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Contract
JWANAIX GROUP, LLC. Independent Agent
Contractors Agreement
This Independent Contractor Agreement (“Agreement”) is made and effective as of the date indicated on the signature page by and between Jwanaix Group LLC, and/or its Affiliates (hereinafter referred to as (“JG”), and the undersigned individual (hereinafter referred to as the “Member” or Independent Contractor). Fees paid for this Independent Contractor Agreement are non-refundable and non-transferable.
WHEREAS, the individual desires to become an Independent Contractor and not an employee of JG and this agreement does not create an employment, agency or any other type of relationship between JG, which will be composed of a group of independent Contractor’s “members” and its affiliates; and
WHEREAS, JG has established a contractual relationship with one or more companies (collectively, the “Product Providers”, or individually, a “Product Provider”) authorizing JG or the members of JG to market and sell various Products and Services and to recommend and designate members of JG for appointment with the Product Providers as independent sales representatives with respect to such various Products and Services once properly licensed; and
WHEREAS, JG is continually recruiting new members to JG and desires to have the Member become a member of JG by entering into a written agreement with the Member which establishes and defines the terms and conditions of the Member’s Independent Contractor Agreement with JG;
NOW, THEREFORE, in consideration of the premises, the mutual promises and covenant sin this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties, and intending to be legally bound hereby, JG and the Member agree as follows;
Member hereby understands, agrees, represents, warrants, and acknowledges that:
1. Membership in JWANAIX GROUP, LLC (JG) and Its Affiliates 1.1. The Member understands that JG has the right to contract for the conditions pertaining to his/her relationship with JG.
1.2. Member is of the legal age of majority in the state or commonwealth in which the member resides on the day the member signs this Agreement and is otherwise competent to enter into this Agreement. By virtue of entering into this Agreement and consummating the transaction contemplated hereby, or otherwise, Member is not, and will not, be in breach of, violate, or interfere with, any other contract, agreement, business relationship or obligation which member has with a third party, company, agency, association, firm, person, corporation, or other entity.
1.3. Member hereby confirms that Member is eligible to operate a business lawfully in the United States. Member shall hold harmless and indemnify JG, its affiliates and their respective directors, officers, employees and agents for any damages or losses (including penalties, interest, and legal fees) arising from or relating to Member’s breach of the covenant in this Section.
1.4. Member has not engaged, and will not engage, in any business, practice or behavior or take any action which has resulted, or will result, in any violation of any restriction or covenant to which Member is subject pursuant to any agreement. Member shall comply with all applicable anti-money laundering laws, rules, regulations, and government guidance, including any reporting, recordkeeping, or compliance requirements. These include requirements to identify and report currency transactions and suspicious activity, to verify customer identity and to conduct customer due diligence. Member agrees to comply with JG’s and each Product Provider’s anti-money laundering policies and reporting requirements.
1.5. Member shall comply with all anti-corruption laws and will not make any bribes or engage in any other unlawful or improper methods of remuneration to any person. Member also agrees to immediately report to JG any violations of the anti-corruption laws or suspicions that improper conduct was engaged to obtain business and understands that JG prohibits retaliation in any form against any Member who has, in good faith, raised or reported such a violation or conduct. Member agrees that by signing this Agreement that Member is certifying compliance with JG and HIPAA Business Associate Provisions and Data Protection Framework, Member further acknowledges Members’ understanding and agreement to the separate, standalone Mutual Agreement to Arbitrate Claims Agreement that follows this Agreement.
1.6. It is understood that in agreeing to provide services as a member under this Agreement, Member shall be acting and shall always act as an independent contractor and not as an employee of JG or its Affiliated Companies for any purpose whatsoever,
including without limitation, for purposes relating to taxes, payments required by statute or any other withholdings or remittances to any governmental agency or authority. Neither this Agreement, the relationship created between the Parties pursuant to this Agreement, nor any course of dealing between the Parties is intended to create, or shall create an employment relationship, a joint venture, partnership, or any similar relationship. Member does not have authority to bind JG in any contractual obligation outside of the authority described in this Agreement. Member shall conduct and control Member’s business activities, including but not limited to, schedule, work hours, customer prospects, office location, geographic area, Assistant, and administrative support (if any), expenses, and business strategies and methods, subject to all applicable local, state, commonwealth and federal laws and regulations, this Agreement, and any other contract(s) between the Member and JG. So far as it is not inconsistent or in conflict with the terms of this Agreement, Members that are below the level of Vice president are free to engage in any other remunerative contract, calling or occupation during the duration of this Agreement, including providing services to other businesses besides JG. The Parties shall operate their respective businesses separately and independently of each other throughout the duration of this Agreement, subject to required insurance industry regulatory oversight from JG. Vice president and above are prohibited from engaging in outside business activities that offer the same services as JG.
1.7. Member shall be responsible for providing Member’s own office, telephone, furniture, equipment, Leads, supplies, transportation, and such other facilities as Member in his/her discretion, may deem necessary or appropriate, and Member shall be solely responsible for all expenses incurred by Member, including but not limited to training, travel, entertainment, office, signs, telephone, education, dues, subscriptions, insurance licenses, business licenses, taxes, and Assistants, if any, and Assistants’ expenses, taxes, etc. Member acknowledges that Member shall receive no remuneration or reimbursement of any nature whatsoever for such expenses.
1.8. Member shall have the right to hire and engage employees (including Assistants) perform the services contemplated by this Agreement. Member is solely responsible for paying all compensation owed to Its employees and for paying, and/or withholding and remitting to the appropriate government agency (ies), any applicable taxes that might be owed with respect to such compensation. Member agrees its employees, if any, shall comply with the terms of this Agreement, including compliance with protection or use of Confidential Information or Trade Secrets, as provided herein.
1.9. Member will not use, disseminate, or reveal, other than on behalf of JG as authorized by JG or the Product Providers, any Confidential Information or Trade Secret of JG or of the Product Providers, which Member has or hereafter receives. Member agrees that immediately upon the termination of this Agreement, Member will return all documents and electronically stored information containing any Confidential Information or Trade Secret to JG and the same shall not be copied or duplicated.
1.10. Member shall not make any disparaging remarks that damage the good name or reputation of JG, Affiliated Companies and/or their respective officers, directors, agents, and employees.
Nothing in this agreement prevents a member from discussing or disclosing information as required by law.
1.11. Member agrees that any and all “Personally Identifiable Information” or “PII” collected, accessed, stored, or transmitted by Member or Member’s Assistants, if any, on behalf of, or from JG and/or Product Providers in connection with the performance of Member’s services under this Agreement shall be used only as necessary to perform Member services under this Agreement. Member shall not collect, access, store, transmit or otherwise disclose PII for any other purpose, or to any person other than JG, Product Providers, or the individual who is the subject of the PII unless specifically authorized in writing by JG, Product Providers, or the individual who is the subject of the PII, or as otherwise permitted by law.
1.12 By entering into this Agreement with, or otherwise becoming an independent contractor of JG, Agent expressly consents to being contacted by JG and its agents, representatives, and third party service providers via telephone, fax, email, mail, text message or other reasonable means, at any of Agent’s contact numbers, addresses, or email addresses, regardless of whether Agent is listed on any federal, state, commonwealth, provincial or other applicable “Do Not Call” list, with regards to the enforcement of any of the terms and conditions under this Agreement or for other purposes reasonably related to the relationship formed under this Agreement with JG. This provision survives termination of this Agreement.
1.13 Member shall cooperate fully and provide assistance to Member in the investigation and resolution of any complaints, claims, actions or proceedings that may be brought by or that may involve Member or Member’s employees or contractors and JG.
1.14. Member shall not, in connection with any personal entity or activity, joint venture, partnership or corporation, appropriate or use JG’s or Affiliated Companies’ servicemark(s) or trademark(s), name(s) or any phrase, designation, or label, including the terms “JG”, “Jwanaix Group “Jwanaix Group Insurance Agency” or other similar designations or derivatives whether separately, or in conjunction with any notation indicative of a business organization.
1.15. Member shall participate in JG’s established program for errors and omissions and insurance coverage. In limited circumstances where state law may impose certain restrictions on corporate coverage of E&O insurance, the Member may be required to secure Member’s own E&O policy and submit proof of such insurance. Member is responsible for paying their premium for their E&O insurance. Members must maintain E&O coverage through the designated JG broker and as accessible through the JG platform. Members must maintain continuous coverage by paying the fees on time. E&O must be set up as monthly, quarterly, or annual recurring payment. Turning E&O coverage off and on is not acceptable. Failure to comply with E&O requirements will result in JG taking action up to and including termination. New York Members are expected to provide proof of outside provider renewal of coverage, with a $1,000,000 limit, continually and send a copy of the E&O certificate to the JG Licensing/Contracting department. Failure to provide proof of current coverage will result in JG taking action up to and including termination. 1.16. Agent shall not:
(16.a) take or perform any act or action, or make any representation purporting to create any obligation or liability on the part of JG, its Affiliated Companies, or any of their respective officers, directors and employees, or bind JG, its Affiliated Companies, or any of their respective officers, directors and employees to any other legal obligation including but not limited to, any contract or agreement with any third party except as otherwise authorized in this Agreement; (16b) collect cash or checks from Customers in payment for the purchase of Products and Services payable to any person other than a party designated by the appropriate Product Provider; (16.c) represent a product or service that is not a Product and Service under this Agreement as being approved by and offered for sale through JG; (16.d) sell, refer or offer to sell any product or service through JG that is not a Product or Service under this Agreement; or (16.e) make any misrepresentation to a customer, in connection with a referral, or purchase of, or improperly induce any Customer to purchase Products and Services. Member shall indemnify JG and hold any Indemnified Party harmless, for Member’s breach of this paragraph.
1.17. Upon termination or request, Member shall return all JG property, which Member acknowledges includes all Customer and other files in the Member’s possession.
2. Duties as a Member 2.1 As a member of JG the Member promises that he/she will do the following:
(1.a) Use his/her best efforts to sell and promote the sale of Products and Services; (1.b) Disclose and notify JG in writing as to the general nature of Member’s involvement and/or affiliation with any other business or company; (1.c) Refrain from marketing or selling any products or services not offered by JG or its Affiliates to any Member or prospective member of JG; (1.d) Preserve the good name and reputation of JG and not do anything that will damage the name and reputation of JG; (1.e) Comply with the Member Guidelines incorporated by reference as if fully set forth herein; (1.f) Comply with all of the terms and conditions of any contract(s) into which Member enters with JG and the Product Providers; (1.g) Refrain from selling or soliciting for sale any Products and Services that require licensing or registration with a Product Provider or JG until the Member receives written notice from JG or the Product Provider that the Member has qualified to market such Products and Services; (1.h) Execute such further agreements and obtain such licenses that JG determines to be required for the Member to be lawfully authorized to sell any of the Products and Services; (1.i) Obtain and maintain the proper license(s) required to operate and/or conduct business in the state and/or municipality in which the customer’s offices are located and resides or is physically present in. Members agree to provide JG either proof of licensure and compliance with licensing requirements when engaged and upon written request by JG.
2.2 The Member understands and acknowledges that JG is in the business of supporting and enhancing the business of its Members, including providing Products and Services to the consuming public. These contractual relationships are valuable assets of JG. The Member acknowledges that JG owns all rights in and to the following: (i) JG; and (ii) the identities of and all lists of the Members comprising JG. JG shall have an exclusive proprietary interest in all contractual relationships with other Members and the Product Providers.
2.3 Member shall monitor the JG related activities of Member’s Downline Members’ and use Member’s best efforts and continuing diligence in directing Member’s Downline Members to comply with the applicable terms of this Agreement and providing assistance to Member’s Downline Members, including the terms incorporating the Member Guidelines.
2.4. Member shall, as required to sell Products and Services, be duly licensed in each jurisdiction in which and from which Member solicits, offers or obtains applications and orders for purchase of Products and Services and in each jurisdiction, where required by law, in which and from which Member receives any compensation, including Override Compensation. Member will bear the cost of conducting its business, including all initial and renewal fees for licensing and registrations and will make payment as instructed by JG.
2.5. Member shall maintain accurate and current records of all transactions entered into pursuant to this Agreement. Such books and records shall conform to the requirements of federal and state rules and regulations of appropriate regulatory agencies and the terms of the Agreement. Member shall maintain an accurate and current file of all commission statements and other records and correspondence received from JG and notify JG in writing within thirty (30) days of JG mailing such statements, records and correspondence, if any of them is inconsistent with Member’s records or, in the opinion of Member, not accurate. As to any statements, records or correspondence furnished by or on behalf of JG to Member, if Member does not furnish JG with written objections or corrections within thirty (30) days of mailing by JG, then Member shall be deemed to have approved such statements, records and correspondence as to any matter not objected to or corrected, and to have released JG from liability and responsibility for all matter contained therein.
2.6 Member shall not use sales material referencing JG which has not been approved inwriting by JG for such use, including but not limited to any type of form letter or correspondence. Without the prior written consent of JG, Member shall not use any form of media referencing JG, including but not limited to any social media, radio, newspaper, television, letters, business cards, letterhead, or photocopies, to promote sales or recruiting. The Member promises to not use the name “Jwanaix Group”, “Jwanaix Group Insurance Agency”, “Its Affiliates”, nor any acronym exactly like or similar to,”JG”,”JGIA”, on any social media post, including hashtags and email addresses. The Member promises not to use the name “Jwanaix Group, LLC and Its Affiliates” in conjunction with any notation indicative of a business organization, such as “Corporation”, “& Company”,”Ltd.”,”Inc.,” or”& Members”, unless the Member is specifically granted written permission from JG to do so. The Member may not appropriate the name “JG”, “JGIA” or “Jwanaix Group Insurance Agency, LLC and Its Affiliates” for use in any corporate name, joint venture or partnership.
2.7. All activities conducted by Member under this Agreement shall be conducted in accordance with the terms of this Agreement and all applicable laws. Member shall immediately advise JG of any action or fact whatsoever which comes to Member’s knowledge which may possibly constitute a violation of any applicable state or federal government regulations with respect to JG, Member or any party who is, has been, or maybe doing business with JG. The Member’s failure to comply with, or failure to cause his/her Downline to comply with, this Agreement constitutes grounds for terminating this Agreement. 2.8. Member shall not take, undertake or engage, directly or indirectly, in any Prohibited Actions.
2.9. Member acknowledges and agrees that it is responsible for providing its own supplies and equipment necessary to the Agreement, including but not limited to prospectuses, memoranda, visual aids, specimen plan forms, manuals, statistical and sales training and/or recruitment materials, vendor materials and brochures.
2.10. Member shall comply with the terms, conditions and restrictions on use contained in any and all license or other contractual agreements between third party owners of any computer software and JG, pursuant to which JG has obtained the right to use such computer software. Member further agrees to comply with the terms of any license or other contractual agreement into which Member is required to enter with any third-party computer software owner.
2.11. The Member shall not, at any time during the term of this Agreement, directly or indirectly, individually or in concert with another, solicit or attempt to solicit, induce, or attempt to induce any member of JG’s network of contractually affiliated sales Members/representatives to purchase any products and services other than the Products and Services offered by JG. 2.12. Member shall not violate the Covenants.
3. Member’s Compensation 3.1. The Member acknowledges and understands that the Member earns commissions only from the sale of the Products and Services and no compensation is earned by or paid to Member for recruiting. The Member’s sole compensation under and during the term of this Agreement shall be commissions paid by, or caused to be paid by, JG pursuant to this Agreement and paid in the manner provided in, and subject to the terms and conditions contained in, those Member Guidelines and commission schedules published by JG from time to time. The Product Providers are generally not obligated to pay the Member any money. There is no guarantee that the Member will be financially rewarded solely by virtue of becoming a member of JG.
3.2. JG will publish Member Guidelines and commission schedules from time to time which relates to sales position designations, performance standards, commission rates of JG or the Product Providers and other matters affecting the terms of the Members’ compensation. While JG will seek to obtain a Member’s consent, the Member shall have the right to terminate this Agreement on thirty (30) days written notice upon a change in terms of compensation. Any such changes will be prospective only and may affect any new business and any commissions earned thereafter on existing business if so specified.
3.3. Member acknowledges and agrees that Member’s commissions are a share of JG’s commissions and Member commissions are earned by, and shall be payable to, Member only after all of the following have occurred: (a) the order or application for Products and Services submitted by Member is accepted and approved by JG or a Product Provider at its principal office, or by an approved JG designee; (b) actual payment for the same has been made by and received from the Customer; and (c) JG has actually received payment from a Product Provider, if applicable, of JG commission (subject to the terms of this Agreement.)
3.4. Commission is not considered “earned” by Member and due and payable by JG under this Agreement (“Earned Commission”) unless and until: Member has a valid license and active Agreement with JG at the time of payout or otherwise Vested, as set forth in this Agreement; JG has received payment from Product Providers on commissionable sales or Referrals; all requirements set forth in this Agreement are satisfied; and the Commissions Calculation is finalized.
3.5. Member authorizes Affiliated Companies to pay directly to JG any Pending Commissions or other Compensation which are otherwise payable to Member by such Affiliate Companies in order to satisfy any obligation or liability of Member to JG, or to compensate JG for any damages, losses, costs and expenses which JG may sustain or be liable for, by reason of any act or failure to act on the part of Member. Member authorizes JG to pay directly to any Affiliated Companies any Pending Commissions or other Compensation which are otherwise payable to Member by JG in order to satisfy any obligation or liability of Member to such Affiliated Companies or to compensate Affiliated Companies for any damages, losses, costs and expenses which Affiliated Companies may sustain or be liable for by reason of any act or failure to act on the part of Member.
3.6. Any money and value owed by Member to JG, any Debit Balance, and any money and value which has been advanced or credited by or on behalf of JG, or for the benefit of, Member, represents a loan and may be offset and deducted by JG from any commissions or other money or value then or thereafter owed by JG to Member. JG is hereby authorized by Member to deduct from commissions due the amount of any commissions paid to Member in connection with any payment or amount that JG refunds to Member’s Customer. In an event the Member fails to pay said amount owed, JG is hereby authorized by Member to submit the Debit Balance to Vector One [MOU2]in order to recover debt owed by the Member to JG.
3.7. All Debit Balances shall be repaid immediately by Member upon notice thereof to Member by JG. Any Debit Balances not paid within thirty (30) days from the effective date of such notice shall bear interest from the end of such thirty (30) days at a rate equal to the maximum legal rate of interest provided by applicable law, and such interest will be added to the debt balance. From time to time in its sole discretion, JG or a JG Affiliate may cause a reduction in all or any portion of the Members’ Debit Balance in any of the following ways:(a): by applying any commissions or other forms of compensation payable to the Member by JG to reduce the Member’s Debit Balance; or (b) by exercising any other legal rights and remedies available to JG, including any rights or remedies that are included in Member Guidelines. The Member is also obligated to repay JG for the Debit Balances of any of Member’s Downline Members. Member authorizes
that JG will set aside a commission reserve balance account from the Member’s commission payments to absorb or offset debt balances and/or in order to pay off future debt balances whether as an active or terminated agent; and whether the debt is from personal production or the production of the Member’s team or hierarchy. JG has the right to use a debt rollup program to collect debt balances within Member teams while Members are active, inactive, or terminated. Member understands that JG may collect against outstanding Member debt balances by allocating percentages of Member commissions based on a published guideline schedule for a debt rollup program. If Member is terminated with an outstanding balance that exceeds pending commissions owed, the Member debt balance is due. JG has a legal right to collect on any unpaid debt balances by exercising legal remedies available, including sending to a collection’s agency for further collections efforts.
3.8. Except as otherwise provided in this Agreement, and subject to the terms of this Section 3, if and when Member qualifies for and attains certain sales position designations established by JG from time to time pursuant to Member Guidelines, Member shall become Vested and entitled to receive commissions upon termination. However, Member acknowledges and agrees that since Member’s commissions are a share of JG’s commissions, Member shall, upon becoming Vested, be Vested in commissions only to the extent that JG actually receives commissions with respect to the applicable Customers from the Product Providers and Member can legally receive such commissions. In the event that Member, at the time of termination, has not qualified and attained the sales position designation(s) established by JG as a condition to becoming Vested, Member shall have no right to commissions or any compensation of any kind.
3.9. In the exercise of its sole discretion, JG reserves the right to, and may, refund to any Customer all or any part of payments made by Customer, and Member agrees to promptly reimburse JG for its expenses in connection therewith. Member further agrees to promptly repay JG all commissions by Member with respect to any refunds to Customers, and JG is hereby authorized to deduct from any other commissions due or that may become due to Member hereunder, the amount due JG for any such expenses or commissions to be repaid by Member.
3.10. Except as set forth above in Sections 3.1. and 3.6., Member shall receive no other compensation of any kind whatsoever under this Agreement. Member will not receive any fringe benefits under this Agreement whatsoever, including but not limited to insurance benefits, disability income, overtime income, paid vacation, expense reimbursement or retirement benefits unless otherwise specifically provided for in this Agreement.
3.11. In the event of termination, for any reason, of a policy on which an initial commission has been paid, there will be a chargeback as provided in the Compensation Schedule. The chargeback will be withheld from the next commission payment(s) due to member until fully repaid. If there is insufficient activity to repay the amount of the chargeback within thirty (30) days, Member must remit the balance to the Company within ten (10) days of the Company’s written notice to the Member.
3.12. JG may, from time to time, with or without notice, increase or decrease the rates and amounts of Commissions of agents, including Member; provided, however, that any such
changes may only be applied prospectively, and any such changes may affect only Commissions paid on any new business or subsequent payments on existing business.
4. Term and Termination
4.1. This Agreement shall take effect on the Effective Date and shall renew upon Renewal by unless otherwise terminated by either party in accordance with this Section 4.
4.2. This Agreement may be terminated by either Party at any time and for any reason upon thirty (30) days written notice to the other party.
4.3. This Agreement shall terminate immediately without further notice on the death of Member.
4.4 In the event of termination of this Agreement by either Party, JG shall be entitled to notify the Product Providers and any regulatory body of such termination. Member acknowledges and agrees that JG shall not have any liability for any loss, damage or otherwise resulting from termination by the Product Providers based on such notice.
4.5. Upon the Termination of this Agreement, all commissions due to Member prior to the effective date of Termination of this Agreement shall be paid by JG to Member within a reasonable period of time. Except commissions to which Member may become entitled to receive if Member becomes Vested in accordance with Section 3.6. of this Agreement that are subject to Divestiture as defined in the Glossary, no further renumeration, other than the commissions earned as of the effective date of Termination, shall be payable to Member under this Agreement after Termination. However, JG shall have the right to offset against any commissions, any Debit Balance, indebtedness owed by Member to JG, or any other charges due under the Agreement. Upon Termination of this Agreement, any Debit Balances then or thereafter outstanding, and any Debit Balances that may there after exist, shall without notice immediately become due and payable and shall bear interest at the highest rate permitted under applicable law until fully paid. Member shall promptly provide to JG all books and records relating to JG including but not limited to all applications and payments for JG products and services which Member may have in his/her possession or under his/her control at the time a Termination occurs.
4.6. The terms and provisions of any paragraphs or sections of this Agreement which expressly state, or by their terms require, that they survive termination of this Agreement, shall so survive the termination of this Agreement.
5. Member Non-Recruitment.
Except as to Members operating in the state of California, the Member covenants that he/she will not, at any time during the term of this Agreement, and for a period of two (2) years thereafter, directly or indirectly: (a) induce or attempt to induce any person who is contractually affiliated with JG as a Member or in other capacity, or member of JG’s administrative staff, to terminate their relationship with JG; or (b) hire, induce or attempt to hire or induce any such persons to sell or solicit products and services which are competitive with the Products and Services for any
person or entity other than JG. The parties agree and acknowledge that any violation of this Section 5 by the Member with respect to any member of JG’s network of contractually affiliated sales Member/representatives will cause irreparable injury to JG. For Members operating in California, this provision is not applicable as provided by law.
6. Customer Non-Replacement. Except as to Members operating in the state of California, absent the issue of the current suitability of the product for the Customer, the Member covenants that he/she will not, at any time during the term of this Agreement, and for a period of two (2) years thereafter, directly or indirectly, individually or in concert with another, induce or attempt to induce any Customer to terminate, reduce coverage under or replace any of the Products and Services which have been sold by the Member or his/her Downline Member. In this Section D, the term “Customer” shall be limited during the two (2) year period after the Termination to those Customers i) to whom the Member or his/her Downline Members sold Products and Services the Member understands and acknowledges that this Section 4 is not a non-solicitation covenant; it is a non-replacement covenant. For purposes of this Agreement, the Member’s office shall mean that office or offices from which the Member during the eighteen (18) month period preceding Termination of the Agreement, conducted his/her business operations as a Member of JG. The Member agrees and acknowledges that a breach of the Member’s promise in this Section 4 would constitute wrongful interference with contractual rights of JG. For Members operating in California, this provision is not applicable as provided by law.
7. Arbitration of Disputes 7.1. The Parties agree that, except as specifically provided to the contrary in this Agreement, any Dispute arising out of or related to this agreement shall be resolved exclusively by Good Faith Arbitration pursuant to the Federal Arbitration Act. The procedures set forth in this Section 7 to resolve all Disputes, unresolved in the normal course of business, or to the extent that any Party wishes to pursue the matter further. All Disputes shall be resolved by Good Faith Arbitration in accordance with the Rules, except that, or in addition to such Rules in order to assure neutrality and impartiality of the arbitrator(s), and to preserve the confidentiality of proprietary information, the arbitrator(s)shall not be any present or past owner, officer, director, employee, consultant, Member, attorney or other representative of any insurance company, insurance broker or insurance agency, or of any affiliate of any of them. The Parties may be entitled to such discovery and protective orders as provided herein. The locale where the arbitration shall be held is the principal head office of JG, they shall try to devise a way so that it is convenient, or if that location cannot be made convenient, at such other place as the Parties may agree, or, if they cannot agree, then as may be set by the Rules. A transcript shall be made on the proceeding, and the arbitrators’ award shall state the findings of fact and conclusions of law.
7.2. Member further acknowledges Members’s understanding and agreement to the separate, standalone Mutual Agreement to Arbitrate Claims Agreement that follows this Agreement, which is incorporated by reference as if fully set forth herein.
7.3. The Parties acknowledge and agree that, except as specifically provided to the contrary in this Agreement, this Section 7 is and shall be the Parties’ exclusive remedy for any Dispute arising out of or relating to this Agreement, or the breach thereof. It is the intent of the Parties
that, except as specifically provided to the contrary in this Agreement, to the fullest extent allowed by law all Disputes, including any claims or defense (whether created or governed by federal, state, or local law, rule or regulation) shall be resolved in an arbitral rather than a judicial forum. It is understood by the Parties that it is to their mutual benefit to submit Disputes that they are unable to resolve themselves for resolution by a neutral referee in an arbitral rather than a judicial forum. The Parties recognize that by choosing Good Faith Arbitration as the mechanism for resolving Disputes, each Party expects to ensure a more expeditious and economical resolution of their Grievances than is available in most cases in a judicial forum. Accordingly, except as specifically provided to the contrary in this Agreement, the Parties expressly waive the right to litigate in a judicial forum all Disputes and waive the right to trial by jury. The Parties further agree that the findings of fact issued by the arbitrator(s), as reviewed, if applicable, shall be binding on them in any subsequent arbitration, litigation, or other proceedings. The Parties agree they are giving up any right they may have to participate in a class action or proceeding to the extent permitted by applicable law. Accordingly, the Parties may only bring claims against each other in their individual capacities, and neither Party may bring claims against the other as a plaintiff or member in any purported class, representative or collective action or proceeding, including any private attorney general action, unless applicable law holds to the contrary. Furthermore, unless the Parties agree in writing otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a class, representative, or collective action or proceeding.
7.4. Unless otherwise tolled or satisfied with respect to Good Faith Arbitration, a demand for arbitration must be filed under the Rules within the time prescribed by the applicable statutes of limitations. The Member and JG intend and agree that all the Corporate People shall be Beneficiaries of all of the provisions of this Section 7 and that as Beneficiaries and as Parties, they, or any of them shall have the right to enforce all provisions of this Section 7 to the same extent as JG and the Member
8. Extraordinary Relief 8.1. The Parties acknowledge that the other party would suffer extremely costly and irreparable harm, loss, and damage if any of the provisions of this Agreement are violated by the other Party. The Parties agree that either Party shall be entitled to seek Extraordinary Relief to temporarily enjoin violations of this Agreement and that either Party may seek Extraordinary Relief in the federal and state courts, as well as in Good Faith Arbitration and if justice requires, in more than one of them as appropriate. The Parties agree that each Party has the right to seek preliminary and temporary restraining orders, injunctions, and other extraordinary relief (such orders, injunctions and other relief referred to as Extraordinary Relief). Without limitation, the Parties agree that the requirements for Good Faith Arbitration Agreement or this Section do not preclude either Party from seeking in an arbitral or in a judicial forum, or in both, Extraordinary Relief to protect its rights shall be deemed to preclude or narrow the judicial or arbitral powers regarding Extraordinary Relief.
9. Member’s Promise to Indemnify and Assign 9.1. The Member agrees to indemnify and hold harmless, from and against any and all Indemnified Losses which are incurred, sustained, suffered, or assessed against the Indemnified
Party, or all or any combination thereof, because of, arising out of or as a result of any acts or omissions, including but not limited to a breach of Section 2.11. or any breach of Member’s contract(s) with Product Providers, by the Member and also any of Member’s Downline Members. The Indemnified Party shall be entitled to use counsel of its own choosing, shall be entitled to determine the validity of the Indemnified Loss and shall not be required to notify the Member of the existence or progress of any claims or Indemnified Loss as a condition precedent to requiring payment by the Member to the Indemnified Party for an Indemnified Loss.
9.2. To secure the Member’s promise of indemnification and the Member’s obligation to repay his/her Debit Balance or his/her Downline Member’s Debit Balances , the Member hereby assigns to JG, and grants, and agrees to, from time to time, execute any additional instruments or documents necessary to perfect, a continuing security interest to JG in, all commissions (or advances thereon) otherwise payable to the Member by JG, to the extent necessary to satisfy JG for any such Indemnified Loss or any such Debit Balance obligations. This assignment is given to JG to secure the Member’s obligations as set forth above and elsewhere in this Agreement. JG has the right to withhold commissions in connection with this indemnity.
10. Miscellaneous 10.1. All capitalized terms used but not otherwise defined herein shall have the meaning setforth in that certain Glossary and Explanation of Terms published by JG and in effect as of the date of this Agreement, a copy of which Member acknowledges receipt. The Glossary and Explanation of Terms are contractual supplements to this Agreement that are binding on the Member and by this reference are made part of this Agreement. Any changes to the Glossary and Explanation of Terms shall be effective as of the date of general publication by JG.
10.2. If any term of this Agreement controverts the express, or in the opinion of JG’s counsel, the intended provisions of any applicable regulatory authority or court decision, then said term shall be governed by said regulatory provision or decision and the subject term of this Agreement shall be deemed automatically amended or deleted as the case pertains. Should such amendment or deletion materially affect the substance of this Agreement, this Agreement shall be subject to immediate termination upon written notice to the other party.
10.3. All notices or demands hereunder shall be sent either by certified mail, return receipt requested, postage and certified fees prepaid, electronic mail or by overnight courier service, addressed as follow JG: if to JG, addressed to Administrator of Contracts, Jwanaix Group, LLC., at its then principal home office address; if to an officer, director or employee of JG, then addressed to that person c/o Jwanaix Group, LLC.; and if to the Member, addressed to him/her at the address which appears on the first page of the Member License Application Package. For purposes of this Agreement, the Member shall maintain only one address at a time (the “Member’s Principal Address”) and shall immediately notify JG of any change in the Member’s Principal Address.
10.4. This Agreement is not a franchise agreement and does not create a franchise relationship between JG and Member and if any provision of this Agreement is deemed to create a franchise between the parties, then those provisions shall be deemed void and unenforceable and shall not impact the validity of any other provision(s) of this Agreement.
10.5. The failure or delay by any party to insist upon strict performance of the terms and conditions of this Agreement shall not be deemed a waiver of any subsequent breach or default in the terms hereof. Any waiver must be in writing and signed by the party granting the waiver. Any waiver granted by JG must be signed by an officer designated by the CEO of JG.
10.6. Titles and headings of sections and subsections of this Agreement are for convenience and are not intended to encompass all of the provisions therein or to interpret such provisions. 10.7. If any part, section, clause, paragraph, term or provision of this Agreement shall be found to be void or unenforceable by any court or arbitration of competent jurisdiction, such finding shall have no effect upon any other part, section, clause, paragraph, term or provision of this Agreement.
10.8. The Member may not assign any rights or delegate any duties under this Agreement except as expressly provided herein. JG may, from time to time, desire to assign to its affiliates or others all or a part of its rights and obligations hereunder (a “future assignment”); and the Member consents and agrees to any such future assignment and agrees that, after any such future assignment, JG shall be released from all obligations and liabilities so assigned, so long as such obligations and liabilities are assumed by the assignee.
10.9. If any Party hereto commences an action or arbitration to enforce any of the provisions hereof, the prevailing Party in such action shall be entitled to an award of its reasonable attorneys’ fees and all costs and expenses incurred in connection therewith.
10.10 This Agreement, including the Glossary and Explanation of Terms and any attachments, including Member Guidelines incorporated herein by reference, constitutes the entire agreement and understanding between the parties hereto unless another agreement is executed simultaneously with or subsequent to this Agreement by the parties which makes specific reference to this Agreement and expressly supplements or modifies this Agreement. No change, amendment, termination or attempted waiver of any of the provisions hereof shall be binding upon JG unless in writing and signed by an officer designated by the CEO of JG.
10.11. The Member agrees that JG shall have the right to conduct due diligence concerning the Member at any time JG deems useful, whether such investigation is conducted by JG or by an outside service or third party. The Member consents to such investigations and consents to the disclosure by any person or entity to JG of any information obtained by JG or by an outside service or third party. Member agrees to execute the appropriate written waivers and consent needed to conduct due diligence on Member as a condition of this Agreement.
10.12. As a condition to becoming a Member of JG, the Member is not required to purchase any of the Products and Services and is not required to pay JG or the Product Providers any consideration beyond for the appointment fees to process his/her product provider appointment. Further, the Member is not required to enter into any contract with JG or the Product Providers in order to purchase any Products and Services.
10.13. The Member irrevocably consents to and forever authorizes the use by JG or anyone authorized by JG, its legal representatives or assigns, the absolute and unqualified right to use all photographs in which the Member has appeared for JG and reproductions thereof, in which the Member has been included in whole or part, made through any media without inspection or approval of the finished product or use to which it may be applied, in any manner JG may desire, factually or fictionally, including the right to make adaptations of said material of every and any kind and character. For such purpose JG may adopt, arrange, change, dramatize, make musical versions of, interpolate in, transpose, add to, and subtract from such photographs and reproductions to such extent as JG, in its sole discretion, may desire, and in any language; and, further to obtain copyright in all countries on such use by JG of such material in any form and upon any and all adaptations thereof to renew such copyrights. The Member releases and discharges JG, its assigned, agents, or licensees from any and all claims and demands that the Member may have, which arise out of or in connection with the use of such photographs or reproductions, including but not limited to, any and all claims of libel, slander, and invasion of privacy. The Member further releases JG, its assigned, agents, or licensees from any liability of alterations, optical illusion, or faulty mechanical reproduction. The Member is over eighteen years of age and has read the above authorization and release prior to its execution.
11. Opt-In Consent 11.1. As a member of JG, the Member agrees to receive calls, text messages, and emails from JG and other Members to provide you with the best service and relevant information. This will include announcements, news, and updates on both the business and regulatory changes and anything else to add value to the Member. The Member’s contact information will be used solely for the purpose of communicating and not to be shared with third parties. The Member will have the option to individually Opt-Out any time after receiving such communications.
12. Definitions
The following section defines and explains additional terms which apply to and are part of the Independent Contractor Agreement (Agreement) for JG.
12.1.”Advance Commissions” – Any monies that may be paid by JG to Member for the sale of Products and Services through JG, as an advance against Member’s commissions that are not yet Earned Commissions, as more specifically explained in the Member Guidelines.
12.2.”Affiliated Companies” – Includes all companies controlling, controlled by, or under common control with JG (not Members).
12.3.”Member Guidelines” – Those guidelines, policies, practices, and procedures relating to compliance with JG’s insurance licensing, including, but not limited to, those set forth in the JG field policies and procedures, Commissions Policies, guides, memoranda, bulletins or alerts as maybe published, promulgated, or amended from time to time by JG, which are fully incorporated by reference into this Agreement. Any changes shall be effective as of the date of general publication. Agent is expected to and acknowledges that Member will (or has) read the Member Guidelines and will keep current with all changes to them.
12.4.”Assistant” – Individual(s) employed by or retained as a contractor by Member, whether classified as an employee, independent contractor, or in any other capacity, separate from any direct contractual relationship, if any, with JG or one or more Affiliated Companies, for the purpose of providing services to Member in connection with Member’s business.
12.5.”Commissions Calculations” – Commissions are calculated pursuant to the terms of this Agreement and the Commission’s Plan referred to herein. The Commissions Calculation includes any necessary adjustments, reconciliations, or off-sets made against any baseline unearned commission amount including, but not limited to, deductions for: (5a) License and other fees; (5b) Pending Commissions and expenses that Agent is required to refund to JG because of Customer cancellations, rights of withdrawal, non- renewals, terminations, lapses or otherwise; (5c) Debt Balances of Member’s Downline Member(s); (5d) Reserve Balance Account deductions; (5e) Indemnified Losses owed by Member; (5f) other claims of JG against Member; and (5g) any and all money or value which may be erroneously paid, advanced, or credited by, or on behalf of, JG or Affiliated Companies, to, or for the benefit of, JG and any money owed by Member to JG or Affiliated Companies.
12.6.”Commissions Plan” – Plan and schedules created by JG that govern how Member’s commissions are calculated by JG for the referral or sale of Products and Services.
12.7.”Compensation” – Remuneration paid, or caused to be paid, by JG for services rendered pursuant to this Agreement, Member Guidelines and/or any selling agreements between JG and Product Providers in the form of Earned Commissions, Referral fees, cash, Points, values of trips, rings, Visa cards, watches or any other form of compensation that JG may provide from time to time, and as more specifically defined and explained in Section 3 of this Agreement.
12.8.”Confidential Information” – Any and all trade secrets of JG which have value and are not generally known by competitors or potential competitors of JG deemed confidential by applicable federal, state, commonwealth and/or local laws. Confidential Information does not include information which becomes generally available to the public other than as a result of disclosure by the Member or its employees or contractors, including any Assistant or any member of JG’s network of contractually affiliated agents.
12.9.”Corporate People”. Any and all of the officers, directors, and employees of JG, whether present or past and whether in their individual or their corporate capacities.
12.10.”Customer” – Any person or entity to whom any JG agent solicits or attempts to solicit for Products and Services pursuant to the agent’s contractual relationship with JG.
12.11.”Debit Balance” – The balance remaining from time to time after completing the Commissions Calculation under which Member’s Pending Commissions exceed Member’s Earned Commissions.
12.12.”Dispute” – Any controversy, claim or dispute arising out of or relating to this Agreement, between the Member, on the one part, and JG and/or any of the Corporate People, or any of them, on the other part.
12.13.”Divestiture” – The ceasing of Agent’s entitlement to continuing Compensation from or through JG.
12.14.”Downline Member” – Any Member of JG who is a member of a Member’s Hierarchy and who was: (a) recruited by Member; (b) a Member recruited by any agent within Member’s downward Hierarchy; or (c) transferred into Member’s downward Hierarchy.
12.15.”Earned Commissions” – Has the meaning set out in Section 3.2.
12.16.”Hierarchy” – The then current roster of agents reflected on JG’s internal database(s)as part of Member’s complete sales organization.
12.17.”Hierarchy Level” – The position obtained by an agent consistent with JG’s Member criteria and in relation to other members.
12.18.”Indemnified Losses” – Any and all liability, claims, demands, proceedings, obligations, assessments, losses, costs, damages, and expenses, of any nature whatsoever, contingent or otherwise, including, without limitation, any and all judgments, decrees, equitable relief, extraordinary relief, settlements, awards, E&O deductibles, attorney’s fees, court costs, punitive damages and arbitration costs including arbitrators’ fees against an Indemnified Party.
12.19.”Indemnified Party” – JG, the Affiliated Companies and the respective officers, directors and employees of each such entity.
12.20.”Override Compensation” – Those monies that are paid to an agent from the referral or sale of Products and Services made by other JG agents in accordance with Member Guidelines.
12.21.”Parties” – JG, the Member, and the Corporate People.
12.22.”Pending Commissions” – Any monies that may be paid by JG to Member, including Advance Commissions and Override Compensation, for the sale or referral of Products and Services through JG which shall not become Earned Commissions until the Commissions Calculation is complete, as more specifically defined and explained in this Agreement and the Commissions Policies.
12.23.”Personally Identifiable Information” (“PII”) – An individual’s first name or initial and last name; (a) social security number; (b) driver’s license number or government-issued identification card number; (c) financial account, credit, debit card number with or without any required security code or personal identification number (PIN) that would permit access to a financial account; or (d) medical information.
12.24.”Points” – Value accumulated and used to achieve travel and other rewards provided by JG to agents based on the amount of commissions earned by Members.
12.25.”Product Providers” – One or more affiliated or unaffiliated companies with which JG has established, or may from time to time establish, contractual relationships to refer, offeror sell Products and Services.
12.26.”Products and Services” – Those products and services of Product Providers that are approved by JG for offer, referral or sale by agents as listed on the JG’s intranet site, and as may be updated by JG from time to time with or without notice to agents.
12.27.”Referral” – The circumstance in which a JG agent refers an individual to a Product Provider, but in which circumstance the agent does not actually offer a contract to sell or sell the Products and Services to the individual.
12.28.”Renewal” – The process required by Member to continue as an agent with JG as described in the Member Guidelines.
12.29.”Reserve Balance Account” – An account established for Agent by JG from a percentage of Member’s Pending Commissions set aside to pay off any outstanding Debt Balance at the time of Member’s termination from JG. The percentage amount of Member’s Pending Commissions to be set aside is calculated in accordance with the Member Guidelines.
12.30.”Roll Up” – The transfer, with recourse, of the Debt Balance of a Downline Agent to that Downline Member’s Upline Member, as are more specifically set out in the Member Guidelines.
12.31.”Rules”. Where required to be applied, the Commercial Arbitration Rules of the American Arbitration Association, as in effect at the time of the occurrence of any Dispute.
12.32.”Trade Secret” – Any and all information, knowledge or in any form whatsoever, tangible or intangible, which is considered a trade secret under applicable law.
12.33.”Upline Member” – Any agent of JG who a member of Member’s Hierarchy is and who: (a) recruited Member; (b) recruited the Member who recruited Member; or (c) is in Member’s upward Hierarchy.
12.34.”Vested” – The right of Member to receive after termination of Member’s contractual relationship with JG, such Earned Commissions due based on sales made prior to termination, as permitted by law or the Member Guidelines unless and until Divestiture occurs.
Agreement
