This agreement is made and entered into between “Distributor" (you) and "Company" (The Movement). The Company and Distributor may be referred to in this Agreement individually as a "Party" and collectively as the "Parties." The agreement’s “Effective Date” is the date where the Distributor has selected from their account options and the Company has completed the set up of their account (usually within 1-2 weeks after orientation).
WHEREAS, through the expenditure of considerable time, effort and money, the Company has developed a unique expertise and technological platform (the "Distributor Business"). In support of the Distributor Business, Company has developed trade secrets, proprietary and other confidential information, standards, specifications, trademarks and/or service marks, which are intended to create, promote and maintain a uniform image of high quality products and services associated with the Distributor Business (hereinafter, as amended, modified or supplemented from time to time, being sometimes referred to as "Company’s Methods").
WHEREAS, Distributor desires to operate the Distributor Business, to market the Company’s products and services and use the Company’s Methods in the Territory (as defined below).
NOW, THEREFORE, in consideration of the covenants and agreements herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by each of the parties, the parties do covenant, agree, represent, warrant, acknowledge and stipulate as follows:
Distributor acknowledges that they are granted the opportunity to establish a business selling the Company’s products and services. The Company, in granting this opportunity to the Distributor is relying upon the Distributor's agreement to operate consistently its business operation and affairs in accordance with Company's Methods and such other controls that Company imposes upon its Distributors on an ongoing basis in order to enhance the demand for the Company’s products and services, ensure a high quality of customer service, and enhance the image associated with the Company's Distributor program. As a result, Distributor acknowledges and agrees that its primary responsibility under this Agreement is to operate its business in accordance with the Company's Methods and to otherwise adhere to the Company's standards, specifications and operating procedures and, as a Distributor, to do so even though there may be situations during the term of this Agreement when Distributor may not always agree with the Company's Methods or other operational aspects of Company's Distributor program.
a. Grant. Subject to the terms and conditions of this Agreement and all related agreements, Company hereby grants to Distributor the right to operate a business selling the Company’s products and services and to use the Company's Methods, as Company may change, improve, modify or further develop from time to time. The grant of rights under this Agreement is limited to the geographic territory (the "Territory") specified in Section 5.
b. Acceptance of Opportunity. Distributor hereby accepts the right and opportunity herein granted and agrees to operate their business in accordance with the provisions of this Agreement including, without limitation, devoting all of its attention and effort and its business activities to the best of its ability to develop and promote the Company and Company products and services within their Territory. Distributor understands and agrees that its operation of their business must strictly comply with the Company's Methods and that it must offer the products and services specified by Company and may not offer products or services except with Company's consent.
c. Reservation of Rights. Nothing herein is intended to be construed so as to grant Distributor any right, title or interest in or to the Company's Methods, the Company products or services or the proprietary or confidential information or goodwill of Company, except such rights as may be specifically granted herein. Distributor understands and agrees that their opportunity to be a Distributor does not preclude Company from operating or extending opportunities to others to operate businesses utilizing the Company's Methods so long as it does not violate Distributor's rights as specified herein. Consistent with Section 5 herein, the aforementioned opportunity grants Distributor a limited area to operate their business in the Territory and, as such, Company may (i) own, operate, purchase or in any manner authorize the operation of another Distributor at any location inside or outside the Territory; (ii) operate or grant others the right to operate a Distributor Business on terms and conditions Company deems appropriate; (iii) develop, license, market and sell, under the Company’s trademarks or logotypes, or under other trademarks or logotypes, the Company’s products and services through similar or dissimilar channels of distribution, pursuant to terms and conditions Company deems appropriate; (iv) develop and establish other Distributor programs for the same or similar products utilizing the Company or similar trademarks, service marks or logotypes or other marks not now or hereafter designated as part of the Company's Methods and to grant Distributor Businesses in connection there without providing the Distributor any right therein; (v) upon the termination or expiration of this Agreement, offer and sell within the Territory (either by itself or through Distributors) the Company products and services which this Agreement contemplates Distributor will offer and sell.
d. Acknowledgement. Distributor acknowledges and agrees that Company shall have the right, now or in the future, to purchase, merge, acquire or affiliate with an existing competitive or noncompetitive distribution network, chain or any other business regardless of the location of that chain's or business' facilities, and to operate, franchise or license those businesses and/or facilities. Further, Distributor understands and agrees that the Company's Methods must not remain static if it is to meet (without limitation) presently unforeseen changes in technology, competitive circumstances, demographics, populations, consumer trends, and other marketplace variables, and if it is to best serve the interests of Company and Distributor. Accordingly, Distributor expressly understands and agrees that Company may from time to time (i) change the components of the Company's Methods including, but not limited to, altering the products, services, methods, standards, revenue share, policies and procedures of the Company's Methods, (ii) add to, delete from or modify those products, programs and services which the Distributor Business is authorized and required to offer, and (iii) change, improve, modify or substitute the Company trademarks and logotypes. In effecting (i), (ii) or (iii) above, Company agrees not to place unreasonable burdens on Distributor. Distributor expressly agrees to comply with any such modifications, changes, additions, deletions, substitutions and alterations and, Distributor shall accept, use and affect any such changes or modifications to, or substitution of, the Company's Methods as if they were part of the Company's Methods at the time that this Agreement was executed. Except as otherwise provided herein, Company shall not be liable to Distributor for any expenses, losses or damages sustained by Distributor as a result of any of the modifications contemplated hereby.
3. Independent Contractor
As a Distributor you are a self-employed independent contractor deciding, among other things, your schedule, how much time you wish to devote to your business, your expenses and methods of operation. As an independent contractor you are not an employee, agent, franchisee, fiduciary or beneficiary of the Company. You acknowledge that as an independent contractor, you will have no rights or benefits that an employee of the Company may have nor will you make any claim to the contrary.
Distributor will receive commissions from multiple revenue sources provided by Company. The commission percentage is determined by type of revenue source, Distributor position, and options purchased by Distributor. Company is continuously changing, improving, modifying, and adding to the revenue sources and commission structures. To see the latest revenue streams and commission structures, visit www.calculate.group and download the earnings calculator. Company agrees to make best efforts to keep the earnings calculator up to date and to not make meaningful changes without consulting Company's top distributors. It is the Distributors responsibility to stay current on revenue sources and commission structures by downloading and reviewing the earnings calculator on a regular basis.
a. Rights. Company appoints Distributor hereunder with respect to the sale of Company products and services to any purchasers whose principal place of business is located within Distributor’s territory (the "Territory"), which begins with the immediate 2-mile area surrounding an agreed-upon college or university. Prior to selling in any Territory, Distributor must receive written approval from Company to gain rights to sell in a specific Territory.
b. Best Efforts. Distributor shall use its best efforts to promote and sell the Company products and services to the maximum number of responsible customers in the Territory.
c. Sales Limited to Territory. Distributor shall not solicit business from any prospective purchaser with its principal place of business located outside the Territory. If Distributor receives any order from a prospective purchaser whose principal place of business is located outside the Territory, Distributor shall immediately refer that order to Company. Distributor shall not accept any such orders. Distributor may not deliver or tender (or cause to be delivered or tendered) any Company product or service outside of the Territory.
d. Modification of Territories. Distributor acknowledges that, as the Company grows, there might be a need to reorganize territories in order to best serve all Distributors. As such, Distributor agrees that the Company reserves the right, upon consultation with Distributor, to expand or reduce the Distributor’s Territory at any time.
e. Exclusivity. Territory owners have exclusive rights to the merchants and users they or their account executives have added within the defined territory area.
6. Distributor Duties
a. Distributor agrees to comply with all applicable requirements of federal, state and local laws, ordinances, administrative rules and regulations relating to Distributor’s performance of the obligations under this agreement.
b. Distributor will not use any employees of Company or materials referencing Company that have not been approved by Company. Distributor will make no representations or warranties relating to the Company product or services.
c. Distributor will be identified as an authorized agent of Company only with respect to the Company products or services and will otherwise be identified as an independent business. Neither Party will make any express or implied agreements, guarantees, or representations or incur any debt in the name of or on behalf of the other Party.
d. Distributor will, at all times, maintain a professional appearance and will not perform any duties set forth in this Agreement, while intoxicated in any manner or under the influence of any illegal drug.
e. Distributor will not use deceptive, illegal, misleading or unethical practices and will not make any false or misleading representations with regard to the Company or Company products and services.
f. All costs and expenses incurred by Distributor (including by way of example only, telecom, travel, office, staff and payroll, merchant consumables including but not limited to window stickers and counter displays, legal, apparel, technology and platform related fees) and all other marketing and sales expenses will be borne by Distributor and will not be reimbursed by Company.
g. In all dealings with third parties, including but not limited to, employees, suppliers and customers, Distributor shall disclose that it is in an independently owned and operated entity with rights to operate a Distributorship with Company as defined by this Agreement. Nothing in this Agreement is intended by the parties to create a fiduciary relationship between them, nor to constitute Distributor as an agent, legal representative, subsidiary, joint venturer, partner or employee of Company for any purpose whatsoever. It is understood and accepted that Distributor is an independent contractor and is in no way authorized to make any contract, warranty, or representation, or to create any obligation on behalf of Company. Neither Company nor Distributor shall guarantee the obligations of the other or in any way become obligated for the debts or expenses of the other.
h. Distributor shall have the unfettered right to appoint sub-representatives, agents and employees or other persons to assist in the carrying out of the duties under this agreement. Distributors shall be solely responsible for hiring, supervision, termination and other matters relating to sub-representatives, agents, employees or other such persons. It is strictly understood that all such persons are not agents, representatives or employees of the Company, and that Distributor shall hold the Company harmless and hereby indemnifies Company from any liability, including legal fees, arising from said persons. In any circumstances where Distributor’s agents require access, interaction, service, commissions, or funds that pass through Company’s platform, at no point should such interactions be seen to constitute a direct relationship between Company and Distributor’s sub-representatives, agents, employees or other such persons.
i. Distributor represents that no law or agreement with other parties that would prohibit Distributor from entering into this agreement with Company.
7. Company Obligations.
a. Company will compensate Distributor as described in Section 4.
b. Company may, but is not obligated to, provide and maintain personnel to adequately provide support with respect to its product and services.
a. Under this agreement, “Confidential Information” refers to any and all information of Company that has been disclosed to Distributor, which is designated in writing as confidential, proprietary, or secret or under the context of its disclosure ought to reasonably be considered as confidential. Confidential Information includes, but is not limited to, all information concerning Company’s existing business, business systems, business plans and information systems, trade secrets, pricing information, identities of third party contractors, software, hardware designs, algorithms, user interface designs, architecture, class libraries, objects and documentation, network designs, know-how and any related intellectual and intangible property rights throughout the world, and also including any derivatives, improvements, enhancements or extensions to software conceived, reduced to practice, or developed before, during or after the term of this agreement by or for Company.
b. Distributor agrees to use all reasonable efforts to protect unauthorized use or distribution of Confidential Information and Distributor agrees to use at least the same degree of care to prevent disclosing to third parties the Confidential Information as Company uses to protect its own Confidential Information. Distributor further agrees not to disclose or permit any third-party access to the Confidential Information.
c. Company owns all rights, title, and interest in and to all the Confidential Information. Except as explicitly stated in this agreement, Distributor is granted no license or conveyance of the Confidential Information or any intellectual property or intangible rights therein. Title to the Confidential Information shall remain solely with Company.
d. Distributor acknowledges and agrees that he will not compile, use, sell or otherwise distribute any lists containing Client Data other than as expressly permitted in this agreement. The foregoing restrictions on disclosure of Client Data will survive and continue in full force and effect indefinitely after the expiration or termination of this agreement. Distributor agrees and represents to Company that administrative, physical and technical safeguards will be used to preserve the integrity, confidentiality, and availability of all Client Data that is collected, received, transmitted, stored, used, and disclosed by Distributor.
e. Distributor will immediately notify Company in writing of all circumstances surrounding any possession, use, or knowledge of Client Data by any person or entity other than those authorized by this agreement. If Company should discover a security breach which impacts any Client Data or results in unauthorized third party disclosure or access to Client Data, Distributor agrees to immediately notify Company of such breach and provide reasonable assistance to and cooperate with Company in investigating the breach and Distributor agrees to provide the following information in writing to Company: (a) Identification of each Client who is the subject of the information that has been, or is reasonably believed by Distributor to have been accessed, acquired, or disclosed; (b) a brief description of the events; (c) date of the potential breach; (d) date of discovery; (e) type of information involved; and (f) any preliminary steps taken to mitigate the damage.
f. Upon termination of this agreement, Distributor will cease all use of the Confidential Information and will immediately destroy all such Confidential Information in his or her possession. Distributor will certify destruction upon written request from Company. Confidential information shall be destroyed by shredding, erasing, or otherwise modifying the data to make it unreadable or undecipherable through any means.
g. Distributor agrees that any unauthorized use or disclosure of the Confidential Information in a manner inconsistent with the terms of this agreement may cause Company irreparable damage for which remedies other than injunctive relief may be inadequate. Accordingly, if Distributor discloses or uses (or threatens to disclose or use) any Confidential Information in breach of the protections hereunder, then Company will have the right, in addition to any other remedies, to seek injunctive relief to enjoin such acts.
9. Term. This agreement will commence on the Effective Date and will continue in full force and effect until terminated by either Party.
10. Termination. Either Party may immediately terminate this agreement for convenience upon notice to the other Party. Upon termination of this Agreement, Distributor will immediately: (a) discontinue any and all uses of Client Data; (b) destroy any and all Client Data and other Confidential Information; (c) cease representation, in any manner, as a Distributor of Company; (d) help ensure that all merchants that are assigned to Distributor are reassigned to other Distributor(s) at Company’s sole discretion, in the most professional manner and with as little disruption as possible; and (e) no longer receive compensation from Company.
If Distributor breaches agreement for any reason, in lieu of terminating this agreement, Company has sole discretion to maintain the agreement with Distributor. In such circumstances, Company maintains sole discretion to terminate agreement with Distributor for said breach at any time in the future unless otherwise agreed upon in writing by Company to Distributor.
11. Non-Solicitation. In recognition of the support to be provided to Distributor, including access to Confidential Information, for the term of this agreement and thereafter for a period of 3 years following termination or expiration of this agreement, Distributor shall not contact or use Company’s customers, merchants and businesses, Distributors or personnel in any way except for the benefit of Company and with its express written approval.
12. Non-Disparagement. The Company and Distributor agree that, at all times during the Term and following the Date of Termination, they shall use reasonable and good faith efforts to ensure that neither party engages in any vilification of the other, and shall refrain from making any false, negative, critical or disparaging statements, implied or expressed, concerning the other, including, but not limited to, management style, methods of doing business, the quality of products and services, role in the community, or treatment of employees. The parties further agree to do nothing that would damage the other’s business reputation or good will and agree to compensate the other party if they breach this provision.
13. Indemnification. Distributor will, at all times, defend, indemnify and hold harmless Company, its officers, directors, successors and assigns (collectively, “Company Indemnified Parties”) from and against, and pay and reimburse the Company Indemnified Parties for, any and all liabilities, obligations, losses, damages, out-of-pocket costs or expenses arising out of or relating to claims of third parties with respect to (a) any alleged act or omission of Distributor in the performance of the activities contemplated hereby or any failure by Distributor to abide by any of the obligations set forth herein; (b) Distributor’s failure to comply with all applicable laws; and (c) Distributor’s gross negligence or willful misconduct under this Agreement. Further, Distributor acknowledges and agrees that the Company is a separate legal entity from the larger consumer social network platform, and hereby agrees to indemnify and hold harmless the larger social network and its officers, directors, successors from any liabilities, obligations, losses, damages, out-of-pocket costs or expenses arising out of or relating to claims from Distributor as well as from third parties.
a. Right of First Refusal
i. Notification of Offer. Distributor shall promptly notify Company in writing if Distributor, or any Person with an interest in Distributor, receives and desires to accept any bona fide offer to purchase all or any part of his or its interest in the Distributor Business or in Distributor, and the transfer would
1. result in a change in control of Distributor or of the Distributor Business, or
2. constitute a transfer of any interest held by a Person controlling Distributor or of the Distributor Business.
ii. Company's Right of First Refusal. Within 30 Business Days' after receiving notice of an offer from Distributor, Company may exercise this right of first refusal to buy from Distributor, or from the Person with the interest in Distributor, the interest subject to the proposed transfer on the same terms and conditions offered by the third party (except that Company or its designee shall be entitled to receive the representations and warranties customary to the sale of a similarly sized business and shall not be responsible for the payment of any broker commission or other transactional fee), by sending written notice to Distributor or the Person with the interest in Distributor, of Company's intent to exercise this right of first refusal.
iii. Expiration of Option. If within 30 Business Days of giving notice to Distributor or the Person with the interest in Distributor, Company has not entered a binding agreement to buy the interest subject to the proposed transfer, Distributor, or the Person holding the interest in Distributor, may offer the interest to the original offeror or to any other third party, free from Company's right of first refusal.
b. Transfer by Company. Company may freely and fully transfer its interests under this agreement, to inure to the benefit of the transferee or other legal successor to Company's interests.
c. Transfer by Distributor.
i. Acknowledgement of Personal Nature of Agreement. Distributor acknowledges that the rights and duties created by this Agreement are personal to Distributor (or its shareholders or partners if Distributor is a corporation or partnership), and that Company has entered into this Agreement in reliance upon Company's perceptions of the individual or collective character, skill, aptitude, attitude, business ability, and financial capacity of Distributor (or its shareholders, members, managers, or partners).
ii. No Transfer Without Company's Consent. Distributor may not transfer this agreement or any part of its interest under this agreement without Company's written consent.
iii. Unauthorized Transfer Constitutes Breach by Distributor. If Distributor transfers this agreement or any interest under it without Company's consent,
1. Distributor will be deemed in breach of this agreement, and
2. the transfer will be deemed void and of no effect.
d. Conditions for Approval of Transfer. Company will not be required to approve a proposed transfer unless Distributor (and its owners) are in full compliance with this agreement, and the following conditions are met before Company's approval of the transfer:
i. the transferee has sufficient business experience to operate the Distributor Business;
ii. Distributor has paid all fees due under this agreement;
iii. Distributor executes a general release of all claims by Distributor against Company;
iv. the transferee executes a written assumption of all Distributor's rights, duties, and obligations under this agreement; and
a. Severability. If any provision of this agreement is held invalid, illegal or unenforceable by a court of competent jurisdiction, the remainder of the agreement will be valid and enforceable and the Parties will negotiate in good faith a substitute, valid and enforceable provision which most nearly puts into effect the intent of the Parties.
b. Entire Agreement. This agreement and the attachments hereto represent and constitute the entire agreement between the Parties, and supersede and merge all prior negotiations, agreements, and understandings, oral or written, with respect to all matters between the Distributor and Company.
c. Update to terms. Company reserves the right to update the terms of this agreement frequently, at any time and at its own discretion, without prior notice to Distributor. Distributor agrees that they are reponsible for staying up to date on the latest terms, which will be updated and accessible to Distributor here: https://Positions.college/Terms and agrees to terminate the agreement if the updated terms are no longer acceptable to them.
d. Risks. Distributor acknowledges that the success of the business venture contemplated to be undertaken under this agreement is speculative, involves business risks, that there is no guarantee against possible loss, that no assurance of success has been or can be given to Distributor and that the most important factors in success of the Distributor Business are the skill, effort and business acumen of Distributor. As a result, the Distributor has conducted a thorough independent investigation of the Company's methods including analyzing the business opportunity being offered by this agreement and the terms and conditions of this agreement. Distributor agrees to use its best efforts and adequate time to attempt to achieve success and it will follow all of the elements of Company's Methods.
e. Class Action Waiver. Company and Distributor waive any right to assert any claims against the other party as a representative or member in any class or representative action. To the extent either party is permitted by law or court of law to proceed with a class or representative action against the other, the parties agree that: (i) the prevailing party shall not be entitled to recover attorneys’ fees or costs associated with pursuing the class or representative action (not withstanding any other provision in this agreement); and (ii) the party who initiates or participates as a member of the class will not submit a claim or otherwise participate in any recovery secured through the class or representative action.
f. Arbitration. All claims and disputes arising under or relating to this agreement are to be settled by binding arbitration in the state of California.
g. Governing Law. The Parties hereby agree that this agreement is governed by the laws of the United States and the state of California, without reference to rules governing choice of laws. If any dispute arises concerning this agreement, venue shall be laid exclusively in the state and federal courts of San Diego County, California which shall have exclusive jurisdiction over such dispute and the Parties consent to the personal jurisdiction of such courts.
h. Notices. All notices, demands or other communications required or permitted to be given under this agreement by either Party to the other may be affected either by personal delivery in writing or by email. Notices delivered personally will be deemed communicated as of actual receipt. Emailed notices will be deemed communicated as of two (2) days after mailing.
i. Cost. Unless otherwise expressly stated in writing, Distributor is required to pay a monthly support fee beginning from the Effective Date of agreement and every 30 days thereafter. Support fees are non-refundable, unless agreed to elsewhere. Failure to pay the monthly support fee will result in a material breach of this agreement resulting in termination. Any additional costs incurred by Distributor as of Effective Date are done so at Distributor’s discretion. Amount of support fees may change at Company’s discretion, but Company will not be unreasonable if it changes the amount of the monthly support fee.
In addition to the required monthly support fee, Distributors can make optional purchases provided by the Company to receive higher commissions and other benefits. Failure to stay current on monthly payments for these options will result in the loss of all benefits associated with such options until Distributor becomes current again. These options are non-refundable unless otherwise agreed to in writing.
j. Non-performance. Other than any nominal set-up and/or monthly platform fees that may have applied, Company has waived all distributor and related fees in order to provide this opportunity to Distributor. As such, Company reserves the right, at its sole discretion, to transfer merchants away from Distributor or terminate agreement with Distributor outright. Reasons for such actions by Company could include, but are not limited to, Distributor not maintaining a minimal level of satisfactory participation which includes, but is not limited to, regularly activating new merchants, communicating and servicing existing merchants on a monthly basis to ensure they are happy and satisfied with their interactions with the Company’s products and services. increasing the user count on a monthly basis, and generating consistent revenues for the merchants.
An ‘activated merchant’ is hereby defined as a participating merchant with a physical location that has been expressly approved by the Company, has agreed to provide a discount to the Company’s consumers, has been sufficiently trained to do so via operating the point-of-sale payment mechanisms provided by Company, has agreed to allow the Company to collect payments from consumers and reimburse the merchant according to the Company’s merchant payment terms, and has installed window sticker(s) and a counter display to notify consumers of their participation.
In addition to these minimum standards, at is sole discretion Company intends to continuously add to and update the minimum performance requirements for Distributors, after consulting with some of its Distributors. Company will do its best to notify Distributor of any changes to the minimum performance requirements, but it is the responsibility of the Distributor to stay up to date with all such minimum requirements, especially by attending national calls. Distributors that fail to meet minimum performance standards will be subject to termination, at the sole discretion of Company. Distributor understands that no refunds of any fees will be provided to terminated Distributors.
k. Reporting structure. While Distributor is an independent contractor, Distributors will be required to report to other Distributors as assigned by the Company.
In the event that a Distributor is removed from the Distributor reporting structure for any reason, it is their responsibility to find another Distributor to report to based on their designated position. Failure to find another Distributor to report within the management hierarchy, within thirty days, may be deemed as a breach of this agreement.
16.Guaranteed Business Success Program
a. The Guarantee. The Company guarantees it will provide the Distributor with merchant appointments within a reasonable amount of time. If the company is unable to secure any merchant appointments for the Distributor within any contiguous forty five (45) day period, where the territory owner has provided reasonable availability with a minimum of ten weekly time slots within business hours during that forty five (45) day period, they are eligible for a pro-rated refund of any unused TDS Units.
Distributor Payments and Taxes
All compensation earned by Distributor will be paid directly to Distributor’s platform account balance within 7 days from the moment the earning was achieved.
Cash outs will be delivered to Distributor within 7 days or less from the date of cash out request.
Distributor shall be responsible for all taxes arising from compensation and other amounts paid under this Agreement and shall be responsible for all taxes. Neither federal, nor state, nor local income tax, nor payroll tax of any kind, shall be withheld or paid by the Company on behalf of Distributor. Distributor understands that he/she is responsible to pay, according to law, Distributor’s taxes and Distributor shall, when requested by the Company, properly document to the Company that all federal and state taxes have been paid.