Sales Terms and Conditions
These Sales Terms and Conditions (these “Terms”) are entered into between you, the stylist (“You”), and LUMIELINA USA, INC., a New York corporation having its principal place of business at 505 5th Avenue, 28th Floor, New York, New York 10017 (“Lumielina”). These Terms govern your sale of Lumielina products (the “Products”).
Permission to Sell
Non-Exclusive. You may, solely in accordance with these Terms, initiate the sale of Products to retail customers (“Customers) until Lumielina terminates these Terms and its relationship with you pursuant to Section 8. Your right to sell Products to customers is non-exclusive and You understand that Lumielina will, directly or through unaffiliated third parties, sell Products to other individuals and/or entities (each a “Person”).
Status as Independent Contractor. You agree and understand that by initiating Product sales, You are acting as an independent contractor pursuant to these Terms, and You and Lumielina do not intend to create and have not created between themselves any agency, joint venture, partnership, or other form of joint enterprise, employment, fiduciary, or employee/employer relationship. Neither You nor Lumielina has the right or authority to accept or create any obligation on behalf or in the name of the other party, and neither You nor Lumielina can bind the other party to any contract, agreement, or obligation with any Customer, Person, or other third party. You alone control all of your operations. All of Your personnel are Your, not Lumielina’s, employees. You are solely responsible for paying and compensating all of Your personnel for any services they may render in connection with Your performance under these Terms. You are also solely responsible for all costs or expenses You may incur in performing Your obligations under these Terms.
Provide Information. You agree to provide all background and identification information requested by Lumielina, including, but not limited to, licenses, certificates of resale, and W-9 tax forms. Lumielina may suspend payment of Commission (as defined below) earned by You for initiating the sale of Products until You provide all requested information to Lumielina.
Enrollment. You will be required to set up a user account on the Lumielina Website and App, and You agree, among other things, to share Your geographical location with and receive email, SMS, and app notifications from Lumielina.
Market the Products. You may, at Your own expense, market, promote and solicit the sale of Products to prospective and existing Customers consistent with good business practices and in a manner that reflects favorably at all times on the Products and the good name, goodwill, and reputation of Lumielina. You agree to observe all directions and instructions given to You by Lumielina relating to the marketing and promotion of the Products.
Prohibited Acts. By agreeing to initiate sales of Products, you agree that neither You nor Your personnel will make any representation, warranty, guarantee, indemnity, or other claim or commitments (collectively, “Representations”) to any Customer with respect to the Products which are inconsistent with any Representations or other written documentation provided by Lumielina to You and/or the Customer. You also agree that neither You nor Your personnel will engage in any unfair, anti-competitive, misleading, or deceptive practices respecting the Products, including any Product disparagement.
Records and Reporting. Lumielina will maintain records of Product sales initiated by You (each a “Sales Record”) and post this information on the Lumielina Website and/or App. This information will include the amount of payments received by Lumielina for sales initiated by You and for which You are entitled to receive a Commission under Section 5.
Customer Orders. You agree to process all Product orders through the Lumielina Website or App. All purchase orders initiated by You are subject to Lumielina’s approval, rejection, or modification. You understand that Lumielina may, in its sole discretion: (a) discontinue the sale of Products without any advance written notice; (b) reduce or allocate its inventory of Products; and (c) effect changes to any of Product and/or Product parts and accessories. You acknowledge and understand that Lumielina’s exercise of its discretion under this Section 4 may result in no Commission owed, or a reduction or delay in the payment of Commission owed, to You.
Commission Rate and Payment. Subject to Section 5.2 below, Lumielina agrees to pay You a commission (“Commission”) for all Product sales initiated by You which result in a completed sale to a Customer in the amount equal to $50 for each Repronizer and $40 for each Hairbeauron sold; provided, however, that Lumielina may, from time-to-time, change the amount of the Commission in its sole discretion and without notice. You will only earn and be entitled to receive a Commission after Lumielina receives unconditional payment from a Customer for Product sales initiated by You and the applicable return period set by Lumielina has expired for each such sale (“Settlement Date”). Lumielina agrees to pay Commissions owed to You within a reasonable period after the Settlement Date.
Disputes. You agree to notify Lumielina in writing of any dispute You may have regarding any Sales Record (along with documentation describing and supporting Your position relating to the dispute) within fifteen (15) days from the date Lumielina posts such Sales Record to its Website or App. Your failure to challenge or dispute any Sales Record within fifteen (15) days will result in You having accepted the Sales Record and waiving any right You have to challenge the Sales Record.
Setoff Right. You agree that Lumielina has the right to withhold payment of any Commissions to You in the event there is a dispute between Lumielina and You.
Compliance with Laws. You and Your personnel agree to comply always with all applicable laws relating to Your sale of Products and in connection with Your performance under these Terms.
Intellectual Property Rights
Intellectual Property Rights Ownership. You understand and agree that: (a) any and all Intellectual Property Rights, as defined below, owned by or licensed to Lumielina (“Lumielina Intellectual Property Rights”) are the sole and exclusive property of Lumielina or its licensors; (b) You do not have and will not acquire any ownership interest in Lumielina Intellectual Property Rights; (c) any goodwill derived from Your use of Lumielina Intellectual Property Rights inures to the benefit of Lumielina or its licensors, not You; and (d) if You somehow acquire, in any way, Intellectual Property Rights in or relating to any Product, You agree that Your rights are automatically deemed and irrevocably assigned to Lumielina or its licensors, as the case may be, without further action by any party. You also agree that You will only use Lumielina Intellectual Property Rights for the purpose of initiating sales of Products in accordance with these Terms and at the instruction of Lumielina. Upon Termination (as defined below), You will immediately stop displaying, advertising, promoting, and using all trademarks owned or licensed by Lumielina (“Lumielina Trademarks”). “Intellectual Property Rights” is defined as all intellectual property and industrial property rights comprising or relating to/of the following: (i) patents; (ii) trademarks; (iii) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, websites, and URLs; (iv) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (v) trade secrets; and (vi) all other intellectual property and industrial property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the laws of any jurisdiction in and throughout any part of the world.
Lumielina Trademark License Grant. Lumielina hereby grants to You a non-exclusive, non-transferable, and non-sub-licensable license to use Lumielina Trademarks until Termination solely on or in connection with your marketing, promotion, advertising, and sale of Products. You will only display and use the Lumielina Trademarks in the manner authorized by Lumielina and You will promptly discontinue displaying and using any Lumielina Trademark upon Termination or when requested by Lumielina.
Prohibited Acts. You agree you will not, and will not cause or encourage others, to do any of the following: (a) make any claim or take any action that may interfere with any of Lumielina’s rights in or to Lumielina Intellectual Property Rights, including Lumielina’s ownership or exercise thereof; (b) challenge any right, title, or interest of Lumielina in or to Lumielina Intellectual Property Rights; or (c) engage in any act that may disparage, dilute the value of, or reflect negatively on Lumielina, the Products, or any Lumielina Intellectual Property Rights or Trademarks.
Termination. Lumielina may terminate these Terms and Your right to initiate or place orders for Products at any time for any reason (“Termination”). Upon Termination, You shall promptly: (i) cease to solicit, initiate, or process sales of Products, and shall otherwise desist from all conduct or representations that might lead a Customer or the public to believe that You are authorized by Lumielina to market, promote, or solicit sales of Products; (ii) return to Lumielina or certify to Lumielina that all documents and tangible materials (and any copies thereof) containing, reflecting, incorporating, or based on Lumielina’s Confidential Information (as defined below) have been destroyed. Termination does not affect the parties’ obligations under Sections 2.4, 7.3, 9, and 12 of these Terms.
Confidentiality. From time to time, Lumielina may disclose information to You information about its business affairs, goods and services, forecasts, confidential information, and materials comprising or relating to Lumielina Intellectual Property Rights and Lumielina Trademarks, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in writing, electronic, or other form or media, and whether or not marked, “confidential” (collectively, “Confidential Information”). “Customer Information” means any personal or financial information of a Customer, including, without limitation, any credit card or other payment information and any personally identifiable information. You and Your personnel agree to: (a) protect and safeguard the confidentiality of Confidential Information and Customer Information with at least the same degree of care as You use to protect Your own Confidential Information and Customer Information, but in no event with less than a commercially reasonable degree of care; (b) not use Confidential Information or Customer Information, or permit it to be accessed or used, for any purpose other than to exercise Your rights or perform Your obligations under these Terms; and (c) not disclose any Confidential Information or Customer Information to any Person, except to Your personnel who need to know the Confidential Information or Customer Information to assist You in exercising Your rights or perform Your obligations under these Terms; provided, however, that “personnel” shall not include any direct or indirect competitor of Lumielina. You shall be responsible for any breach of this Section 9 caused by any of You or Your personnel.
Representations and Warranties. You represent and warrant to Lumielina that, as applicable, (a) You are an entity duly organized, validly existing, and in good standing in the jurisdiction of Your organization; (b) You have the full right, power, and authority to enter into and agree to these Terms and to perform Your obligations under these Terms; (c) the execution of these Terms has been duly authorized by all necessary action; and (d) when executed and exchanged by You and Lumielina, these Terms will constitute the legal, valid, and binding obligation of the parties and enforceable by each against the other in accordance with its terms.
Indemnification. You agree to indemnify, hold harmless, and defend Lumielina and its shareholders, officers, directors, employees, agents, and affiliates (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees), fees, the costs of enforcing any right to indemnification under these Terms, and the cost of pursuing any insurance providers incurred by Indemnified Party (collectively, “Losses”) relating to, arising out of, or resulting from any claim alleging (a) breach or non-fulfillment of any representation, warranty, or covenant under of these Terms by You or Your personnel; and (b) any negligent act or omission of You or Your personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under these Terms.
Limitation of Liability.
NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. EXCEPT FOR LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL LUMIELINA OR ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS, OR REVENUES OR DIMINUTION IN VALUE ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT YOU WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
MAXIMUM LIABILITY FOR DIRECT DAMAGES. IN NO EVENT SHALL LUMIELINA’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID BY CUSTOMERS TO LUMIELINA PURSUANT TO THESE TERMS.
These Terms constitutes the sole and entire agreement of the parties with respect to the subject matter contained in these Terms, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.
All notices, requests, consents, claims, demands, waivers, and other communications under these Terms shall be in writing and shall be deemed to have been given when physically received by the recipient or on the date sent by e-mail of a PDF document (with confirmation of transmission).
The parties drafted these Terms without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. If any term or provision of these Terms are deemed invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
No waiver by any party of any of the provisions hereof will be effective unless it is explicitly set forth in writing and signed by the party waiving the provision. No waiver by any party will operate or be construed as a waiver with respect to any failure, breach, or default not expressly identified by a written waiver. A party’s failure to exercise, or its delay in exercising, a right, remedy, power, or privilege arising from these Terms does not operate and will not be considered a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege under these Terms preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
You acknowledge and agree that a breach or threatened breach by You of any of Your obligations under Section 7 and Section 9 would give rise to irreparable harm to Lumielina for which monetary damages would not be an adequate remedy, and in the event of a breach or a threatened breach by You of any such obligations, Lumielina shall, in addition to any and all other rights and remedies available to it at law, equity, or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy.
These Terms are binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
You may not assign Your rights or obligations under these Terms without the prior written consent of Lumielina.
Except as provided in Section 11, these Terms are for the sole benefit of the parties and their respective successors and permitted assigns and nothing in these Terms, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms. These Terms shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction). Any legal suit, action, or proceeding arising out of or based upon these Terms, or the transactions contemplated hereby, may be instituted in the federal courts of the United States of America or the courts of the State of New York, in each case located in New York City, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Each party acknowledges and agrees that any controversy which may arise under these Terms are likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to these Terms or the transactions contemplated hereby.
You agree that you have had the opportunity to consult with an attorney of your choosing prior to entering into these Terms, or decided not to consult with such attorney, and understand and agree that by entering into an agreement with Lumielina to initiate sales of Products you agree to be bound by these Terms.