CONDITIONS OF THE MKC RETAILER AGREEMENT", YOU ARE SIGNING THIS AGREEMENT ELECTRONICALLY AND THAT YOU WILL BE BOUND BY THE TERMS AND CONDITIONS SET FORTH BELOW.
Welcome! You are now a part of the MKC Team! As an MKC Retailer, you will find your e-boutique filled with the latest fashion styles and trends curated by premium designers. You will have everything you need to entice even the most discriminating shoppers. Your store will be stocked with an ever-changing cache of clothing, jewelry, cosmetics, gift items and more! As an MKC Retailer, you partner with industry insiders and fashion professionals who will mentor and guide you on your journey into the business of fashion; all part of a company willing to invest in you! We have a team of industry experts in fashion, marketing, merchandising, sales and technology and we are dedicated to helping you build your MKC business! We’ve eliminated the high start-up costs, steep learning curve, and inventory requirements associated with opening your own store! But before you get started, we need you to understand and agree on the terms of our relationship.
Set forth below is a general description of the terms and conditions governing the relationship between each independent Retailer and MKC. A fully detailed statement of our MKC Retailer Policies & Procedures, which are incorporated into and made part of this Retailer Agreement is available in the back-office Retailer-Only section of our web site, www.ShopMKC.com (P&P’s) ,
All of the provisions and policies incorporated into the Retailer Agreement, including the MKC Retailer Policies and Procedures, the terms of the MKC Retailer Commission & Bonus Program , and the general terms and rules as set forth below may be amended and updated from time to time by MKC in it’s sole discretion.
1. Retailer’s Rules and Responsibilities: As an MKC Independent Retailer, you will promote and sell the products available on www.ShopMKC.com. As a Retailer in good standing, you may be eligible to earn commissions, bonuses, and other compensation when you sell the products available on www.ShopMKC.com. Details of the MKC Retailer Commission & Bonus Program,, including the commission structure are described in Section 3 below andin the Retailer Only Back Office on www.ShopMKC.com By becoming a Retailer, you agree to follow the policies, operating rules, and ethical business practices described in these Terms and on the Company web site:CODE OF ETHICS
As a Retailer, I agree to:
(a) maintain the highest standards of integrity and honesty while doing business as an MKC Retailer
(b) present the Retailer opportunity in a truthful and sincere manner;
(c) behave in an ethical, professional, legal and businesslike manner with customers, other Retailers, and MKC Global staff and team;
(d) present the MKC product line and brands in a truthful and sincere manner and to not engage in any activity or action that may damage our reputation or the reputation of our products or brands;
(e) obtain the Company’s written permission prior to using the MKC trademark or brands in any advertising, on the Internet or in literature other than material published by us;
(f) purchase $499+ of MKC products online to begin your Retail e-Boutique from us, via an online order submitted to us accompanied by a credit card charge, for the full amount due;
(g) allow us to release your name and telephone number in response to a customer’s request for a Retailer in the area;
(i) comply with any changes to this Agreement that may be made by us.
2. Privacy of Customer Information: As a Retailer, and in compliance with our Policies & Procedures, and applicable law, you have a legal responsibility to secure and protect all Personally Identifiable Information you collect from customers including names, email addresses, phone numbers, and postal addresses. You must keep all hard copies customer information in a secure, locked file which may be accessed only by you. All electronic customer information in must be password protected or encrypted. This includes any customer information on a laptop, mobile tablet, flash-stick (usb), or mobile device
You agree to immediately inform MKC in writing in the event of a loss or unauthorized access, suspected or actual breach, use or disclosure of customer Personally Identifiable Information. You agree to cooperate with MKC in addressing any loss, unauthorized access or use, or breach or suspected breach.
You agree to promptly and securely delete and destroy all Personally Identifiable Information of any customer who informs you that she/he wishes to delete their MKC account and/or end their relationship with MKC or you, as their Retailer. You agree to promptly and securely shred and destroy all hard copies of Personal Information of any Customer that you no longer need to provide services to. In the event of any breach or violation, you agree to reimburse MKC for legal fees and costs relating to enforcement of the terms of this paragraph.
You agree to immediately inform MKC Customer Service if a customer requests access to his or her Personally Identifiable Information, complains about the use or handling of his/her information, about privacy of his/her information, or requests information about disclosure of his/her information to a third party. You agree to cooperate with MKC in response to any such requests.
3. Compensation: In consideration for your services as a Retailer, MKC will pay you commissions and bonuses in accordance with the MKC Commission & Bonus Program (Earnings Plan) which is described in more detail in the Retailer Only Back Office on the MKC web site. You will be eligible to earn a commission of twenty-five percent (25%) of the retail price of products sold through your MKC e-boutique. You will be responsible for all costs and expenses you incur in marketing, promoting and selling products through your MKC e-Boutique or sponsoring other Retailers (each of whom must apply through ShopMKC.com to be a Retailer with us and agree to the MKC Retailer Agreement). MKC reserves the right to change the terms of the Commission & Bonus Program unilaterally and will make every effort to provide notice to you through the MKC Retailer Back Office and/or e-mail. Your earned commissions may be paid to you through a debit card service, in which case, in order to receive compensation, you will need to agree to and accept the standard terms and conditions of the applicable banking/service institution. MKC will make the final determination as to the amount of commissions you will be paid based on the orders you place with us and you agree to accept such determination.
4. Independent Retailer/Contractor Relationship: Under this Agreement, you will be one of the MKC Retailers to market and sell products available on to the public in the United States, U.S. Territories, and U.S. Military Bases. You will be an independent contractor and not our employee, franchisee, partner, agent, or joint venture. You will have no authority to incur any debt, obligation or liability on behalf of us. You are not authorized to sign any contracts on our behalf. We will pay you the commissions we owe you, as explained above, and according to our Commission & Bonus Program , which can be found in detail on the Retailer Only Back Office of the MKC website. You will be responsible for payment of all self-employment (Social Security), income taxes, and any other taxes required by your activities as an independent sales representative under federal, state or local laws. You agree to abide by all federal, state and local laws applicable to your activities. You agree to abide by all applicable data privacy laws. You will, at your own expense, file all reports and obtain any licenses that are required by law or regulation for you to perform your activities under this Agreement or the holding, selling, or advertising of our products. You certify to us that you are legally authorized to work in the Territory.
5. Restrictions: Once you agree to the terms of this Agreement, you agree that you will not do any of the following without written consent from MKC. You agree that it will be a material breach of this Agreement for you to:
(a) sell MKC products through retail stores, retail outlets or any other fixed commercial outlet or other e-commerce sites such as Ebay, Etsy, or Amazon.
(b) make any representations or warranties on behalf of MKC or its brands, other than the ones contained in the MKC promotional information we provide you;
(c) accept the return of any of MKC products except as described in our Return Policy that is part of the Policies & Procedures; which can be found in detail on the Retailer Only Back Office of ShopMKC.com;
(d) fail to follow any of our Policies & Procedures; which can be found in detail on the Retailer Only Back Office of MKC
(e) promote any other social selling company’s products or services to other MKC Independent Retailers either directly, or indirectly
(f) violate any federal or state laws regulating electronic communications by promoting MKC or MKC brands and products through unsolicited emails or SPAM;
(g) utilize MKC intellectual property, brands, products, photographs, forms, or marketing materials without prior written permission from MKC, other than those allowed according to the Policies & Procedures; which can be found in detail on the Retailer Only Back Office of ShopMKC.com; or
(h) share, use, or disclose customer Personally Identifiable Information in a prohibited or unauthorized manner
6. Ownership of Intellectual Property: MKC owns all intellectual property rights to our brands and those we have agreements with to use in the sale of their products on the ShopMKC.com web site. We own all MKC brands and materials, and all data, designs, information or other content on www.ShopMKC.com (collectively the "MKC IP"). You acknowledge that by agreeing to become an MKC Retailer, you will not own or acquire any interest or right of any nature to or in any intellectual property rights in our products, or materials, or web site graphics, and that you will not use any of our designs, except as specifically authorized by us according the Policies & Procedures. You also agree that you will not at any time incorporate or permit to be incorporated any MKC IP into any products or designs of yours or of any third-party. You also agree you will not use the MKC IP for the purposes of developing a competing product or business. During the term of this Agreement, you will be granted a limited, revocable, non-exclusive, non-transferable license to use the MKC IP for the sole purpose of selling and marketing MKC products as described in the Policies & Procedures (the "License"). At our sole discretion, we have the right to limit or restrict the License or to otherwise provide you with guidelines regarding how you use the MKC IP, in each case, as a supplement to any limitations or restrictions contained in the Policies & Procedures. The License will terminate immediately upon termination of this Agreement, and in accordance with Section 13 below, you will return all MKC IP to us. You agree that we shall own all rights, title and interest to the MKC IP not otherwise expressly granted in connection with the License including any improvements, refinements, modifications, or enhancements to the MKC IP,
We reserve all rights, title, interest in and to the MKC IP not otherwise expressly granted in connection with the License. You agree that we shall own all rights, title and interest in and to any improvements, modifications, refinements, or enhancements to the MKC IP, even if such changes result from requests, feedback, input, input, or ideas generated by you (it being understood that you hereby transfer and assign to MKC all rights, title, and interest that you may have in and to such changes).
7. Retailer Content Grant. You hereby grant us permission to use and reproduce any images, voice, photographs, personal information, name, social media content or data uploaded to the internet related to you, created by you or containing any form of likeness with you (collectively "Content") in all forms and media including composite or modified representations for all purposes, including marketing and commercial purposes throughout the world and in perpetuity. You acknowledge and understand that the term "Content" used herein includes Content that is in both physical and digital form and that such Content may be seen bypersons who regularly visit our website and members of the general public. You hereby grant to MKC a non-exclusive, worldwide, royalty-free license to use any Content in connection of the MKC business including derivative works of any Content, including the promotion and marketing thereof, and you waive the right to inspect or approve any versions of any Content used at any time by us, including any words, data or images, or descriptions, that may accompany such Content. You understand and accept that we will not compensate you for the grant contained in this Section 8 or for any use of any Content and you hereby waive any rights you may at any time have to any such compensation. You may revoke the permission to use your Content by providing us with written notice consistent with, provided, however, that you accept and agree that (a) any such revocation will not apply to any action taken in reliance of the grant contained in this Section 8 prior to the expiration of such thirty day period and any such revocation will only apply to the use of Content that occurs thirty days after the date that we receive your written notice so that we have adequate time to process such notice, (b) any such revocation will not apply to, or in any way alter, the perpetual worldwide license granted in this Section 7 with respect to any Content that does not personally identify you. You agree that you will not, at any time, create, or make available any Content that directly or indirectly violates any rights of any third-party.
8. Orders and Returns: We will have the right to accept or reject any order submitted by you. We reserve the right to discontinue any product at any time. We reserve the right to chargeback (debit) any commissions paid to you on products that are returned by a customer for credit. We have the right to reject all or part of an order you submit if the products are no longer available in the quantities you ordered. You will not be entitled to receive compensation in connection with orders that we don’t accept or in connection with products that are returned by customers. If we determine that this Agreement is not effective for any reason, including the invalidity of your electronic signature, we have no obligation to accept any orders from you. You will be solely responsible for the payment of all charges and fees for orders and any associated shipping and/or handling fees, and, if we have to take further action to collect any fees owed to us, you will be responsible for our attorney’s fees, collection costs, expenses in collecting those amounts and court costs. You acknowledge and accept that there are certain restrictions on, and exclusions from, our returns policy as described in the Policies & Procedures. You may elect to return your products purchased during your initial Shopping Spree ($499+) and terminate your Retailer status and Agreement with MKC.com within thirty days from the effective date of this Agreement and we will refund all items you elected to return, provided that, (i) you must return all items, in their new and original condition in compliance with the Policies & Procedures online instructions (Sections 8 and 28) on how to handle returns and (ii) damaged or used items cannot be returned. You acknowledge and understand that, consistent with the MKC returns policy, you must return products within the time specified (generally30 days of purchase) to receive a refund.
9. Prices: MKC will set the retail prices products on the ShopMKC.com web site, and we may change retail prices at any time. MKC prices do not include shipping fees or applicable sales and use taxes. Prices charged for all products are determined solely by us.
11. Sales Tax: You authorize MKC, on your behalf, to collect and remit to the proper governmental agencies the applicable sales and use taxes in connection with the sale of our products as permitted by this Agreement.
12. Customer Disputes: All disputed charges be handled by MKC Customer Service. All refunds and exchanges will be managed by MKC in accordance with the MKC Returns Policy located at www.ShopMKC.com as may be updated from time to time.
13. Term and Termination of this Agreement: The term of this Agreement will begin upon our acceptance of this Agreement, and will continue until terminated as described in this Section 14. This Agreement may be terminated immediately: (a) by you for any reason upon written notice to us; or (b) by us (i) for any reason upon written notice to you; (ii) if you are in breach of any of your obligations and/or responsibilities described in this Agreement, the Policies & Procedures.
14. Events Upon Termination of this Agreement: Upon termination of this Agreement, you will: (i) immediately destroy or delete all MKC IP, return all Confidential Information to us, and certify to such return in writing if requested by us, (ii) within five days of termination pay all amounts due to us; (iii) immediately stop representing yourself as an MKC Retailer; and (iv) immediately become ineligible to receive any compensation or benefits as a Retailer, except for amounts that you earned before the termination date, less any amounts you may owe MKC under this Agreement, and/or the Policies & Procedures. You further understand and agree that upon termination of the Agreement, you will immediately stop all use of the MKC IP and Confidential Information and will stop selling, promoting, displaying, offering for sale MKC products. You further understand and agree that you will immediately stop making any use of or disclosing customer Personally Identifiable Information.
15. Confidential Information: Our "Confidential Information" means all of our information that we mark as confidential or that should reasonably be considered confidential based on the nature of the disclosure, and includes, without limitation, our training materials, training videos and webinars, agreements, business forms, pricing or cost information, knowledge as to sources, information concerning the MKC business, our manner of operation, our plans, processes or other data and especially any information regarding MKC customers and sales representatives, including, credit information, customer purchasing histories, names, or addresses. You will keep all Confidential Information in strict confidence. Without prior written consent, you will not use Confidential Information except to perform your obligations under this Agreement, and you will not disclose Confidential Information in any manner to any third party or otherwise use any Confidential Information except as set forth in this Agreement. You will not use less than reasonable care or use the same degree of care in handling and safeguarding Confidential Information that you use in handling and safeguarding your own confidential information. If you breach the provisions of this Section 15, MKC will be entitled to pursue any lawful remedies whether at law or equity including, but not limited to, enforcing this Agreement by injunction or specific performance, without bond and without prejudice to any other rights and remedies that we may have. To the fullest extent allowed by law, this Confidentiality provision shall survive and remain enforceable following termination of this Agreement.
16. Non-Solicitation: You agree that during the term of this Agreement and for a period of twelve (12) months following termination, you will not, for yourself or on behalf of any other party, solicit, recruit or hire any of our employees or sales representatives that is either under contract with us or who has been under contract with us in the six months prior.
17. Disclaimer: MKC DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT OF ANY PRODUCTS OR INFORMATION PROVIDED UNDER THIS AGREEMENT.
IN NO EVENT SHALL MKC BE LIABLE FOR PERSONAL INJURY, OR ANY, SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFIT, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED THE OBLIGATIONS DESCRIBED IN THIS AGREEMENT, HOWEVER, CAUSED, REGARDLESS OF THE THEORY OF LIABLITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF MKC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABLITY FOR PERSONAL INJURY, OR OF INCIDENTIAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL MKC’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY), EXCEED THE LESSER OF THREE HUNDRED FIFTY DOLLARS (U.S.$350.00) OR THE VALUE OF THE PRODUCTS WHICH ARE THE SUBJECT OF THE DISPUTE. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS ITS ESSENTIAL PURPOSE.
18. Limitation on Claims: You agree that any lawsuit or claim filed by you relating to this Agreement or services as a Retailer must be filed within six (6) months of the conduct or event giving rise to the claim or lawsuit. You waive any statutes of limitations providing for a longer period to bring a lawsuit or claim. You further waive any claims that you may at any time have with respect to any use of any Content, including any claims for compensation related thereto.
19. Indemnity and Release: You will indemnify and hold us, our licensors and subsidiaries, affiliates, officers, directors, employees, attorneys, representatives and agents harmless from and against any and all claims, damages, costs, liabilities, losses, and expenses (including attorneys’ fees and costs) (i) in connection with any third-party claim arising from your acts or omissions or any violation by you of this Agreement (ii) or arising out of any breach or violation by you of the terms of this Agreement. Additionally, you hereby release us, our licensors and subsidiaries, affiliates, officers, directors, employees, attorneys, representatives and agents from any claims that may arise regarding the use of your Content, including any claims of defamation, infringement of moral rights, invasion of right to privacy, rights of publicity or personality, or copyrights.
20. Remedies: In the event of any breach, violation or evasion of this Agreement by you, you agree to pay all our costs to enforce or protect our rights, and court costs and including all reasonable attorney fees.
21. No Waiver: Failure by you or us to insist upon or enforce any of MKC rights will not be considered a waiver of those rights.
22. California Law: This Agreement will be governed, construed and enforced under the laws of the State of California, without giving effect to conflicts of laws principles.
24. Severability: If any item of this Agreement is determined to be invalid or unenforceable, the remaining provisions will be unaffected.
25. Conflict: In the event of any conflict between a provision of this Agreement and the Polices & Procedures, the provision of Policies & Procedures most recent in time will govern. You represent and warrant that your execution of this Agreement will not in any way violate any third-party agreement to which you are a party or otherwise breach or conflict with any obligation that you have with, or duty that you owe to, any third-party.
26. Dispute Resolution: All disputes, claims, or controversies arising out of or relating to this Agreement that are not resolved by mutual agreement may be resolved by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Unless otherwise agreed by the parties, arbitration will be held in Orange County, California before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by the American Arbitration Association ("AAA") and will be conducted in accordance with the rules and regulations promulgated by AAA. The language of the Arbitrator shall be English. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator’s decision and award shall be made and delivered within sixty (60) days of the conclusion of the arbitration and within three (3) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in the Agreement and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the Agreement, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing party) against any party to a proceeding. Any party refusing to comply with an order of the arbitrator will be liable for costs and expenses, including attorneys’ fees, incurred by the other party in enforcing the award. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction. Louisiana resident Retailers may elect to arbitrate in Louisiana and Louisiana law will govern.the contract.
27. Notice and Electronic Communications. All notices, requests, claims, demands and other communications from you to MKC in connection with this Agreement or otherwise relating in any way to your service as a Retailer shall be in writing, signed by you or an authorized representative and sent to MKC at PO Box 388, San Juan Capistrano, California 92693. With respect to any notices, claims, requests, demands and other communications from us, you acknowledge that sending written notice may be impractical and you therefore agree that MKC may communicate with you by delivery in person, by mail, by courier service, by electronic mail, by text message, by phone, or by our website, in each case, at the sole discretion of MKC to the address or contact information that we have for you in our records. You hereby acknowledge and agree that our posting any notice or information to our website shall constitute notice and delivery for so long as you reasonably have the ability to access the MKC website. You further agree to provide MKC with your full and correct contact information upon execution of this Agreement and to update MKC in writing should any such contact information change. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given shall be deemed to be receipt of the notice as of the date of such rejection, refusal or inability to deliver. By selecting the "I Accept" button, you agree that your electronic signature is the legal equivalent of your manual signature on this Agreement and that you have accessed, reviewed and accepted the terms of the consent and notice regarding electronic communications that is available on our website. You also agree that no certification authority or other third party verification is necessary to validate your e-signature and that the lack of such certification or third party verification will not in any way affect the enforceability of the terms of this Agreement. If MKC chooses to communicate with you via our website, via your mobile phone, via e-mail or via other electronic means, you acknowledge and agree that you will be solely responsible for any fees that your provider or any third party charges for SMS, data services, etc. If you do not consent or at any time withdraw your consent to receive electronic communications from us, we reserve the right to terminate this Agreement.