Terms & Agreement

As a Cupcakes & Bubbles Bon Vivant Consultant (referred herein as an “Independent Consultant” or “Consultant”) of Cupcakes & Bubbles LLC dba Cupcakes & Bubbles (collectively referred to as “Cupcakes & Bubbles” or the “Company”), I understand and agree that our relationship will be governed by the terms and conditions herein as follows:

1.  Definition of this Agreement. As an Independent Consultant, I understand that I must comply with the terms and conditions set forth in this Agreement, including the Cupcakes & Bubbles Policies & Procedures (the “Policies & Procedures”) and the Cupcakes & Bubbles Compensation Plan, which are both incorporated into and made a part of this Agreement. As used herein, the term “Agreement” refers to these three documents collectively. I understand that I am solely responsible for the means and methods by which I make sales, subject to my compliance with the Agreement. I further understand that this Agreement requires integrity, honesty and responsibility in my behavior and actions with the Company, Cupcakes & Bubbles Members, and my fellow Consultants.

2.  Independent Contractor Status. I am an independent contractor and not an employee, partner, legal representative, or franchisee of Cupcakes & Bubbles. I shall not be held out as an agent of Cupcakes & Bubbles for any purpose other than described in this Agreement. Any contrary final determination by a board, tribunal or court of competent jurisdiction shall require the amendment of this Agreement in any way necessary to establish an independent contractor relationship. No fiduciary relationship exists between the parties. I will have and maintain control of the manner and means of my performance under this Agreement, subject to my compliance with the Agreement. I understand I will not be treated as an employee with respect to any services for federal or state tax purposes. I will be solely responsible for paying all expenses incurred by me. The Company shall report payments made to me on a calendar year basis as required using IRS Form 1099. I agree to report all such payments to the appropriate federal, state and local taxing authorities. I understand that I must complete and submit to the Company an IRS W-9 and shall update the W-9, as required by law. I will be responsible for payment of all applicable income, self-employment and other taxes. I will not be eligible for and will not participate in any pension, or fringe benefit plan sponsored by Cupcakes & Bubbles and will not be covered by its workers’ compensation or unemployment insurance or retained coverage.

 

3. Sales Tax. I understand that a sale is not final until inputted into the Cupcakes & Bubbles online order system and that the appropriate sales/use tax amount will be charged, collected and remitted to the appropriate agencies. When my orders are placed with the Company, sales tax is charged on the actual retail price, taking into account any discounts applied.

  1. Services to be performed by Independent Consultants.

    1. My Cupcakes & Bubbles business will promote and sell Cupcakes & Bubbles products, including wine, by conducting Sales Events or on my personal Independent Consultant website, if applicable, and tasting experiences using the Cupcakes & Bubbles process described in the Policies & Procedures. My business will promote, market and facilitate sales of Cupcakes & Bubbles products only to end users. I will inform my customers that Cupcakes & Bubbles offers a Satisfaction Guarantee Policy with respect Cupcakes & Bubbles products, and I will assist my customers with initiating a return under such policy with respect to any Cupcakes & Bubbles products.

    2. I cannot carry inventory of wine for sale directly to Members, consumers, or other Consultants. Due to the regulations of the sale of alcoholic beverages, all wine sales must be made between Cupcakes & Bubbles and the end user directly through the Company website. I also agree to promote responsible consumption of wine and not serve wine to minors or facilitate the sale of wine to minors.

    3. Self-Hosted Wine Tastings. I understand that I may only purchase wine for tastings for my personal guests and may not purchase wine on behalf of another individual.

    4. Wine Tasting Approved Locations. I understand that I may only conduct wine tastings in private venues where there is a designated event host who has pre-purchased wines from Cupcakes & Bubbles. Consultants may not pour wine at public events or where there is a fee to attend or a charge for alcohol.

    5. Direct Shipping Licenses. I understand the Company is the licensed entity and that all orders must be processed and fulfilled through the Company or its approved licensees. I cannot deliver or sell wines directly to consumers or do anything that would jeopardize the Company’s good standing and permits or licenses.

    6. Sponsoring Independent Consultants Responsibilities. In the event I sponsor an applicant to be an Independent Consultant and the application is accepted by Cupcakes & Bubbles, I will accept the duties and obligations of training, support and recognition as set forth in the Agreement.

    7. Use of Cupcakes & Bubbles Intellectual Property. I acknowledge that, upon Cupcakes & Bubbles’ acceptance of the Agreement, Cupcakes & Bubbles has granted me a limited, non-exclusive license to use its trademarks, service marks, trade names, patents, software coding (including source code) and copyrighted materials (“Cupcakes & Bubbles Intellectual Property”), all of which is owned solely by Cupcakes & Bubbles and/or its licensors, and that my use of Cupcakes & Bubbles Intellectual Property is strictly limited by the terms of the Policies & Procedures. Examples of Cupcakes & Bubbles Intellectual Property are provided in the Policies & Procedures. I may use Cupcakes & Bubbles Intellectual Property only (a) after obtaining written permission from Cupcakes & Bubbles prior to use, or (b) where the Cupcakes & Bubbles Intellectual Property appears on materials distributed by Cupcakes & Bubbles for use by Independent Consultants. I agree to use written, recorded or other promotional or advertising materials that have been produced, distributed and approved in writing by Cupcakes & Bubbles. Any other promotional or advertising materials I use will be used in accordance with the Policies & Procedures. All rights and licenses granted in or under this Agreement shall terminate automatically upon the termination of this Agreement.

    8. Site Downtime. I acknowledge that the website for Cupcakes & Bubbles may be subject to temporary shutdowns from time to time for maintenance and/or due to causes beyond Cupcakes & Bubbles’ or its vendor’s reasonable control, and that Cupcakes & Bubbles shall have no liability to me by reason of any such shutdowns.

    9. Ownership and Use of Confidential Information. I acknowledge that Cupcakes & Bubbles owns all product, Consultant and customer information and data that I may create or compile, including but not limited to product and purchasing information, customer and Consultant contact and profile details, Consultant lists, operating and production procedures, product development information, financial data and marketing materials (collectively, “Confidential Information”), and that all Confidential Information is confidential and that its disclosure could cause significant harm to Cupcakes & Bubbles. I will not use or disclose Confidential Information to any person except in strict accordance with this Agreement and will take all reasonable precautions to prevent its unauthorized dissemination, both during and after the term of this Agreement. I will not use Confidential Information to sell products or services other than Cupcakes & Bubbles products and services or in connection with any other business during the term of and after termination of this Agreement. I understand that I will be deemed to breach my obligations to Cupcakes & Bubbles with respect to Confidential Information or trade secrets if I work or perform services (including consulting or advisory services) for a competitor of Cupcakes & Bubbles in any position in which I am required to or do use, disclose or otherwise employ any Confidential Information obtained during my relationship with Cupcakes & Bubbles. I understand and agree that this provision does not prohibit me from working for a competitor of Cupcakes & Bubbles during the term of this Agreement or after the termination of this Agreement, but requires me not to use, share or otherwise communicate Confidential Information or trade secrets to such a competitor or to perform services for such a competitor. I agree that a breach of this provision shall cause irreparable harm to Cupcakes & Bubbles and that Cupcakes & Bubbles will be entitled to injunctive relief in the event of a breach of this provision, in addition to any other legal or equitable remedies to which Cupcakes & Bubbles may be entitled. I further agree that the terms of this Agreement shall be deemed Confidential Information and shall be subject to the provisions of this Section 9. Upon Cupcakes & Bubbles’ reasonable written request, I agree to return to Cupcakes & Bubbles all Confidential Information, including but not limited to all marketing collateral, marketing plans, documentation, notes, plans, drawings and copies thereof. All information is provided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance.

    10. Authorized Business and Product Claims. Any claims that I make about my Cupcakes & Bubbles business shall be in compliance with the Policies & Procedures. I further agree to limit any claims I make about my Cupcakes & Bubbles business, including, but not limited to earnings ability, to those claims authorized or approved in writing by Cupcakes & Bubbles. I understand and acknowledge that this obligation extends to any statements I may make in response to customer inquiries about my Cupcakes & Bubbles business or any Cupcakes & Bubbles products.

    11. Conflicting Obligations. I represent and warrant that I have no agreements, relationships, or commitments to any person or entity that conflict with the provisions of this Agreement, my obligations to Cupcakes & Bubbles under this Agreement and/or my ability to perform services under this Agreement. I will not enter into any such conflicting agreement during the term of this Agreement.

    12. Non-Solicitation. In consideration of the mutual covenants contained herein, during the term of this Agreement and for a period of one (1) year after the termination of this Agreement, I shall not directly or indirectly, on my own behalf or on behalf of any other person or entity, call upon or solicit or attempt to call upon or solicit any Cupcakes & Bubbles employee or Independent Consultant to terminate or alter his or her business relationship with Cupcakes & Bubbles or to participate as a distributor or sales representative for any other direct selling business or opportunity. For purposes of this Non-Solicitation covenant, I agree that the term “solicit” means the direct or indirect or the actual or attempted recruitment, sponsorship, enrollment, encouragement, or effort to influence in any other way, a Cupcakes & Bubbles employee or Independent Consultant to enroll or participate in another direct selling opportunity or to terminate or alter his/her business relationship with the Company. Notwithstanding the foregoing, I understand that I am free to participate in other direct selling programs or opportunities as a distributor, consultant, or sales representative.

    13. Release. I hereby grant Cupcakes & Bubbles and its affiliates, partners, designees, agents, successors or assigns an unrestricted, perpetual, worldwide, irrevocable, royalty-free, transferable, sub-licensable and fully paid-up license to use, reuse, license, reproduce, modify, adapt, publish, edit, translate, display, perform, distribute, transmit, broadcast, communicate to the public and otherwise exhibit throughout the world, create derivative works from, and otherwise exploit and use my name, including nicknames and social media handles, likeness, image, photograph, biographical information, voice, persona, opinions, comments, and in any and all media and by any means of transmission, distribution or communication, whether now known or hereafter created, including by way of example and not limitation, any television, radio, the Internet and online forums, and in audio visual works, photographs, sound recordings, marketing and public relations materials, publications and the like (collectively, “Media Materials”) for advertising, publicizing, marketing and promotion of Cupcakes & Bubbles, and I waive remuneration for such use. I further waive my right to inspect or approve all preliminary, draft or finished Media Materials.

    14. Term and Termination of this Agreement.

      1. Term. This Agreement is effective from the date of acceptance by Cupcakes & Bubbles and will automatically renew every twelve (12) months on the anniversary of the date I enter into this Agreement.

      2. Involuntary Cancellation. Cupcakes & Bubbles may immediately terminate this Agreement in the event of any prohibited actual or attempted assignment of the Agreement, or my misrepresentation relating to Company or my Independent Consultant business, or my breach of any provision of this Agreement. If Company terminates this Agreement, the Company may reject any future reapplications by me as a Consultant and pursue all applicable legal remedies.

      3. Voluntary Cancellation. A Cupcakes & Bubbles Independent Consultant has the right to terminate this Agreement at any time, for any reason. Notice of termination must be submitted in writing to the Company at its principal place of business or by contacting the Company.

    15. Events upon Termination of this Agreement. Upon termination of this Agreement,

      1. I will (i) within five (5) business days pay all amounts due and owing to Cupcakes & Bubbles; (ii) immediately cease representing myself as an Independent Consultant of Company; and (iii) be ineligible to receive any compensation or benefits as an Independent Consultant not earned as of the date of termination of this Agreement. I hereby authorize Company to withhold from any payments due me under the Compensation Plan any amounts due and owing to Company to the fullest extent allowed by applicable law.

      2. I will immediately cease all use of Cupcakes & Bubbles Intellectual Property and Confidential Information and will cease holding classes, workshops, tastings, and presentation or otherwise displaying, offering for sale or promoting Company products.

    16. Transferability. Neither this Agreement nor my Cupcakes & Bubbles business may be transferred or assigned by me or operated in partnership with any other person without Cupcakes & Bubbles’` prior written consent. Company may assign this Agreement at any time.

    17. Entire Agreement: Amendment. This Agreement (including the Policies & Procedures and Compensation Plan) in its current form, and as may be amended by Cupcakes & Bubbles in the future, supersedes all prior communications, understandings and agreements between the parties and contains the entire agreement between the parties relating to its subject matter. I have carefully read and agree to comply with this Agreement and the Policies & Procedures and Compensation Plan, each of which are incorporated into and made a part of this Agreement. If I have not yet reviewed the Policies & Procedures or the Compensation Plan at the time I execute this Agreement, I understand that they are or will be provided and will also be posted in my Independent Consultant Back Office. I will review the Policies & Procedures and the Compensation Plan within ninety (90) days from the date on which I execute this Agreement. If I do not agree to the Policies & Procedures or the Compensation Plan, my sole recourse is to notify the Company and terminate this Agreement. Failure to terminate constitutes my acceptance of the Policies & Procedures and the Compensation Plan. I understand that I must be in good standing to be eligible for bonuses or commissions from Cupcakes & Bubbles. I also understand that this Agreement may be amended by Cupcakes & Bubbles in its sole discretion, and I agree to abide by all such amendments. Notification of amendments shall be posted to my Back Office. Amendments shall become effective thirty (30) days after notice of the amendment is posted, but amended policies shall not apply retroactively to conduct that occurred prior to the effective date of the amendment. The continuation of my Cupcakes & Bubbles business or my acceptance of bonuses or commissions after the effective date of amendments shall constitute my acceptance of any and all amendments.

    18. Indemnification/Offset. I will indemnify and hold harmless Company, its subsidiaries, managers, officers, employees, agents and assigns from and against any damages, claims or liabilities and expenses (including attorneys’ fees) incident to my: (a) activities as an Independent Consultant including, without limitation, any unauthorized representations made by me; (b) any negligent, reckless or intentionally wrongful act of myself or my assistants, employees, contractors or agents, including with respect to claims by third parties related to infringement of third party intellectual property rights; (c) a determination by a court or agency that the I am not an independent contractor, (d) breach by me or by my assistants, employees, contractors or agents of any of the terms of this Agreement; or (e) violation of or failure to comply with any applicable federal, state or local laws or regulations. Company shall have the right to offset any amounts owed by me to Company (including, without limitation, the repayment of commissions as a result of charge backs and/or product returns) against the amount of any commissions or bonuses owed to me to the fullest extent permitted by applicable law.

    19. Limitation of Damages. TO THE EXTENT PERMITTED BY LAW, COMPANY AND ITS AFFILIATES, OFFICERS, MANAGERS, ASSOCIATES AND OTHER REPRESENTATIVES SHALL NOT BE LIABLE FOR, AND I HEREBY RELEASE THE FOREGOING FROM, AND WAIVE ANY CLAIM OF ANY SPECIAL INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST BUSINESS, AND LOST OPPORTUNITIES, HOWEVER CAUSED, ARISING OUT OF OR RELATING TO THE COMPANY’S PERFORMANCE, NON-PERFORMANCE, ACT OR OMISSION WITH RESPECT TO THE BUSINESS RELATIONSHIP OR OTHER MATTERS BETWEEN MYSELF AND THE COMPANY, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHER THEORY OF LIABILITY (INCLUDING BUT NOT LIMITED TO NEGLIGENCE OR STRICT LIABILITY, OR OTHERWISE, EVEN IF CUPCAKES & BUBBLES OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, IT IS AGREED THAT ANY DAMAGE TO ME SHALL NOT EXCEED, AND IS HEREBY EXPRESSLY LIMITED TO THE AMOUNT OF UNSOLD CUPCAKES & BUBBLES PRODUCTS AND SERVICES OWNED OR HELD BY ME, COMMISSIONS, BONUSES AND OVERRIDES.

    20. Cumulative Remedies/Waiver. All rights, powers and remedies given to either party are cumulative, not exclusive and in addition to any and all other rights and remedies provided by law. No failure or delay of either party to exercise any power or right under this Agreement or to insist upon strict compliance by me with any obligation or provision shall constitute a waiver of such party’s right to demand exact compliance therewith. Waiver by Cupcakes & Bubbles can be effective only in writing by an authorized officer of Cupcakes & Bubbles.

    21. Injunctive Relief. Either Cupcakes & Bubbles or I may apply to a court of competent jurisdiction for temporary, preliminary or permanent injunctive relief on the ground that without such relief the arbitration provided in this Agreement may be rendered ineffectual. For example, any breach of the confidentiality or non- solicitation provisions of this Agreement by me would cause Cupcakes & Bubbles immediate and irreparable harm that could not be made whole solely by monetary damages; therefore, seeking injunctive relief in court before or simultaneous with demanding arbitration, is appropriate. In addition, the moving party (whether Cupcakes & Bubbles or I) shall be entitled to recover costs and expenses, including reasonable attorneys’ fees, if it (or I) prevail in enforcing its (or my) rights under this Agreement.

    22. Other Terms.

      1. I have full legal capacity to enter into this Agreement in the state in which I reside. I agree to comply with all laws, rules and regulations governing the conduct of my business.

      2. I will refer to the Company’s website and/or the Policies & Procedures to confirm the Company’s current states of operation, which may change at any time. I understand that I may not conduct business in any state that has not been confirmed by Cupcakes & Bubbles as an authorized state for the sale of wine via the Cupcakes & Bubbles program.

      3. I certify that I am not in the Upline or Downline team of any other household member who is a Cupcakes & Bubbles Independent Consultant.

      4. If any provision of this Agreement is judicially determined to be invalid or unenforceable, that determination will not affect any other provision of this Agreement and the provision in question will be modified by the reviewing court so as to be rendered enforceable. The headings in this Agreement are inserted for convenience only and are not part of the Agreement.

      5. All written notices required by this Agreement to be given to me will be deemed effective three (3) business days after mailing to my most current mailing or immediately if sent to the email address on file with Cupcakes & Bubbles.

    23. Dispute Resolution. I agree that any controversy, claim or dispute of whatever nature arising between me, on the one hand, and Cupcakes & Bubbles, on the other, including but not limited to those arising out of or relating to this Agreement, including the Policies & Procedures, or a breach thereof, or the commercial, economic or other relationship of a Consultant and Cupcakes & Bubbles, whether such claim is based on rights, privileges, or interests recognized by or based upon statue, contract, tort common law, or otherwise (“Dispute”), shall be settled through negotiation, mediation, or arbitration, as provided in this Section 23.

      1. Negotiation. If a Dispute arises, the parties shall first attempt in good faith to resolve it promptly by negotiation. Any of the parties involved in the Dispute may initiate negotiation by providing notice (the “Dispute Notice”) to each involved party setting forth the subject of the Dispute and the relief sought by the party providing the Dispute Notice, and designating a representative who has full authority to negotiate and settle the Dispute.

      2. Mediation. At any time twenty-one (21) days or more after the Dispute Notice is provided, but prior to the initiation of arbitration, regardless of whether negotiations are continuing, any party may submit the Dispute to the American Arbitration Association (“AAA”) for mediation by providing notice of such request to all other concerned parties and providing such notice and a copy of all relevant Dispute Notices and notices responding thereto to AAA.

      3. Arbitration. Any Dispute not resolved in writing by negotiation or mediation shall be subject to and shall be settled exclusively by final, binding arbitration before a single arbitrator in Dallas, Texas, in accordance with the then-prevailing Commercial Arbitration Rules of AAA. No party may commence Arbitration with respect to any Dispute unless that party has pursued negotiation and, if requested, mediation, as provided herein, provided, however, that no party shall be obligated to continue to participate in negotiation or mediation if the parties have not resolved the Dispute within seventy (70) Days after the Dispute Notice was provided to any party (or a longer period as may be agreed by the parties).

      4. Dispute Documents Confidential. All communications, whether oral, written or electronic, in any negotiation, mediation or arbitration pursuant to this Section shall be treated as confidential and those made in the course of negotiation or mediation, including any offer, promise or other statement, whether made by any of the parties, their agents, employees, experts, attorneys, or mediator or any AAA employee, shall also be treated as settlement negotiations for purposes of applicable rules of evidence and shall be inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in negotiation or mediation.

      5. Costs of Dispute. The costs of negotiation, mediation, and arbitration, including fees and expenses of any mediator, arbitrator, AAA, or other persons independent of all parties acting with the consent of the parties to facilitate settlement, shall be shared in equally by Consultant, on the one hand, and Cupcakes & Bubbles on the other. The parties shall bear their own legal fees and other expenses of negotiation, mediation, and arbitration.

      6. Venue and Jurisdiction. Any party may seek specific performance of this Section, and any party may seek to compel each other party to comply with this Section by petition to any court of competent jurisdiction. An action to enforce an arbitrator’s award hereunder may be brought before any court of competent jurisdiction. For purposes of any provisional or equitable relief sought under this Section, the parties consent to exclusive jurisdiction and venue in the courts of the State of Texas residing in the City of Dallas, or the United States District Court for the Northern District of Texas. The pendency of mediation or arbitration shall not preclude a party from seeking provisional remedies in aid of the arbitration from a court of appropriate jurisdiction, and the parties agree not to defend against any application for provisional relief on the ground that mediation or arbitration is pending. Each party in any proceeding under this policy shall be responsible for its own attorney’s fees, legal expenses, and costs. If any portion of this Section is held to be unenforceable for any reason, the remainder shall remain in full force and effect. Nothing in this Section shall preclude any party from seeking interim or provisional relief concerning the Dispute, including a temporary restraining order, a preliminary injunction, or an order of attachment, either prior to or during negotiation, mediation or arbitration. In the event any portion of this provision regarding arbitration is found to be unenforceable, such portion shall be severable from the remainder of this provision, which shall remain in full force and effect. Any amendment to this provision, or to the Dispute Resolution provision in the Policies & Procedures, shall not apply to: (1) a dispute arising prior to the effective date of such amendment; or (2) a Consultant who declines to participate in the Cupcakes & Bubbles Program following the Effective Date of any such amendment.

      7. Governing Law. The Federal Arbitration Act shall govern all matters relating to arbitration. The law of the State of Texas, without regard to principles of conflicts of laws, shall govern all other matters relating to or arising from the Agreement, the Cupcakes & Bubbles Business, relationship between the parties, or any other claim between the parties.

                 8. Entire Agreement. The Policies & Procedures are incorporated into this Agreement, along with the Compensation Plan, and                           constitutes the entire agreement of the parties regarding their business relationship.                                                                               

 

I acknowledge that I have read, understand and agree to the terms set forth in this Cupcakes & Bubbles Independent Consultant Agreement. I certify that all of the information provided by me in connection with becoming an Independent Consultant and in this Agreement is true and accurate. I am 21 years of age or older, I am a citizen or permanent resident of the United States, and I have a valid Social Security number or individual Taxpayer Identification number.

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