GigBee End User Agreement
END USER AGREEMENT
© 2019 GFN, LLC. All rights reserved.
Welcome to GigBee.
GigBee is an On-Demand Sales Platform organized and administered by GFN, LLC, a Iowa limited liability company, and its affiliated companies (individually and collectively, the “Company“ or “GigBee“). The purpose of this Agreement, including all documents, schedules, guidelines, plans and other information incorporated into the agreement (this “Agreement“) is to define the rights, privileges, and obligations of, and the relationship between, GigBee and its End
Users (“you“ or “End User“). GigBee is proud of our community, and we take very seriously our obligation to safeguard it and allow it to prosper for the benefit of the GigBee Community and all of its members.
This Agreement, including any amendments to the Agreement, is a binding legal contract between you and GigBee. The Agreement takes effect when you manifest your assent to the Agreement, whether by clicking through the Agreement online, by electronic signature, by signing a hard copy of the Agreement, Downloading the App or by any other method that is adequate to demonstrate legal agreement to a contract. By assenting to this Agreement, you are
obligating yourself to follow its terms. You acknowledge and agree that the Company may amend or update this Agreement, including without limitation the Commission Plan described in Section 6.1, at any time and in its
sole discretion. GigBee will provide 14 days notice of any material changes by posting the revised Agreement on our website, and will also attempt to provide direct notice to you by email, text message or in-app notification. All such amendments and updates will become effective, and binding upon you, after they have been posted for the required notice period. You acknowledge and agree that you will regularly review this web site for amendments and updates
to the Agreement. You further agree that you are bound by such amendments and updates, even without direct notice to you, by your continued activity as an End User under this Agreement.
SECTION 1: BECOMING A END USER
1.1 Becoming an end user
To become a GigBee user, each user must:
GigBee may decide, in its sole discretion, not to accept a particular end user for any reason or no reason, even in cases where an applicant has met all the requirements in this Section 1.
1.2 Product Purchase Not Required
You are not required to purchase any GigBee products or services of any kind (collectively, the "Products") in order to become an end user.
1.3 Term of the Agreement
The term of this Agreement is one year from the Effective Date. The Agreement will automatically renew for an additional one-year period unless you request termination of the Agreement and cancellation of your End User status at least thirty days prior to each anniversary of the Effective Date.
1.5 Termination of this Agreement
Either you or GigBee has the right to terminate this Agreement and your end user status at any time for any reason or no reason, upon seven (7) calendar days written notice to the other party. In the event you breach this Agreement, GigBee can terminate the Agreement if it gives you written notice of the breach and you do not cure the breach within three (3) business days after the date of such notice. Upon termination of this Agreement by either party for any reason or no reason, you will no longer be an end user and you will have no right, title, claim, or interest to any further
commission under the Commission Plan, except for commission rightfully earned prior to the termination date, which will be paid to you by GigBee under the ordinary commission payment process. You will no longer have rights under this Agreement, although you may continue to participate as a purchaser of products and services on the GigBee Platform. Unless you receive written approval from GigBee, your end user status cannot be reinstated for six (6) months after the termination date.
SECTION 2: RESPONSIBILITIES OF END USERS
2.1 Ethical Conduct
End Users represent GigBee. As a result, end users must act with integrity, courtesy, honesty, and professionalism. You must provide accurate information to and about GigBee and any products or services offered on the GigBee Platform, and you must not engage in any deceptive, unlawful, or unethical conduct of any kind. All information you provide to GigBee as part of the signup process, and all information of any kind provided to GigBee, other End Users or prospective customers must be complete, accurate and not misleading in any way.
2.2 Independent Contractor
End Users are independent contractors. Neither this Agreement nor any other communication from GigBee shall be deemed to create an employee/employer relationship, agency relationship, partnership, joint venture, or other representative relationship of any kind other than that of an independent contractor as provided in this Agreement. You acknowledge and agree that, with respect to any and all independent sales efforts you make under this Agreement, you have complete control to set the hours, location, whether you work alone or with others, and the other methods and conditions regarding such efforts. GigBee does not owe and will not provide you with any benefits whatsoever except as expressly stated in this Agreement. GigBee End Users must always identify themselves as independent contractors of
GigBee in their dealings with potential GigBee customers and any other parties. Under no circumstances shall End Users state, suggest, imply, confirm, fail to deny, or indicate in any other way that they are employees, agents, partners, joint venturers or representatives of GigBee of any other kind, except for independent contractors under the terms of the Agreement.
You are fully and solely responsible for paying all applicable domestic or international taxes, including without limitation any applicable local, state, and federal taxes on any compensation you earn from GigBee, as well as all employment and labor taxes, unemployment and workmen's compensation taxes, and any other taxes incurred by you in connection with your activities as an End User. GigBee cannot and will not provide you with any tax advice. GigBee is required to file an IRS form 1099 to report income that GigBee pays to you. You must provide GigBee with your correct taxpayer identification number, which is either your social security number or an individual taxpayer identification number. You hereby agree to indemnify, defend, and hold GigBee harmless from any liability for, or assessment of, any claims or penalties with respect to withholding taxes and any labor or employment taxes or other requirements, including any liability for, or assessment of, withholding taxes imposed on the Company by the relevant taxing authorities with respect to any compensation paid to you or your partners, agents, or employees.
2.4 Income Claims
You must not make any projections or claims of the income that can be earned by End Users under the Commission Plan, disclose your own GigBee income, or make any lifestyle claims, testimonials or any other representations of the amount of potential commissions.
2.5 Current Information
You must make sure that GigBee has your current End User contact information, including email addresses, mailing addresses, landline and mobile telephone numbers, and social network information, and you hereby represent that all such information is truthful and accurate.
2.6 Media and Media Inquiries
GigBee End Users must not respond to any media inquiries of any kind about GigBee, its services, its business model, or any other issues, including without limitation any inquiries from print, radio, television, broadcast, cable, blogs, or other media entities, whether online or offline. If a member of the media contacts you about GigBee or your activities as a End User, you must refer him or her immediately to GigBee's Corporate Communications department at (360) 223-
You agree not to make, participate, or concur in any remark or action that is disparaging or detrimental in any way to GigBee, its Product or Service providers, other End Users, Suppliers, the Commission Plan, or GigBee's related, affiliated or subsidiary organizations, or its directors, shareholders, officers, agents, representatives, and employees, past and present, whether orally, in writing, or by any other means.
2.8 Interactions With GigBee End Users
GigBee makes no representations or warranties of any kind about the character, trustworthiness, or other attributes of any person, including any person who may become an End User. You are solely responsible for your interactions with End Users, or anyone else related to GigBee, and you must exercise the same caution, discretion, common sense, and good judgment in all interactions with people using GigBee as you do with any other people. GigBee has no liability for any damages or harm that may be suffered by you as a result of such interactions, and you expressly agree to indemnify, defend, and hold harmless GigBee, its successors, assigns, and any related individuals or companies from any and all such damages or harm.
2.9 Recruiting Practices
GigBee End Users may not make false or misleading statements about the products, services, or selling opportunities offered by other companies whether or not those companies are direct competitors of GigBee.
2.10 Spouses and Family Members
Spouses or family members working together as End Users may be treated as a single entity when circumstances indicate, in GigBee's sole discretion, that such treatment is appropriate.
SECTION 3: PRIVACY
3.1.2 Our online technology provides you with many tools to customize your privacy preferences and opt in or opt out of various ways of dealing with information about you or other GigBee End Users. Please visit your mygigbee.com account to take advantage of these tools and make sure your settings are optimized for your particular situation and preferences.
3.2 Personal Information
3.2.1 As a GigBee End User you may receive access to Personal Information. You must treat all such information at all times with the utmost confidentiality, care, sensitivity, and respect, and must comply in particular with the provisions of this Section 3.
3.2.2 The term "Personal Information" as used in this Agreement means credit card numbers, expiration dates, codes, social security numbers, dates of birth, PINs or passwords, account numbers for financial or other personal accounts, user names, and any other information owned by, or about, other current, prospective or former End Users that would, by its nature, be considered by a reasonable person to be confidential personal information.
3.2.3 The term "Contact Information" as used in this Agreement means email addresses, landline and mobile phone numbers, home and business addresses, and similar information.
3.2.4 You must take all measures necessary to keep Personal Information secure and prevent any disclosure to any third party. You must limit your own access to Personal Information to the minimum amount of access necessary to fulfill your role as a GigBee End User under this Agreement. You may not make or keep any copies of any Personal Information other than as necessary to process an application for a prospective GigBee End User on behalf of such GigBee End User. In the event that you become aware of any actual or reasonably suspected unauthorized access, use or disclosure of any Personal Information, you (i) must immediately report any such disclosure to GigBee at email@example.com, (ii) must cooperate with GigBee in investigating the breach or taking any other action the Company deems necessary in connection with breach; and (iii) you agree to be solely responsible for any and all costs associated with remedying such breach, including any security breach notification requirements.
3.2.5 You must keep all Contact Information confidential and you may only use such information as provided in this Agreement. In particular, you may not publish any Contact Information whether online or in print, or use Contact Information for any marketing purposes unaffiliated with GigBee now or in the future, without permission from the subject or owner of the Contact Information. As between GigBee and you, GigBee owns, and reserves its rights, in
all Contact Information. You agree to be fully responsible for authorized or unauthorized collection, storage, disclosure, use and access to Personal Information, and to comply with any applicable laws or payment network rules related to any storage or transmission of social security numbers and payment information.
3.3 Proprietary Information
3.3.1 You may come into contact with business and other information about or owned by GigBee that is confidential and important to the success of GigBee's business. You must keep such information strictly confidential as provided in this Section 3.3.
3.3.2 The term "Proprietary Information" as used in this Agreement means without limitation any information, whether in written, electronic, or spoken form, disclosed to you by GigBee, or discovered by you, which relates to GigBee's Commission Plan (as defined below), any abstracts of the Commission Plan, the CDS, the GCP (as defined below), GCP materials, unpublished patent applications, provisional patent applications, patent opinions (including, but not limited to freedom to operate, patentability, and non-infringement opinions), specifications, compositions, trade secrets, research, product plans, products, developments, inventions, processes, designs, drawings, engineering, formulas, markets, software (including source and object code), hardware configurations, computer programs, program documentation, testing methods, algorithms, documentation, manuals, presentations, regulatory information, chemical formulas, concepts, methods, techniques, ideas, research, improvements, diagrams, know-how, business plans, financial projections, payroll or human resource information, agreements with third parties, services, customers, marketing, or finances, or any other information, whether or not designated "Confidential" or "Proprietary," or similar designation, or which by its nature is reasonably understood to be proprietary and confidential.
3.3.3 You must take all measures necessary to keep Proprietary Information private and prevent any disclosure to any third party. You must limit your own access to Proprietary Information to the minimum amount of access necessary to fulfill your role as a GigBee End User under this Agreement and may only use such information as expressly authorized by GigBee. You may not make or keep any copies of any Proprietary Information. Upon termination or expiration of this Agreement, or upon an earlier request of GigBee, you agree to destroy, return or deliver to the Company all Proprietary Information in your possession or control.
You agree and consent that GigBee and other GigBee End Users may contact you by text, chat, message, email, telephone or any other method, in order to communicate with you regarding matters relevant to GigBee and this Agreement, including commercial information, promotional information, and any other information reasonably related to the relationship between you and the Company.
3.5 End User Information
You agree that Contact Information about you and information about your performance as a GigBee End User under this Agreement, including bonus amounts, rank, number of members in your network, and similar information, may be made available to other GigBee End Users.
SECTION 4: INTELLECTUAL PROPERTY
4.1 Reputation and Brand
The reputation of GigBee and the GigBee brand are of the highest importance for everyone associated with GigBee. A primary purpose of this Agreement is to protect the brand for the benefit of GigBee and its End Users.
4.2 GigBee Brand Elements
As used in this Agreement, the term "GigBee Brand Elements" means the GigBee name, the GigBee logo, the "Gig Between Gigs" tag line, and any other GigBee trade names, marks, trademarks, service marks, trade dress (including color), brands, logos, or marks of any kind, as well as all materials copyrighted by GigBee, and any other brand elements or intellectual property associated with or developed by GigBee End Users.
4.3 Marketing Guidelines Office
GigBee has created a Marketing Guidelines Office to provide GigBee End Users with brand guidelines, approved promotional materials, templates for appropriate use of the GigBee Brand Elements, and other assistance in using and promoting the GigBee brand. The Marketing Guidelines Office has issued marketing and brand guidelines which are incorporated into this Agreement. End Users must comply with these guidelines and any other guidelines issued by the
Marketing Guidelines Office. The Marketing Guidelines Office also has authority on behalf of GigBee to approve or reject any proposed use of the GigBee Brand Elements. End Users can contact the Marketing Guidelines Office at firstname.lastname@example.org
4.4 Approval Required
4.4.1 GigBee Content. GigBee owns all GigBee Brand Elements, and GigBee End Users have no license or any other right to use any GigBee Brand Element, except as expressly authorized in writing by GigBee. This means that, unless you receive written approval from GigBee, you may not use any GigBee Brand Element in any promotional, marketing or
commercial communication of any kind, including without limitation any publicity, materials, web site, online posting, product, service, or other communication.
4.4.2 Licensed Content. GigBee may, from time to time, license images, content, and other brand elements from third-party licensors for use on its website and in other materials. GigBee End Users may not use any of these materials without the express approval of GigBee. GigBee End Users who use such materials without permission may be subject to fines or penalties by the licensor, in addition to sanctions under Section 9 of this Agreement.
4.5 Prohibited Actions
Without limiting the generality of Section 4.4, you may not take any of the following actions without prior written consent from GigBee:
a) Use the word "GigBee" or the phrase "Gig Between Gigs" in any promotional, marketing or commercial materials, including web sites.
b) Use any GigBee Brand Element in any way that in GigBee's judgment, in GigBee's sole discretion, could lead to confusion among Members, consumers, or the public at large, about the source of GigBee's goods and services.
c) Use any GigBee Partner's Brand Element in any way without written permission from GigBee. For purposes of this agreement, "GigBee Partner Brand Element" means any GigBee Partner Name, logo, and any other GigBee Partner trade names, marks, trademarks, service marks, trade dress (including color), brands, logos, or marks of any kind, as well as all materials copyrighted by GigBee Partner's, and any other brand elements or intellectual property associated with,
or developed by GigBee Partners.
e) Use any other term, or take any other action, that in GigBee's judgment, in GigBee's sole discretion, could have an adverse impact of any kind on the GigBee Brand Elements or the reputation of GigBee or its End Users.
4.6 Submitted Content
GigBee may, in its sole discretion, accept content submissions from you, including but not limited to text, data, graphics, images, photos, video, or audiovisual works ("your Content"), for potential posting or use on GigBee's web sites or related web sites or for any other reasonable purpose.
By submitting your Content to GigBee, you grant GigBee a non-exclusive, royalty-free, worldwide, sub-licensable, transferable, assignable, irrevocable, unrestricted, commercial license, for the life of the relevant intellectual property right, to reproduce, prepare derivative works, distribute, display, publically perform, translate, alter, edit, mutilate, (thereby waiving moral rights where possible), make, use, and sell the submitted material for any purpose GigBee desires in any medium now known or later discovered. You agree GigBee retains exclusive and final control over how your Content submissions are used. By submitting content to GigBee, you and GigBee are not establishing a joint venture, partnership, or any other business relationship. GigBee reserves the right to remove any of your Content submissions or comments at its sole discretion at any time and without notice.
SECTION 5: MARKETING AND ADVERTISING PRACTICES
5.1 Standards and Guidelines
5.1.1 Standards. GigBee and all End Users are subject to legal and other requirements designed to ensure that we operate our business according to the highest standards of honesty, fairness, and business ethics. GigBee takes these obligations very seriously and may terminate your End User status immediately, without notice, according to the disciplinary practices and policies in Section 9 of this Agreement, if you violate the requirements of this Section 5.
5.1.2 Marketing Guidelines. In addition to the requirements included in this Agreement, GigBee has established Marketing Guidelines to give End Users more specific guidance about appropriate marketing practices. The Marketing Guidelines are updated regularly and are available to End Users at www.gogigbee.com/marketingguidelines. As provided in Section 4.3, the Marketing Guidelines are incorporated into this Agreement by this reference,
and violations of the Marketing Guidelines constitute violations of this Agreement. End Users should contact the Marketing Guidelines Office at email@example.com to request approval of particular marketing practices or to ask questions, submit complaints, or receive additional information.
5.2 Integrated Value Exchange and Referral Platform
GigBee has created the Integrated Value Exchange and Referral Platform, a platform of online, mobile phone, app and other technology through which GigBee End Users have access to services and functionality provided by GigBee, including without limitation online and mobile phone tools and materials that allow End Users to sell GigBee mobile phone service and other GigBee Products to consumers (the "IVER"). The IVER is designed to allow End Users to
promote and sell the Products in a way that is consistent with the terms of this Agreement. The IVER is owned by GigBee and incorporates proprietary technology and intellectual property owned or licensed by the Company. Under no circumstances may End Users modify the IVER in any way, or use or disclose the IVER to promote any other products or services, or for any commercial purpose of any kind other than promoting and selling the Products. GigBee grants
you a non-exclusive, royalty-free, non-transferable, non-sublicensable, revocable license during the Term of this Agreement, and solely and directly for GigBee activities, to access and use the IVER, or any mobile version thereof. Such license is subject to this Agreement and does not include or authorize, and you agree to refrain from: (i) any resale or commercial use of the IVER; (ii) the collection and use of any user listings, pictures, profiles, ratings, or descriptions;
(iii) the distribution, public performance, or public display of any aspect of the IVER; (iv) modifying or otherwise making any derivative uses of the IVER, or any portion thereof; (v) use of any automated tools, data mining, robots, or similar data gathering or extraction methods; (vi) modifying the IVER, or using automated tools or other systems, for the purpose of altering the IVER such that it may be used for bulk mailing beyond its intended capabilities, whether such
bulk mailing is by email, text, message, or any other means; (vii) downloading (other than page caching) of any portion of the IVER or any information contained therein, except as expressly permitted on the IVER; (viii) any use of the IVER other than for its intended purpose; (ix) decompiling, disassembling, reverse engineering, or otherwise attempting to derive the source code for the IVER or any software associated with the IVER; and (x) altering or removing any copyright, trademark, or other protective notices contained in or on any portion of the IVER. Any use of the IVER other than as specifically authorized herein, without the prior written permission of Company, is strictly prohibited and will terminate the license granted herein. Such unauthorized use may also violate applicable laws including without limitation copyright and trademark laws and applicable communications regulations and statutes. Unless explicitly stated herein, nothing in this Agreement shall be construed as conferring any license to intellectual property rights, whether by estoppel, implication, or otherwise. This license is revocable at any time. The Company hereby reserves all rights not expressly granted in this Agreement.
5.3 Third Party Platforms and Systems
End Users may only use marketing systems provided by GigBee, including IVER, TeamGigBee, MyGigBee, or other marketing systems provided by the Company. They may not use any third-party marketing systems, including without limitation, any online marketing systems, marketing tools, computer apps or any other system designed to compile contact information, to contact potential customers, or otherwise market products to third parties ("Third Party Systems"). End Users may not market their own, or any other, Third Party Systems to GigBee Members.
5.4 Social Media
GigBee encourages End Users to use social media such as Facebook, Twitter, Pinterest, Google+, LinkedIn, and other social networking and related media owned or operated by third parties ("Social Media") to promote the Products and spread the word about GigBee. However, End Users must comply with the following rules and practices in using a Social Media platform:
5.4.1 Posting and Messaging. All posts and direct messages made or sent on a Social Media platform must comply with this Agreement, including without limitation the Marketing Guidelines and the provisions of Section 4.5.
5.4.2 Completing Online Sales. All online sales of Products, or any other sales related to GigBee, must be completed on the IVER. Do not use your Social Media page or other Social Media sites to complete sales.
5.4.3 Identify Yourself. When you are active on a Social Media platform and discussing GigBee, you must clearly identify yourself as an independent End User.
5.4.4 Inappropriate Material. End Users' actions reflect upon GigBee even while they are acting in a personal capacity. As a result, you may not post Inappropriate Material at any time, even when you are not conducting business as a End User and are operating in your personal capacity. For purposes of this Agreement, Inappropriate Material means any illegal, offensive, false, deceptive, misleading, inappropriate, obscene, vulgar, or discriminatory communication or material of any kind, including without limitation any conversation, comment, image, video, audio, link, or other communication. GigBee, in its sole discretion, has the right to determine what constitutes Inappropriate Material.
5.4.5 Comments. You may not use blog spam, spamdexing, or any other mass-replicated methods of leaving comments on websites, blogs, or other Social Media.
5.4.6 Infringement. You must not infringe upon the intellectual property rights of any third party while using Social Media.
5.4.7 Terms & Conditions. You must comply with all terms and conditions of any Social Media you use.
5.5 Search Engine Advertising and Banner Ads
You may use paid search engine advertising, banner ads, and links on third-party web sites, but all phrases used in such advertising must be approved by GigBee prior to such use. End Users can submit a phrase for approval, or learn about pre-approved phrases that may be used, by contacting marketingguidelines@GigBee.com. GigBee makes no representations or warranties about the success of any words or phrases, and you must pay for and use such advertising at your own risk.
5.6 End User Developed Web Sites
End Users may not develop or post web sites relating to GigBee without prior written approval from the Company. End Users can submit a site for approval, or see examples of pre-approved sites, by contacting marketingguidelines@GigBee.com.
End Users may not post advertising or any other content related to GigBee, including, without limitation, its Products and the GigBee Community, on YouTube or any similar online video service without prior written approval from the Company. End Users can submit content for approval, or see examples of pre-approved content, by contacting
marketingguidelines@GigBee.com. As a condition to approval of such content, you must agree to remove any such content immediately upon request by GigBee.
5.8 Email Marketing
5.8.1 End Users must comply in every respect with all applicable rules and regulations regarding commercial and marketing email, including without limitation the CAN-SPAM Act. Any violation of these rules and regulations is a violation of this Agreement. The CAN-SPAM Act includes, but may not be limited to, the following requirements:
(a) You may not use false or misleading header information in the "From" field of an email or in the originating email address;
(b) You may not use deceptive subject lines;
(c) You must identify the message as an advertisement;
(d) You must include your valid physical address or Post Office Box at the bottom of the email;
(e) You must tell recipients how to opt out of receiving future email from you, and honor all opt out requests promptly. You must also maintain an accurate list of people who do not wish to receive marketing emails from you; and
(f) You must provide a functioning return email address.
Specific guidance on the requirements of the CAN-SPAM Act can be found at http://business.ftc.gov/documents/bus61-can-spam-act-compliance-guide-business/, and all End Users should consult this site and become familiar with these requirements.
5.8.2 As provided in Section 5.2 of this Agreement, GigBee has created the IVER, which includes an email marketing platform for End Users. GigBee strongly encourages End Users to use the IVER for all email relating to GigBee.
5.9 Phone Calls and Text Messages
Unless you receive prior explicit written approval from GigBee, you may not initiate telephone calls or text messages to anyone for the purpose of encouraging the purchase of or subscription to GigBee's Products, except for individuals who qualify as family members, friends, or other people personally known to you. In addition, you may not engage in any of the following practices in any marketing related to GigBee, whether or not the recipients are family members, friends, or other people personally known to you:
(a) Use of automatic telephone dialing systems;
(b) Initiation of a phone call to a residential line using an artificial or pre-recorded voice to deliver a message without the prior express consent of the called party;
(c) Use of a fax machine, computer, or other device to send an unsolicited advertisement to a fax machine;
(d) Use of an automatic telephone dialing system in such a way that two or more telephone lines are engaged simultaneously; or
(e) Calling people who are not personally known to you without prior written approval by GigBee.
5.10 Prohibited Selling Sites
End Users may not sell GigBee Products to, at, or by means of any internet auction, internet sales site such as EBay, Craigslist, or similar sites, any swap meet, or any other similar distribution outlet.
5.11 Fax Marketing
End Users may not use fax machines, or any email software that replicates a fax machine, for any marketing or promotional purpose relating to GigBee including without limitation, its Products and the Social Community.
5.12 Telephone, Online, and Other Directory Listings
You must clearly list yourself as a "GigBee End User" in all listings in telephone directories, online directories, or other business directories, whether online or in print, which you use for any marketing or promotional purpose related to GigBee. In responding to communications based on any such listings, you must clearly identify yourself as a End User and not as an employee of GigBee.
5.13 Marketing Events
You may not conduct marketing or other promotional activities related to GigBee at trade shows, conferences, conventions and similar events without prior written approval from GigBee.
5.14 Advertising Media
End Users may not advertise on television, radio, online, or outdoor media, or in print media or direct mail, without the prior written consent of GigBee.
SECTION 6: COMPENSATION
6.1 Compensation Plan; Confidentiality
End Users receive compensation under the GigBee Compensation Plan set forth at www.GigBee.com/compensationplan, as it may be amended by GigBee from time to time (the "Compensation Plan"). The Compensation Plan is incorporated by reference into this Agreement. The Compensation Plan compensates members for sales of Products to customers. Certain data relating to the Compensation Plan, such as current balance information and requirements for achieving various levels of compensation, are available to End Users on the IVER.
Although some parts of such information may be available to the public, GigBee possesses proprietary rights, including Proprietary Information, in the IVER, and the Compensation Plan. You must hold in confidence and not directly or indirectly disclose any information about the Compensation Plan except to the extent authorized by GigBee. You agree
not to make copies of any Compensation Plan material except as specifically authorized by GigBee. Upon termination of this Agreement, or upon an earlier request of GigBee, you agree to return or deliver to the Company all tangible forms of the Compensation Plan in your possession or control, including but not limited to drawings, specifications, documents, records, devices, models or any other material and copies or reproductions thereof. Your obligations under this Section 6.1 continue despite any termination of this Agreement.
You must be an active End User in full compliance with this Agreement to qualify for compensation under the Compensation Plan. GigBee will pay compensation to qualified End Users in accordance with the Compensation Plan.
GigBee Members have an opportunity to choose a sponsor when they first become part of GigBee. Once a new Member has chosen a sponsor, the choice is permanent and cannot be changed. The Compensation Plan provides that, under certain circumstances, End Users receive compensation if they are designated as the sponsor of a new Member. End Users do not receive compensation when they are designated as the sponsor of a End User Without Service, and no compensation is paid for sponsoring a Member unless the Member purchases a GigBee Product.
End Users may have only one End User account per social security number or other tax identification number. Once a End User has reached the highest rank available under the Compensation Plan under the initial account, that End User will be entitled to add an additional account using the same social security number or tax identification number. In the event GigBee changes provisions of the Compensation Plan or adopts a new Compensation Plan, GigBee may adjust the existing accounts or networks of End Users to conform to the new Plan, for example by consolidating accounts or restructuring parts of an existing network.
The Compensation Plan is intended to reward End Users for adding friends, family, and social contacts to the GigBee Community. Any activity that is inconsistent with this purpose or provides economic advantages to a End User beyond the intent of the Compensation Plan is considered "Gaming" of the Compensation Plan. Gaming is not permitted and may result in termination of this Agreement and your End User status. GigBee has sole and absolute discretion to determine whether or not a particular activity constitutes Gaming.
Gaming includes but is not limited to:
(a) Redistributing compensation paid by GigBee to other End Users. For example, a group of End Users may not work together to earn compensation under the Compensation Plan and then pay that compensation out to members of the group in a way that is different from the Compensation Plan;
(b) Restricting a End User's ability to sign up customers or other End Users. For example, a End User may not sponsor another End User on the condition that the sponsor can direct if, when, or how the new End User sponsors other customers or End Users;
(c) Paying monthly service fees or other amounts owed to GigBee on behalf other End Users; and
(d) Controlling or operating an account that uses the name or tax identification number of another person in order to disguise the true identity of the person controlling the account or for other purposes inconsistent with the Compensation Plan.
6.6 Payment of Compensation
Earnings under the Compensation Plan will be deposited directly onto a debit card managed and issued by a third-party financial institution (the "The GigBee Card"). End Users will be able use the GigBee Card to make purchases, withdraw funds, and otherwise manage their funds as provided in the terms governing the use of the GigBee Card, which are available to End Users at www.GigBee.com/GigBeecard. The GigBee Card is managed and provided by a
third-party financial institution, and is not managed or administered by GigBee. You agree to look solely to the third-party financial institution to resolve any disputes associated with the GigBee Card, other than the amount of compensation earned from GigBee.
6.7 Deductions from Your Compensation Payment
You hereby authorize GigBee to deduct from your compensation payment any amounts that you owe to GigBee, including without limitation any unpaid charges for mobile phone service, mobile phone devices and accessories, or any other Products, any fees, late charges, taxes, assessments, or other amounts owed of any kind.
6.8 GigBee Retailers
Some End Users, primarily those who focus on selling GigBee Products to a large number of individual users instead of building a network with many levels, may qualify as GigBee Retailers under the terms of the GigBee Retailer Compensation Plan ("SRCP"), www.GigBee/SRCP. The SRCP is incorporated by reference into this Agreement. GigBee
Retailers may elect to receive compensation under the terms of the SRCP instead of under the Compensation Plan. Except as specifically provided in the SRCP, all other terms of the Compensation Plan and this Agreement will apply to GigBee Retailers.
6.9 Compensation Accuracy
GigBee places great emphasis on accurately tracking and recording End User compensation. If you believe a mistake has been made in calculating or paying your compensation, you should contact GigBee and the Company will work with you to determine whether you have been paid correctly under the Compensation Plan. In the event that GigBee determines, in its sole discretion, that an error has been made, we will make appropriate adjustments in your compensation. You agree to hold GigBee harmless for all errors in compensation calculation and payment, and for any and all indirect or consequential harm you may suffer as a result of such errors.
SECTION 7: INDEMNITY, WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY
You agree to indemnify, defend, and hold harmless GigBee, its licensors and suppliers, their officers, directors, employees, and anyone else related to GigBee against any and all claims, losses, liabilities, damages, costs, or expenses from all lawsuits or causes of action arising out of or related to the following:
(a) breach of any of your representations and warranties, acknowledgements and obligations, or any other terms contained in this Agreement; and
(b) any other claims related to you or your property arising out of, or in connection with, this Agreement, or GigBee's Products. You further agree to hold GigBee and its affiliated companies harmless for any and all damages or undesired consequences that may result from your Content submissions, including use by unaffiliated third parties. You shall promptly notify GigBee in the event any such suit or action is threatened or filed, and shall employ legal counsel reasonably acceptable to GigBee in defending such suit or action.
7.2 WARRANTY & DISCLAIMER
ALL GIGBEE PRODUCTS AND SERVICES PROVIDED TO YOU UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE IVER, ARE PROVIDED "AS IS" AND THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND.
ADDITIONALLY, WHERE APPLICABLE, GIGBEE SPECIFICALLY DISCLAIMS, TO THE MAXIMUM EXTENT ALLOWED BY LAW, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-
INFRINGEMENT. YOUR USE OF ANY GIGBEE PRODUCT OR SERVICE IS AT YOUR OWN RISK. SOME JURISDICTIONS DO NOT ALLOW DISCLAIMERS OF WARRANTY SO THESE DISCLAIMERS MAY NOT APPLY TO YOU.
7.3 LIMITATION OF LIABILITY
YOU AGREE, TO THE MAXIMUM EXTENT ALLOWED BY LAW, THAT GIGBEE SHALL NOT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES THAT MAY ARISE OUT OF THIS AGREEMENT. YOU ALSO AGREE THAT ANY DIRECT DAMAGES SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW SUCH LIMITS ON LIABILITY SO THESE LIMITS MAY NOT APPLY TO YOU.
SECTION 8: TRANSFERRING A END USER BUSINESS
8.1 Sale, Transfer, or Assignment of GigBee Business
A GigBee End User business may be transferred or assigned only as provided in this Section 8.
8.2 Transfer upon Death or Incapacitation
8.2.1 Upon the death or incapacitation of a End User, the End User's business may be passed to heirs or a trustee under the terms of this Section 8.2.
8.2.2 Death of a End User. In the event of the death of a End User, GigBee must receive the following documentation in order to effectuate a testamentary transfer of the End User's business:
(a) A copy of the death certificate;
(b) Certified letters testamentary or a letter of administration appointing an executor; and
(c) Written instructions from the authorized executor to GigBee specifying to whom the business and income should be transferred.
8.2.3 Incapacitation of a End User. In the event that a End User becomes legally incapacitated, GigBee must receive the following documentation to effectuate a transfer of the End User's business because of incapacity:
(a) A notarized copy of an appointment as trustee;
(b) A notarized copy of the trust document or other documentation establishing the trustee's right to administer the GigBee business.
8.2.4 Divorce. GigBee will recognize the legal transfer of a End User business in connection with a divorce proceeding upon receipt of a certified copy of a final order from the court of competent jurisdiction setting out the final property settlement terms, including the terms under which the End User business is to be owned and operated.
8.2.5 Extreme Hardship. Under most circumstances, this Agreement does not permit the voluntary sale or transfer of a End User business from one party to another. However, in rare cases of manifest unfairness, clear unintended consequences, damage to the GigBee Community, or other extreme hardship, GigBee may decide, in its sole discretion, to authorize a transfer. End Users should contact GigBee at ein@GigBee.com if they believe their situation qualifies for
consideration under this Section 8.2.5.
8.2.6 Conditions. No transfer under this Section 8 may take place unless the following conditions are met, in addition to the other requirements of this Section 8:
(a) The successor must meet all of the qualifications for a End User;
(b) The successor must execute this Agreement and comply with its terms; and
(c) GigBee, in its sole discretion, must approve the transfer.
SECTION 9: IMPROPER ACTIVITIES AND SANCTIONS
9.1 Improper Activities
As used in this Agreement, the term "Improper Activity" means any violation of any term of this Agreement, of any law, regulation, or rule, whether civil or criminal, issued by any governmental body with jurisdiction over a particular activity, any fraudulent, deceptive, or unethical businesses practice or activity, or any other action that, in the sole discretion of
GigBee, is incompatible with the business or ethical standards of the GigBee Community.
If GigBee becomes aware of potential Improper Activities, GigBee may contact End Users in accordance with applicable laws to determine whether an Improper Activity has occurred. You agree to cooperate fully and truthfully with GigBee or relevant enforcement authorities to investigate any suspected Improper Activities involving you or other Members or
End Users. In order to protect the integrity and reputation of the GigBee Community, End Users who become aware of potential Improper Activities should report their concerns to GigBee by contacting legal@GigBee.com.
If GigBee concludes that a End User may have engaged in Improper Activity, GigBee will contact that End User and consult with him or her regarding the facts and circumstances of the case. GigBee will also conduct any additional investigation that the Company, in its sole discretion, believes is necessary to reach a conclusion. However, GigBee reserves the right to suspend or terminate a End Users account immediately, subject to potential reinstatement after an investigation is completed, if the Company determines, in its sole discretion, that immediate action is necessary to prevent or limit harm to the Company or the GigBee Community.
After the consultation process described in Section 9.3, GigBee, in its sole discretion, will determine whether an Improper Activity has taken place. If GigBee decides that an Improper Activity has occurred, it may decide to take any or all of the following actions:
(a) Require a End User to correct the Improper Activities immediately;
(b) Issue a written warning that further Improper Activities will result in further sanctions;
(c) Place the End User in a probationary status, which may result in suspension or involuntary termination if Improper Activities continue;
(d) Suspend compensation payments or other payments or services that may be owed;
(e) Terminate this Agreement with respect to the End User and cancel his or her status as a End User; or
(f) Any other action GigBee deems necessary to address the Improper Activities.
SECTION 10: MISCELLANEOUS
10.1 Entire Agreement, Severability, and Waiver
This Agreement represents the entire agreement between you and GigBee and supersedes any prior written or oral agreements relating to your activities as a End User. This Agreement cannot be modified orally or in any other way except by official posting by GigBee on the current GigBee web site. If any provision of this Agreement becomes invalid, illegal, void, or unenforceable under any applicable law, each such provision shall be deemed amended to conform to applicable law or, if it cannot be amended without materially altering the terms of this Agreement, such provision shall be deleted. The failure of GigBee to enforce any right or provision of this Agreement does not constitute a waiver of that right or a waiver of future enforcement.
You agree and consent that GigBee may assign, sell, transfer, or otherwise convey its rights under this Agreement, and any information collected about you, including any personally identifying information such as contact information, credit card information, GigBee Card information, social security numbers and similar information, to a third party as part of a merger, acquisition, reorganization, sale of the assets, in the event of a bankruptcy, or any other such change of control situation. You may not assign any rights under this Agreement without the prior written consent of GigBee.
10.3 Governing Law
This Agreement shall be governed by and construed under the laws of the State of Washington, excluding its choice of law provisions. The parties explicitly agree that venue for any proceeding under this Agreement shall be located in King County, Washington.
10.4 Resolving Disputes
10.4.1 Non-Binding Mediation. In the event that a dispute arises under this Agreement, You agree that, prior to instituting any arbitration proceedings as described in Section 10.4.2, the parties will attempt in good faith to resolve the dispute in a non-binding mediation process. The mediator will be selected by agreement among the parties, and the mediation may be conducted in person or by telephone. The costs of the mediation, including the mediator's costs, shall be divided equally among the parties involved. Both you and GigBee agree that outside attorneys are not allowed to represent either party in a mediation session conducted under the terms of this agreement.
10.4.2 Binding Arbitration. If mediation is not successful, you agree that all disputes or claims arising under this Agreement, or any other matter involving you and GigBee, will be resolved individually, not in a class or consolidated action, and through binding arbitration as opposed to State or Federal court. You agree that the arbitration will be conducted by the American Arbitration Association under its rules. You agree that the arbitrator will apply the substantive laws of Washington State and that the arbitration will be conducted in King County, Washington. You agree that all arbitration hearings shall be conducted by phone or through the submission of documents unless otherwise mutually agreed upon. Notwithstanding the provisions of this Section 10.4.2, you expressly grant GigBee the authority to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent or halt the breach of any terms in this Agreement. You agree that GigBee may file a claim to recover attorneys' fees in a court of competent jurisdiction. This Section 10.4.2 shall not apply to residents of Louisiana, who will be entitled to bring an action against GigBee in their home forum pursuant to Louisiana law.
Unless otherwise specifically provided in this Agreement, all requirements of written notice are satisfied by (i) notice physically delivered by mail, hand delivery or delivery service,
(ii) notice delivered by facsimile machine, (iii) electronic mail receipt confirmed, or (iv) online postings of updates or amendments to this Agreement on www.support.GigBee.com.
The following Sections shall survive termination of this Agreement and last in perpetuity or until any information is not Proprietary Information or a Trade Secret as defined in this Agreement: Sections: 2 (Responsibility of End Users); 4.4 (Approval Required); 4.5 (Prohibited Actions); 4.6 (Submitted Content); 6.1 (Compensation Plan; Confidentiality); 7 (Indemnity, Warranty Disclaimers, Limits of Liability); 9.2 (Investigations); 10 (Miscellaneous).
SECTION 11: DEFINITIONS
As used in this Agreement, the following terms have the following meanings:
"Affiliated Parties" All shareholders, officers, members, managers, partners, trustees, and other parties with any ownership interest in, or management responsibilities for, a Business Entity.
"End User" - A current party to this Agreement.
"End User Fee" - The fee described in Section 1.5.
"End User Qualification Process" - The online, mobile phone-based, or other process used by GigBee to enroll new End Users.
"End User Without Service" - A End User who is not a current customer of GigBee mobile phone service or another GigBee Product.
"Business Entity" - A corporation, limited liability company, partnership, trust, or other business organization.
"CAN-SPAM Act" - The CAN-SPAM Act of 2003, as amended, 15 U.S.C. 7701 et seq. A law that sets the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have opt out of receiving such email, and establishes penalties for violations.
"CDS" - The Compensation Disclosure Statement described in Section 2.4 and available to End Users at www.GigBee.com/cds.
"Code of Ethics" - The code of conduct described in Section 2.1.
"Compensation Plan" - The plan described in Section 6.1 and available to End Users at support www.GigBee.com/compensationplan.
"Proprietary Information" - The information described in Section 3.3.
"Contact Information" - The information described in Section 3.2.3.
"Effective Date" - The date you manifest your consent to this Agreement as provided in the Introduction and this Agreement becomes legally binding.
"Gaming" - The activities described in Section 6.5.
"Improper Activity" - The activities described in Section 9.1
"Inappropriate Material" - The material described in Section 5.4.4.
"Marketing Guidelines" - Information and guidance for permissible GigBee marketing practices, as provided in Section 5.1.2, and available to End Users at support.GigBee.com.
"Marketing Guidelines Office" - An office created by GigBee to assist End Users in proper use of GigBee Brand Elements and other marketing practices, which may be contacted by End Users at marketingguidelines@GigBee.com.
"Member" - A customer of GigBee mobile phone service or another GigBee Product.
"GigBee Card" - The card described in Section 6.6.
"Products" - Any GigBee products, services, mobile phone service, mobile phone devices, sales aids, or any other product or service of any kind offered or sold by GigBee.
"Social Media" - The web sites and other media described in 5.4.
"GigBee Brand Elements" - The rights and material described in Section 4.2.
"GigBee Community" - All participants in GigBee, including Members, End Users, and End Users Without Service.
"IVER" - The Social Commerce Community Platform as described in Section 5.2.
"Your Content" - The content and information described in Section 4.6.