AROGA LTD WELLNESS PARTNER POLICIES & PROCEDURES
Wellness Partner Agreement
Section 1. Becoming a Wellness Partner
Section 2. The Compensation Plan
Section 3. Your Responsibilities
Section 4. Confidential Information
Section 5. Intellectual Property
Section 6. Competition and Non-Solicitation
Section 7. Transfers and Position Changes
Section 8. Enforcement of Agreement
Section 9. Term and Termination
Section 10. Limitation of Liability and Indemnification
Section 11. Dispute Resolution
Section 12. Amendments
Section 13. General Provisions
Section 14. Defined Terms
This WELLNESS PARTNER AGREEMENT (“Agreement”) is entered into between you and Aroga, Ltd., a Texas limited partnership (“Aroga”). The Aroga Wellness Partner Compensation Plan is a part of this Agreement. Capitalized terms used in this Agreement are defined in Section 14.
Section 1. Becoming a Wellness Partner
1.1 Wellness Partner Application. When you become a Wellness Partner, you become eligible to participate in the Compensation Plan, and may enroll and sponsor other Wellness Partners, subject in each case to the terms and conditions of this Agreement (including the Compensation Plan). To become a Wellness Partner, you must:
(a) Meet the eligibility requirements in Section 1.2.
(b) Be enrolled by an existing Wellness Partner (“Enroller”), or be assigned an Enroller by Aroga.
(c) Be assigned by your Enroller to an existing Wellness Partner who will serve as your Sponsor. By default, your Enroller will be your initial Sponsor. Your Enroller may change your assigned Sponsor within 60 days of your becoming a Wellness Partner by notice to you, Aroga, and the affected direct Sponsors.
(d) Submit an Aroga Wellness Partner application (“Application”).
(e) Purchase a Wellness Partner Pack.
(f) Confirm that you have read and agree to this Wellness Partner Agreement (including the Compensation Plan) and that you have read the Statement of Typical Wellness Partner Compensation.
(g) Have your Application accepted by Aroga. Aroga reserves the right, in its sole discretion, to reject an enrollment application by a prospective Wellness Partner and refuse to enter into an Agreement with such applicant.
1.2 Wellness Partner Eligibility. If you are applying as a natural person, you must:
(a) Be age 18 or older;
(b) Possess and provide to Aroga a valid U.S. social security number;
(c) Be a United States citizen or lawful permanent resident; and
(d) Not have been a Wellness Partner previously, and not have participated in a Wellness Partner business of your spouse or other Family Members or as an owner of any Business Entity that is a Wellness Partner. This requirement will not apply if you obtain Aroga’s consent to waive this requirement, which consent may be given or withheld or conditioned in Aroga’s sole discretion.
1.3 Spouse and Family Members. If you and your spouse wish to become a Wellness Partner, you and your spouse may apply separately and each become a Wellness Partner, or you and your spouse may apply together and become a single Wellness Partner. If you and your spouse apply to become separate Wellness Partners, you both must be in the same Downline Organization of the direct Sponsor of one of you or your spouse. If you are a Wellness Partner and become married to another Wellness Partner and you are not both in the same Downline Organization under the direct Sponsor of one of you or your spouse, Aroga may require a change in position of one or both of you to prevent unintended manipulation of the Compensation Plan. Your Family Members (other than your Spouse) may also become separate Wellness Partners subject to limitations as those applicable to you and your spouse.
1.4 Independent Contractor Status. You will conduct your Wellness Partner business as an independent contractor. As an independent contractor, you will be responsible for your own expenses and any applicable taxes related to your Wellness Partner business, including any applicable self-employment taxes. This Agreement does not create any association, partnership, joint venture, franchise, employee, or agency relationship between you and Aroga, or between you and any other Wellness Partner, for any purpose, and you may not represent or imply that you have any such relationship or status or rights associated with any such relationship. Without limiting the foregoing, you expressly acknowledge that you are not an employee of Aroga for federal or state tax purposes or for purposes of any Aroga employee benefit plans, and that Aroga will not be responsible for withholding or paying any income, payroll, social security, or other federal, state, or local taxes, making any insurance contributions (including unemployment or disability, or obtaining worker's compensation insurance) on your behalf. If reasonably requested by Aroga, you will fully cooperate with Aroga in connection with any claim by any taxing authority or any other person claiming that you are an employee, such cooperation to include providing proof of your compliance with your tax and other legal obligations as an independent contractor. This Agreement does not grant you any authority to enter into any contracts on behalf of Aroga or otherwise bind Aroga, and you may not represent or imply that you have any such authority.
Section 2. The Compensation Plan
2.1 Information on Which You are Relying. In entering into this Agreement, you confirm that have received and read the Compensation Plan and the most recent Statement of Typical Wellness Partner Compensation, and that you have not relied on, and commit that you will not rely on, any written or oral information or representations about the financial or other aspects of becoming a Wellness Partner other than the information set forth in the Statement of Typical Wellness Partner Compensation, this Agreement (including the Compensation Plan), and Aroga approved marketing materials.
2.2 Describing the Compensation Plan. Applicable Laws prohibit making any false or misleading representations regarding compensation that can be earned under the Compensation Plan, and you may be subject to significant penalties for any violation of those Laws. The following requirements apply to representations you make regarding compensation that can be earned under the Compensation Plan:
(a) When describing the Compensation Plan to prospective Wellness Partners and others:
(1) your statements must be lawful, accurate, and not misleading;
(2) you must accurately describe the importance of a balanced business (Customer orders, personal consumption, and sponsoring) to success as a Wellness Partner; and
(3) your representations relating to actual or potential compensation under the Compensation Plan must be (i) limited to income from the Compensation Plan; (ii) based on actual experience substantiated in writing before the representation is made, or consistent with compensation information from Aroga authorized materials; and (iii) constitute or include fair, reasonable, and timely disclosure of information relating to compensation actually received or likely to be received by typical Wellness Partners as described in Section 2.3.
(b) You may make representations about compensation received by non-typical Wellness Partners (for example, by the top 1%), but only if the representation includes (i) a prominent and clear disclosure that the compensation results are not typical, and (ii) the required disclosure relating to compensation of typical Wellness Partners as described in Section 2.3. Reference to non-typical Wellness Partners should not be made in a way that detracts from the representations regarding typical Wellness Partners.
(c) For purposes of this Section 2.2:
(1) A representation relating to compensation under the Compensation Plan is any written statement, oral or audio declaration (including a testimonial of any person), or image that conveys a message about the compensation a person could expect to earn as a Wellness Partner, and is not limited to a dollar figure or monetary range, but may also include representations about obtaining, as a result of compensation under the Compensation Plan, luxury goods such as vehicles, jewelry, homes, and vacations (such as images of such luxury items, where the general impression created by the context in which the images appear is that the items can be obtained as a result of compensation earned under the Compensation Plan); promises of opportunities to earn bonuses, commissions, and other financial rewards; and profiles or testimonials of individuals who have achieved lifestyle benefits under the Compensation Plan (such as improving their quality of life, quitting their jobs, or eliminating all of their debts).
(2) A typical Wellness Partner is a Wellness Partner that earns the smallest range of compensation earned by over 50% of all Wellness Partners.
2.3 Required Disclosure Relating to Compensation of Typical Wellness Partners. The disclosure relating to compensation of typical Wellness Partners required pursuant to Section 2.2 must
(a) be clear and comprehensible (e.g., minimum of 10pt legible font if in written materials, clearly spoken at an appropriate speed if oral, and displayed in sufficient size and clarity and for a sufficient period of time to be read completely by an average reader if presented visually);
(b) be presented in close proximity to any other representation relating to compensation (e.g., on the same page of a written document, or immediately before or after the representation in an oral or audio/video presentation);
(c) have similar prominence to other representations (e.g., in written materials, the disclosure must be similar size font and included in text rather than in a footnote);
(d) include a description of the amount of time and effort that would be necessary to earn a particular level of compensation under the Compensation Plan as outlined in the most recent Statement of Typical Wellness Partner Compensation (available on your My Account page of Arogalife.com);
(e) be based on what a typical Wellness Partner would earn in a year as outlined in the most recent Statement of Typical Wellness Partner Compensation; and
(f) specifically include the following disclaimer: “Aroga, Ltd. does not guarantee any level of compensation or other benefits under the Compensation Plan. The compensation and success of each Wellness Partner is dependent upon his or her own efforts and skill.”
2.4 Prohibited Practices. In seeking to enroll a person as a new Wellness Partner, and in Sponsoring a Wellness Partner:
(a) You must not make any representation regarding compensation that can be earned under the Compensation Plan other than in compliance with Sections 2.2 and 2.3 and other applicable requirements of this Agreement.
(b) You must not cite lifestyle benefits of successful Wellness Partners (such as travel, automobiles, homes, charitable contributions, etc.), unless such lifestyle benefits were actually and directly accrued as the result of the Wellness Partner building a successful Wellness Partner business, and the representations regarding lifestyle benefits are accompanied by the disclosures required by Section 2.3.
(c) You must not say or imply that there is no requirement for marketing of products by Wellness Partners to Customers, that sponsoring other Wellness Partners is required or is as important as marketing of products to Customers, or that a successful Wellness Partner business can be established with little or no effort or can be conducted solely within the home or with limited personal interaction with prospective Customers and Wellness Partners.
(d) You must not say or imply that Wellness Partners who fail to achieve compensation equal to or in excess of the compensation of a typical Wellness Partner under the Compensation Plan failed to devote substantial or sufficient effort to their Wellness Partner business.
2.5 Tax Withholding Forms, Etc. As a condition to receiving payments of any compensation that you earn under the Compensation Plan, you must provide to Aroga or its payment agent a properly completed federal tax withholding certificate (on IRS Form W-9 or other applicable form) and such other information as Aroga or its payment agent reasonably requests.
Section 3. Your Responsibilities
3.1 Responsibilities as a Wellness Partner
(a) You are not required to purchase any Aroga products (other than a Wellness Partner Pack) to become a Wellness Partner. All Aroga products that you purchase must be purchased directly from Aroga and must be for personal consumption by you or your family our household members, and must not be purchased for resale or for purposes of manipulating the Compensation Plan (i.e., “inventory loading” as prohibited by Section 3.6(a)(2)). Your purchases for personal consumption are eligible for return under the Aroga Satisfaction Guarantee and Returns Policy.
(b) You may place orders for Customers only if you have authorization from the Customer to do so, including authorization to use credit card information provided by the Customer for payment. Orders that you place for a Customer must be for the Customer’s personal consumption and not for purposes of resale by the Customer. All Customer orders that you place must be paid for by the Customer and shipped directly to the Customer. You may not pay for or receive shipment of orders for Customers.
(c) For any orders that you place for a Customer, you are financially liable for payments that are rejected for any reason. Aroga may restrict your ordering privileges for violations of this paragraph and make adjustments to compensation payable to you under the Compensation Plan to settle disputed charges.
(d) You may not place, pay for, or receive shipment of orders for Wellness Partners.
(e) You must provide current contact information to your Customers and make it known to your Customers that you are available to answer questions, provide advice, and respond to Customer concerns. You must respond to any questions or concerns from your Customers relating to product information, proper usage, or other inquiries. You should consult your Aroga Tools, or contact Aroga directly, in responding to your Customers’ questions or concerns.
(f) Your Customer has the right to return the Aroga products to Aroga in accordance with the Aroga Satisfaction Guarantee and Returns Policy. If requested, you must assist the Customer in returning Aroga products for a refund or credit, or in pursuing other rights under the Aroga Satisfaction Guarantee and Returns Policy.
3.2 Responsibilities When Enrolling Wellness Partners. When enrolling an Applicant, in addition to the requirements of Section 2.4 (relating to prohibited practices):
(a) You must be a Wellness Partner in full compliance with this Agreement.
(b) You must ensure that the Applicant has access to and the opportunity to read the Wellness Partner Agreement (including the Compensation Plan) and most recent the Statement of Typical Wellness Partner Compensation prior to submitting an Application.
(c) You must assign the Applicant to a Sponsor who can train, support, and motivate the Applicant. Typically, you will be the Sponsor with respect to Applicants that you enroll. Aroga will not mediate disputes involving Sponsor designations. Aroga recognizes as the Sponsor the person whose name appears on the first filed Application. Aroga reserves the right to review sponsoring practices and to modify Sponsor designations to ensure compliance with this Agreement.
(d) You must not enroll an Applicant in a way that manipulates the Applicant’s position in the Line of Sponsorship.
3.3 Responsibilities as a Sponsor. As a Sponsor, in addition to the requirements of Section 2.4 (relating to prohibited practices):
(a) You must be willing and able to train, support, and motivate the Applicant with minimal assistance from other Wellness Partners.
(b) You may not require any Wellness Partner to compensate you for basic training or support services that you provide as a Sponsor. You may not require any Wellness Partner to compensate you for advanced training and support services unless the Wellness Partner acknowledges in writing in advance that participation in the training or support is optional.
(c) You may not offer any cash or monetary incentives, promotions, prizes, bonuses, or anything of value to the Downline Organization or Upline Organization as a method of influencing recruiting Wellness Partners or Customers.
(d) You must not encourage a Wellness Partner, or require the Wellness Partner as a condition of receiving assistance in building their business, to purchase any specified amount of Aroga products.
(e) You must not encourage any Wellness Partner to engage in any conduct that violates the terms of the Wellness Partner’s agreement with Aroga. If you become aware that a Downline Wellness Partner has engaged in any such conduct, you must take appropriate corrective actions, including reporting the violation to Aroga (if not otherwise reported to or known by Aroga) and cooperating with Aroga with respect to any enforcement actions that Aroga deems appropriate.
(f) If requested by Aroga, you must provide Aroga with evidence of your ongoing fulfillment of your responsibilities as a Sponsor.
3.4 Advertising and Promotion
(a) Materials. You may not create promotional or educational materials using Aroga’s name or trademarks for any reason. You may use advertising and promotional materials produced by Aroga and provided to you to advertise Aroga, the Wellness Partner business opportunity, and Aroga products. You may not make any alteration to such advertising and promotional materials (other than adding your name and contact information). You are not required to purchase any advertising or promotional materials, tools, presentations, sales aids, audio or video recordings, or services or other similar items (“Tools”) to establish, grow, or maintain an Aroga Wellness Partner, nor are you required to carry inventory of products or Tools.
(b) Product Statements. You may only make statements about Aroga products that are lawful, accurate, and not misleading. You may not make any statements (including personal testimonials) regarding the medical, therapeutic, or curative benefits of Aroga products, or regarding any warranty regarding Aroga products, other than those statements found in Aroga authorized literature and promotional materials.
(c) Internet Promotion. You may advertise the products and business opportunity using websites developed by Aroga and made available to you by Aroga. You may not use any unapproved online advertising to promote Aroga products or the Wellness Partner opportunity. Other than through a personal, Aroga-provided website, you are prohibited from using Internet sponsored links to take leads for recruiting Customers or Wellness Partners. You may not directly or indirectly offer for sale or purchase, or facilitate the offering of Aroga products for sale or purchase, through any auction, online auction website, or any e-commerce or other website. This prohibition includes selling Aroga products on eBay, Craig’s List, Amazon, or any other similar website, or through any personal website (other than the website made available to you by Aroga).
(d) Mass Communications. You may not send, transmit, or otherwise communicate any unsolicited electronic messages related to Aroga, its business opportunity, or products to persons with whom you do not have a pre-existing business or personal relationship (including sending unsolicited or automated email, text, or telephonic communications, direct mail, or other mass-market communications through internet newsgroups, purchased mailing lists, or other sources of contact for individuals or Business Entities with whom or which you do not have a preexisting relationship).
(e) Cold Marketing. You may not engage in “cold marketing” as a means of recruiting Customers or Wellness Partners. “Cold marketing” is defined as any promotional activity that is geared toward acquiring Customers or Wellness Partners on a random basis who have no personal, business, social, or acquaintance relationships with you. Examples of cold marketing include mass communications described in Section 3.4(e), trade shows booths, door-to-door selling or marketing, telemarketing, flyer distribution, etc. You may not use telemarketing and “speed dial” (random or auto dialing) for recruiting Customers or Wellness Partners.
(f) Website & Social Media. Aroga allows sponsored links through search engines (i.e., Google, Bing) and through third-party websites to allow Wellness Partners to promote the Aroga business opportunity as long as the link, when selected, returns the reader to the Aroga-sponsored website; however, you may not utilize sponsored links through search engines or third-party websites to advertise for customers. Other than through the Aroga-sponsored website provided to you, you are prohibited from using Internet sponsored links to take orders or leads for the Aroga business opportunity.
(g) Print and Electronic Publications. You may not place any advertising or marketing items in magazines and online publications, except for Aroga authorized items.
(h) Broadcast Media. You may not create, utilize, or participate in any television or radio broadcasts (live or tape), advertisements, webcasts, video blogs, or any other mass multi-media forum for the purpose of promoting Aroga products, promoting the Wellness Partner business opportunity, or recruiting for Customers or Wellness Partners. Only Aroga’s public relations department and executive management team are authorized to speak on behalf of Aroga to members of the news media. Thus, all TV, radio, and print media relations interactions are to be handled solely by Aroga’s public relations department even if the member of the media contacting the Wellness Partner is a personal friend or family member. You are prohibited from initiating contact, issuing statements, making appearances, or conducting interviews with the media.
(i) Leads. You may generate leads (i.e., names of prospective Customers or Wellness Partners) for your own use (i.e., to initiate a personal relationship) or for free distribution to your Downline Organization for their use. However, you may not sell leads to other Wellness Partners and you may not purchase leads from any source.
3.5 70% Rule. At least 70% of the Aroga products you purchase each calendar month must be consumed by you or your family or household members prior to the close of the next succeeding calendar month (or, in the case of an order for a product packaged and sold as a multi-month quantity, prior to the close of the first full calendar month that follows the close of the intended period for consumption measured from the shipment date). You may not encourage any Customer or Wellness Partner to engage in purchases of Aroga products in violation of the 70% rule expressed in this Section.
3.6 Compensation Plan Manipulation
(a) You may not engage in any conduct, or encourage others to engage in any conduct, that results in the payment of compensation that has not been earned in accordance with the terms of this Agreement and the Compensation Plan. As examples of prohibited conduct:
(1) You may not engage in commission buying. “Commission buying” includes: (a) the enrollment of a person as a Wellness Partner without the person’s knowledge and permission; (b) the enrollment or attempted enrollment of a non-existent person as a Wellness Partner; (c) the use of a credit card by or on behalf of a Customer or Wellness Partner when the Customer or Wellness Partner, as applicable, is not the account holder of the credit card; (d) purchasing Aroga products on behalf of a Customer or another Wellness Partner or under another Wellness Partner’s account, to qualify for commissions and/or bonuses; and/or (f) any other mechanism by which you enroll persons as Wellness Partners, or place orders for others, to maximize your commissions or bonuses or other incentives such as trips and awards when the person enrolled has not authorized the enrollment or the person for whom the products are ordered has no bona fide use for the products.
(2) You may not purchase Aroga products beyond your reasonable needs for personal consumption (i.e., you will not “inventory load”) nor encourage others to inventory load.
(b) Aroga may withhold final approval on all compensation under the Compensation Plan pending verification of your compliance with any applicable program terms and conditions and to ensure that you have not engaged in any commission buying, inventory loading, manipulation of the Compensation Plan, or violation of this Agreement. If you are found in non-compliance with the Agreement during the incentive, promotional, or recognition program period, you may not participate in the program and will not be eligible for any payments or recognition available under the program. If any Compensation Plan manipulation or other activity in violation of the Agreement becomes known after awards and payments have already been made to you, Aroga reserves the right to deduct the value of any awards from your future commission payments (which you expressly authorize by becoming a party to this Agreement) and take any other action provided for under this Agreement.
3.7 Retail Establishments. If you work in, operate, or own a retail establishment, you must conduct your Wellness Partner business separate and apart from the retail establishment. You may not permit products or literature offered through or by Aroga to be displayed in retail establishments. A retail establishment is a store or any other fixed physical location (whether permanent or temporary) where passers-by are attracted or people come to purchase products because of advertising, location, signage, visibility, or otherwise. A retail establishment includes markets (open or enclosed), pharmacies, kiosks or display booths (temporary or permanent), swap meets, flea markets, vending machines, military stores, salons, or the like. A private office is not a retail establishment if it is not advertised as a location for purchase of products and its appearance, signage, and location do not invite passersby to come in to purchase products. If you are a healthcare professional who maintains a private office in which you host patients or members of the public for purposes other than the sale of Aroga products, you may conduct your Wellness Partner business at such office, but you may not display Aroga products at such office in a manner that indicates that your office is a location for the purchase of Aroga products.
3.8 Cross Marketing. You may not use marketing activities related to Aroga products as a forum for promoting any other commercial or non-commercial organization, company, individual, event, political party or philosophy, or similar agenda not related to the sale of Aroga products.
3.9 Fundraising. You will not offer to sell Aroga products at a discount, or provide Aroga products for free in conjunction the solicitation for the donation of funds for any particular group, organization, or cause, nor will you solicit the purchase of Aroga products or enrollment of persons as Wellness Partners, based on the representation that all, or some, of the gains, proceeds, donations, bonuses, or profits generated by such sale will benefit a particular group, organization, or cause. You may disclose that Aroga has a charitable giving program, but you may not present that program as a principal purpose for purchasing Aroga products or becoming a Wellness Partner.
3.10 Compliance with Applicable Laws
(a) In general. You will comply with all Laws that apply to the operation of your Wellness Partner business wherever the business may be conducted. You will not directly or indirectly encourage, aid, or abet any Wellness Partner to violate any Laws or the terms of their Wellness Partner Agreement. You may not operate any illegal or unlawful business enterprise, or engage or participate in any deceptive, illegal, or unlawful trade practices with respect to your Wellness Partner business.
(b) Healthcare providers. If you are a healthcare provider, you are solely responsible for adhering to any rules and regulations concerning your promotion of the purchase of dietary supplements, nutritional supplements, and/or skin care products as directed by your applicable licensing body.
3.11 Franchises and Territories. You will not represent to anyone that there are franchises or exclusive territories available with respect to the sale of Aroga products.
3.12 International Activity
(a) You will not engage, either directly or indirectly, in any activity related to the Aroga business in any country in which Aroga is not authorized to conduct business. Prohibited activity includes any of the following activities, whether conducted by electronic communications, distribution of literature, or in person: approaching government authorities in such non-authorized countries regarding the importation, distribution, or manufacturing of Aroga products; registering Aroga Marks in any such country; promoting Aroga products or the Wellness Partner opportunity in any such country, or in the United States to persons who you know to be visitors from such a county; or advertising that Aroga products will soon be available in any such country.
(b) You will not knowingly recruit Wellness Partners or Customers located in any country in which Aroga is not authorized to conduct business. You will not knowingly place orders for Customers who will export such products from the United States, unless Aroga or its affiliates have established operations or are doing business in the country to which the products will be exported.
3.13 Duty of Good Faith; Nondisparagement. You will not aid and abet another Wellness Partner to violate any obligations to Aroga under a Wellness Partner Agreement or otherwise. You will not make any statements or engage in any activity that could jeopardize the reputation of Aroga or any of its Wellness Partners.
3.14 Actions of Agents. If any person that you have authorized as your agent to materially assist you with the conduct of your Wellness Partner business engages in any activity that, if performed by you, would violate any provision of this Agreement, then the activity of your agent will be deemed a violation of this Agreement by you.
3.15 Media Inquiries and Contacts. To preserve a consistent public image for the benefit of Aroga and all Wellness Partners, you will not speak to the media on behalf of Aroga or represent to the media that you are authorized to speak on behalf of Aroga. Additionally, you will not proactively contact the media or distribute any form of press release that includes information about Aroga, its products, or the Compensation Plan without prior consent of Aroga.
Section 4. Confidential Information
(a) Aroga provides various reports to Wellness Partners related to the conduct of their Wellness Partner business, including reports containing information on Wellness Partners’ Downline Organization and Upline Organization, Customer lists, Customer information, commission or bonus information, financial information, information regarding training aids and training materials, and information regarding testing or development of new products, services, or programs (collectively and individually, “Reports”). Aroga considers the Reports proprietary and confidential, and considers the Reports a trade secret. Aroga is the exclusive owner of all Reports, which are derived, compiled, configured, and maintained through the expenditure of considerable time, effort, and resources by Aroga and its Wellness Partners. Any information or data you derive therefrom, and any information or data transmitted to you, or to which you are granted access, is transmitted or granted with the understanding that you will hold such information and data in strictest confidence.
(b) You may use Aroga’s Reports only for the purposes permitted under this Agreement.
(c) You acknowledge that (a) Reports are confidential and a valuable trade secret and/or intellectual property owned by Aroga; (b) Reports are owned exclusively by Aroga; and (c) you do not own any rights in the Reports. You will not challenge or interfere with Aroga’s authority to license or sublicense all or part of the Reports. You will not assert or seek any rights or protection of any kind in the Reports other than those limited rights or protections that may be specifically granted by this Agreement.
(d) You may use Reports only with Aroga’s prior approval, which may be expressed through general publication to Wellness Partners or through a specific writing to you. Any permission granted by Aroga will constitute a limited, non-exclusive, non-transferable and revocable license by Aroga for you to use the Reports only as necessary to facilitate your Aroga business as permitted under this Agreement. You may not use, copy, or distribute such information other than for the benefit of Aroga and for the purpose of operating your Wellness Partner business, including promoting Aroga products and the Wellness Partner opportunity, in accordance with this Agreement. You will not compile, organize, access, create lists of, or otherwise use or disclose any part of the Reports except as expressly permitted by Aroga. You may not disclose such information to the general public or use it for personal gain. This includes using the information in connection with operating, owning, or engaging in another business (in any capacity), whether or not that business competes with Aroga or its products or services. Aroga may deny or revoke any such license, upon reasonable notice to you stating the reason(s) for such denial or revocation, whenever, in Aroga’s sole discretion, such denial or revocation is necessary to protect the confidentiality or value of the Reports.
(e) You will maintain Reports in strictest confidence, and will take all commercially reasonable best efforts to safeguard the Reports and maintain the confidentiality of the Reports.
(f) You will discontinue all use of Reports and any confidential, proprietary, or trade secret information derived therefrom, and will promptly either destroy or return any and all such Reports and information to Aroga upon termination of this Agreement and will immediately discontinue any further use of such Reports and information.
(g) You acknowledge that use or disclosure of Reports, other than as authorized by Aroga, will cause significant and irreparable harm to Aroga, warranting an award of injunctive relief, including a temporary restraining order and/or a preliminary injunction, specific performance, and damages (including disgorgement of any profits made as a result of such unauthorized use or disclosure).
(h) Nothing in the document is intended to interfere with or discourage a good faith disclosure to any governmental entity related to a suspected violation of any Law.
(i) You cannot and will not be held criminally or civilly liable under any federal or state trade secret law for disclosing otherwise protected trade secrets and/or confidential or proprietary information as long as the disclosure is made in (i) confidence to a federal, state, or local government official, directly or indirectly, or to an attorney and solely for the purpose of reporting or investigating a suspected violation of law; or, (ii) a complaint or other document filed in a lawsuit or other proceeding, as long as such filing is made under seal.
(j) Aroga will not retaliate against you in any way for a disclosure made in accordance with the law.
Section 5. Intellectual Property
5.1 Marks and Works. Aroga’s trademarks (“Marks”) and copyrighted works (“Works”) are valuable and important business assets. The Marks help identify the source and reputation of Aroga’s products worldwide and distinguish them from those of its competitors. Aroga makes commercially reasonable efforts to protect the Marks and Works from improper use, including through this Agreement. Aroga’s Marks are the sole property of Aroga and must be used pursuant to the terms of this Agreement.
(a) You may not use the Marks or any confusingly similar variation of the Marks in a manner that is likely to confusion, mistake, or deception as to the source of the products or services advertised.
(b) You may not use the Marks or any confusingly similar variation of the Marks in a business name, e-mail address, internet domain name or sub-domain name, URL, telephone number or in any other address or title.
(c) You agree to assign and hereby assign any registration of the Marks registered or reserved in violation of this policy.
(d) Aroga, in its sole discretion, will determine whether a variation of the Marks is confusingly similar.
(e) Aroga’s literature and media are copyrighted by Aroga and may not be duplicated.
5.2 Grant of Limited License for Aroga Marketing Materials. You are hereby granted a limited, non-exclusive, nontransferable, and revocable license to use the Marks and Works as are provided to you in the form of Aroga-approved marketing materials (“Aroga Marketing Materials”). All Aroga Marketing Materials must be used in their original form and cannot be changed, amended or altered. All Aroga Marketing Materials remain the property of Aroga.
5.3 Grant of Limited License for Distributor Created Marketing Materials. You are hereby granted a limited, non-exclusive, nontransferable, and revocable license to use such Marks and Works subject to conditions and specifications published or specifically provided in writing from time to time. The Marks and Works may be used only on: (a) exterior and interior office signs; (b) all forms of vehicle signs; (c) telephone listings; (d) stationary; and (e) business cards (collectively “Distributor Created Marketing Materials”).
5.4 Use of the Marks on Business Cards or Stationary. The foregoing notwithstanding, the use must be accompanied by the following: “Independent Wellness Partner.” For example, business cards that use the Marks must include clear and conspicuous identifiers as follows:
Aroga Independent Wellness Partner
5.5 Use of the Marks in All Other Circumstances. In addition, you may use Aroga’s Marks and Works under other circumstances with Aroga’s express prior approval through a specific license to you. All requests for Aroga’s approval must be in writing. Aroga will decide whether to grant such requests in its sole discretion.
5.6 Termination of this Agreement. Upon termination of this agreement, all licenses granted under this section will be automatically revoked. You must immediately return all Aroga Marketing Materials. You must also immediately destroy all Distributor Created Marketing Materials and certify in writing to Aroga that such materials have been destroyed.
5.7 Conditions of Use. Aroga may require conformity with specifications, may require that materials that use Aroga’s Marks and/or Works be sourced from Aroga or an Aroga approved supplier, and may otherwise place additional conditions for the use of its Marks and Works. Any permission granted by Aroga to you constitutes a limited, non-exclusive, nontransferable, and revocable license to use such Marks and Works solely in connection with the Aroga business.
5.8 Aroga’s Use of Your Personality Rights. Aroga may videotape and photograph you for Aroga related promotional materials, and you grant Aroga a license to use your name, photograph, video images, personal story, information, and likeness in Aroga related promotional materials. You hereby waive all claims for payment for such use.
Section 6. Competition and Non-Solicitation
6.1 Non-Competition & Non-Solicitation. During the term of this Agreement and for one year thereafter, you may not:
(a) market, promote, derive financial benefit from, or otherwise participate in or be affiliated with any other business opportunity involving the same or substantially similar product or services as those offered by Aroga in any geographical area or State in which Aroga provides such products or services;
(b) be involved directly or indirectly in the solicitation, marketing, or sale of products or services for any other company or any other person or entity that engages in the sale or promotion of the same or substantially similar products or services as those offered by Aroga in any geographical area or State in which Aroga provides products or services;
(c) otherwise solicit, divert, take away, or interfere with any of the Customers, Wellness Partners, employees, trade, or patronage of Aroga; or
(d) directly or indirectly sponsor, solicit, promote, or recruit (whether on your behalf or any other person or entity) any other Aroga Wellness Partner or Customer (of whom you became aware in the course of your Wellness Partner business) to participate in another network marketing program regardless of whether or not such network marketing program offers products or services the same as are similar to the products or services offered by Aroga.
Section 7. Transfers and Position Changes
7.1 Transfer of Your Wellness Partner Business
(a) General. You may transfer all or any portion of your Wellness Partner business only if the transfer is a Permitted Transfer. For this purpose, a “transfer” of a Wellness Partner business means any transfer (whether voluntarily, involuntarily, or by operation of Law and whether or not effective under this Agreement) of all or any portion of your Wellness Partner business (including your rights to compensation under the Compensation Plan and your relationships with your Customers and Downline Organization), or any interest in such Wellness Partner business (including control rights), to another person, and includes a sale, assignment, gift, exchange, abandonment, or other disposition; a transfer by merger or other business combination or conversion; a transfer pursuant to bankruptcy, insolvency, incapacity, divorce, or death; and any pledge, hypothecation, or other encumbrance. In addition, if you are a Business Entity, any more than 50% change in the beneficial ownership of your equity ownership interests, or any change in effective control of your operations, will be deemed to be a transfer of your Wellness Partner business.
(b) Permitted Transfers. A transfer of your Wellness Partner business is a Permitted Transfer only if the transfer is approved by Aroga, which approval may be not be unreasonably withheld, and the transfer satisfies the following conditions (which conditions shall not be construed as a limitation on Aroga’s authority to withhold approval for all or any portion of the proposed transfer or on Aroga’s authority to impose additional conditions to any such transfer):
(1) The transfer complies with all applicable Laws, including any applicable securities Laws.
(2) The proposed transferee is a Wellness Partner in good standing and has sufficient skills, experience, judgment, and resources to operate the business.
(3) The transferor and transferee have delivered to Aroga any documents that Aroga reasonably requests to confirm that the transfer satisfies the requirements of this Agreement, to give effect to the transfer, and to confirm the transferee’s is bound by and is in compliance with a current Wellness Partner Agreement with Aroga.
(4) If the proposed transfer involves a sale of your Wellness Partner business, you have provided the notice and information required by Section 7.2 (relating to Aroga’s right of first refusal).
(5) If requested by Aroga, Aroga has received a transfer fee in an amount determined by Aroga to be sufficient to reimburse it for the estimated expenses likely to be incurred by it in connection with such transfer.
7.2 Right of First Refusal. If you request Aroga’s approval for a bona fide sale of your Wellness Partner business, Aroga will have the right to purchase all, but not less than all, of the portion of your Wellness Partner business that you propose to sell on the substantially the same terms and conditions as provided in the proposed sale. You must provide Aroga a notice and request for approval of the proposed sale at least 45 days prior to the proposed closing of the sale. The notice and request for approval must set forth the material terms and conditions of the proposed sale (including the amount and form of consideration), the identity of the proposed transferee, and the intended closing date of the propose sale. Aroga will use its reasonable best efforts to notify you within 15 days following receipt of your notice and request for approval of the proposed sale in proper form that Aroga has either (a) approved the proposed sale, (b) denied approval for the proposed sale (and such notice shall include the basis for the denial), or (c) has exercised its right to purchase your Wellness Partner business. If Aroga approves the proposed sale, you must complete the proposed sale substantially in accordance with the terms and conditions set forth in the notice and request for approval within 30 days following the notice of approval. You may not request approval for more than one transfer during any consecutive six month period. If Aroga exercises its right to purchase the portion of your Wellness Partner business that you propose to sell, Aroga must close such purchase within 30-days following its notice to you that it is exercising its right to purchase.
7.3 Effect and Consequences of a Prohibited Transfer. Any transfer of your Wellness Partner business that is not a Permitted Transfer and is not a transfer by reason of death is a Prohibited Transfer. A Prohibited Transfer (including a transfer that is declared void as provided in this Section 7.3) constitutes a breach of this Agreement. Except as otherwise required by Law, Aroga will treat a Prohibited Transfer as void and will recognize you as continuing to be the owner of the Wellness Partner interest purported to be transferred. If Aroga is required by Law to recognize a Prohibited Transfer, Aroga may terminate the transferee in accordance with Section 9.2(d) as if the transferor had breached this Agreement. The transferor and transferee with respect to a Prohibited Transfer will be jointly and severally liable to Aroga for, and will indemnify and hold Aroga harmless against, any damages incurred by Aroga (including reasonable legal fees and expenses) as a result of such transfer, including damages associated with the termination of this Agreement with respect to the transferor or transferee on account of such transfer and the enforcement of the indemnity granted in this Section 10.7(c).
7.4 Individual Position Change
(a) If you wish to change your Sponsor without any transfer of your existing Wellness Partner business (i.e., no transfer of your Customers or Downline Organization), you must obtain the consent of your Sponsor, your proposed Sponsor, and Aroga for the change, which consent may be given or withheld in each applicable party’s sole discretion. Aroga may specify forms to be used for purposes of requesting a change of your Sponsor. This provision shall not apply to a change in your Sponsor initiated by your Enroller within 60 days of you becoming a Wellness Partner.
(b) If you are not able to obtain your current Sponsor’s consent to a proposed Sponsor change as provided in Section 7.4(a), you may request Aroga’s and your proposed Sponsor’s consent to the proposed Sponsor change, which consent may be given or withheld in the applicable party’s sole discretion, but only on the condition that you terminate this Agreement in accordance with Section 9.2(a) for a period of six months and then reapply as a Wellness Partner with the proposed Sponsor as your Enroller and Sponsor. Section 1.2(d) (former Wellness Partners not eligible to become a Wellness Partner) will not apply to an Application filed in accordance with this Section 7.4(b).
7.5 Group Position Change. A group position change involves a change in your Wellness Partner Sponsor together with all or a portion of your Customers and Downline Organization. If you wish to effect a group position change, you must obtain the consent of (a) your First Upline Ambassador; (b) all of your Downline Wellness Partners you wish to transfer with you; (c) the proposed new Sponsor and his or her First Upline Ambassador; and (d) Aroga. The consent of any required party may be given or withheld in that party’s sole discretion. In order to protect the integrity of the Line of Sponsorship (which is critical to fostering the expansion of Aroga’s and its Wellness Partners’ business), Aroga will approve group position changes only in extraordinary circumstances.
7.6 Combination of Wellness Partner Businesses. If you marry an existing Wellness Partner, you may combine your Wellness Partner business with your spouse’s Wellness Partner business if you and your spouse wish to conduct your respective Wellness Partner businesses as a single business in accordance with the requirements of Section 1.3, provided (a) the conditions of Section 7.1(b) are satisfied with respect to the proposed combination (applied as if the proposed combination were a sale of each Wellness Partner’s business), and (b) Aroga has approved the proposed combination, which approval may not be unreasonably withheld.
Section 8. Enforcement of Agreement
8.1 Aroga’s Enforcement Rights and Responsibilities. If Aroga determines that you may have breached this Agreement, Aroga will first investigate the facts and circumstances as it deems appropriate. Before taking any enforcement action, Aroga will attempt to contact you in an effort to resolve the issue. If the communication does not resolve the issue, Aroga may take any enforcement action it deems necessary or appropriate in its sole discretion, including taking no action or taking any one or more of the following actions:
(a) Issuing a warning to you.
(b) Retraining you, and/or any Wellness Partners in your Line of Sponsorship.
(c) Suspending all or some of your rights (including rights to enroll new Wellness Partners, rights to conduct advertising and promotion activities, and rights participate in portions of the Compensation Plan) for a specified period of time, or until certain conditions are met.
(d) Withdrawing or denying an award, trip, recognition, or other incentive.
(e) Withholding compensation payable to you under the Compensation Plan.
(f) Seeking compensation from you for monetary or other damages caused to Aroga by your violation of the Agreement.
(g) Proceeding under the dispute resolution procedures set forth in Section 11.
(h) Terminating the Agreement as provided in Section 9.2.
8.2 Wellness Partner Enforcement Rights and Responsibilities. If you believe that another Wellness Partner has breached his or her Wellness Partner Agreement, you should first contact the Wellness Partner in question in an effort to resolve the issue. If you believe Aroga has breached this Agreement, you should first contact Aroga in an attempt to resolve the issue. If the communications with the Wellness Partner or Aroga, as applicable, do not resolve the issue, you may file a complaint with Aroga. The complaint should describe the issue in as much detail as possible and include all supporting documents related to the issue. Aroga will investigate the issue as appropriate, and will take any enforcement or corrective action that Aroga determines is necessary or appropriate and will notify you of such action. If, after filing the complaint and providing a reasonable period of time for Aroga to investigate and act on the compliant, you believe that the issue has not been satisfactorily resolved, you may proceed under the formal dispute resolution procedures set forth in Section 11.
Section 9. Term and Termination
9.1 Term. This Agreement will commence on the date that it is accepted by Aroga and will continue in force until terminated as provided in Section 9.2.
(a) You may terminate this Agreement at any time by notice to Aroga according to the notice procedures for notices in Section 13.
(b) If you fail to qualify as an Active Wellness Partner (as defined in the Compensation Plan) for a period of six consecutive calendar months, this Agreement will automatically terminate on the last day of the sixth month of such period of inactivity.
(c) This Agreement will terminate automatically upon your death or Permanent Disability.
(d) Aroga may terminate this Agreement if Aroga determines that you have materially breached this Agreement, regardless of whether the provision itself specifies that its violation is a terminable offense.
9.3 Termination Appeal Rights. If the Company terminates this Agreement as provided in Section 9.2(b) or Section 9.2(c), you may request that the Company reconsider the termination by submitting a notice of appeal to the Company within 15 days from the date of the Company’s notice to you of the termination. If you file a timely notice of appeal, the Company will contact you to discuss the circumstances of the termination and to consider any information or documents you wish to present with respect to the termination. Based on the discussions and review, the Company will consider whether, the termination should be rescinded or other appropriate actions taken. The Company will notify you of its decision within 15 days following the conclusion of discussions with you. The decision of the Company will be final and subject to no further review. If termination is not rescinded, the termination of this Agreement will remain effective as of the date stated in the original termination notice.
9.4 Effect of Termination. If this Agreement is terminated:
(a) Except as provided in Section 9.4(b), all of your rights under this Agreement are terminated effective as of the close of the date of termination, other than the right to receive compensation earned under the Compensation Plan through the date of termination (subject to offset for any damages caused by the events giving rise to the termination). You may not transfer your Wellness Partner position after the date of termination, and you are prohibited from having any interest of any kind in any other Wellness Partner position after the date of termination.
(b) Section 9.4(a) notwithstanding, if this Agreement is terminated as a result of your death or Permanent Disability as provided in Section 9.2(c), then your estate or you or your legal representative (as applicable) will have the right to effect a Permitted Transfer of your Wellness Partner business (whether by sale or transfer by gift or inheritance) in accordance with Section 7.1, and subject to Section 7.2, for a period of 90 days following the termination date. During such 90-day period, your estate or you or your legal representative (as applicable) will continue to accrue compensation earned under the Compensation Plan with respect to your Wellness Partner business. If your Wellness Partner business is not transferred within such 90-day period, your Wellness Partner business will be non-transferrable as provided in the preceding sentence, and your former Customers and Downline Organization will be reassigned according to Section 9.4(g) below, effective as of the expiration of such 90-day period.
(c) You may continue to purchase Aroga products as a Customer, but you will not be eligible to receive compensation under the Compensation Plan with respect to your purchases, or with respect to your former Customers or Downline Organization, after the Termination Date.
(d) You must permanently discontinue all advertising or promotion activities referring to or relating to Aroga products and the Wellness Partner opportunity, and must permanently discontinue the use of all Aroga Marks, Works, Tools, and other promotional materials.
(e) You must take all actions reasonably requested by Aroga relating to protection of its Reports and other confidential information.
(f) You must cease representing yourself as a Wellness Partner.
(g) Unless your Wellness Partner business as transferred as permitted by Section 9.4(b) (relating to Permitted Transfers following termination by death or Permanent Disability), your former Customers and Downline Organization will be reassigned to your direct Sponsor, unless Aroga and your direct Sponsor agree to reassign your Customers and Downline Organization to one or more of the Sponsor’s Downline Wellness Partners.
9.5 Buyback of Products Upon Termination. Upon the termination of this Agreement, you may return to Aroga any unopened, currently marketable Aroga products within 90 days after the date of original purchase if at least six months is left between Aroga receiving the product and the product’s expiration date. To initiate a return of products under this Section, you must first call Aroga to obtain a return authorization. Aroga will refund an amount equal to your original cost for the products less shipping and handling charges, a 10% service charge to cover handling and processing costs, and appropriate set-offs and legal claims. Aroga will make all appropriate commission chargebacks to those Wellness Partners who originally received commissions on your purchase of the products that are returned. You will not be entitled to return any products you previously reported as having been consumed by you or your family or household members for purposes of measuring your compliance with the 70% rule in Section 3.5. Nothing in this Section 9.5 shall be construed as limiting any right you may have under federal or state consumer protection Laws to cancel product orders and obtain a refund for cancelled orders.
9.6 Survival of Obligations. Your obligations set forth in Section 3.13 (Duty of Good Faith and Non-Disparagement), Section 4 (Confidential Information), Section 5 (Intellectual Property), Section 10 (Limitation of Liability and Indemnification), and Section 11 (Dispute Resolution) will survive, and remain enforceable following, the voluntary or involuntary termination of this Agreement. Your obligations in Section 6 (Competition and Non-Solicitation) survive as provided in Section 6.1.
Section 10. Limitation of Liability and Indemnification
10.1 Aroga Authority. Determinations made by Aroga under this Agreement are to be made in Aroga’s sole discretion and are binding absent evidence of bad faith or lack of fair dealing.
10.2 Limitation of Aroga’s Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO AROGA AFFILIATED PERSON WILL BE LIABLE FOR, AND YOU (ON BEHALF OF YOURSELF, ALL MEMBERS OF YOUR HOUSEHOLD, ALL CORPORATIONS OR OTHER LEGAL ENTITIES IN WHICH YOU HAVE ANY OWNERSHIP OR MANAGEMENT ROLE, AND ALL OF YOUR OR THEIR EMPLOYEES, AGENTS OR REPRESENTATIVES) HEREBY RELEASE ALL AROGA AFFILIATED PERSONS FROM, AND WAIVE ANY CLAIM FOR, ANY INJURY TO OR LOSS OF GOODWILL, REPUTATION, BUSINESS, PRODUCTION, REVENUES, PROFITS, ANTICIPATED PROFITS, CONTRACTS, OR OPPORTUNITIES (REGARDLESS OF HOW THESE ARE CLASSIFIED AS DAMAGES), OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE OR ENHANCED DAMAGES WHETHER ARISING IN CONTRACT, TORT (INCLUDING PRODUCT LIABILITY, NEGLIGENCE AND STRICT LIABILITY FOR BODILY OR PERSONAL INJURY, SICKNESS, DISEASE OR DEATH CAUSED OR ALLEGEDLY CAUSED BY ANY AROGA PRODUCTS), OR OTHERWISE (INCLUDING THE ENTRY INTO, PERFORMANCE OR BREACH OF THIS AGREEMENT), REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE AND REGARDLESS OF WHETHER YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. NO AROGA AFFILIATED PERSON WILL BE LIABLE TO YOU FOR ANY DAMAGES SUFFERED BY YOU AS A RESULT OF ANY ACT, OMISSION, OR REPRESENTATION BY ANY OTHER WELLNESS PARTNER.
10.3 Your Indemnification of Aroga. To the fullest extent permitted by applicable Law, you agree to indemnify and hold all Aroga Affiliated Persons harmless from and against any and all loss, cost, liability, damages (including damages incurred in defense of a third-party claim or to enforce your indemnification obligations to any Aroga Affiliated Person), fine, judgment, fee, award, or expense (including reasonable legal and other professional fees and expenses) arising from or relating to the operation of your Aroga business by you or your employees, agents, or representatives (including your or their breach of this Agreement, marketing of Aroga products to Customers and others, representations relating to the Compensation Plan, enrollment or sponsorship of Wellness Partners, unauthorized conduct, operation of a motor vehicle, and lease of meeting or training facilities), regardless of whether any such loss, cost, liability, damages, fine, judgment, fee, award, or expense was caused or allegedly caused, in whole or in part, by any Aroga Affiliated Persons. The Aroga Affiliated Persons will at all times retain control of their own defense, including the right to choose defense counsel and the right to make all strategic decisions, including settlement decisions, in their sole discretion. You will reimburse the Aroga Affiliated Persons within 30 days following written submission of any amount within the terms of this indemnification provision. The foregoing indemnification obligations specifically include third-party property damage, bodily or personal injury, sickness, disease, or death caused or allegedly caused by any Aroga products.
Section 11. Dispute Resolution
(a) In the event of any claim, controversy, or dispute (individually and collectively referred to as “dispute”) arising out of or relating to this Agreement or the actual or alleged breach of this Agreement, Aroga and you (individually “party” or collectively “parties”) will first attempt to settle the dispute through consultation and negotiation in good faith with a spirit of mutual cooperation. Such consultation and negotiation shall be commenced by written notice by either party to the other party as provided in Section 13.1.
(b) If Aroga and you are unable to resolve the dispute within 30 days following that notice, the dispute will be resolved by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and any judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The dispute will be heard by a single arbitrator, who shall be a former judge or an attorney currently engaged in the practice of law or dispute resolution. You are not permitted to arbitrate as class representative or class member in any purported class or representative proceeding, including purported classes of Wellness Partners; the arbitrator is not permitted to consolidate more than one person’s claims and may not otherwise preside over any purported class or representative proceeding, including purported classes of Wellness Partners.
(c) The place of arbitration shall be within 100 miles of the physical address you use in communications with Aroga. Unless the dispute includes a claim for damages in the amount of $50,000.00 or more, there will be no discovery other than the exchange of documents. If the dispute includes a claim for damages in the amount of $50,000 or more, discovery will include no more than four depositions of five hours or less. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in-person hearings. Time is of the essence for any arbitration under this Agreement, and arbitration hearings shall take place within 90 days of filing and awards rendered within 120 days. The arbitrator must agree to these time limits prior to accepting appointment.
(d) Aroga will pay all administrative and arbitrator fees, but the arbitrator will have the authority to require you to reimburse Aroga for up to fifty percent of such fees. Failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges will constitute a waiver by that party of its right to present evidence or cross-examine witnesses. In such event, the other party will be required to present evidence and legal argument as the arbitrator may require for the making of an award. Such waiver will not allow for a default judgment against the non-paying party in the absence of evidence presented as provided for above.
(e) The arbitrator will have no authority to award punitive, exemplary, or other damages not measured by the prevailing party’s actual damages, except as may be required by applicable Law. Each party will bear its own attorneys’ fees, but the arbitrator will have the authority to reallocate attorneys’ fees if a particular Law or a provision of this Agreement so permits. The award of the arbitrator shall be accompanied by a reasoned opinion. Except as may be required by Law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties.
(f) The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in Section 11.2 with respect to governing law for this Agreement, any arbitration conducted pursuant to the terms of this Agreement will be governed by the Federal Arbitration Act (9 U.S.C. Sections 1-16).
(g) YOU ACKNOWLEDGE THAT BY ENTERING INTO THIS AGREEMENT, YOU ARE ACCEPTING BINDING ARBITRATION WITH RESPECT TO ALL CLAIMS ARISING OUT OF THIS AGREEMENT, YOU ARE WAIVING ALL RIGHTS TO A COURT OR JURY TRIAL WITH RESPECT TO SUCH CLAIMS (TO THE EXTENT SUCH RIGHTS MAY BE LEGALLY WAIVED), AND YOU ARE WAIVING ANY RIGHTS TO BE A CLASS REPRESENTATIVE OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
11.2 Governing Law. All matters arising out of or relating to this Agreement, including the validity, enforceability, breach, or termination of this Agreement, will be governed by, and this Agreement will be interpreted and construed according to, the laws of the State of Texas without regard to any legal requirements, under Texas law or otherwise, that would require the application of the law of any other jurisdiction.
11.3 Period of limitation. If you wish to bring an action against Aroga for any act or omission relating to or arising from this Agreement, the action must be brought within one year of the alleged conduct giving rise to the cause of action. Failure to bring such action within such time frame will bar all claims against Aroga for such act or omission. You hereby waive all claims that any other statutes of limitations applies.
Section 12. Amendments
12.1 Amendments. Aroga may amend this Agreement (including the terms of the Compensation Plan and any supplement to this Agreement that is made a part of the Agreement) at any time upon 30-days’ advance notice to you. The requirements of this Section for an effective amendment may be satisfied by posting the amendments in your My Account section of Arogalife.com and providing notice of such posting to you in the accordance with the notice procedures provided by this Agreement. Unless otherwise specified in the notice to you or in the amendment, any amendment to this Agreement will be effective on the 30th day after the required notice of amendment is delivered to you.
Section 13. General Provisions
13.1 Notices. Any notice, request, report, approval, consent, or other communication required or permitted under this Agreement shall be in writing and is deemed given (a) when delivered to the person by hand, (b) the third business day after delivery to the United States Postal Service (or other designated delivery service as defined in Section 7502(f) of the U.S. Internal Revenue Code), postage prepaid, in an envelope properly addressed to the person at the person’s address set forth in Aroga’s records as of the date of delivery, or (c) when successfully transmitted by facsimile or electronic message to the person’s facsimile phone number or e-mail address (as applicable) set forth in Aroga’s records as of the date of transmission. Any communication to Aroga may be delivered to Aroga’s principal business office as designated on Arogalife.com or to Aroga’s registered agent in Texas. Notice to an officer or other representative of Aroga will not be deemed to be notice to Aroga for purposes of this Agreement.
13.2 Waiver. Any failure by Aroga or you to insist upon the strict performance of any covenant or condition of this Agreement, or to exercise any right or remedy upon a breach of any such covenant or condition, does not constitute a waiver of any such covenant or condition or any breach thereof. Neither Aroga nor you will be deemed to have waived any right or remedy under this Agreement unless Aroga or you, as applicable, has signed a written document to that effect. Any such waiver is applicable only with respect to the specific provision and instance for which it is given. No waiver by Aroga of any right or remedy with respect to any other Wellness Partner will be deemed a waiver of any such right or remedy with respect to you.
13.3 Entire agreement. This Agreement supersedes all prior agreements, whether written or oral, between Aroga and you with respect to its subject matter and constitutes a complete and exclusive statement of the agreement between Aroga and you with respect to its subject matter.
13.4 Successors and assigns. You may not assign any of your rights or delegate any of your obligations under this Agreement except as expressly permitted in this Agreement.
13.5 Third-parties. Other than as provided in Section 10 (relating to limitation of liability and indemnification) none of the provisions of this Agreement are for the benefit of or enforceable by any persons other than you and Aroga, except such benefits as inure to a successor or assign in accordance with this Agreement.
13.6 Severability. If any provision of this Agreement is held invalid or unenforceable, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
13.7 Construction and Interpretation. Nothing in this Agreement is to be construed as authorizing or requiring any action that is prohibited by applicable Law, or as prohibiting any action that is required by applicable Law. In this Agreement, unless a clear contrary intention appears: (a) the singular number includes the plural number and vice versa; (b) reference to any person includes such person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement, and reference to a person in a particular capacity excludes such person in any other capacity or individually; (c) reference to any gender includes the other gender and the neuter; (d) reference to any agreement or other document means such agreement or other document as amended or modified and in effect from time to time; (e) reference to any Law means such Law as amended, modified, codified, replaced, or reenacted, in whole or in part, and in effect from time to time, and reference to any section or other provision of any Law means that provision of such Law from time to time in effect and constituting the substantive amendment, modification, codification, replacement, or reenactment of such section or other provision; (f) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term; (g) “or” is used in the inclusive sense of “and/or”; (h) with respect to the determination of any period of time, “from” means “from and including” and “to” means “to but excluding”; and (i) references to agreements or other documents refer as well to all addenda, exhibits, schedules, or amendments thereto.
13.8 Further assurances. You and Aroga shall execute and deliver all documents, provide all information, and take or refrain from taking action as may be reasonably necessary or appropriate to achieve the purposes of this Agreement.
Section 14. Defined Terms
Affiliate – as applied to any Business Entity, any other person who, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Business Entity. For purposes of this definition, “control” means the possession, directly or indirectly, through one or more intermediaries, of the power to direct the management and policies of a Business Entity, whether through the ownership of stock, by contract, or otherwise.
Agreement – the Wellness Partner Agreement entered into between you and Aroga according to the terms and conditions of the Wellness Partner Agreement, and includes the Application, the Compensation Plan, and the Glossary of Defined Terms attached as Appendix 1 to the Wellness Partner Agreement.
Applicant – a person who applies to become a Wellness Partner by completing an Application and submitting it to Aroga for acceptance.
Application – an application to become a Wellness Partner submitted either online or on a form prescribed by Aroga.
Aroga – Aroga, Ltd., a Texas limited partnership.
Aroga Affiliated Person – Aroga, its Affiliates, and any director, officer, manager, managing member, employee, agent, consultant, advisor, or other representative (including, if applicable, heirs and legal representatives of a natural person) of Aroga and its Affiliates, including legal counsel, accountants, and financial advisors.
Aroga Marketing Materials – is defined in Section 5.2.
Aroga Satisfaction Guarantee and Returns Policy – Aroga’s written policy, as in effect as of the applicable time, regarding your right and the right of Customers and other Wellness Partners to return Aroga products for a refund or credit of the purchase price.
Arogalife.com – the website maintained by Aroga at www.arogalife.com or any successor website for the purpose of communicating with Wellness Partners.
Business Entity – a corporation, partnership, limited liability company, business trust, or other entity other than a natural person.
Compensation Plan – the Aroga Compensation Plan referenced in the Wellness Partner Agreement, as amended from time to time. The Compensation Plan is available to Wellness Partners on their respective My Account pages of Arogalife.com.
Customer – a person who purchases Aroga products who is not a Wellness Partner. A Customer is your Customer with respect to any order on which you are listed as the Wellness Partner.
Distributor Created Marketing Materials – is defined in Section 5.3.
Downline Organization – with respect to a specified Wellness Partner, all persons who are Downline Wellness Partners with respect the specified Wellness Partner or Customers of such Downline Wellness Partners.
Downline Wellness Partner – with respect to a specified Wellness Partner, any Wellness Partner directly sponsored by the specified Wellness Partner or indirectly sponsored by the specified Wellness Partner through any such sponsored Wellness Partners. Wellness Partners sponsored directly by the specified Wellness Partner are considered first generation Downline Wellness Partners. Wellness Partners sponsored by first generation Wellness Partners are considered second generation Downline Wellness Partners. More remote Wellness Partners are designated similarly (i.e., third generation, fourth generation, etc.).
Enroller – an existing Wellness Partner who assists an Applicant in becoming a Wellness Partner, or who is otherwise designated as the Enroller with respect to an Applicant at the time the Applicant applies to become a Wellness Partner.
Family Members – an individual, his brothers and sisters (whether by the whole- or half-blood), spouse, ancestors, and lineal descendants.
First Upline Ambassador – the Upline Wellness Partner in your Upline Organization who is in a direct Line of Sponsorship with you, who has achieved the Ambassador Recognition Title (as described in the Compensation Plan) or higher Recognition Title, and who is closest to you in the Line of Sponsorship (in terms of generations of sponsorship).
Law – any constitution, law, ordinance, principle of common law (including equitable principles), statute, code, regulation, rule, or treaty enacted, issued, or promulgated by any governmental authority or agency thereof.
Line of Sponsorship – a group of Wellness Partners consisting of a first generation Wellness Partner (i.e., a Wellness Partner sponsored directly by Aroga rather than by another Wellness Partner), a Wellness Partner sponsored by the first generation Wellness Partner (a second generation Wellness Partner), and any lower generation Wellness Partners connected through sponsorship. Your Line of Sponsorship includes all Upline Wellness Partners in a direct line of sponsorship to your first generation Wellness Partner.
Marks – Aroga trademarks. See Section 5.1.
Permanent Disability – you are either (a) unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than 12 months; (b) determined to be totally disabled by the Social Security Administration.
Permitted Transfer – any transfer all or any portion of your Wellness Partner business pursuant to a transfer described in Section 7.1(b).
Preferred Customer – a Customer who has an active auto order (i.e., an order that refills on a monthly basis until cancelled). Products ordered pursuant to an auto order are priced at a discount to regular single shipment orders.
Prohibited Transfer – a transfer that is not a Permitted Transfer and is not a transfer by reason of death. See Section 7.3.
Reports – reports relating to a Wellness Partner’s business. See Section 4.
Sponsor – with respect to a Wellness Partner, another Wellness Partner designated as the Sponsor of the Wellness Partner and who has the responsibility for assisting the Wellness Partner in developing the Wellness Partner’s business (including providing training and other support as appropriate).
Statement of Typical Wellness Partner Compensation – available on Arogalife.com.
Tools – advertising or promotional materials and similar items used to establish, grow, and maintain an Aroga Wellness Partner. See Section 3.4(a).
Upline Organization – with respect to any Wellness Partner, the group that includes the Wellness Partner’s Sponsor, any Wellness Partner whose Sponsor is the same as such Sponsor’s Sponsor, and any similarly connected more remote upline (upper generation) Sponsors and Wellness Partners.
Upline Wellness Partner – with respect to any Wellness Partner, any Wellness Partner in the Wellness Partner’s Upline Organization.
Wellness Partner – an Applicant who’s Application is accepted by Aroga a provided in the Wellness Partner Agreement and whose Wellness Partner Agreement has not been terminated.
Wellness Partner Agreement – with respect to any particular Wellness Partner, the Wellness Partner Agreement entered into between the Wellness Partner and Aroga, as amended from time to time as provided in such agreement.
Wellness Partner Pack – the products and/or marketing materials that an Applicant orders when applying to become a Wellness Partner.
Works – Aroga copyrighted works. See Section 5.1.