BEST SELLER SUCCESS STANDARD TERMS AND CONDITIONS
These Standard Terms and Conditions (this “Agreement”), effective as of the date set forth on the signature page hereto, is made by and between BEST SELLER SUCCESS (“BSS”), and the undersigned client(s) (“Client”). BSS and Client may be referred to in this Agreement individually as a “Party” or collectively as the “Parties.”
Engagement of Services.
Client agrees to engage BSS to provide, and BSS hereby agrees to provide, the package of products, events and services (the “Program(s)”) selected by the Client all as more specifically described on the separate Performance Guarantee attached hereto as Exhibit A (the “Performance Guarantee”). Except as otherwise noted herein, all references to “Agreement” shall also include the Performance Guarantee. BSS may, without prior approval or notice, utilize the services of third parties in providing the Program.
Program Fees and Payments.
As consideration for the Program(s) provided by BSS, Client shall pay BSS the aggregate amounts set forth on the Performance Guarantee that correspond to the Program(s) selected. The Client agrees hat the Program(s) shall be paid for in full prior to services (“Services”) which comprise the Program(s) including but not limited to course materials, starter kits, attendance at in-person events, participation in coaching sessions and/or other Products and Services set forth on the Performance Guarantee.
Products received cannot be returned, except in connection with Client’s exercise of the “Transfer Option” (as defined herein) as set forth in Section 4. The Client authorizes BSS and/or its affiliate entities to charge Client’s debit credit cards for all amounts due under this Agreement. Client hereby expressly agrees and understands that the payment terms expressed in this Section 2 must be fulfilled prior to the provision of any Products and/or Services. Client further agrees and understands that any failure to comply with, or deviation from, the payment terms outlined in this Section 2 after the commencement of Services or the delivery of Products shall result in a suspension of any future Products or Services until payment is made in full. Client agrees that any suspension of Products or Services does not release Client from responsibility for fulfilling all payment obligations.
Unless specifically provided for on the Performance Guarantee, the cost of the Program does not include travel and lodging expenses. Failure to adhere to the payment terms initiates BSS’s right to collect a debt. Client may be contacted by BSS or a third-party collection agency in any attempt to collect any balance due. Client credit ratings may be affected. Unless stated to be inclusive of GST on the Declaration Page(s), in addition to the price stated for Products and Services Client must pay GST of 10% on those amounts. BSS will produce a tax invoice and provide such tax invoice to Client which will include details of GST charged. Cancellation; Termination. Due to the nature of the Programs provided, BSS will accept and process cancellations as follows; provided, however, that cancellations described in this Section 3 shall be effective only if provided by Client to BSS in writing and delivered by mail or confirmable fax or email from 9:00 a.m. to 5:00 p.m. PST, Monday through Friday, not including national holidays:
The client may rescind and cancel this Agreement provided BSS receives written notice of cancellation within 3 calendar days after the execution of the agreement by the Client. After the 3 day rescission period and due to the nature of this Program, Client may only receive a refund for this Program in accordance with the Performance Guarantee attached..
Notwithstanding the foregoing, in any instance of termination by Client, BSS shall retain a $500 cancellation fee for the retail price of any Products or Services if already rendered to Client. BSS may cancel any Program for any reason immediately upon notice to Client, and may terminate this Agreement with Client upon Client’s material breach of any of the terms of this Agreement.
Further, BSS may modify or update the Program and underlying Products and Services at any time to any extent BSS deems reasonably necessary, in its sole discretion. In the event of a cancellation by BSS of any Program, Client shall be entitled to a full refund of the tuition price set forth on the Performance Guarantee. All refunds shall be made in Australian dollars within 30 days of the cancellation or termination date.
EXCEPT AS OTHERWISE PROVIDED HEREIN, THERE WILL BE NO REFUND ISSUED IF CLIENT DROPS FROM THE PROGRAM AFTER ITS COMMENCEMENT.
In lieu of termination as set forth in Section 3, Client may, at Client’s option and with the approval of transferee by BSS, exercise a one-time transfer to another BSS Program prior to the commencement of the Program (“Transfer Option”). Client agrees to pay to BSS, in accordance with the provisions of Section 2, (i) a fee of $[1,000] in the event that Client exercises the Transfer Option 22 days or more prior to the first in-person event as contemplated by the Performance Guarantee; and (ii) a fee of $[2,000] in the event that Client exercises the Transfer Option 21 days or less prior to the first in-person event as contemplated by the Performance Guarantee. Furthermore, Client agrees to pay to BSS any excess amount for which the Program Client transfers into exceeds the cost of the Program Client transfers out of.
Client Participation and Attendance is Required.
Due to the nature of the Program(s) and Service(s), it is expected that upon starting a Program Client will attend each in-person event. All in-person sessions and completion call must be completed within one-year of the first in-person session. During the course of the Program(s), Client will have coaching sessions scheduled with BSS as designated and provided by BSS in its discretion. Client is expected to be on time for all scheduled calls. If Client calls in late for any coaching session, the time missed will be forfeited. There will be no exceptions. In the event that Client wishes to re-schedule a coaching session, Client will notify BSS in writing at least 24-hours prior to the scheduled session. If less than 24-hours notice if given by Client to BSS, the session will be forfeited.
Intellectual Property Rights and Proprietary Information.
BSS and its associated companies (referred to collectively in this clause, as “BSS”) are is the owner of all right, title and interest in and to the Program(s) and all underlying Product(s) and Services, including, without limitation, all related proprietary rights, intellectual property rights, concepts and ideas, works of authorship, designs, know-how, confidential and trade secret materials, codes, programs, access information, trademarks, service marks, patents and copyrights (collectively, the “Intellectual Property Rights”). The Intellectual Property Rights and all underlying documents and information shall remain the property of BSS.
Client shall not, by virtue of this Agreement, or otherwise, acquire any right, title or interest whatsoever n the Program(s) and underlying Products or in the Intellectual Property Rights of BSS. Client further agrees not to take any action that would interfere with or infringe upon BSS’s Intellectual Property Rights, including without limitation: the distribution, displaying, copying, reproduction or duplication of the Program(s) and underlying Products and Services in any manner whatsoever; the creation, registration and/or use of trademarks, service marks or domain names that are the same or substantially similar to those of BSS; use, manufacture, import, or sell any product that infringes upon BSS’s
Intellectual Property Rights; or take any action that would create the appearance of an association or affiliation with or endorsement by BSS.
Client further agrees that all course materials and information provided by BSS as part of the Program(s) and Products or Services hereunder, including, without limitation, any client or attendance lists that Client may obtain constitute BSS’s proprietary information (“Proprietary Information”). Client shall hold in confidence and not disclose any of BSS’s Proprietary Information to any third party without BSS’s prior written consent.
Limitations on Liability; Disclaimer; Force Majeure.
EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT OR REQUIRED BY STATUTE, NEITHER BSS NOR ANY OF BSS’S STOCKHOLDERS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBSIDIARIES OR AFFILIATES, INC LUDING, WITHOUT LIMITATION, MS. CYDNEY O’SULLIVAN (COLLECTIVELY, THE “BSS RELATED PARTIES”) MAKES ANY AGREEMENTS, WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGE MENT WITH RESPECT TO THE PROGRAMS AND UNDERLYING PRODUCTS AND SERVICES. BSS AND THE BSS RELATED PARTIES SHALL BE EXCUSED FROM ANY DELAY OR FAILURE IN PERFORMANCE OF THE SERVICES UNDER THIS AGREEMENT FOR ANY PERIOD IF SUCH DELAY OR FAILURE IS CAUSED BY ANY EVENT OF FORCE MAJEURE OR OTHER SIMILAR FACTORS BEYOND THEIR REASONABLE CONTROL.
THE CUMULATIVE AMOUNT OF ANY LIABILITY OF BSS AND THE BSS RELATED PARTIES TO CLIENT OR ANY THIRD PARTY FOR ONE OR MORE CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL NOT EXCEED, IN THE AGGREGATE, THE TOTAL DOLLAR AMOUNT ACTUALLY RECEIVED BY BSS FROM CLIENT FOR THE PROGRAM(S) AND UNDER LYING PRODUCT(S) AND SERVICES SELECTED BY CLIENT UNDER THIS AGREEMENT.
IN NO EVENT SHALL BSS AND THE BSS RELATED PARTIES BE LIABLE TO CLIENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES OF ANY KIND OR NATURE WHATSOEVER (INCLUDING BUT NOT LIMITED TO BREACH OF THIS AGREEMENT, COMMISSION OF ANY TORT INCLUDING NEGLIGENCE OR STRICT LIABILITY, NON-COMPLIANCE WITH ANY LAW, STATUTE OR REGULATION, ANY LOST PROFITS, LOST SAVINGS, OR BUSINESS HARM) ARISING OUT OF OR RELATING TO THE PROGRAM(S) AND UNDERLYING PRODUCTS AND/OR THE PERFORMANCE OR NONPERFORMANCE OF SERVICES UNDER THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE PROGRAM(S) AND THE UNDERLYING PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT SHALL NOT BE INTENDED OR CONSTRUED AS PROVIDING LEGAL, INVESTMENT, FINANCIAL OR TAX ADVICE, AND SHOULD NOT BE USED TO MAKE ANY INVESTMENT DECISIONS. BSS DOES NOT PURPORT TO TELL OR SUGGEST WHICH INVESTMENTS OR SECURITIES CLIENT SHOULD BUY OR SELL FOR HIMSELF OR HERSELF. NEITHER BSS NOR THE BSS RELATED PARTIES (A) ADVOCATE OR ENDORSE THE PURCHASE OR SALE OF ANY SECURITY OR INVESTMENT OR (B) MAKE ANY GUARANTY OR REPRESENTATION CONCERNING THE SUITABILITY OR POSSIBILITY OR PROBABILITY OF PROFIT OR LOSS OF ANY SECURITY OR INVESTMENT. INVESTMENTS IN “HARD” ASSETS SUCH AS PROPERTIES, BUSINESS VENTURES AND PRIVATE DEBT INSTRUMENTS ARE INHERENTLY RISKY AND ILLIQUID, AND SHOULD BE AVOIDED BY INDIVIDUALS WHO ARE UNSOPHISTICATED AND/OR WHO CANNOT AFFORD TO LOSE THEIR ENTIRE INVESTMENT. SUCH INVESTMENTS MAY NOT BE SUITABLE FOR PARTICULAR INDIVIDUALS. CLIENTS SHOULD ALWAYS CONDUCT THEIR OWN RESEARCH AND DUE DILIGENCE AND OBTAIN PROFESSIONAL ADVICE BEFORE MAKING ANY INVESTMENT DECISION. CLIENT ACKNOWLEDGES THAT NEITHER BSS NOR THE BSS RELATED PARTIES PROVIDE ANY SUCH ADVICE. CLIENT SHOULD MAKE SUCH INVESTIGATIONS AS HE OR SHE DEEMS NECESSARY TO ARRIVE AT AN INDEPENDENT EVALUATION OF ANY INVESTMENT OR SECURITY. .NO BSS PRODUCTS OR SERVICES SHOULD BE CONSIDERED A SOLICITATION TO BUY OR AN OFFER TO SELL SECURITIES.
Client (including without limitation any direct or indirect employee, subcontractor, agent or affiliate of Client) shall indemnify, defend and hold harmless BSS and the BSS Related Parties from and against all liabilities, claims, damages, penalties, interest, losses, costs and expenses, including, without limitation, reasonable attorneys’ and expert fees and costs, of any kind or nature, incurred by ES in connection with any claim arising from the Program(s) and the Product(s) and Services offered by ES. The indemnification obligations under this Section 7 shall survive the termination of this Agreement, and shall not be limited to the aggregate sum of payments made to ES, as a result of a breach by the Client of its obligations hereunder.
Compensation by BSS Vendors.
Client hereby acknowledges that BSS may engage one or more vendors (a “BSS Vendors”) to present to attendees (including Client) at Program(s) and/or online at internet website(s) hosted and maintained by BSS or its affiliates, educational and background information and marketing regarding Vendor’s products and services, including but not limited to possible investment opportunities (the “Vendor Content”). Client further acknowledges that the BSS Vendors routinely pay fees to BSS for the right to present such Vendor Content. Client hereby knowingly and voluntarily waives any conflict of interest or potential conflict of interest which may exist now or in the future in connection with the foregoing arrangement between BSS and any BSS Vendor.
Compliance with Laws.
Client agrees to use the Products and Services in compliance with all laws including, without limitation, laws relating to copyright, trademark or other intellectual property.
Relationship Between the Parties.
Nothing contained in this Agreement shall be deemed to constitute a partnership, joint venture, investment adviser-client, fiduciary-principal or employer-employee relationship between BSS and Client, or to give rise to any license or right of Client to any Intellectual Property Rights owned or controlled by BSS.
Client agrees that for the term of this Agreement, including any extensions, and for two (2) years thereafter, Client shall not solicit, hire or engage or attempt to solicit, hire or engage any coaches, employees, clients and customers, independent contractors, or associates of BSS, or otherwise attempt to induce an individual to terminate his or her employment, engagement or affiliation with BSS, to work, assist or provide similar or related services under this Agreement without BSS’s prior written consent. Arbitration. Any controversy, claim, dispute or difference arising out of or relating to this Agreement that cannot be settled through correspondence and mutual consultation of the Parties within thirty (30) days written notice of the dispute (except any controversy or claim with respect to the Client’s violation or attempted violation of BSS’s Intellectual Property Rights or disclosure of BSS’s Proprietary Information), shall finally be settled through binding arbitration in accordance with the ACICA Arbitration Rules. The seat of arbitration shall be Sydney, Australia.
With regard to any controversy or claim concerning BSS’s Intellectual Property Rights or Proprietary Information, BSS will not be required to arbitrate that controversy or claim but BSS will have the right to institute judicial proceedings in any court of competent jurisdiction with respect to such controversy or claim. If such judicial proceedings are instituted, the Parties agree that such proceedings will not be stayed or delayed pending the outcome of any arbitration proceeding under this Agreement. The submission of any matter to arbitration, the outcome of such arbitration, and any other matter relating to this Section 12 shall be treated as confidential at all times by both Parties.
Jurisdiction and Venue.
The arbitration provisions of Section 12 shall govern the Parties’ recourse in the event of any dispute, difference, controversy or claim arising out of or related to this Agreement. Only in the event any such dispute, difference, controversy or claim does not fall within the arbitration provisions of Section 12 do the Parties agree to the exclusive jurisdiction of the courts of the State of New South Wales and each of the parties consents to the jurisdiction of such courts (and of the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. The Parties hereto waive any other venue to which they may be entitled by virtue of domicile, residence or any other reason. Process in any action or proceeding referred to in the preceding sentence may be served on either Party anywhere in the world.
In the event BSS or Client brings any suit or other proceeding with respect to the subject matter or enforcement of this Agreement, the prevailing party (as determined by the court, agency, or other authority before which such suit or proceeding is commenced) shall, in addition to such other relief as may be awarded, be entitled to recover reasonable attorneys’ fees, expenses and costs of investigation.
No Third Parties Benefited.
Nothing contained in this Agreement, whether express or implied, is intended to nor shall it confer upon any person or entity, other than the Parties hereto and their respective successors and permitted assigns, any benefit, right or remedies, whether legal or equitable, under or by reason of this Agreement.
This Agreement may not be assigned by Client without the prior written consent of BSS, in its sole discretion, and any such attempted assignment shall be void and of no effect. BSS shall have the right to assign its rights under this Agreement to any entity controlled by or under common control, directly or indirectly, with BSS. Client understands and acknowledges that all payments and fees incurred under this Agreement shall be processed and charged by Best Seller Success, or its administrative paying agent.
This Agreement may be amended or modified only by a written instrument executed by the Parties.
This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors, heirs, administrators and permitted assigns.
This Agreement shall be governed by the laws of New South Wales both as to interpretation and performance.
This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same instrument. The exchange of copies of this Agreement and of signature pages by facsimile or by electronic image scan transmission in .pdf shall constitute effective execution and delivery of this Agreement and may be used in lieu of the original Agreement for all purposes.
The Performance Guarantee attached hereto are hereby incorporated by reference herein.
Read and Understand; Counsel.
Client has read the terms of this Agreement, and Client understands its terms and effects, including, but not limited to, the disclaimers and limitations of liability set forth in Section 6. Client has been and is hereby advised in writing to consult with an attorney prior to signing this Agreement
The Parties agree that the terms and conditions contained in this Agreement and in any Performance Guarantee make up the entire agreement between them regarding the Program(s) and underlying Products and Services and supersede all prior written or oral communications, understandings or agreements between the Parties relating to the subject matter contained herein, including, without limitation, any purchase orders or other ordering documents relating to the purchase of the Program(s) and underlying Products and Services. Any purchase order or other ordering documents will not modify or affect this Agreement or any Performance Guarantee, nor have any other legal effect and shall serve only the purpose of identifying the Program(s) and underlying Products and Services ordered. Any change in any of the terms and conditions of this Agreement or any Performance Guarantee must be in writing and signed by both Parties.
The delay or failure of either Party to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of such provision or affect the rights of such Party thereafter to enforce each and every provision of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable, this Agreement shall be construed as though it did not contain the particular provision held to be invalid or unenforceable and shall not affect the validity or force and effect of the remaining provisions of this Agreement. The rights and remedies of the parties hereunder shall be cumulative and in addition to any other rights available under applicable law or in equity. All notices shall be given in writing (including by email or facsimile) by the Party sending the notice and shall be effective when deposited in the Mail or sent by confirmable email or facsimile, addressed to the Party receiving the notice at its address shown on the signature page to this Agreement (or to any other address specified by that party in writing with postage prepaid.) All section headings to this Agreement have been inserted for convenience of reference only, are not part of this Agreement, and shall in no way affect the interpretation of this Agreement.
Due to the nature of this Program, BSS will accept and process cancellations as described in this section and shall be effective only if provided by the Client in writing and delivered by mail, confirmed fax or e-mail during business hours of BSS from 9:00 am to 5:00 pm PST, Monday-Friday, excluding national holidays: The client may rescind and cancel this Agreement provided BSS receives written notice of cancellation within 3 calendar days after the execution of the agreement by the Client. After the 3-day rescission period and due to the nature of this Program, Client may not cancel or receive a refund for this Program regardless of whether the Client attends the Program or not. This Agreement and the services provided herewith to the Client will terminate 18 months after the execution of this Agreement regardless of the status of the programs sessions or participation activities of the Client prior thereto.