Consultant Agreement
This Trinity Rose Collection Inc. Consultant Application and Agreement (“Agreement”)
is made by and between the undersigned (“Consultant”) and Trinity Rose Collection Inc.(“Trinity Rose Collection Inc.” ), effective as of the date set forth
herein (“Effective Date” ). For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
Follows:
1. Trinity Rose Collection Inc. may, subject to the terms and conditions of this Agreement and
any other applicable agreement or document incorporated herein by reference,
sell to Consultant or to place in the possession of Consultant on a consignment
basis, various clothing and fashion accessories (“Product”) for the purpose of
resale.
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2. Consultant shall be an independent contractor in accordance with the
provisions of (AR Code Ann. Sections 11-4-203) of the Arkansas Labor Code, and any
corresponding provisions of the law of any other state or jurisdiction, and not an
employee, franchisee, representative, agent, joint venturer or partner. This
Agreement shall not create an employer-employee relationship and shall not
constitute a hiring of such nature by any party. Consultant is not authorized to,
and shall not obligate Trinity Rose Collection Inc. in any way legally or financially.
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3. Consultant shall be responsible for and pay Consultant's own self employment
taxes, estimated tax liabilities, business equipment or personal
property taxes and other similar obligations, whether federal, state or local.
Trinity Rose Collection Inc. shall not pay or withhold any FICA, SDI, federal or state income tax or unemployment insurance or tax or any other amounts because the relationship
of the parties hereto is not that of employer-employee, but that of independent
contractor. Consultant shall be solely responsible for the payment of all taxes,
withholdings and other amounts due in regard to Consultant’s own employees, if
any.
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4. Unless expressly agreed in writing otherwise, Trinity Rose Collection Inc. shall not provide any travel, equipment, sales materials, or services or other items for the benefit of
Consultant. Consultant shall, at its own expense, provide and make arrangement
for all travel, equipment, sales materials, services, and other items necessary to
perform its duties hereunder. Consultant shall be responsible for payment of its
own expenses, including, but not limited to those items specifically set forth
above.
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5. Consultant will not make claims or representations of potential income
derived from the bonus or commission structure of Trinity Rose Collection Inc. and that any
examples given will be used only to explain the program and not as an
enticement to enroll consultants or others. Trinity Rose Collection Inc. shall not pay any
compensation for enrolling consultants or others.
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6. Trinity Rose Collection Inc. may, at its sole discretion, create, amend, or discontinue certain
compensation, bonus, commission or incentive plan or program pertaining to its
product, business, consultants, and others. Consultant shall have no vested
interest in any such plan or program, provided, however, that Trinity Rose Collection Inc. may not change the terms or conditions regarding compensation for any product actually
sold to or placed in the possession of Consultant. The Policies and Procedures,
Compensation Plan and Wholesale Pricing Structure of Trinity Rose Collection Inc. may, subject to the terms and conditions of this Agreement, be amended at the sole discretion of
Trinity Rose Collection Inc. and any changes or amendments will become effective upon written
notice to Consultant.
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7. The term of this Agreement is one year from the Effective Date or the date
of its acceptance by Trinity Rose Collection Inc., whichever shall occur last. This Agreement shall thereafter automatically renew for successive one-year terms unless terminated
by Consultant or Trinity Rose Collection Inc. upon no less than thirty (30) calendar days’ written
notice. If this Agreement is terminated for any reason, Consultant shall not be
eligible to purchase Products from Trinity Rose Collection Inc. at wholesale prices or make sales on behalf of Trinity Rose Collection Inc. or use any intellectual property, including, without limitation, trademarks, styles, or names of Trinity Rose Collection Inc. (“Intellectual Property”) or any Confidential Information of Trinity Rose Collection Inc.. In the event of termination or non-renewal of this Agreement, all rights of Consultant, if any, to any bonuses, commissions,
or other compensation, whether or not related the productivity or sales activities
of any other consultant, or otherwise, shall terminate. Notwithstanding anything
in this Agreement, Trinity Rose Collection Inc. reserves the right to immediately terminate this
Agreement without notice in the event that Consultant misrepresents Products
or Trinity Rose Collection Inc., or the acts of Consultant cause a negative impact on the business or reputation of Trinity Rose Collection Inc.
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8. Unless specified in writing otherwise by Trinity Rose Collection Inc., all information provided
by Trinity Rose Collection Inc. to Consultant is and shall remain confidential (“Confidential
Information”). The above Confidential Information shall include, but not be
limited to, all customer information, customer and client lists, sales information,
wants and needs of customers, agreements, communications, plans, designs,
reports, projections, budgets, proformas, or other materials, whether or not
furnished or prepared by Trinity Rose Collection Inc. or its agents or employees. Consultant shall: (i) not directly or indirectly divulge, disclose, disseminate, distribute, license, sell,
use or otherwise make known any Confidential Information to any third party or
person or entity not expressly authorized or permitted by Trinity Rose Collection Inc. to receive
such Confidential Information; (ii) use best efforts to prevent disclosure of any
Confidential Information to any third party and exercise the highest degree of
care and discretion in accordance with all express duties hereunder to prevent
the same; and (iii) not directly or indirectly make any use whatsoever of the
Confidential Information or Intellectual Property, or of any feature, specification,
detail or other characteristic contained in or derived from, the Confidential
Information or Intellectual Property, except for purposes of performing services
hereunder. The parties each acknowledge that the Confidential Information
constitutes trade secrets of Trinity Rose Collection Inc. within the meaning of and pursuant to the Uniform Trade Secrets Act contained set forth at Arkansas A.C.A. §§ 4-75-601 through 4-75-607 (2011), et seq., and specifically, without limitation, Arkansas Civil Code §4-75-601. The parties further acknowledge that this Agreement constitutes reasonable efforts
of Trinity Rose Collection Inc. to protect and maintain the secrecy and confidentiality of the
Confidential Information.
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9. Consultant shall not, subject to the terms and conditions of this
Agreement, directly or indirectly, contact, communicate with, solicit or conduct
any business or enter into any transactions or associations of any economic
value with any parties identified in, derived from, or obtained by reason of the
Confidential Information, or otherwise identified or provided by Trinity Rose Collection Inc.,
without the prior written permission of Trinity Rose Collection Inc.. Consultant shall not derive any economic benefit from any transaction between any parties identified in, derived
from, or obtained by reason of the Confidential Information or otherwise
identified or provided by Trinity Rose Collection Inc. and any third party, without the prior written
consent of Trinity Rose Collection Inc. Consultant shall not use any third party intermediaries or
other devices to avoid or defeat the foregoing non-circumvention covenants.
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10. Consultant shall not, subject to the terms and conditions of this Agreement
pertaining to survival or otherwise, solicit or employ or engage any of Trinity Rose Collection Inc.
clients, customers, consultants, referral sources, employees, vendors, suppliers,
associates, or independent contractors for a period of not less than three (3)
years from the date of termination of this Agreement without the prior written
consent of the Trinity Rose Collection Inc.
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11. Consultant expressly acknowledges that neither this Agreement, nor any
compensation, bonuses, commissions or incentive plans or programs pertaining
to the Product, business, consultants, Policies and Procedures, Compensation
Plan or Wholesale Pricing Structure of Trinity Rose Collection Inc. constitutes a franchise or seller assisted marketing plan or other regulated sales relationship. Specifically,
Trinity Rose Collection Inc. does not represent that Consultant can earn any amount hereunder,
whether or not in excess of any initial payment made by Consultant, or that there
is a market for the Product. Trinity Rose Collection Inc. does not maintain or enforce exclusive
sales areas or territories for the benefit of Consultant. Trinity Rose Collection Inc. does not
maintain a Product buy-back program. The Trinity Rose Collection will buy back marketing material with its discretion.
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12. Nothing in this Agreement, whether express or implied, is intended to
confer any rights or remedies under or by reason of this Agreement on any
person other than the parties to it and their respective successors and assigns,
except as set forth herein, nor is anything in this Agreement intended to relieve
or discharge the obligation or liability of any third person to any party to this
Agreement, except as set forth herein, nor shall any provision give any third
person any right of subrogation or action over or against any party to this
Agreement, except as set forth herein.
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13. The Agreement constitutes the entire agreement between Trinity Rose Collection Inc. and
Consultant pertaining to the subject matter contained in the Agreement and
supersedes all prior and contemporaneous agreements, representations and
understandings of the parties; provided, however, that this Agreement shall
include: (i) The Trinity Rose Collection Inc. Policies and Procedures, (ii) (iii)
(iv) The Business Entity Form, if applicable, all of which are hereby incorporated
herein by reference. To the extent that the terms or conditions of any of the
foregoing may conflict with the terms or conditions of this Agreement, the terms
and conditions of this Agreement shall control. No waiver of any of the
provisions of the Agreement shall be deemed, or shall constitute a waiver of any
other provision, whether or not similar, nor shall any waiver constitute a
continuing waiver. No waiver shall be binding unless executed in writing by the
party making the waiver.
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14. Any provision in this Agreement to the contrary notwithstanding, the
obligation of Consultant regarding confidentiality and non-circumventions and
non-solicitation shall survive for so long as Trinity Rose Collection Inc. may, in its sole discretion, consider the Confidential Information to be confidential. If any provision of this
Agreement shall, for any reason, be held unenforceable, such provision shall be
severed from this Agreement, The Invalidity of such specific provision, however,
shall not affect the enforceability of any other provision herein, and the
remaining provision shall remain in full force and effect.
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15. The obligations of Consultant under this Agreement are unique in that the
same constitute personal services. If Consultant should default in its obligations
under the terms of this Agreement, the parties each acknowledge that it would
be extremely impracticable to measure the resulting damages; accordingly,
Trinity Rose Collection Inc., in addition to any other available rights or remedies, may sue in equity for specific performance, without the necessity of posting bond or other
security, and Consultant expressly waives the defense that a remedy in damages
will be adequate and the requirement of a bond or other security.
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16. This Agreement shall be construed in accordance with, and governed by,
the laws of the state of Arkansas without reference to or application of choice
of law or conflict of law rules. This Agreement is deemed to have been entered
into, and payment of amounts hereunder will be deemed to be Little Rock, Arkansas. Therefore, venue for any action arising hereunder shall lie exclusively in Little Rock, Arkansas.
IN WITNESS WHEREOF, the parties to this Agreement have duly executed
this Agreement to be effective on the Effective Date set forth above.
Trinity Rose Collection Inc.:
Trinity Rose Collection Inc.