RESIDENT COUNTRY PRODUCT PURCHASE AGREEMENT / AUTOMATIC RE-ORDERING PROGRAM ENROLLMENT AGREEENT / ARBITRATION AGREEMENT
This document consists of five sections: (A) Definitions, (B) Distributor and International Sponsor Agreement, (C) Resident Country Product Purchase Agreement, (D) Mandatory and Binding Arbitration Agreement, and (E) Miscellaneous Provisions. The Resident Country Product Purchase Agreement is between Nu Skin Thailand and me. The Distributor and International Sponsor Agreement is between NSI and me. The Mandatory and Binding Arbitration Agreement and Miscellaneous Provisions are between Nu Skin Thailand, NSI and me.
A. Definitions
Defined terms are set forth below or may be separately defined in any of the following agreements. The meaning of capitalized terms not found in this document is set forth in the Policies and Procedures.
“Bonuses” means the compensation paid to Distributors based on the volume of Nu Skin Products sold by a Distributor, Downline Organization, and breakaway Executives upon meeting all requirements as set forth in the Sales Compensation Plan. Nu Skin Thailand has been assigned the right to pay Bonuses to Distributors in the Resident Country.
“Business Portfolio” means a kit which contains the Policies and Procedures, the Sales Compensation Plan, a Distributor Agreement, and other sales and demonstration materials to assist a Distributor in starting and conducting their independent business.
“Contract” means the agreements between Nu Skin and me composed of this Distributor Agreement and the PPA (as each is defined below). Wherever the context will so require, all words are deemed to include the plural as well as the singular, and to include all genders.
“Distributor” means an independent contractor authorized by NSI to market Nu Skin Products, recruit other Distributors, and receive Bonuses in accordance with the requirements of the Sales Compensation Plan.
“Distributor Agreement” means the Distributor and International Sponsor Agreement (Section B) which also incorporates the Mandatory and Binding Arbitration Agreement (Section D), the Miscellaneous Provisions (Section E), the Policies and Procedures, the Sales Compensation Plan, and materials pertaining to optional programs, as each may be amended from time to time by NSI upon notification. This Distributor Agreement will be stored in the United States.
“Non-Resident Country” means an Authorized Country other than my Resident Country.
“NSI” means Nu Skin International, Inc., a Utah corporation, at 75 West Center Street, Provo, Utah 84601, U.S.A..
“Nu Skin” means Nu Skin International, Inc., Nu Skin Thailand and their affiliated companies.
“Nu Skin Products” means the products and services of NSI’s affiliated company that are sold through local affiliates in the individual Authorized Countries.
“Nu Skin Thailand” means Nu Skin Enterprises (Thailand) Limited, an affiliated company of NSI, registered in Thailand with business address at 319 Chamchuri Square Building, 15th Floor, Phayathai Road, Patumwan, Bankgkok, Thailand 10330.
“Policies and Procedures” means the policies, as part of the Contract, that governs how I, as a Distributor, am to conduct my business and defines the rights and relationships of the parties. It is available in the Business Portfolio and may be amended from time to time by Nu Skin upon notification.
“PPA” means the Resident Country Product Purchase Agreement (Section C) which also incorporates the Mandatory and Binding Arbitration Agreement (Section D), the Miscellaneous Provisions (Section E), and the Policies and Procedures, as each may be amended by Nu Skin Thailand from time to time upon notification.
“Resident Country” means Thailand in which I, if an individual, am a citizen or a lawful resident and whose Distributor Agreement I have executed; or, if a Business Entity, such as a corporation, partnership, limited liability company, or any other form of business organization, then Thailand is
where it has been legally formed under its laws, and each member of the Business Entity or Distributorship with joint participation has proper legal authorization to conduct business in Thailand, and a Distributor Agreement has been executed.
“Sales Compensation Plan” means the specific plan that outlines the details and requirements of the compensation structure for Distributors. It is available in the Business Portfolio and may be amended from time to time by NSI upon notification.
B. Distributor and International Sponsor Agreement
This Distributor and International Sponsor Agreement is between Nu Skin International, Inc., a Utah corporation, 75 West Center Street, Provo, Utah 84601, USA (“NSI”) and me. NSI and I agree and understand that this Distributor Agreement constitutes a distinct and separate agreement from my agreements with Nu Skin Thailand.
1. Right to Market Nu Skin Products and Sponsor in my Resident Country
Subject to the terms and conditions of this Distributor Agreement, NSI grants to me (a) the right to be a Distributor and market Nu Skin Products in my Resident Country through person-to-person sales, and (b) sponsor new distributors in my Resident Country. I agree that this Distributor Agreement will be accepted in Utah, USA.
2. Independent Contractor
(a) I acknowledge and agree that as a Distributor, I am an independent contractor and not an employee of Nu Skin. As an independent contractor, I will:
• be self-employed, and determine in my sole discretion, when I work and the number of hours I work; be paid Bonuses based on purchases and sales and not the number of hours that I work;
• be subject to entrepreneurial risk and responsible for all losses that I incur as a distributor;
• pay my own license fees and any insurance premiums (if applicable);
• be responsible for all costs of my business including, but not limited to, travel, entertainment, office, clerical, legal, equipment, accounting, and general expenses, without advances, reimbursement, or guarantee from Nu Skin;
• not be treated as an employee for tax purposes; and
• pay any self-employment taxes required by local laws, statutes, and regulations.
(b) I am not an employee, agent, or legal representative of Nu Skin, and except as permitted by the Contract, I am not authorized to act on behalf of Nu Skin. Nothing in the Contract is intended or will be deemed to constitute a partnership, agency, employer-employee, or a joint venture relationship between Nu Skin and me.
3. Bonuses
(a) I will be paid Bonuses for the sale of Nu Skin Products. I understand and agree that, in order to be eligible to receive Bonuses, I must meet all requirements outlined in the Sales Compensation Plan, including retail sales, and not be in violation of the terms of the Contract.
(b) I will not purchase any Nu Skin Product solely for the purpose of qualifying for Bonuses. I agree that prior to placing a subsequent product order, I will have resold previously ordered Nu Skin Products and documented the sales to at least five retail customers each month, and sold or consumed at least 80% of any previous orders.
(c) I agree that part of the consideration for me to receive Bonuses and recognition is based on my agreement to spend considerable time to (i) train, encourage, supervise and assist my Downline Organization in its efforts to sell Nu Skin Products to retail customers, (ii) personally sell Nu Skin Products, and (iii) promote the business.
4. International Sponsor Agreement for Sponsoring in Non-Resident Countries (“ISA”)
(a) Right to Sponsor in Non-Resident Countries
NSI grants to me the right to sponsor new distributors in Non-Resident Countries. This ISA does not grant me the right to market Nu Skin Products in Non-Resident Countries.
(b) Laws of Non-Resident Countries
I acknowledge that every Non-Resident Country may have specific laws and requirements applicable to me as a sponsor of distributors in that Non-Resident Country, and I agree to comply with all laws, statutes and regulations of that Non-Resident Country, including but not limited to, all immigration, visa, and registration requirements.
5. Purchase of Nu Skin Products in Non-Resident Countries
I agree that I may purchase Nu Skin Products in a Non-Resident Country only from NSI’s affiliated company designated as the exclusive wholesale distributor in that Non-Resident Country. I further agree that (i) I may only purchase Nu Skin Products in a Non-Resident Country for personal use or to demonstrate to potential new distributors, and that I will not resell them, (ii) I have not, and will not, either directly or indirectly, sell or distribute any Nu Skin Products in a Non-Resident Country, and (iii) I will comply with all applicable laws regarding the purchase of Nu Skin Products in a Non-Resident Country.
6. Integrated Agreement
This Distributor and International Sponsor Agreement is an integrated agreement which consists of the terms in this Section B, the Mandatory and Binding Arbitration Agreement (Section D), the Miscellaneous Provisions (Section E), the Policies and Procedures, the Sales Compensation Plan, and materials pertaining to optional programs, as each may be amended from time to time by NSI upon notification, and are incorporated herein by reference.
7. Inactive Account
I agree that NSI may terminate my Distributorship without notice if I have not engaged in any Business Activity on my account for a period of 12 or more consecutive months. After termination, I may apply to become a Distributor again by submitting a new Distributor Agreement.
C. Resident Country Product Purchase Agreement (“PPA”)
This PPA is between Nu Skin Thailand and me. Nu Skin Thailand is the exclusive wholesale distributors of Nu Skin Products in Thailand. Nu Skin Thailand and I agree and understand that this PPA constitutes a distinct and separate agreement from my agreements with NSI.
1. Services Provided in Resident Country
Under this PPA, Nu Skin Thailand will offer to me, as an independent contractor (as defined in Section B above), Nu Skin Products for wholesale purchase in Thailand. I agree that I may only market these Nu Skin Products in Thailand. Additionally, Nu Skin Thailand will provide me with the following services in my Resident Country: (i) accept orders for and distribute Nu Skin Products to customers and Distributors in the Resident Country, (ii) handle all returns of Nu Skin Products purchased in the Resident Country and make appropriate refunds, (iii) provide support services to Distributors, and take any necessary actions pursuant to the policies of NSI, and (iv) pay Bonuses to Distributors in the Resident Country as determined and directed by NSI, and as further described in this Section C paragraph 5 below. I understand that NSI has appointed and granted the authority to Nu Skin Thailand to pay my Bonuses, recharge Bonuses to NSI, pay Bonuses in my Resident Country in the name of Nu Skin Thailand, and act on behalf of NSI and its affiliated companies with respect to me as a Distributor.
2. Marketing and Pricing of Nu Skin Products
I agree that: (a) there are no minimum purchases or inventory requirements; (b) I have the right to purchase Nu Skin Products at wholesale price from Nu Skin Thailand; (c) I will promote the retail sale of Nu Skin Products in my Resident Country in accordance with the terms and conditions of the Contract; and (d) I will not make any claims about the Nu Skin Products and Sales Compensation Plan unless they are contained in official company literature or on company labels of Nu Skin Products in my Resident Country. I have the right to purchase Nu Skin Products at the price stated by Nu Skin Thailand and agree that Nu Skin Thailand may change product prices without prior notice.
3. Refunds
Pursuant to the refund policy in the Policies and Procedures and subject to any special terms disclosed at the time of purchase, Nu Skin Thailand after deducting an administrative fee equivalent to 10% of the price, will refund to you ninety percent (90%) of the price, less applicable Bonuses plus any prepaid applicable VAT on unopened and resalable Products and Business Support Materials produced and sold by the Company that are returned within (i) twelve (12) months in the case of Nu Skin personal care products and Pharmanex products; or (ii) 30 days in the case of Business Support Materials, of the order date. Refund shall be made by the Company within 15 days from your request. .
4. Automatic Re-Ordering Program Enrollment Agreement
(a) If I have elected to participate in an Automatic Re-Ordering Program (“ARO Program”) for specified type and quantity of Nu Skin Products that I desire to receive each month automatically, then these Nu Skin Products will be charged on a recurring monthly basis to my designated credit card or bank account, and they will be collected by me or delivered monthly to my listed delivery address unless I notify Nu Skin Thailand in writing at the address set forth above one month in advance of any desired changes.
(b) Nu Skin Thailand may change the price of or discontinue the specific Nu Skin Products that I have chosen to receive under an ARO Program. In such situations, Nu Skin Thailand will notify me of the change and (i) in the case of a discontinued Nu Skin Product, will continue to send me the remaining items, and may substitute another product of equal or greater value, and (ii) in the case of a price change or updated product, will send me the same items I have selected under the ARO Program, but at the new price, unless I direct Nu Skin Thailand to revise my monthly order.
(c) To pay for each monthly ARO order, I authorize Nu Skin Thailand to establish an automatic debit arrangement to my credit card or bank account according to the credit card or bank account information I provided. Nu Skin Thailand will make no other charge to my designated payment account except those that I have authorized (sales tax charges, if any, may fluctuate in accordance with changes in applicable sales tax rates).
(d) I agree that if any Nu Skin Products from a qualifying purchase are returned, the balance of the qualifying amount for the month in which Nu Skin Products are returned must be repurchased in order to remain qualified and receive ARO Program points.
(e) I agree that Nu Skin Thailand may terminate (i) the ARO Program at any time and for any reason; and (ii) my right to participate in the ARO Program under this agreement if (A) the credit card or bank authorization provided by me expires, is cancelled or otherwise terminated, (B) I violate the terms and conditions of the Contract, or (C) NSI terminates my distributorship. I may cancel my monthly ARO Program order upon one month prior written notice to Nu Skin Thailand.
(f) I understand that if I do not wish this agreement to be automatically renewed under the same terms and conditions at its expiry date, I must notify Nu Skin Thailand in writing one month prior to the expiry date of this agreement, otherwise, Nu Skin Thailand has the right to automatically renew my order made under the ARO Program with the same terms and condition of this agreement, including but not limited to debiting my credit card or bank account every month in accordance with the above paragraph (a) of this agreement.
(g) I understand and agree that Nu Skin Thailand shall charge to my credit card or bank account an administration fee of 400 baht in case of early termination of an ARO Program.
5. Bonuses
(a) I authorize Nu Skin Thailand, as determined and directed by NSI, to deposit the payment of any Bonuses to my account at the financial institution designated by me. This authorization replaces any previous authorization and will remain in full force and effect until (i) Nu Skin Thailand has received written notice from me of my withdrawal from the direct deposit program, and (ii) Nu Skin Thailand has a reasonable opportunity to make such a change pursuant to my notice.
(b) I agree that I must notify Nu Skin Thailand immediately (i) prior to changing or closing my direct deposit account, or (ii) if my financial institution changes my routing number or account number. Failure to notify Nu Skin Thailand of account number changes may delay my receipt of Bonuses. If I change my financial institution and/or account number, I must notify Nu Skin Thailand in writing before I close my existing account.
(c) Neither NSI nor Nu Skin Thailand will be liable to me for Nu Skin Thailand’s failure to access my account or provide direct deposits to my account in a timely manner unless such failure or loss is a direct result of Nu Skin Thailand’s gross negligence or intentional misconduct. Nu Skin’s liability will not exceed the amount of the funds that would have otherwise been deposited.
6. Integrated Agreement
This PPA is an integrated agreement which consists of the terms in this Section C, the Mandatory and Binding Arbitration Agreement (Section D), the Miscellaneous Provisions (Section E), and the Policies and Procedures, as each may be amended by Nu Skin Thailand from time to time upon notification, and are incorporated herein by reference.
D. Mandatory and Binding Arbitration Agreement
This is a mandatory and binding arbitration agreement between NSI, Nu Skin Thailand and me.
1. THE CONTRACT IS SUBJECT TO ARBITRATION. UTAH WILL BE THE EXCLUSIVE VENUE FOR ARBITRATION OR ANY OTHER RESOLUTION OF ANY DISPUTES ARISING UNDER OR RELATED TO THE CONTRACT. The place of origin of the Contract is the State of Utah, USA, and it will be governed by, construed in accordance with, and interpreted pursuant to the laws of Utah, without giving effect to its rules regarding choice of laws. The exclusive venue for any and all Disputes and jurisdiction will be in Salt Lake County, Utah. I consent to the personal jurisdiction of any court within the State of Utah and waive any objection to improper venue.
2. I agree that any Dispute will be resolved and settled in accordance with and pursuant to the terms and conditions of this Contract, and by the rules and procedures set forth in Chapter 7 (Arbitration) of the Policies and Procedures or may be viewed online in the My Office section of a company web site. The arbitration proceedings will be conducted in Salt Lake City, Utah. The arbitration will be conducted in the English language, but at the request and expense of a party, documents and testimony will be translated into another language. One arbitrator will be appointed to hear and decide disputes, which arbitrator will be selected by consent of all parties. The parties will each bear their own costs and expenses and an equal share of the (i) cost of the arbitrator and (ii) administrative fees of arbitration. Neither the parties nor the arbitrator may disclose the existence, content, or results of any arbitration without the prior written consent of both parties. Judgment on any award rendered by the arbitrator may be entered in any court having jurisdiction.
3. A “Dispute” is defined as “any and all past, present or future claims, disputes, causes of action or complaints, whether based in contract, tort, statute, law, product liability, equity, or any other cause of action, (i) arising under or related to the Contract, (ii) between other Distributors and me arising out of or related to a Distributorship, or our business relationships as independent contractors of NSI, (iii) between Nu Skin and me, (iv) related to Nu Skin or its past or present affiliated entities, their owners, directors, officers, employees, investors, or vendors, (v) related to the Nu Skin Products, (vi) regarding Nu Skin’s resolution of any other matter that impacts my Distributorship, or that arises out of or is related to Nu Skin’s business, including my disagreement with Nu Skin’s disciplinary actions or interpretation of the Contract”.
4. I agree to accept and be bound by thIS Arbitration Agreement if I access any NU SKIN web site, and use the information therein, or by the purchase of any Nu Skin Products made available through said web sites, or the purchase of any Nu Skin products from Nu Skin Thailand, or if I receive a Bonus.
E. Miscellaneous Provisions
1. Representations and Warranties
I represent and warrant that I am authorized to enter the Contract, that I have met all legal requirements to enter a valid contract in my Resident Country, and when executed and delivered by me and accepted by NSI and Nu Skin Thailand as described herein, the Contract constitutes a legal, valid and binding obligation. I also represent and warrant that: (a) the information that I provided in the Contract is accurate and complete and if I have provided any false or misleading information, NSI or Nu Skin Thailand shall have right, at its election, to declare their respective parts of the Contract void from its inception; (b) the identity card number and business registration number (if applicable) that I provided is my correct identity card number and business registration number (if applicable) in my Resident Country; (c) if an individual, I am a citizen or a lawful resident of my Resident Country;
(d) if a Business Entity, such as a corporation, partnership, limited liability company, or any other form of business organization, it is legally formed under the laws of my Resident Country, and that each member of the Business Entity has proper legal authorization to conduct business in the Resident country; and (e) if an individual adding other individual(s) to participate jointly, but not through a Business Entity, all such Participants are citizens or lawful residents of my Resident Country. I represent and warrant that neither I nor my partner/spouse/Co-habitant (or if a corporation or other business organization any participant therein who is or should be listed on the Business Entity Form; or in case of joint participation, any participant therein who is or should be listed in the Joint Participation Form) have been engaged in Business Activity in another Nu Skin distributorship in the six months (one year in the case of those having held an executive equivalent or higher pin-title under the Sales Compensation Plan) immediately preceding my sign up under my Sponsor as I identified in this Distributor Agreement.
2. Authorization to Transfer Personal Information
In order for NSI or Nu Skin Thailand to provide support for my Nu Skin distributorship, I authorize them to transfer and disclose personal and/or confidential information, which (a) I have provided to either NSI or Nu Skin Thailand in connection with my distributorship and Downline Organization, or (b) that has been developed as a result of my activity as a Distributor, to (i) its parent and affiliated companies wherever located, (ii) and to my Nu Skin independent upline Distributors when necessary to ensure proper upline support, and (iii) to applicable government agencies or regulatory bodies if required by law. I acknowledge no transfer and disclosure of such information is deemed to constitute any wrongful act against me. I further authorize NSI or Nu Skin Thailand to use my personal information for Distributor recognition and marketing materials.
3. Acceptance of Contract
(a) Acceptance by NSI
The effective date of this Distributor Agreement will be the date it is accepted by NSI, which will be (i) the date that an original hard copy of this Distributor Agreement is received and accepted by NSI and a computer record is made of my distributorship account by NSI or (ii) the date a temporary account is set up, and in NSI’s discretion, my subsequent actions indicate an ongoing intent to pursue the business. The temporary account may be terminated by NSI, at its discretion, if an original hard copy of this Distributor Agreement is not received and accepted by NSI within ninety (90) days from the date a temporary account is set up.
(b) Acceptance by Nu Skin Thailand
I agree that Nu Skin Thailand acceptance of the PPA will occur when it accepts my first order of Nu Skin Products.
4. Indemnity and Limitation of Liability
(a) Indemnity
I will indemnify and hold Nu Skin, and each of their shareholders, officers, directors and employees harmless from and against any claim, demand, liability, loss, action, causes of action, costs, or expenses, including, but not limited to, reasonable attorney’s fees, resulting or arising from, directly or indirectly, any acts or omissions by me in conducting my independent distributor business, including without limitation, breach of representations and warranties, material breach of the Contract and other agreements between the parties, or any other claims or causes of action.
(b) Limitation of Liability
I agree that Nu Skin will not be liable for any special, indirect, direct, incidental, punitive, or consequential damages, including loss of profits, arising from or related to the breach of the Contract or other agreements between the parties. I agree that the entire liability of Nu Skin for any claim whatsoever related to my relationship with Nu Skin, including but not limited to any cause of action arising in contract, tort, or equity, will be limited to the cost of Nu Skin Products that I have purchased from Nu Skin Thailand.
5. Inconsistency
In the event of any conflict between any terms in this document and the Policies and Procedures, the Policies and Procedures will prevail to the extent of the inconsistency.