1.1 Mutual Commitment Statement
The goal of Banner Season Marketing, LLC (hereafter as "We," "Us," "Our," "Banner Season" or simply the "Company") is to provide exceptional products and services to consumers. This is only made possible with the support of and passion demonstrated by the members of the Banner Season sales organization (known as "Referral Partners"). To achieve sustained success as a business, Banner Season hereby commits to aid and support all Referral Partners in return for the mutual commitment made and shown by these Referral Partners to represent the Company in its efforts to reach all interested consumers.
1.2 Purpose of Policies and Effective Date
A. To clearly define the relationship that exists between Us and you, and to explicitly set a standard for acceptable business conduct, We now put forth these Policies and Procedures.
B. As a Referral Partner, you are required to comply with:
I. All of the terms and conditions set forth in the Referral Partner Agreement, which We may amend from time to time in Our sole and absolute discretion;
II. All federal, state, and/or local laws governing your Banner Season business; and
III. Lastly, these Policies and Procedures.
C. A Referral Partner must review the information in these Policies and Procedures carefully. Should you have any questions regarding a policy or rule, We encourage you to seek an answer from your Sponsor (as defined in the Glossary of Terms herein). Should your Sponsor not provide the appropriate clarification, you may contact the Company Customer Service Department.
D. These Policies and Procedures shall become effective as of September 20, 2018 ("Effective Date").
1.3 These Policies and Procedures and the Compensation Plan Incorporated into the
Referral Partner Agreement
A. Throughout these Policies, when the term "Agreement" is used, this collectively refers to the Referral Partner Agreement, these Policies and Procedures, and the Company Compensation Plan.
B. It is the responsibility of a Sponsoring Referral Partner to provide the most current version of these Policies and Procedures (available on the company website) and the Company Compensation Plan to each applicant prior to any execution of a Referral Partner Agreement.
1.4 Changes, Amendments, and Modifications
C. Because federal, state, and local laws, as well as the business environment, periodically change, We reserve the right to amend the Agreement from time to time. Additionally, the Company may change and amend the prices on all its product at any time in the future. Please note, this provision does NOT apply to the arbitration clause found in Section 12, which can only be modified via mutual consent.
B. Any such amendment, change, or modification shall be effective immediately upon notice by one of the following methods:
I. Posting on the official Corporate website;
II. Electronic mail (e-mail); or
III. In writing through Company newsletters or corporate communication channels.
C. Understand that any continued business, ordering, acceptance of a commission or bonus payout, or other benefit received by a Referral Partner pursuant to this Agreement constitutes the acceptance of this Agreement in whole with any and all amendments.
Banner Season shall not be responsible for delays or failures in performance of its obligations when such failure is due to circumstances beyond its reasonable control. This includes, without limitation, strikes, labor difficulties, transportation difficulties, riot, war, fire, and/or weather, curtailment of a source of supply, or government decrees or orders.
2.0 BASIC PRINCIPLES
2.1 Becoming a Referral Partner
A. As a Banner Season Referral Partner, you will be a part of a team of passionate, driven, like-minded individuals, all working towards the common goal of achieving emotional, personal and financial success. To become a Referral Partner, you must comply with the following requirements:
I. Be of the age of majority (not a minor) in your state of residence;
II. Reside or have a valid address in the United States or other U.S. territory, or the Canadian provences of British Columbia or Ontario;
III. Have a valid taxpayer identification number (i.e. Social Security Number, Federal Tax ID Number, ITIN, etc.);
IV. Submit a properly completed and signed (via hard copy or electronic signature) Referral Partner Agreement;
V. Not be a Banner Season employee, or the spouse or relative of a Company employee living in the same household; and
VI. Submit an enrollment fee of $49.95.
2.2 Registration and Enrollment of a Referral Partner
A. You can submit your Referral Partner Agreement through mail or the Banner Season website (https://www.bannerseason.com/). The application must be received within ten (10) business days of your enrollment for you to receive Referral Partner benefits. If the Referral Partner Agreement is not received within ten (10) business days, your Referral Partner account will remain on temporary hold until We receive the Agreement.
C. Banner Season reserves the right to require signed paperwork for any account, regardless of origin.
D. Signed documents, including, but not limited to Referral Partner agreements, are legally binding contracts which must not be altered, tampered with or changed in any manner after execution. False or misleading information, forged signatures or alterations to any document, including business registration forms, made after a document has been executed may lead to sanctions, up to and including involuntary termination of the Referral Partner's business.
2.3 Rights Granted
Banner Season hereby grants to the Referral Partner a non-exclusive right, based upon the terms and conditions contained in the Referral Partner Agreement and these Policies and Procedures, to the following:
I. The ability to purchase, sell and promote Banner Season products and services;
II. Sponsor new Customers and Referral Partners in the United States, building a sales organization and earning commissions of the personal and downline sales of Banner Season products.
2.4 Identification Numbers
A. Each Referral Partner is required to provide his or her Social Security Number, or Federal Tax Identification Number, if located in the United States or any of its territories, to the Company on the Referral Partner Agreement. We reserve the right to withhold commission payments from any Referral Partner who fails to provide such information or who provides false information.
B. Upon enrollment, We will provide you a Banner Season Identification Number. This number will be used to place orders, structure organizations, and track commissions and bonuses.
2.5 Business Entities
A. A corporation, partnership, LLC, or trust (collectively referred to as a "Business Entity") may apply to be a Referral Partner. This Referral Partner business and position will remain temporary until the submission of proper documents. As examples of proper documents, We expect a Business Entity application to come with some of the following: Certificate of Incorporation, Articles of Organization, Partnership Agreement or appropriate Trust documents. We must receive these documents within ten (10) business days from the date of the Referral Partner Agreement's execution.
B. A Referral Partner may change his or her status under the same Sponsor from an individual to a Business Entity so long as he or she complies with Section 2.5(A).
2.6 Independent Business Relationship; Indemnification for Actions
A. As a Referral Partner, you are an independent contractor, and not a purchaser of a franchise or business opportunity. As a result, each Referral Partner's success depends entirely upon his, her or its own independent efforts.
B. The Agreement between you and Us does not create an employer/employee relationship, agency, partnership, or joint venture.
C. A Referral Partner shall not be treated as an employee of Banner Season for any purposes, including, without limitation, for federal or state tax purposes. You are responsible for paying local, state, and federal taxes due from all compensation earned as a Referral Partner. Any other compensation received by Referral Partners from the Company will be governed by applicable U.S. tax laws (or the tax laws of any other applicable jurisdiction). You as a Referral Partner have no express or implied authority to bind Banner Season to any obligation or to make any commitments by or on behalf of the Company. Each Referral Partner, whether acting as management of a Business Entity or represented as an individual, shall establish goals, hours, and methods of operation and sale, so long as in compliance with the terms of the Referral Partner Agreement, these Policies and Procedures and applicable state and federal laws.
D. You are fully responsible for all of your verbal and written communications made regarding Banner Season products, services, and the Compensation Plan that are not expressly contained within official Company materials. Referral Partner shall indemnify and hold harmless Banner Season, its directors, officers, employees, product suppliers and agents from any and against all liability including judgments, civil penalties, refunds, attorney fees and court costs incurred by the Company as a result of the Referral Partner's unauthorized representations or actions. This provision shall survive the termination of the Referral Partner Agreement.
2.7 Errors or Questions
If a Referral Partner has questions about, or believes any errors have been made regarding commissions, bonuses, business reports, orders, or charges, the Company requires any inquiries by email (to email@example.com) within thirty (30) days of the date of the error or incident in question. Any such errors, omissions or problems not reported within this thirty-day timeframe days is expressly waived by Referral Partner.
3.0 RESPONSIBILITIES OF A REFERRAL PARTNER
3.1 Correct Addresses
A. It is the responsibility of any Customer or Referral Partner to ensure the Company has the correct shipping address before the shipment of any orders.
B. For any notice of address change sent to the Company, a Customer or Referral Partner will need to allow up to thirty (30) days for processing.
3.2 Training and Leadership
A. Any Referral Partner who sponsors another Referral Partner into Banner Season must perform an authentic assistance and training function to ensure those made up of their downline organizations operate their business in accordance with these Policies and Procedures. Sponsoring Referral Partners should have ongoing contact and communication with those in their downline organizations. Examples of communication may include, but are not limited to, newsletters, written correspondence, telephone, contact, team calls, voice-mail, e-mail, personal meetings, accompaniment of downline Referral Partners to Company meetings, training sessions and any other related functions.
B. A Sponsoring Referral Partner should monitor the Referral Partners in his or her downline organizations to ensure that downline Referral Partners do not make improper product or business claims, or engage in any illegal or inappropriate conduct. Upon request, a Referral Partner should be able to provide documented evidence to the Company of his or her ongoing fulfillment of Sponsor responsibilities.
C. Upline Referral Partners are encouraged to motivate and train new Referral Partners about Company products and services, effective sales techniques, the Company Compensation Plan and compliance with these Policies and Procedures.
D. The marketing and sale of products is a required activity in Banner Season and must be emphasized in all recruiting presentations.
E. We prioritize all Referral Partners to sell Banner Season's products and services to Customers first and prospective and current Referral Partners second.
F. Use of Sales Aids. Creation of Banner Season sales tools is limited to Team Captains and above. These Referral Partners must submit all written sales aids, promotional materials, advertisements, websites and other literature to the Company for approval prior to use. Unless the Referral Partner receives specific written approval to use the material, the request shall be deemed denied. All Referral Partners shall safeguard and promote the good reputation of Banner Season and its products. Once approved, Company reserves the right to incorporate the approved training material in its own promotional efforts.
3.3 Constructive Criticism; Ethics
A. It is Our goal to provide you with a combination of exceptional products and a rewarding Compensation Plan. Accordingly, We value constructive criticism and encourage the submission of written comments addressed to the Company's Compliance Department so long as such comments come by way of a respectful and in a productive manner.
B. Negative and disparaging comments by Referral Partners made to others about the Company, its products or Compensation Plan, or disruptive behavior at Company meetings or events, serve no purpose other than to dampen the enthusiasm of all those who participate in the Banner Season business. Referral Partners must not belittle the Company, other Referral Partners, the Company products or services, the Compensation Plan, or Company directors, officers, or employees, product suppliers or agents. Such conduct represents a material breach of these Policies and Procedures and may be subject to sanctions as the Company sees fit.
C. Banner Season endorses the following Code of Ethics:
I. Referral Partners must show fairness, tolerance, and respect to all people associated with Banner Season, regardless of race, gender, social class or religion;
II. Referral Partners must contribute to and foster an atmosphere of positivity, teamwork, good morale and community spirit.
III. Referral Partners shall strive to resolve business issues, including situations with upline and downline Referral Partners, by emphasizing tact, sensitivity, good will and taking care not to create additional problems.
IV. Referral Partners must be honest, responsible, professional and conduct themselves with integrity.
V. Referral Partners shall never disparage the Company, other Referral Partners, Company employees, product suppliers or agents, products, services, sales and marketing campaigns, or the Compensation Plan, or make statements that unreasonably offend, mislead or coerce others.
D. Banner Season may take appropriate action against a Referral Partner if it determines, in its sole discretion, that the Referral Partner's conduct is detrimental, disruptive, or injurious to the Company or other Referral Partners.
3.4 Reporting Policy Violation
A. A Referral Partner who observes a policy violation by another Referral Partner should submit a written and signed letter (e-mail will not be accepted) of the violation directly to the Company Compliance Department. The letter shall set forth the details of the incident as follows:
I. The nature of the violation and specific facts to support the allegation;
II. Number of occurrences and dates;
III. The persons involved; and
IV. Any other supporting documentation
B. Upon presentation to the Company Compliance Department, We will research the incident in question and take appropriate action if necessary.
C. This section refers to the general reporting of policy violations as observed by other Referral Partners for the mutual effort to support, protect, and defend the integrity of the Banner Season business and opportunity. If a Referral Partner has a grievance or complaint against another Referral Partner which directly relates to his or her Banner Season business, the procedures set forth in these Policies must be followed.
A. The Sponsor is the person who introduces a person, whether a Customer or a Referral Partner, to the Banner Season business and helps them complete their enrollment, supports those in their downline, and continues to provide training and assistance for all those in their downline.
B. Banner Season recognizes the Sponsor as the name(s) shown on the first:
I. Physically signed Referral Partner Agreement on file; or
II. Electronically signed Referral Partner Agreement from either the Company's website or a Referral Partner's replicated website.
C. A Referral Partner Agreement that contains notations such as "by phone" or the signatures of other individuals (i.e. Sponsors, spouses, relatives, or friends) is not valid and will not be accepted by the Company.
D. We recognize that each new prospect has the right to ultimately choose his or her own Sponsor, but We will not allow Referral Partners to engage in unethical sponsoring activities.
E. All active Referral Partners in good standing have the right to Sponsor and enroll others into the Banner Season business. While engaged in sponsoring activities, it is not uncommon to encounter situations when more than one Referral Partner will approach the same prospect. It is the accepted courtesy that the new prospect will be sponsored by the first Referral Partner who presented a comprehensive introduction to the Company's products or opportunity.
3.6 Cross Sponsoring Prohibition
A. "Cross sponsoring" is defined as the enrollment of an individual or Business entity into a different line of sponsorship who has already signed a Referral Partner Agreement. Actual or attempted cross sponsoring is not allowed. If cross sponsoring is verified by the Company, sanctions up to and including termination of a Referral Partner's business may be imposed.
B. The use of a spouse's or relative's name, trade names, assumed names, DBA names, corporation, partnership, trust, Federal ID numbers, or fictitious ID numbers to evade or circumvent this policy is strictly prohibited.
C. This policy does not prohibit the transfer of a Banner Season business in accordance with the Sale or Transfer policy set forth herein.
3.7 Adherence to the Banner Season Compensation Plan
A. A Referral Partner must adhere to the terms of the Company Compensation Plan. Any deviation from the Compensation Plan is strictly prohibited.
B. A Referral Partner shall not offer the Banner Season opportunity through, or in combination with, any other system, program, or method of marketing other than that specifically set forth in official Company materials.
C. A Referral Partner shall not require or encourage a current or prospective Customer or Referral Partner to participate in the Banner Season business in any manner that varies from the Compensation Plan or other Company materials.
D. Other than such purchases or payments required to naturally build their business, a Referral Partner shall not require or encourage a current or prospective Customer or Referral Partner to make a purchase from or payment to any individual or other entity as a condition to participating in the Company Compensation Plan.
3.8 Adherence to Laws and Ordinances
Many cities and counties have laws regulating certain home-based businesses. In most cases, these ordinances do not apply to Referral Partners because of the nature of the business. However, Referral Partners must check their local laws and obey the laws that do apply to them. A Referral Partner shall comply with all federal, state and local laws and regulations in their independent conducting of his, her or its Banner Season business.
3.9 Compliance with Applicable Income Tax Laws
A. Banner Season will automatically provide a complete 1099 Miscellaneous Income Tax form (nonemployee compensation) to each United States Referral Partner whose earnings for the year is at least $600 or who has purchased more than $5,000 of Banner Season products for resale, or who received trips, prizes or awards valued at $600 or more. If earnings and purchases are less than stated above, IRS forms will be sent only at the request of the Referral Partner, and a minimum charge of $20 may be assessed by the Company.
B. A Referral Partner accepts sole responsibility for and agrees to pay all federal, state and local taxes on any income generated as an independent business owner, and further agrees to indemnify Banner Season from any failure to pay such tax amounts when due.
C. If a Referral Partner's business is tax exempt, the Federal Tax Identification number must be provided to the Company in writing.
D. Banner Season encourages all Referral Partners to consult with a tax advisor for additional information for their business.
3.10 One Banner Season Business Per Household
Members of Referral Partner's household may operate together as one Referral Partner position, but may not become separate Referral Partners. Household is defined as husband, wife, and dependents. Note: Children of legal age to contract and at least 18 years of age are not considered a part of their parents' household.
3.11 Actions of Household Members or Affiliated Parties
If any member of your immediate household engages in any activity which, if performed by you, would violate any provision of the Agreement, such activity will be deemed a violation by you. As a result, the Company may take disciplinary action pursuant to these Policies and Procedures against you. Similarly, if any individual associated in any way with a corporation, partnership, LLC, trust or other entity (collectively "Business Entity") violates the Agreement, such action(s) will be deemed a violation by the Business Entity, and the Company may take disciplinary action against the Business Entity. Likewise, if a Referral Partner enrolls in Banner Season as a Business Entity, each affiliated party of the Business Entity shall be personally and individually bound to, and must comply with, the terms and conditions of the Agreement.
3.12 Solicitation for Other Companies or Products
A. A Referral Partner may participate in other direct sales, multilevel, network marketing or relationship marketing business ventures or marketing opportunities (collectively "Network Marketing"). However, during the Term of this Agreement and for one (1) year thereafter, you may not recruit any other Banner Season Customer or Referral Partner for any other Network Marketing business, unless said Customer or Referral Partner was personally sponsored by you.
B. The term "recruit" means actual or attempted solicitation, enrollment, encouragement, or effort to influence in any other way (either directly or through a third party), another Customer or Referral Partner to enroll or participate in any Network Marketing opportunity. This conduct represents recruiting even if the Referral Partner's actions are in response to an inquiry made by another Customer or Referral Partner.
C. However, you may sell non-competing products or services to Banner Season Customers and Referral Partners. Specifically, a non-competing company is defined as a company that does NOT sell direct mail, greeting cards and promotional products.
D. Without prior written approval from Banner Season, a Referral Partner may not display or bundle Banner Season products or services, in sales literature, on a website or in sales meetings, with any other products or services to avoid confusing or misleading a prospective Customer or Referral Partner into believing there is a relationship between Banner Season and the non-Company related products or services.
E. Without prior written approval from Banner Season, you may not offer any non-Company related opportunity, products or services at any Banner Season-related meeting, seminar or convention, or immediately following said event(s).
F. A violation of any of the provisions in this section shall constitute unreasonable and unwarranted contractual interference between Banner Season and you. As a result, such actions would inflict irreparable harm on the Company. In such event, Banner Season may, at its sole discretion, impose any sanction it deems necessary and appropriate against the Referral Partner or Referral Partner's business including termination, the request for immediate injunctive relief, or the pursuit of any other legal and equitable remedies.
3.13 Presentation of the Banner Season Opportunity
In presenting the Company opportunity to potential Customers and Referral Partners, you must comply with the following provisions:
I. Abstain from a misquote or omission of any significant material fact about the Compensation Plan.
II. Make clear that the Compensation Plan is based upon sales of Banner Season products and services to consumers.
III. Make clear that success can be achieved only through substantial independent efforts and hard work.
IV. Abstain from unauthorized income projections, claims, or guarantees during any presentation or discussion the Banner Season opportunity or Compensation Plan to prospective Customers or Referral Partners.
V. Abstain from any claims regarding Company products or services not found in official Company materials.
VI. Refrain from the promotion of Banner Season in any country where We have not yet established a "presence."
Note: The terms "income claim" and/or "earnings representation" (collectively "income claim") include the following: (1) statements of average earnings, (2) statements of non-average earnings, (3) statements of earnings ranges, (4) income testimonials, (5) lifestyle claims, and (6) hypothetical claims. Examples of "statements of non-average earnings" include, "Our number one Referral Partner earned over three hundred thousand dollars last year" or "Our average-ranking Referral Partner earns two thousand per month." An example of a "statement of earnings ranges" is "The monthly income for our higher-ranking Referral Partners is three thousand dollars on the low end to thirty thousand dollars a month on the high end."
3.14 Sales Requirements are Governed by the Compensation Plan
A. For all Banner Season products, the Company provides a set sales price. There are no exclusive territories granted to anyone. No franchise fees are applicable to a Banner Season business.
B. The Banner Season program is built on sales to the ultimate consumer. Thus, Referral Partners must only purchase inventory that they and their family will personally consume, will be used as a sales tool, or will be resold to others for ultimate use. Referral Partners must never attempt to influence any other Referral Partner to buy more products than they can reasonably use or sell to Customers in a month.
4.1 General Order Policies
A. "Bonus Buying" is strictly and absolutely prohibited. Bonus Buying includes any of the following scenarios: (i) the enrollment of individuals or entities without the knowledge of and/or execution of an Agreement by such individuals or Business Entities; (ii) the fraudulent enrollment of an individual or entity as a Customer or Referral Partner; (iii) the enrollment or attempted enrollment of non-existent individuals or Business Entities as Customers or Referral Partners ("phantoms"); (iv) purchasing Banner Season products or services on behalf of another Customer or Referral Partner, or under another Customer's or Referral Partner's ID number, to qualify for commissions or bonuses; (v) purchasing excessive amounts of products or services that cannot reasonably be used or resold in a month; and/or (vi) any other mechanism or artifice to qualify for rank advancement, incentives, prizes, commissions, or bonuses that is not driven by bona fide product or service purchases by end user consumers.
A Referral Partner shall not use another Customer's or Referral Partner's credit card or debit checking account to enroll in Banner Season or purchase products or services without the account holder's written permission. Such documentation must be kept by the Referral Partner indefinitely in case we need to reference this.
B. Regarding an order with an invalid or incorrect payment, We will attempt to contact the Referral Partner by phone, mail or e-mail in order to obtain another form of payment. If these attempts are unsuccessful after ten (10) business days, the order will be canceled.
C. Prices are subject to change without notice.
D. A Customer or Referral Partner who is a recipient of a damaged or incorrect order must notify the Company within thirty (30) calendar days from receipt of the order and follow the procedures as set forth in these Policies.
4.2 Insufficient Funds
A. All checks returned for insufficient funds will be re-submitted for payment. A $35 fee will be charged to the account of the Customer or Referral Partner for all returned checks and insufficient funds.
B. Any outstanding balance owed to Us by a Customer or Referral Partner of yours from NSF (non-sufficient funds) checks, returned check fees or insufficient fund fees (ACH) will be withheld from your future bonus and commission checks.
C. All transactions involving returned checks or insufficient funds through ACH or credit card, which are not resolved in a timely manner by the Referral Partner, constitute grounds for disciplinary sanctions.
D. If a credit card order or automatic debit is declined the first time, the Customer or Referral Partner will be contacted for an alternate form of payment. If payment is declined a second time, the Customer or Referral Partner may be deemed ineligible to purchase Company products or services in the future.
4.3 Sales Tax Obligation
A. You as a Referral Partner shall comply with all state and local taxes and regulations governing the sale of Our products and services.
B. We will collect and remit sales tax on Referral Partner orders unless a Referral Partner furnishes Us with the appropriate Resale Tax Certificate form. When orders are placed with Us, sales tax is prepaid based upon the suggested retail price. We will remit the sales tax to the appropriate state and local jurisdictions. The Referral Partner may recover the sales tax when a sale is made.
C. We as a company encourage each Referral Partner to consult with a tax advisor for additional information for his or her business.
5.0 PAYMENT OF COMMISSIONS & BONUSES
5.1 Bonus and Commission Qualifications
A. A Referral Partner must be active (as defined in the Glossary of Terms) and in compliance with these Policies and Procedures to qualify for bonuses and commissions. So long as a Referral Partner complies with the terms of the Agreement, We shall pay commissions to such Referral Partner in accordance with the Compensation Plan.
B. We will not issue a payment to a Referral Partner without the receipt of a completed and signed Referral Partner Agreement via hard copy or through Electronic Authorization.
C. Banner Season reserves the right to postpone bonus and commission payments until such time the cumulative amount exceeds $100.
5.2 Computation of Commissions and Discrepancies
A. A Referral Partner must review his or her monthly statement and bonus/commission reports promptly and report any discrepancies within thirty (30) days of receipt. After this thirty-day "grace period," no additional requests will be considered for commission recalculations.
B. For additional information on payment of commissions, please review the Compensation Plan.
5.3 Adjustments to Bonuses and Commissions for Returned Products
A. A Referral Partner receives bonuses and commissions based on the actual sales of products and services to end consumers. When a product or service is returned to the Company for a refund from the end consumer, the bonuses and commissions attributable to the returned product or service will be deducted from the Referral Partner who received bonuses or commissions on said sales. Deductions will occur in the month in which the refund is given and continue every pay period thereafter until the bonus/and or commission is recovered.
B. In the event that a Referral Partner terminates his or her business, and the amounts of the bonuses or commissions attributable to the returned products or services have not yet been fully recovered by the Company, the remainder of the outstanding balance may be offset against any other amounts that may be owed by the Company to the terminated Referral Partner.
6.0 REPLACEMENT FOR DEFECTIVE ITEMS AND RETURN OF SALES AIDS
Please note that Banner Season does not offer refunds for personalized product. Due to the unique nature of the personalization process, sales are final at the time of purchase. A Customer or Referral Partner may only return personalized product in the event of a defect or error. The return of defective products shall result in replacement product(s) of equal value.
Upon cancellation of the Agreement, the Referral Partner may return all generic sales aids provided by Banner Season purchased after enrollment within one (1) year from the date of cancellation for a refund if he or she is unable to sell or use the merchandise. A Referral Partner may only return sales aids personally purchased from the Company under his or her Referral Partner Identification Number, and which are in Resalable Condition. Any custom orders of printed sales aids (i.e., business cards, brochures, etc.) where on the Referral Partner's contact information is imbedded or hard printed, or has been added by the Referral Partner, are not able to be returned in Resalable Condition and are thus nonrefundable. Upon Banner Season's receipt of the products and sales aids, the Referral Partner will be reimbursed ninety percent (90%) of the net cost of the original purchase price(s), less shipping and handling charges. If the purchases were made through a credit card, the refund will be credited back to the same credit card account. The Company shall deduct from the reimbursement paid to the Referral Partner any commissions, bonuses, rebates or other incentives received by the Referral Partner which were associated with the merchandise that is returned.
6.1 Return Process
A. All returns, whether by a Customer or Referral Partner, must be made as follows:
I. Obtain Return Merchandise Authorization ("RMA") from the Company;
II. Ship items to the address provided by the Company Customer Service Department when you are given your RMA;
III. Provide a copy of the invoice with the returned products or service. Such invoice must reference the RMA and include the reason for the return; and
IV. Ship back product in the exact same manner as it was delivered, meaning the packaging should be the exact same.
D. All returns must be shipped to the Company pre-paid, as We do not accept shipping collect packages. We recommend shipping returned product by USPS, UPS, or FedEx with tracking and insurance as risk of loss or damage in shipping of the returned product shall be borne solely by the Customer or Referral Partner. If returned product is not received at the Company Distribution Center, it is the responsibility of the Customer or Referral Partner to trace the shipment and no credit will be applied.
E. If a product is received in damaged or defective condition, the Company will cover all shipping charges by providing a shipping label. Proof of the defective product must be submitted via photograph to our customer support staff.
F. The return of $300 or more of products accompanied by a request for a refund and/or replacement within a single calendar year by a Referral Partner may constitute grounds for involuntary termination.
7.2 Expectation of Privacy
A. Banner Season recognizes and respects the importance its Customers and Referral Partners place on the privacy of their financial and personal information. Thus, We will make reasonable efforts to safeguard the privacy of and maintain the confidentiality of its Customers' and Referral Partners' financial and account information and nonpublic personal information.
B. By entering into the Referral Partner Agreement, you authorize Banner Season to disclose your name and contact information to upline Referral Partners solely for activities related to the furtherance of the Banner Season business. A Referral Partner hereby agrees to maintain the confidentiality and security of such information and to use it solely for the purpose of supporting and servicing the downline organization and conducting Banner Season business.
7.3 Employee Access to Information
We limit the number of employees who have access to Customers' and Referral Partners' nonpublic personal information.
7.4 Restrictions on the Disclosure of Account Information
Banner Season will not share non-public personal information or financial information about current or former Customers or Referral Partners with third parties, except as permitted or required by laws and regulations, court orders, or to serve the Customers' or Referral Partners' interests or to enforce its rights or obligations under these Policies and Procedures, the Referral Partner Agreement, or with written permission from the accountholder on file.
8.0 PROPRIETARY INFORMATION AND TRADE SECRETS
8.1 Business Reports, Lists, and Proprietary Information
By completing and signing the Referral Partner Agreement, you acknowledge that Business Reports, lists of Customer and Referral Partner names and contact information, and any other information, which contain financial, scientific or other information both written or otherwise circulated by the Company pertaining to the business of Banner Season (collectively, "Reports"), are confidential and proprietary information and trade secrets belonging to the Company.
8.2 Obligation of Confidentiality
A. During the Term of the Referral Partner Agreement and for a period of five (5) years after the termination or expiration of the Referral Partner Agreement between you and Us, you shall not:
I. Use the information in the Reports to compete with Banner Season or for any purpose other than promoting your business;
II. Use or disclose to any person or entity any confidential information contained in the Reports, including the replication of the genealogy in another network marketing company.
8.3 Breach and Remedies
The Referral Partner acknowledges that such proprietary information is of such character as to render it unique and that disclosure or use thereof in violation of this provision will result in irreparable damage to Banner Season and to independent Banner Season businesses. The Company and its Referral Partners will be entitled to injunctive relief or to recover damages against any Referral Partner who violates this provision in any action to enforce its rights under this section. The prevailing party shall be entitled to an award of attorney's fees, court costs and expenses.
8.4 Return of Materials
Upon demand by the Company, any current or former Referral Partner will return the original and all copies of all "Reports" to the Corporate office together with any other Company confidential information in such person's possession.
9.0 ADVERTISING, PROMOTIONAL MATERIAL, USE OF COMPANY NAMES
9.1 Labeling, Packaging, and Displaying Products
A. A Referral Partner may not re-label, re-package, refill, or alter labels of any Banner Season product or service information, materials or program(s) in any way. Such re-labeling or re-packaging violates federal and state laws, which may result in criminal or civil penalties or liability.
B. A Referral Partner shall not cause any Company product or service or any Company trade name to be sold or displayed in retail establishments, including but not limited to kiosks in malls, during normal business hours.
C. A Referral Partner may sell Company products and services and display the Company trade name at any appropriate display booth (such as trade shows) upon prior written approval from Banner Season. The request for Company approval may be made by way of email: firstname.lastname@example.org.
D. We reserve the right to refuse authorization to participate at any function that it does not deem a suitable forum for the promotion of its products and services.
9.2 Use of Company Names and Protected Materials
A. A Referral Partner must safeguard and promote the good reputation of the Company and the products and services it markets. The marketing and promotion of the Company, the Banner Season opportunity, the Compensation Plan, and its products and services will be consistent with the public interest, and must avoid all discourteous, deceptive, misleading, unethical or immoral conduct and practices.
B. All promotional materials supplied or created by Us must be used in their original form and cannot be changed, amended or altered except with prior written approval from the Company Compliance Department.
C. The name Banner Season, each of its product and service names and other names that have been adopted by the Company in connection with its business are proprietary trade names, trademarks and service marks of Banner Season Marketing, LLC. As such, these marks are of great value to the Company and are supplied to Referral Partners for their use only in an expressly authorized manner.
D. A Referral Partner's use of the name "Banner Season" is restricted to protect the Company's proprietary rights, ensuring that the Company protected names will not be lost or compromised by unauthorized use. Use of the Banner Season name on any item not produced by the Company is prohibited except as follows:
I. [Referral Partner's name] An Independent Referral Partner of Banner Season
II. [Referral Partner's name] Independent Business Owner of Banner Season products and services.
E. Further procedures relating to the use of the Banner Season name are as follows:
I. All stationary (i.e., letterhead, envelopes, and business cards) bearing the Banner Season name or logo intended for use by the Referral Partner must be approved in writing by the Company Compliance Department.
II. Banner Season Referral Partners may list "Independent Referral Partner of Banner Season" in the white pages of the telephone directory under his or her own name.
III. Referral Partners may not use the name "Banner Season", "Banner Season Corporate", or "Corporate Office of Banner Season" in answering the telephone, creating a voice message or using an answering service, such as to give the impression to the caller that they have reached the corporate office. They may state, "Banner Season Referral Partner".
F. Certain photos and graphic images used by Banner Season in its advertising, packaging, and websites are the result of paid contracts with outside vendors that do not extend to Referral Partners. If a Referral Partner wants to use these photos or graphic images, they must negotiate individual contracts with the vendors for a fee.
G. A Referral Partner shall not appear on or make use of television or radio or make use of any other media to promote or discuss the Company, its programs, products or services without prior written permission from the Company Compliance Department.
H. A Referral Partner may not produce for sale or distribution any Company event or speech, nor may a Referral Partner reproduce Company audio or video clips for sale or for personal use without prior written permission from the Company Compliance Department.
I. Banner Season reserves the right to rescind its prior approval of any sales aid or promotional material to comply with changing laws and regulations and may request the removal from the marketplace of such materials without financial obligation to the affected Referral Partner.
J. A Referral Partner shall not promote non-Banner Season products or services in conjunction with Company products or services on the same websites or same advertisement.
9.3 Faxes and E-mail Limitations
A. Except as provided in this section, a Referral Partner may not use or transmit unsolicited faxes, email, mass email distribution, or "spamming" that advertises or promotes the operation of the Banner Season business. The exceptions are:
I. Faxes or e-mailing any person who has given prior permission or invitation;
II. Faxing or e-mailing any person with whom the Referral Partner has established a prior business or personal relationship.
B. In all states where prohibited by law, a Referral Partner may not transmit, or cause to be transmitted through a third party, (by telephone, facsimile, computer or other device), an unsolicited advertisement to any equipment, which has the capacity to transcribe text or images from an electronic signal received over a regular telephone line, cable line, ISDN, T1 or any other signal carrying device, except as set forth in this section.
C. All faxes, e-mail or computer broadcasted documents subject to this provision shall include each of the following:
I. A clear and obvious identification that the fax or e-mail message is an advertisement or solicitation. The words "advertisement" or "solicitation" should appear in the subject line of the message;
II. A clear return path or routing information;
III. The use of legal and proper domain name;
IV. A clear and obvious notice of the opportunity to decline to receive further commercial facsimile or e-mail messages from the sender;
V. Unsubscribe or opt-out instructions should be the very first text in the body of the message box in the same size text as the majority of the message;
VI. The true and correct name of the sender, valid senders' fax or e-mail address, and a valid sender physical address;
VII. The date and time of the transmission;
VIII. Upon notification by recipient of his or her request not to receive further faxed or e-mailed documents, a Referral Partner shall not transmit any further documents to that recipient.
D. All e-mail or computer broadcasted documents subject to this provision shall not include any of the following:
I. Use of any third-party domain name without permission; and
II. Sexually explicit materials.
9.4 Internet and Third-Party Website Restrictions
A. A Referral Partner may not use or attempt to register any of Banner Season's trade names, trademarks, service names, service marks, product names, URLs, advertising phrases, the Company's name or any derivative thereof, for any purpose including, but not limited to, Internet domain names (URL), third party websites, e-mail addresses, web pages, or blogs.
B. A Referral Partner cannot use or register domain names, email addresses, and/or online aliases that could cause confusion, be misleading, or deceive individuals into believing that a communication is from, or is the property of Banner Season corporate.
Regarding the registered mark of Banner Season in URLs, examples of improper use include but are not limited to:
III. www.facebook.com/BannerSeason; or
IV. Any other derivatives as described herein.
Examples of permitted URLs, email addresses, and online aliases might appear as follows:
I. Facebook.com/iloveBannerSeason; or
Determination as to what could cause confusion, mislead or be considered deceptive is at the sole discretion of the Company.
C. A Referral Partner may not sell Banner Season products, services or the Banner Season opportunity via "online auctions," such as eBay®, or "online marketplaces" such as Amazon or Etsy. For more information, please see the Banner Season Online Marketplace Provision pursuant to Section 9.4(R).
D. The Company provides all Referral Partners with one (1) replicated website. Banner Season replicated website is a personal Referral Partner website that is hosted on Company servers. As for any Referral Partner who wishes to develop its own third-party website (or site not affiliated with the Company and independently owned and operated by the Referral Partner) must seek and receive the Company's prior written approval before going live with such third-party website. Should the Company grant the Referral Partner approval to use a third-party website, the site must:
a. Identify yourself as a Referral Partner for Banner Season;
b. Use only the approved images and wording authorized by the Company;
c. Adhere to the branding, trademark, and image usage policies described in this document.
d. Adhere to any other provision regarding the use of a third-party website described in this document;
e. Agree to modify your website to comply with current or future Company policies.
E. All marketing materials used on a Referral Partner's third-party website must be provided by the Company in writing.
F. To avoid confusion, the following three elements must also be prominently displayed at the top of every page of any third-party website:
1. The Banner Season Referral Partner Logo
2. Your Name and Title
3. Banner Season Corporate Website Redirect Button
G. A Referral Partner may not use third-party sites that contain materials copied from corporate sources (such as Banner Season brochures, CDs, videos, tapes, events, presentations, and corporate websites). This policy ensures brand consistency, allows Customers and Referral Partners to stay up-to-date with changing products, services and information, facilitates enrollment under the correct Sponsor, and assists in compliance with government regulations.
H. If a Referral Partner who has received authorization to create and post any third-party website has the business voluntarily or involuntarily canceled for any reason, or if the Company revokes authorization allowing the Referral Partner to maintain such a third-party website, the Referral Partner shall assign the URL to the third-party website to the Company within three (3) days from the date of the cancellation and/or re-direct all traffic to the site as directed by the Company. We reserve the right to revoke any Referral Partner's right to use a third-party website at any time if We believe that such revocation is in the best interest of Banner Season, its Referral Partners, and Customers. Decisions and corrective actions in this area are at the Company's sole discretion.
I. Social Media sites may be used to market Banner Season products. PROFILES A REFERRAL PARTNER GENERATES IN ANY SOCIAL COMMUNITY WHERE BANNER SEASON IS DISCUSSED OR MENTIONED MUST CLEARLY IDENTIFY THE REFERRAL PARTNER AS A BANNER SEASON REFERRAL PARTNER, and when a Referral Partner participates in those communities, he or she must avoid inappropriate conversations, comments, images, video, audio, applications or any other adult, profane, discriminatory or vulgar content. The determination of what is inappropriate is at the Company's sole discretion, and offending Referral Partners will be subject to disciplinary action. Banner ads and images used on these sites must be current and must come from the Banner Season approved library. If a link is provided, it must link to the posting Referral Partner's replicated website or an approved third-party website.
J. Anonymous postings or use of an alias on any Social Media site is prohibited, and offending Referral Partners will be subject to disciplinary action.
K. Referral Partners may not use blog spam, spamdexing or any other mass-replicated methods to leave blog comments. Comments Referral Partners create or leave must be useful, unique, relevant and specific to the blog's article.
L. Referral Partners must disclose their full name on all Social Media postings, and conspicuously identify themselves as an independent Referral Partner for Banner Season. Anonymous postings or use of an alias is prohibited.
M. Postings that are false, misleading, or deceptive are prohibited. This includes, but is not limited to, false or deceptive postings relating to the Banner Season income opportunity, the Company products and services, and/or your biographical information and credentials.
N. Referral Partners are personally responsible for their postings and all other online activity that relates to Banner Season. Therefore, even if a Referral Partner does not own or operate a blog or Social Media site, if a Referral Partner posts to any such site that relates to Banner Season or which can be traced to the Company, the Referral Partner is responsible for the posting. Referral Partners are also responsible for postings which occur on any blog or Social Media site that the Referral Partner owns, operates, or controls.
O. The distinction between a Social Media site and a website may not be clear-cut, because some Social Media sites are particularly robust, Banner Season therefore reserves the sole and exclusive right to classify certain Social Media sites as third-party websites and require that Referral Partners using, or who wish to use, such sites adhere to the Banner Season's policies relating to third-party websites.
P. If your Banner Season business is cancelled for any reason, you must discontinue using the Company name, and all of the Company's trademarks, trade names, service marks, and other intellectual property, and all derivatives of such marks and intellectual property, in any postings and all Social Media sites that you utilize. If you post on any Social Media site on which you have previously identified yourself as an independent Banner Season Referral Partner, you must conspicuously disclose that you are no longer a Referral Partner of Banner Season.
Q. Failure to comply with these Policies for conducting business online may result in the Referral Partner losing their right to advertise and market Company products, services and the Banner Season opportunity online or any other disciplinary action available under the Policies and Procedures.
R. The Company predicates its business on in-home and event sales. Therefore, face-to-face interactions with Customers and Referral Partners are critical to one's individual success in this business.
9.5 Advertising and Promotional Materials
A. No special enticement advertising is allowed. This includes, but is not limited to, offers of a free business, free product packages, or other such offers that grant advantages beyond those available through the Company.
B. Advertising and all forms of communications must adhere to principles of honesty and propriety.
C. All advertising, including, but not limited to, print, Internet, computer bulletin boards, television, radio, etc., are subject to prior written approval by the Company Compliance Department.
D. All requests for approvals with respect to advertising must be directed in writing to the Company Compliance Department.
E. Banner Season approval is not required to place blind ads that do not mention the Company, its employees, any of its products, services, designs, symbols, programs, and trademarked, copyrighted, or otherwise protected materials.
F. Banner Season reserves the right to rescind its prior approval of submitted advertising or promotional materials in order to comply with changing laws and regulations and may require the removal of such advertisements from the marketplace without obligation to the affected Referral Partner.
9.6 Testimonial Permission
By signing the Referral Partner Agreement, you give us permission to use your testimonial or image and likeness in corporate sales materials, including but not limited to print media, electronic media, audio and video. In consideration of being allowed to participate in the Banner Season opportunity, you waive any right to be compensated for the use of your testimonial or image and likeness even though the Company may be paid for items or sales materials containing such image and likeness. In some cases, a Referral Partner's testimonial may appear in another Referral Partner's advertising materials. If a Referral Partner does not wish to participate in Banner Season sales and marketing materials, he or she should provide a written notice to the Company Compliance Department to ensure that his or her testimonial or image and likeness will not be used in any corporate materials, corporate recognition pieces, advertising or recordings of annual events.
9.7 Telemarketing Limitations
A. A Referral Partner must not engage in telemarketing in relation to the operation of his or her Banner Season business. The term "telemarketing" means the placing of one or more telephone calls to an individual or entity to induce the purchase of Banner Season products or services, or to recruit them for the Banner Season opportunity.
B. The Federal Trade Commission ("FTC") and the Federal Communications Commission ("FCC") each have laws that restrict telemarketing practices. Both federal agencies, as well as a number of states have "do not call" regulations as part of their telemarketing laws.
C. While a Referral Partner may not consider herself a "telemarketer" in the traditional sense, these regulations broadly define the term "telemarketer" and "telemarketing" so that the unintentional action of calling someone whose telephone number is listed on the Federal "Do Not Call" registry could cause the Referral Partner to violate the law. These regulations must not be taken lightly, as they carry significant penalties (up to $11,000 per violation).
D. "Cold calls" or "state-to-state calls" made to prospective Customers or Referral Partners that promote either Banner Season products, services or the Banner Season opportunity is considered telemarketing and is prohibited.
E. Exceptions to Telemarketing Regulations. A Referral Partner may place telephone calls to prospective Customers or Referral Partners under the following limited situations:
I. If the Referral Partner has an established business relationship with the prospect;
II. In response to the prospect's personal inquiry or application regarding a product or service offered by the Referral Partner within three (3) months immediately before the date of such a call;
III. If the Referral Partner receives written and signed permission from the prospect authorizing the Referral Partner to call;
IV. If the call is to family members, personal friends, and acquaintances. However, if a Referral Partner makes a habit of collecting business cards from everyone he/she meets and subsequently calls them, the FTC may consider this a form of telemarketing that is not subject to this exemption;
V. A Referral Partner engaged in calling "acquaintances," must make such calls on an occasional basis only and not as a routine practice.
F. A Referral Partner shall not use automatic telephone dialing systems in the operation of her Banner Season businesses.
G. Failure to abide by Company policies or regulations as set forth by the FTC and FCC regarding telemarketing may lead to sanctions against the Referral Partner's business, up to and including termination of the business.
H. By signing the Referral Partner Agreement, or by accepting commission checks, other payments or awards from Banner Season, a Referral Partner gives permission to Banner Season and other Referral Partners to contact them as permitted under the Federal Do Not Call regulations.
I. In the event a Referral Partner violates this section, We reserve the right to institute legal proceedings to obtain monetary or equitable relief.
10.0 CHANGES TO A REFERRAL PARTNER'S BUSINESS
10.1 Modification of the Referral Partner Agreement
A Referral Partner may modify the existing Referral Partner Agreement (i.e., change a social security number to a Federal ID number, add a spouse or partner to the account, or change the form of ownership from an individual to a Business Entity owned by the Referral Partner) by submitting a written request, accompanied by a new Referral Partner Agreement and the Business Registration Form, if applicable, completed with fresh signatures (not a "crossed out" or "white-out" version of the first Agreement), and any appropriate supporting documentation.
10.2 Change Sponsor or Placement for Inactive Referral Partners
A. At the discretion of the Company, Referral Partners who neither sold nor purchased products for at least twelve (12) months, and who have not tendered a letter of resignation, are eligible to re-enroll in the Company under the Sponsor/Placement of their choice.
B. Upon written notice to the Company that a former Referral Partner wishes to re-enroll, Banner Season will "compress" (close) the original account. A new Referral Partner ID number will then be issued to the former Referral Partner.
C. Such Referral Partner does not retain former rank, downline, or rights to commission checks from the former organizations.
D. The Company reserves the right to correct Sponsor or Placement errors at any time and in whatever manner it deems necessary.
10.3 Change Organizations
A. If a Referral Partner wishes to transfer organizations, he or she must submit a letter of resignation to the Company Customer Service Department and remain inactive (neither buy or sell) with or in Banner Season for twelve (12) months from the receipt of the letter before being eligible to re-enroll under a different Sponsor/Placement.
B. The Company retains the right to approve or deny any request to re-enroll after a Referral Partner's resignation.
C. If re-enrollment is approved, the former Referral Partner will be issued a new Referral Partner ID number and will be required to submit a new Referral Partner Agreement. The Referral Partner will not be entitled to keep any former rank, downline, or rights to commission checks from any prior organization.
D. Transfers may not be done outside of the original organization.
10.4 Unethical Sponsoring
A. Unethical sponsoring activities include, but are not limited to, enticing, bidding or engaging in unhealthy competition in trying to acquire a prospect or new Referral Partner from another Referral Partner or influencing another Referral Partner to transfer to a different sponsor.
B. Allegations of unethical sponsoring must be reported in writing to the Company Compliance Department within the first 90 days of enrollment. If the reports are substantiated, Banner Season may transfer the Referral Partner or the Referral Partner's downline to another sponsor, Placement or organization without approval from the current up-line Sponsor or Placement Referral Partners. The Company remains the final authority in such cases.
C. Banner Season prohibits the act of "Stacking." Stacking is the unauthorized manipulation of the Company compensation system and/or the marketing plan in order to trigger commissions or cause a promotion off a downline Referral Partner in an unearned manner. One example of stacking occurs when a Sponsor places participants under an inactive downline without his or her knowledge in order to trigger unearned qualification for commissioning. Stacking is unethical and unacceptable behavior, and as such, it is a punishable offense with measures up to and including the termination of the independent consultant positions of all individuals and/or entities found to be directly involved.
D. Should Referral Partners engage in solicitation and/or enticement of members of another direct sales company to sell or distribute Banner Season products and services to, they bear the risk of being sued by the other direct sales company. If any lawsuit, arbitration, or mediation is brought against a Referral Partner alleging that they engaged in inappropriate recruiting activity of another company's sales force or Customers, the Company will not pay any of the Referral Partner's defense costs or legal fees, nor will the Company indemnify the Referral Partner for any judgment, award, or settlement.
10.5 Sell Assign or Delegate Ownership
A. To preserve the integrity of the hierarchical structure, it is necessary for Banner Season to place restrictions on the transfer, assignment, or sale of a business.
B. A Referral Partner may not sell or assign rights or delegate the position as a Referral Partner without prior written approval by Banner Season, which approval will not be unreasonably withheld, and the approval of seven (7) upline Referral Partners in the Seller's line of sponsorship. Any attempted sale, assignment, or delegation without such approval may be voided at the discretion of the Company.
C. Should the sale be approved by the Company, the Buyer assumes the position of the Seller at the current qualified title, but at the current "paid as" rank, at the time of the sale and acquires the Seller's Downline.
D. To request corporate authorization for a sale or transfer of a Banner Season business, the following items must be submitted to the Company Compliance Department:
I. A Sale/Transfer of Business Form properly completed, with the requisite signatures.
II. A copy of the Sales Agreement signed and dated by both Buyer and Seller.
III. A Referral Partner Agreement completed and signed by the Buyer;
IV. Payment of the $100 administration fee;
V. Any additional supporting documentation requested by the Company.
E. Any debt obligations that either Seller or Buyer may have with Banner Season must be satisfied prior to the approval of the sale or transfer by the Company.
F. A Referral Partner who sells his or her business is not eligible to re-enroll as a Referral Partner in any organization for twelve (12) full calendar months following the date of the sale except as otherwise expressly set forth in these Policies and Procedures.
10.6 Separating a Referral Partner's Business
A. Pending a divorce or dissolution of a partnership or other business entity, the parties must adopt one of the following methods of operation:
I. One of the parties may, with the written consent of the other(s), operate the Banner Season business whereby the relinquishing Spouse, shareholders, partners, members or trustees authorize the Company to deal directly and solely with the other Spouse, non-relinquishing shareholder, partner, member or trustee;
II. The parties may continue to operate the Banner Season business jointly on a "business as usual" basis, whereupon all compensation paid by the Company will be paid in the name designated as the Referral Partner or in the name of the entity to be divided, as the parties may independently agree between them. If no name is stipulated, Banner Season will pay compensation to the name on record and in such event, the Referral Partner named on the account shall indemnify Banner Season from any claims from the other business owner(s) or the other Spouse with respect to such payment.
B. Banner Season recognizes only one Downline organization and will issue only one commission check per Banner Season business per commission cycle. Under no circumstances will the Downline of an organization be divided, nor will Banner Season split commission and/or bonus checks.
C. If a relinquishing Spouse, partner or owner of the business has completely relinquished ("Relinquishing Party"), in writing, all rights to the original Banner Season business, he or she may immediately thereafter re-enroll under the Sponsor and Placement of his or her choice. In such cases, however, the Relinquishing Party shall have no rights to, and shall not solicit, any Referral Partner or active Customer in the former organization, and must develop a new business in the same manner as any other new Referral Partner. A Referral Partner in the Relinquishing Party's former Downline who wishes to transfer to the Relinquishing Party's new organization or to any other organization, must comply with the requirements in Section 12.5.
A. Upon the death or incapacity of a Referral Partner, the Referral Partner's business may be passed on to his or her legal successors in interest (successor). Whenever a Banner Season business is transferred by will or other testamentary process, the successor acquires the right to collect all bonuses and commissions of the deceased Referral Partner's sales organization. The successor must:
I. Complete and sign a new Referral Partner Agreement;
II. Comply with the terms and provisions of the Referral Partner Agreement; and
III. Meet all of the qualifications for the last rank achieved by the former Referral Partner.
B. Bonus and commission checks of a Banner Season business transferred based on this section will be paid in a single check to the successor. The successor must provide the Company with an "address of record" to which all bonus and commission Payments will be sent. Payments will be based on the current performance of the business, not the highest rank or volume achieved.
C. If the business is bequeathed to joint devisees (successors), they must form a business entity and acquire a Federal taxpayer identification number. Banner Season will issue all bonus and commission payments and one 1099 Miscellaneous Income Tax form to the managing business entity only.
D. Appropriate legal documentation must be submitted to the Company Compliance Department to ensure the transfer is done properly. To affect a testamentary transfer of a Banner Season business, the successor must provide the following to the Company Compliance Department:
I. A certified copy of the death certificate; and
II. A notarized copy of the will or other appropriate legal documentation establishing the successor's right to the Banner Season business.
E. To complete a transfer of the Banner Season business because of incapacity, the successor must provide the following to the Company Compliance Department:
I. A notarized copy of an appointment as trustee;
II. A notarized copy of the trust document or other appropriate legal documentation establishing the trustee's right to administer the Banner Season business; and
III. A completed Referral Partner Agreement executed by the trustee.
F. If the successor is already an existing Referral Partner, the Company will allow such Referral Partner to keep his or her own business plus the inherited business active for up to six (6) months. By the end of the 6-month period, the Referral Partner must have compressed (if applicable), sold or otherwise transferred either the existing business or the inherited business.
G. If the successor wishes to terminate the Banner Season business, he or she must submit a notarized statement stating the desire to do so, along with a certified copy of the death certificate, appointment as trustee, and/or any other appropriate legal documentation.
H. Upon written request, Banner Season may grant a one (1) month bereavement waiver and pay out at the last "paid as" rank.
10.8 Resignation/Voluntary Cancellation
A. A Referral Partner may immediately terminate his or her business by submitting a written notice or email to the Company Compliance Department. The written notice must include the following:
I. The Referral Partner's intent to resign;
II. Date of resignation;
III. Banner Season Identification Number;
IV. Reason for resigning; and
B. A Referral Partner may not use resignation or voluntary cancellation as a way to immediately change Sponsor and Placement. Instead, the Referral Partner who has voluntarily resigned is not eligible to reapply for a business or have any financial interest in a or any Banner Season business for twelve (12) months from the receipt of the written notice of resignation.
C. Following any voluntary cancellation, a Referral Partner:
I. Shall have no right, title, claim or interest to any commission or bonus from the sales generated by the Referral Partner's former organization or any other payments in association with the Referral Partner's former independent business;
II. Effectively waives any and all claims to property rights or any interest in or to the Referral Partner's former downline organization;
III. Shall receive commissions and bonuses only for the last full pay period in which he or she was active prior to cancellation, less any amounts withheld during an investigation preceding an involuntary cancellation, and less any other amounts owed to the Company.
10.9 Involuntary Termination
A. Banner Season reserves the right to terminate a Referral Partner's business for, but not limited to, the following reasons:
I. Violation of any terms or conditions of the Referral Partner Agreement;
II. Violation of any provision in these Policies and Procedures;
III. Violation of any provision in the Compensation Plan;
IV. Violation of any applicable law, ordinance, or regulation regarding the Banner Season business;
V. Engaging in unethical business practices or violating standards of fair dealing; or
VI. Returning over $300 worth of products, services and/or sales tools for a refund within a twelve (12) month period.
B. Banner Season will notify the Referral Partner in writing at the last known address of the intent to terminate the Referral Partner's business and the reasons for termination. The Referral Partner will then have seven (7) calendar days from the date of such notice to appeal the termination in writing. Banner Season must receive the Referral Partner's written appeal within seven (7) calendar days of the date of the termination letter. If the written appeal is not received within this time period, the termination will be considered final.
C. If the Referral Partner does file a timely appeal of termination, Banner Season will review its decision, along with any other information it may deem relevant, reconsider any other appropriate action, and notify the Referral Partner of its decision. The decision of Banner Season is then considered final and not subject to further review.
D. If the termination is not rescinded, the termination will be effective as of the date of the original termination notice by Banner Season. The former Referral Partner shall thereafter be prohibited from using the names, marks or signs, labels, stationery, advertising, or business material referring to or relating to any Banner Season products or services. The Company will notify the active Upline Sponsor of the termination, and the organization of the terminated Referral Partner will "roll up" to the active Upline Sponsor on record.
E. The Referral Partner who is involuntarily terminated by the Company may not reapply for a business, either under the present name or any other name or entity, without the express written consent of an officer of Banner Season. In any event, such Referral Partner may not re-apply for a business for twelve (12) months from the date of termination.
11.0 DISCIPLINARY SANCTIONS
11.1 Imposition of Disciplinary Action - Purpose
It is the spirit of Banner Season that integrity and fairness should pervade among its Referral Partners, thereby providing everyone with an equal opportunity to build a successful business. Therefore, We reserve the right to impose disciplinary sanctions at any time, when We determine that a Referral Partner has violated the Agreement, any of these Policies and Procedures, or the Compensation Plan as may be amended from time to time by the Company.
11.2 Consequences and Remedies of Breach
A. Disciplinary actions may include one or more of the following:
I. Monitoring a Referral Partner's conduct over a specified period of time to assure compliance;
II. Issuance of a written warning or requiring the Referral Partner to take immediate corrective action;
III. Imposition of a fine (which may be imposed immediately or withheld from future commission payments) or the withholding of commission payments ("Commission Hold") until the matter causing the Commission Hold is resolved or until the Company receives adequate additional assurances from the Referral Partner to ensure future compliance;
IV. Suspension from participation in Company or Referral Partner-related events, rewards, or recognition;
V. Suspension of the Referral Partner Agreement and your business for one or more pay periods;
VI. Involuntary termination of the Referral Partner Agreement and your business;
VII. Any other measure which We deem feasible and appropriate to justly resolve injuries caused by the Referral Partner's violation or contractual breach; OR
VIII. Legal proceedings for monetary or equitable relief.
12.0 DISPUTE RESOLUTION
A. If a Referral Partner has a grievance or complaint against another Referral Partner regarding any practice or conduct relating to their respective Banner Season businesses, the Referral Partner is encouraged to resolve the issue directly with the other party. If an agreement cannot be reached, it must be reported directly to the Company Compliance Department as outlined below.
B. The Compliance Department will be the final authority on settling such grievance or complaint and its written decision shall be final and binding on the Referral Partners involved.
C. Banner Season will confine its involvement to disputes regarding Banner Season business matters only. We will not decide issues that involve personality conflicts or unprofessional conduct by or between Referral Partners outside the context of Company business. These issues go beyond the scope of the Company and may not be used to justify a Sponsor, placement change or transfer.
D. Banner Season does not consider, enforce, or mediate third party agreements between Referral Partners, nor does it provide names, funding, or advice for obtaining outside legal counsel.
E. Process for Grievances:
I. A Referral Partner should submit a written letter of complaint (e-mail will not be accepted) directly to the Company Compliance Department. The letter shall set forth the details of the incident as follows:
a. The nature of the violation and specific facts to support such allegations;
b. Dates and the number of occurrences;
c. Persons involved; and
d. Any other supporting documentation.
II. Upon receipt of the written complaint, Banner Season will conduct a general investigation.
F. Banner Season will make a final decision and timely notify the Referral Partners involved.
A. Any controversy or claim arising out of or relating to the Agreement and/or these Policies and Procedures (or the breach thereof), your business or any other dispute between the Company and you , shall be settled by binding and confidential arbitration administered by the American Arbitration Association under its commercial arbitration rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Any such arbitration shall be held in Lindon, Utah. There shall be one arbitrator, who shall have expertise in business law transactions and who shall be knowledgeable in the direct selling industry, selected from a panel provided by the American Arbitration Association.
B. The prevailing party in any such arbitration shall be entitled to receive from the losing party, all costs and expenses of arbitration, including reasonable attorney's fees and filing fees. The decision of the arbitrator shall be final and binding on the parties and may, if necessary, be reduced to judgment in any court of competent jurisdiction.
C. This agreement to arbitration shall survive any termination or expiration of the Agreement.
D. Nothing in these Policies and Procedures shall prevent Banner Season from applying for or obtaining from any court having jurisdiction a writ of attachment, a temporary injunction, preliminary injunction, permanent injunction, or other relief available to safeguard and protect the Company's interests or its Confidential Information prior to, during or following the filing of an arbitration or other proceeding, or pending the rendition of a decision or award in connection with any arbitration or other proceeding.
E. NO CLASS ACTION, OR OTHER REPRESENTATIVE ACTION OR PRIVATE ATTORNEY GENERAL ACTION OR JOINDER OR CONSOLIDATION OF ANY CLAIM WITH A CLAIM OF ANOTHER PERSON OR CLASS OF CLAIMANTS SHALL BE ALLOWABLE .
G. These Policies and Procedures and any arbitration involving a Referral Partner and the Company shall be governed by and construed in accordance with the laws of the state of Utah, without reference to its principles of conflict of laws.
A. In any case which arises from or relates to the wrongful termination of the Referral Partner Agreement and/or a Referral Partner's Banner Season business, the Company and Referral Partner agree that damages will be extremely difficult to ascertain. Therefore, the Company and Referral Partner stipulate that if the involuntary termination of the Referral Partner Agreement and/or loss of the Referral Partner's Banner Season business is proven and held to be wrongful under any theory of law, the Referral Partner's sole remedy shall be liquidated damages calculated as follows:
I. For Referral Partners at the "Paid As" rank of Rookie liquidated damages shall be in the amount of his/her gross compensation that he/she earned pursuant to the Banner Season Compensation Plan in the twelve (12) months immediately preceding the termination.
II. For Referral Partners at the "Paid As" rank of Team Captain
e, liquidated damages shall be in the amount of his/her gross compensation
that he/she earned pursuant to the Banner Season Compensation Plan in the
twenty-four (24) months immediately preceding the termination.
B. In any action arising from or relating to the Agreement, the Banner Season business, or the relationship between the Company and Referral Partner, both parties waive all claims for incidental and/or consequential damages, even if the other party has been apprised of the likelihood of such damage. The Company and Referral Partner further waive all claims to exemplary and punitive damages.
If any provision of these Policies and Procedures is found to be invalid, or unenforceable for any reason, only the invalid provision shall be severed. The remaining terms and provisions hereof shall remain in full force and shall be construed as if such invalid or unenforceable provision never had comprised a part of these Policies and Procedures.
A. Only an officer of Banner Season can, in writing, affect a waiver of these Policies and Procedures. The Company's waiver of any particular breach by a Referral Partner shall not affect Our rights with respect to any subsequent breach, nor shall it affect the rights or obligations of any other Referral Partner.
B. The existence of any claim or cause of action of a Referral Partner against the Company shall not constitute a defense to Our enforcement of any term or provision found in these Policies and Procedures.
12.6 Successors and Claims
The agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns.
13.0 GOVERNING LAW
These Policies and Procedures shall be governed by and construed in accordance with the Laws of the State of Utah and the exclusive jurisdiction of the United States courts.
14.0 GLOSSARY OF TERMS
ACTIVE REFERRAL PARTNER: A Referral Partner who satisfies the minimum volume requirements as defined in the Compensation Plan to ensure eligibility for commissions and bonuses.
AGREEMENT: The contract between the Company and each Referral Partner, which includes: the Referral Partner Agreement, these Policies and Procedures, and the Company Compensation Plan, all in their current form and as amended by the Company in the future. These documents are collectively referred to as the "Agreement."
REFERRAL PARTNER: An individual who purchases product, generates retail sales and business building commissions.
CANCEL: The termination of a Referral Partner's business. Cancellation may be either voluntary or involuntarily.
COMPENSATION PLAN: The guidelines and referenced literature for describing how Referral Partners can generate commissions and bonuses.
CUSTOMER: A Customer who purchases Banner Season products and does not engage in the retailing of product or the building of a business.
LINE OF SPONSORSHIP (LOS): A report generated by Banner Season that provides critical data relating to the identities of Referral Partners, sales information, and enrollment activity of each Referral Partner's organization. This report contains confidential and trade secret information which is proprietary to Banner Season.
ORGANIZATION: The Customers and Referral Partners placed below a particular Referral Partner.
OFFICIAL Company MATERIALs: Literature, audio or video tapes, and other materials developed, printed, published, and distributed by Banner Season to its Referral Partners.
PLACEMENT: Your position inside your Sponsor's organization.
RECRUIT: For purposes of Banner Season's Conflict of Interest policy, the term "Recruit" means the actual or attempted solicitation, enrollment, encouragement, or effort to influence in any other way, either directly, indirectly, or through a third party, another Customer or Referral Partner to enroll or participate in another multilevel marketing, network marketing, or direct sales opportunity.
RESALABLE: Products shall be deemed "resalable" if each of the following elements is satisfied: (i) the products remain unopened and unused; (ii) the original product packaging and labelling is unaltered and free from damage; (iii) the products are in a condition such that it is a commercially reasonable practice within the trade to sell the merchandise at full price; and (iv) the product contains current Banner Season labelling. Any merchandise that is clearly identified at the time of sale as nonreturnable, discontinued, or as a seasonal item, shall not be resalable.
SPONSOR: A Referral Partner who enrolls a Customer or another Referral Partner into the Company, and is listed as the Sponsor on the Referral Partner Agreement. The act of enrolling others and training them to become Referral Partner is referred to as "sponsoring."
UPLINE: This term refers to the Referral Partner or Referral Partners above a particular Referral Partner in a sponsorship line up to the Company. It is the line of sponsors that links any particular Referral Partner to the Company.