I acknowledge that I have received and reviewed the Is That Your Hair Independent Business Owner Agreement, including these US Terms and Conditions and the Is That Your Hair Policies and Procedures and the Is That Your Hair Compensation Plan, which are hereby incorporated into and made part of this Is That Your Hair Independent Business Owner Agreement by reference (collectively, the “Agreement”). By signing below, I agree to comply with, and be bound by, the terms and conditions set forth in the Agreement.I acknowledge and agree that the Agreement will become a binding agreement upon me and ITYHair, LLC, a Texas limited liability company, only upon acceptance by Is That Your Hair, and that Is That Your Hair will notify me of acceptance of the Agreement via email to the email address I submit with this Agreement. I understand that Is That Your Hair has the right to accept or reject my application to become an Independent Business Owner (”IBO”) in its sole discretion. For purposes of this Agreement, ITYHair, LLC is referred to as “Is That Your Hair”. Is That Your Hair and its parents, subsidiaries and affiliates may be referred to herein collectively as the “Is That Your Hair Companies” or each individually as an “Is That Your Hair Company”. I understand that there is no requirement beyond entering into this Agreement and payment of the initial fee to become an IBO. No other purchase of sales or training materials or other services are required to become an IBO and any purchase of sales aids, training materials or training is strictly voluntary. I understand that my advancement to higher qualification levels in the Is That Your Hair Compensation Plan is based upon the acquisition of customers and the usage by such customers of products (goods and services) offered by or through Is That Your Hair (“Is That Your Hair Products”), and that I am not obligated to purchase Is That Your Hair Products. I also understand that if I choose to sponsor others to become IBOs and participate in Is That Your Hair’s Compensation Plan, I will not receive any compensation whatsoever for the act of sponsoring or recruiting, and that I will be compensated based upon the activities of other IBOs only to the extent of sales made by them to customers of Is That Your Hair Products.
1. I, the undersigned applicant, represent that I am of legal age to enter into legally binding agreements, and that the information submitted in connection with my application to become an IBO is complete, true and correct. I agree to promptly notify Is That Your Hair of any changes to such information. If I am executing this Agreement on behalf of a corporation, limited liability company, partnership, trust or other entity, I represent that I have the authority to enter into such agreements for the entity, but nonetheless I agree that in addition to such entity, I will be personally responsible for the performance of all the duties and obligations described in this Agreement.
2. I agree to timely pay for any products, materials, services or other items that I purchase from any Is That Your Hair Company. In the event that I am delinquent with respect to such payments, I acknowledge that Is That Your Hair may offset such debt from any commissions, bonuses, or other compensation earned through the Is That Your Hair Compensation Plan, or any other monies owing to me (“Is That Your Hair Payments”). I acknowledge that the wholesale price is required to be paid in order for my products to be shipped to my customers, and if I sale the products below the wholesale price that I am responsible for either paying the difference between retail price and the wholesale or refunding the customer. Is That Your Hair will not be responsible for processing any orders where the wholesale price has not been paid.
3. I agree that as an IBO, I am an independent contractor responsible for my own business and not an agent, legal representative or employee of Is That Your Hair or any carrier, supplier, service provider or other party with whom Is That Your Hair transacts or contracts business (“Is That Your Hair Providers”). I acknowledge that my IBO relationship is with ITYHair, LLC and not with any other Is That Your Hair Company or Is That Your Hair Provider. I understand that as an IBO, I am free to select my own means, methods and manner of operation and that I am free to choose the hours and location of my activities under this Agreement, subject only to the terms of this Agreement. I shall have no power or authority to bind Is That Your Hair, either directly or indirectly, and I will not take any action inconsistent with this limit of authority, including representing in any manner that I am an agent, representative, legal representative or employee of Is That Your Hair, any other Is That Your Hair Company or any Is That Your Hair Provider. I acknowledge that as an independent contractor I am not entitled to holidays, vacations, disability, insurance, pensions or retirement plans, or any other benefits offered or provided by Is That Your Hair or any other Is That Your Hair Company to its employees. I understand that I am solely responsible for remitting any taxes and obtaining any business licenses or insurance required by regulations or authorities to conduct my business. I acknowledge and agree that I will not be treated as or represent myself as an employee for purposes of any federal, state or local statute, regulation, ordinance or other law.
4. I may terminate this Agreement for any reason, at any time, by giving Is That Your Hair prior written notice at its address of record. Is That Your Hair may terminate this Agreement pursuant to the Is That Your Hair Policies and Procedures or in the event that I breach any part of this Agreement.
5. I acknowledge that as an IBO, I am not guaranteed any income nor am I assured any profits or success, and I certify that no claims of guaranteed profits or representations of expected earnings that might result from my efforts as an IBO have been made by Is That Your Hair or my sponsor. Similarly, I shall not represent directly or indirectly that any person may, can, or will earn any stated amount or that any IBOs are guaranteed success.
6. I understand that the Is That Your Hair Products are offered in different markets on terms and at rates determined by Is That Your Hair or Is That Your Hair Providers, and that the markets where the products are offered and the terms and conditions or prices thereof may change from time to time without notice.
7. This Agreement shall become effective upon acceptance by Is That Your Hair and continue for an initial term of one (1) year unless sooner terminated as permitted herein. My relationship with Is That Your Hair may be extended for additional one year periods by my agreement to the then current Is That Your Hair IBO US Terms and Conditions, and payment of Is That Your Hair’s subscription on the anniversary date, or the continuance of selling activities on the Is That Your Hair subdomain. The annual fee is for services provided by Is That Your Hair which include but are not limited to tracking of personal customers, tracking of downline IBOs and support services, including but not limited to hosting of an IBO’s Is That Your Hair direct website, materials and training information on the IBO Back Office, and access to the IBO support call center. I understand that failure to renew within the specified time frame shall result in termination of this Agreement and my relationship with Is That Your Hair and deactivation of my IBO position, and shall result in the forfeiture of bonuses, commissions or other payments from Is That Your Hair. However, those rights and obligations which by their nature are intended to survive termination of this Agreement shall survive, including without limitation the provisions governing dispute resolution, indemnification, non-solicitation, confidentiality, and account maintenance fees.
8. I understand that there is a fee to process all Is That Your Hair Payments. I agree that any payments made to me by Is That Your Hair that remain unclaimed by me after six (6) months shall be held in an account that is subject to an account maintenance fee of $10 per month (the “Account Maintenance Fee”) which shall be deducted by Is That Your Hair monthly. If there are insufficient funds owed me from which to deduct the monthly Account Maintenance Fee when due, and I do not otherwise pay the Account Maintenance Fee, then the Account Maintenance Fee shall be prorated to reflect the amount of funds remaining and the account shall remain open for an equally prorated amount of time. When no unclaimed amounts are owed to me by Is That Your Hair the account shall be closed. I further acknowledge that unclaimed amounts owed to me may be subject to applicable escheat laws which may require Is That Your Hair to deliver unclaimed funds to the state.
9. In the process of selling or otherwise promoting the Is That Your Hair Products, I agree that I will operate in a lawful, ethical and moral manner and I agree to make no false or misleading statements regarding the Is That Your Hair Products or about the various relationships between Is That Your Hair, the Is That Your Hair Provider(s) and me.
10. I understand that during any investigation by Is That Your Hair with respect to my breach of this Agreement or my conduct as an IBO, my IBO position status may be suspended by Is That Your Hair and any Is That Your Hair Payments which may be otherwise owing to me shall be held until final resolution has been achieved. I acknowledge that in the event Is That Your Hair determines that I have violated this Agreement, including the Is That Your Hair Policies and Procedures or the Is That Your Hair Compensation Plan, Is That Your Hair may terminate this Agreement and deactivate my IBO position, in which event I will not be entitled to any Is That Your Hair Payments or further commissions or compensation of any kind.
11. I agree to keep accurate records and shall not engage in or perform any misleading, deceptive or unethical practices. I further agree to abide by all federal, state and local laws and regulations governing the sale or solicitation of the products marketed by Is That Your Hair and/or the Is That Your Hair Provider(s), including but not limited to, all applicable anti-spam legislation and obtaining and maintaining any and all permits and licenses required to perform under this Agreement and I understand that I will be personally liable for any fines and other expenses incurred by Is That Your Hair, any Is That Your Hair Company or any Is That Your Hair Provider as a result of any failure to do so. I specifically represent and warrant that I shall not engage in the slamming of a customer.
12. IN NO EVENT WILL Is That Your Hair, ANY OTHER Is That Your Hair COMPANY OR ANY OTHER Is That Your Hair PROVIDER BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, AND THE LIKE), ARISING OUT OF ANY CAUSE, INCLUDING BUT NOT LIMITED TO, BREACH OF WARRANTY OR THE DELAY, ACT, ERROR OR OMISSION OF Is That Your Hair, ANY Is That Your Hair COMPANY OR ANY Is That Your Hair PROVIDER, OR THE DELIVERY, NONDELIVERY, DISCONTINUATION, OR MODIFICATION OFANY PRODUCT OR SERVICE BY Is That Your Hair, ANY Is That Your Hair COMPANY, OR ANY Is That Your Hair PROVIDER, EVEN IF Is That Your Hair HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. OTHER THAN THE RETURN RIGHTS DESCRIBED HEREIN, Is That Your Hair, THE OTHER Is That Your Hair COMPANIES AND Is That Your Hair PROVIDERS MAKE NO EXPRESS WARRANTIES, AND THERE ARE NO IMPLIED WARRANTIES. EXPRESSLY EXCLUDED ARE ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Is That Your Hair, ANY Is That Your Hair COMPANY, ANY Is That Your Hair PROVIDER, OR THEIR AGENTS OR EMPLOYEES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE FOREGOING WARRANTY.
14. Is That Your Hair shall periodically make various sales literature, promotion materials, training and other products available for my use in conducting my business as an IBO. I, however, am under no obligation to purchase any quantities of those materials or services at any time. Rather, I will have the option to order and purchase any materials or services which I may choose. If I choose to purchase such materials then I may return any unused, unopened and currently marketable items for up to one year and receive a refund of 90% of the purchase price. I will be responsible for the cost of shipping said materials to Is That Your Hair.
15. I acknowledge that I have the right to sign up as many personal customers as I wish. For each personal customer signed, I will be eligible to receive a commission from my personal customers’ usage payments for Is That Your Hair Products and from usage payments from personal customers in my network of IBOs in accord with the currently valid Is That Your Hair Compensation Plan. I understand that eligibility to receive Is That Your Hair Payments is conditioned upon being an active IBO with a valid Agreement in effect on the date such compensation is scheduled to be paid. Is That Your Hair reserves the right to vary or change eligibility as set out in the Is That Your Hair Compensation Plan. Any other payments I receive will be based upon fulfilling certain terms of qualification as set forth by the Is That Your Hair Compensation Plan. I agree that as an Is That Your Hair IBO, I shall place primary emphasis upon the sale of Is That Your Hair Products to customers. Under certain circumstances, commission rates may be adjusted for promotional products or negotiated pricing.
16. I agree to indemnify and hold Is That Your Hair, the other Is That Your Hair Companies, the Is That Your Hair Providers and their respective shareholders, directors, officers and employees harmless from any and all claims, damages, and expenses, including any attorney’s fees, arising out of my actions or omissions in connection with this Agreement.
17. This Agreement shall be governed by the laws of the state of Texas and the Federal Arbitration Act, as specified in the Is That Your Hair Policies and Procedures. In the event of a dispute between Is That Your Hair and me as to our respective rights, duties and obligations arising out of or relating to this Agreement, it is mutually agreed that such disputes shall be exclusively resolved through the process and according to the provisions specified in the Is That Your Hair Policies and Procedures (“Dispute Resolution Provisions”). Is That Your Hair and I agree that, notwithstanding Section 18 below, to the extent of any inconsistency, the Dispute Resolution Provisions in the Is That Your Hair Policies and Procedures shall control. The Dispute Resolution Provisions require, without limitation, and except as otherwise expressly stated, that Is That Your Hair and I will resolve all disputes through binding arbitration before the American Arbitration Association pursuant to the Commercial Rules of Arbitration. Both Is That Your Hair and I agree that all disputes will be resolved on an individual basis and that each may only bring claims against the other in an individual capacity (and not as a claimant or class member in any purported class or representative proceeding).
18. I acknowledge that Is That Your Hair fully reserves its right to amend this Agreement at any time by notifying me of the changes, including by posting the revisions on the Is That Your Hair website (www.Is That Your Hair.com). Any changes to this Agreement made by Is That Your Hair may apply: (1) upon the date of execution or posting of the amended Agreement on the Is That Your Hair website, or (2) prospectively to some specified date in the amendment. Any such changes are incorporated as part of this Agreement. No amendment shall apply retroactively. This Agreement, including the US Terms and Conditions, the Is That Your Hair Policies and Procedures and the Is That Your Hair Compensation Plan which have been incorporated herein by reference, constitutes the entire agreement between the parties hereto and shall not be modified or amended except as described herein. In the event of a conflict between the US Terms and Conditions and the Is That Your Hair Policies and Procedures or the Is That Your Hair Compensation Plan, the US Terms and Conditions shall control. For purposes of this Agreement, my address as submitted by me with this Agreement shall be deemed to be my correct address unless and until notification of a change of address is provided by me to Is That Your Hair.
19. I understand that I may not assign this Agreement without the prior written consent of Is That Your Hair, which may be withheld, conditioned, or delayed in Is That Your Hair’s sole discretion. This Agreement shall be binding upon and inure to the benefit of heirs, successors and permitted assigns of the parties hereto. If any provision of this Agreement is determined by any authority of competent jurisdiction to be invalid or unenforceable in part or in whole for any reason whatsoever, the validity of the remaining provisions or portions thereof shall not be affected thereby and such authority should reform this Agreement to the extent necessary to render the otherwise unenforceable provision or portion thereof valid and enforceable.
20. I acknowledge that I may receive proprietary and confidential data or information of Is That Your Hair and/or Is That Your Hair Provider(s) which is not publicly known or available to the competitors of Is That Your Hair or Is That Your Hair Providers, including but not limited to information about Is That Your Hair Products, customers, and IBOs (“Confidential Information”), and I agree that I shall treat such Confidential Information as strictly confidential and that I may not, directly or indirectly use, sell, lend, lease, distribute, license, give, transfer, disclose, disseminate, reproduce or otherwise communicate any such Confidential Information to any person or entity for any purpose other than as authorized by Is That Your Hair in writing. I represent and warrant that I will comply with all Is That Your Hair policies and procedures relating to confidential and proprietary information, and I agree that all prohibitions against disclosure of Confidential Information shall survive the termination of this Agreement.
21. During the term of this Agreement, I agree that I shall not, directly or indirectly, sell or solicit customers for products offered by or through Is That Your Hair through any person or entity other than that specifically designated or approved in writing by Is That Your Hair. I agree that I shall not, during the term of this Agreement and for a period of one (1) year thereafter, directly or indirectly, divert, entice, knowingly call upon, sell or solicit, take away or move any customer of Is That Your Hair, any other Is That Your Hair Company or any Is That Your Hair Provider, whether or not I originally procured or brought such customer to Is That Your Hair, any other Is That Your Hair Company or Is That Your Hair Provider (such activities are collectively referred to and included herein as ‘solicitation’). All customers solicited by an IBO on behalf of Is That Your Hair, any other Is That Your Hair Company or Is That Your Hair Providers are deemed to be customers of Is That Your Hair, the other Is That Your Hair Company or the Is That Your Hair Provider (as applicable) and not of the IBO. I understand that such non solicitation prohibition shall be strictly enforced and that each other Is That Your Hair Company and each Is That Your Hair Provider shall be a third party beneficiary of this prohibition. Further, during the term of the Agreement and for a period of one (1) year thereafter, I may not enter into a direct marketing relationship with any Is That Your Hair Provider. During the term of this Agreement and for a period of one (1) year thereafter, I shall not solicit an Is That Your Hair Company IBO, whether active, inactive, individual or entity, to participate in a network marketing program offered by any other company. Each Is That Your Hair Company shall be a third party beneficiary of this prohibition. Without limiting in any way Is That Your Hair’s or any other Is That Your Hair Company’s right to pursue all rights and remedies available to it, violation of this covenant and condition will result in, but is not limited to, forfeiture of all rights in any IBO position and Is That Your Hair Payments, including all current and future commissions, bonuses and payments of any kind.