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Independent Consultant Agreement
Terms and Conditions
As a Scout & Cellar Consultant (referred herein as an “Independent Consultant” or “Consultant”) of Wine Retriever LLC dba Scout & Cellar (collectively referred to as “Scout & Cellar” or the “Company”), I understand and agree that our relationship will be governed by the terms and conditions herein as follows:
1. Definition of this Agreement. As an Independent Consultant, I understand that I must comply with the terms and conditions set forth in this Agreement, including the Scout & Cellar Policies & Procedures (the “Policies & Procedures”) and the Scout & Cellar Compensation Plan, which are both incorporated into and made a part of this Agreement. As used herein, the term “Agreement” refers to these three documents collectively. I understand that I am solely responsible for the means and methods by which I promote and market and educate consumers regarding Scout & Cellar products, subject to my compliance with the Agreement. I further understand that this Agreement requires integrity, honesty and responsibility in my behavior and actions with the Company, Scout & Cellar Members, and my fellow Consultants.
2. Independent Contractor Status. A Consultant, including a Business Entity Consultant (as defined in the Policies & Procedures), shall at all times be an independent contractor and not an employee, partner, legal representative, or franchisee of Scout & Cellar. A Consultant shall not be held out as an agent of Scout & Cellar for any purpose other than described in this Agreement. No fiduciary relationship exists between the Parties. A Consultant shall, at all times, have and maintain control of the manner and means of the Consultant’s performance under this Agreement, subject to compliance with this Agreement. Consultants have no authority, either express or implied, to bind Scout & Cellar to any obligation.
Consultants shall not be treated as employees of Scout & Cellar for any purpose including, without limitation, federal, state or local tax purposes or retirement benefits. Scout & Cellar will not withhold or make payments for state or federal income tax, social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on behalf of a Consultant. As a result, Consultants shall not receive or be entitled to receive any insurance or benefit plan sponsored by Scout & Cellar and will not be covered by Scout & Cellar’s workers’ compensation, unemployment insurance or retained coverage. Any contrary final determination by an arbitrator, court, or other tribunal shall require the amendment of this Agreement in any way necessary to establish an independent contractor relationship.
For Consultants who received $600 or more in compensation in any calendar year, Scout & Cellar shall report their payments as required using IRS Form 1099, and the Consultants shall report all such payments to the appropriate federal, state and local taxing authorities. Consultants are fully responsible for paying applicable local, state, federal and other taxes on any income earned from the marketing and promotion of Scout & Cellar products and any payments or other monetary or non-monetary compensation under this Agreement. Scout & Cellar will not withhold or make payments for state or federal income tax, social security, make unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on behalf of a Consultant.
Consultants are solely responsible for paying all expenses incurred during the course of business, including any license requirements or fees associated with operating as an independent business or Independent Consultant, and assume the business risk in connection with their independent Scout & Cellar businesses. There is no guarantee that there is or will be a market for the Company’s products or that Consultants will earn money.
I understand that I must complete and submit to the Company an IRS W-9 and shall update the W-9, as required by law, and as set forth in more detail in the Policies & Procedures.
I acknowledge and agree that Company’s usual course of business is selling wine. I represent and warrant that I am not in the business of selling wine. I represent and warrant that I am in the business of marketing, promotions and education. I acknowledge and agree that Company’s usual course of business is not marketing, promotions and education.
I acknowledge and agree that these acknowledgments, representations, and warranties in this section are material inducements to Company’s willingness to enter into this Agreement with me, upon which Company has relied when deciding whether to enter into the Consultant Agreement with me.
3. Business Kit. I agree to purchase a non-commissionable Business Kit from Scout & Cellar. I understand that a Business Kit is the only purchase required to conduct business as a Scout & Cellar Independent Consultant. I also agree to pay any renewal fees required to extend the term of this Agreement. If you are a Montana resident, you may return your Starter Kit for a full refund within fifteen (15) days from the date of purchase. Please see the Policies & Procedures for more detailed return policies and procedures.
4. Sales Tax. I understand that a sale is not final until inputted into the Scout & Cellar online order system and that the appropriate sales/use tax amount will be charged, collected and remitted to the appropriate agencies. When my orders are placed with the Company, sales tax is charged on the actual retail price, taking into account any discounts applied.
5. Services to be performed by Independent Consultants.
a) My Scout & Cellar business will promote Scout & Cellar products, including wine, by conducting Sales Events or on my personal Independent Consultant website, if applicable, and tasting experiences using the Scout & Cellar process described in the Policies & Procedures. My business will promote, market and facilitate sales of Scout & Cellar products only to end users. I will inform my customers that Scout & Cellar offers a Satisfaction Guarantee Policy with respect Scout & Cellar products, and I will assist my customers with initiating a return under such policy with respect to any Scout & Cellar products.
b) I cannot carry inventory of wine for sale directly to Members, customers, or other Consultants. Due to the regulations of the sale of alcoholic beverages, all wine sales must be made between Scout & Cellar and the end user directly through the Company website. I also agree to promote responsible consumption of wine and not serve wine to minors or facilitate the sale of wine to minors.
c) Self-Hosted Wine Tastings. I understand that I may only purchase wine for tastings for my personal guests and may not purchase wine on behalf of another individual.
d) Wine Tasting Approved Locations. I understand that I may only conduct wine tastings in private venues where there is a designated event host who has pre-purchased wines from Scout & Cellar. Consultants may not pour wine at public events or where there is a fee to attend or a charge for alcohol.
e) Direct Shipping Licenses. I understand the Company, including its subsidiaries and winery partners, is the licensed entity and that all orders must be processed and fulfilled through the Company or its approved licensees. I cannot deliver or sell wines directly to customers or do anything that would jeopardize the Company’s good standing and permits or licenses.
6. Sponsoring Independent Consultants Responsibilities. In the event I sponsor an applicant to be an Independent Consultant and the application is accepted by Scout & Cellar, I will accept the duties and obligations of training, support and recognition as set forth in the Agreement.
7. Use of Scout & Cellar Intellectual Property. I acknowledge that, upon Scout & Cellar’s acceptance of the Agreement, Scout & Cellar has granted me a limited, non-exclusive license to use its trademarks, service marks, trade names, patents, software coding (including source code) and copyrighted materials (“Scout & Cellar Intellectual Property”), all of which is owned solely by Scout & Cellar and/or its licensors, and that my use of Scout & Cellar Intellectual Property is strictly limited by the terms of the Policies & Procedures. Examples of Scout & Cellar Intellectual Property are provided in the Policies & Procedures. I may use Scout & Cellar Intellectual Property only (a) after obtaining written permission from Scout & Cellar prior to use, or (b) where the Scout & Cellar Intellectual Property appears on materials distributed by Scout & Cellar for use by Independent Consultants. I agree to use written, recorded or other promotional or advertising materials that have been produced, distributed and approved in writing by Scout & Cellar. Any other promotional or advertising materials I use will be used in accordance with the Policies & Procedures. All rights and licenses granted in or under this Agreement shall terminate automatically upon the termination of this Agreement.
8. Site Downtime. I acknowledge that the website for Scout & Cellar may be subject to temporary shutdowns from time to time for maintenance and/or due to causes beyond Scout & Cellar’s or its vendor’s reasonable control, and that Scout & Cellar shall have no liability to me by reason of any such shutdowns.
9. Ownership and Use of Confidential Information. I acknowledge that Scout & Cellar owns all product, Consultant and customer information and data that I may create or compile, including but not limited to Business Reports, Customer lists (including names, contact information, and other data), Consultant lists (including names, contact information and other data), information pertaining to Downline  genealogy, and any other information which may contain financial or business information, product and purchasing information, customer and Consultant contact and profile details, Consultant lists, operating and production procedures, product development information, financial data and marketing materials are confidential and proprietary and constitute trade secrets belonging to Scout & Cellar (hereinafter “Confidential Information”) (collectively, “Confidential Information”), and that all Confidential Information is confidential and that its disclosure could cause significant harm to Scout & Cellar. I will not use or disclose Confidential Information to any person except in strict accordance with this Agreement and will take all reasonable precautions to prevent its unauthorized dissemination, both during and after the term of this Agreement. I will not use Confidential Information to sell products or services other than Scout & Cellar products and services or in connection with any other business during the term of and after termination of this Agreement. I understand that I will be deemed to breach my obligations to Scout & Cellar with respect to Confidential Information or trade secrets if I work or perform services (including consulting or advisory services) for a competitor of Scout & Cellar in any position in which I am required to or do use, disclose or otherwise employ any Confidential Information obtained during my relationship with Scout & Cellar. I understand and agree that this provision does not prohibit me from working for a competitor of Scout & Cellar during the term of this Agreement or after the termination of this Agreement, but requires me not to use, share or otherwise communicate Confidential Information (including trade secrets) to such a competitor or to perform services for such a competitor. I agree that a breach of this provision shall cause irreparable harm to Scout & Cellar and that Scout & Cellar will be entitled to injunctive relief in the event of a breach of this provision, in addition to any other legal or equitable remedies to which Scout & Cellar may be entitled. I further agree that the terms of this Agreement shall be deemed Confidential Information and shall be subject to the provisions of this Section 9. Upon Scout & Cellar’s reasonable written request, I agree to return to Scout & Cellar all Confidential Information, including but not limited to all marketing collateral, marketing plans, documentation, notes, plans, drawings and copies thereof. All information is provided “AS IS” and without any warranty, express, implied or otherwise, regarding its accuracy or performance.
 A Consultant’s “Downline” includes the group of Consultants directly mentored by that Consultant, along with any Consultants beneath the aforementioned group.
10. Authorized Business and Product Claims. Any claims that I make about my Scout & Cellar business shall be in compliance with the Policies & Procedures. I further agree to limit any claims I make about my Scout & Cellar business, including, but not limited to earnings ability, to those claims authorized or approved in writing by Scout & Cellar. I understand and acknowledge that this obligation extends to any statements I may make in response to customer inquiries about my Scout & Cellar business or any Scout & Cellar products.
11. Conflicting Obligations. I represent and warrant that I have no agreements, relationships, or commitments to any person or entity that conflict with the provisions of this Agreement, my obligations to Scout & Cellar under this Agreement and/or my ability to perform services under this Agreement. I will not enter into any such conflicting agreement during the term of this Agreement.
12. Non-Solicitation. During the term of this Consultant Agreement and for one year thereafter, a Consultant may not, using Company’s trade secrets, directly or indirectly solicit any Scout & Cellar Consultant or any Scout & Cellar employee for engagement as an employee, or as an independent consultant, contractor or distributor of any direct selling or network marketing company, nor will Consultant solicit any Scout & Cellar employee to become a Consultant of Scout & Cellar during this period. “Solicit” includes (i) communicating information or offering to provide information about any other direct selling or network marketing business opportunity to a Scout & Cellar Consultant or employee; (ii) posting or messaging information about another direct selling or network marketing business opportunity on any social media site utilized by the Consultant to promote her or his Scout & Cellar business; (iii) tagging any Scout & Cellar Consultant or employee with a post on any social media site that provides information or offers to provide information about another direct selling or network marketing business opportunity; and (iv) enrolling or attempting to enroll a Scout & Cellar Consultant or employee as a consultant, independent contractor or distributor in another direct selling or network marketing company. This conduct constitutes soliciting even if the Consultant’s actions are in response to an inquiry made by another person who is a Consultant or a Scout & Cellar employee.
13. Release and Permission. I hereby grant Scout & Cellar and its subsidiaries, affiliates, partners, designees, agents, successors or assigns an unrestricted, perpetual, worldwide, irrevocable, royalty-free, transferable, sub-licensable and fully paid-up license to use, reuse, license, reproduce, modify, adapt, publish, edit, translate, display, perform, distribute, transmit, broadcast, communicate to the public and otherwise exhibit throughout the world, create derivative works from, and otherwise exploit and use my name, including nicknames and social media handles, likeness, image, photograph, biographical information, testimonial information, voice, persona, opinions, comments, and in any and all media and by any means of transmission, distribution or communication, whether now known or hereafter created, including by way of example and not limitation, any television, radio, the Internet and online forums, and in audio visual works, photographs, sound recordings, marketing and public relations materials, publications and the like (collectively, “Media Materials”) for advertising, publicizing, marketing and promotion of Scout & Cellar, and I waive remuneration for such use. I further waive my right to inspect or approve all preliminary, draft or finished Media Materials.
14. Term and Termination of this Agreement.
a) Term. This Agreement is effective from the date of acceptance by Scout & Cellar and will automatically renew every twelve (12) months on the anniversary of the date I enter into this Agreement pursuant to the terms set forth in more detail in the Policies & Procedures, unless terminated earlier as provided in the Agreement.
b) Involuntary Termination. Scout & Cellar may immediately terminate this Agreement in the event of any prohibited actual or attempted assignment of the Agreement, or my misrepresentation relating to Company or my Independent Consultant business, or my breach of any provision of this Agreement. If Company terminates this Agreement, the Company may reject any future reapplications by me as a Consultant and pursue all applicable legal remedies.
c). Voluntary Termination. A Scout & Cellar Independent Consultant has the right to terminate this Agreement at any time, for any reason. Notice of termination must be submitted in writing to the Company at its principal place of business or via email to [email protected]. Notice must include the Consultant’s name, address, and Consultant ID Number.
15. Events upon Termination of this Agreement. Upon termination of this Agreement,
a) I will (i) within five (5) business days pay all amounts due and owing to Scout & Cellar; (ii) immediately cease representing myself as an Independent Consultant of Company; and (iii) be ineligible to receive any compensation as an Independent Consultant not earned as of the date of termination of this Agreement. I hereby authorize Company to withhold from any payments due me under the Compensation Plan any amounts due and owing to Company to the fullest extent allowed by applicable law.
b) I will immediately cease all use of Scout & Cellar Intellectual Property and Confidential Information (as defined in this Agreement and the Policies and Procedures) and will cease holding classes, workshops, tastings, and presentation or otherwise displaying, offering for sale or promoting Company products. I agree and acknowledge that the Policies and Procedures further describe the events that shall occur upon termination of this Agreement.
16. Transferability. Neither this Agreement nor my Scout & Cellar business may be transferred or assigned by me or operated in partnership with any other person without Scout & Cellar’s prior written consent. Company may assign this Agreement at any time.
17. Entire Agreement: Amendment. This Agreement (including the Policies & Procedures and Compensation Plan) in its current form, and as may be amended by Scout & Cellar in the future, supersedes all prior communications, understandings and agreements between the parties and constitutes the entire agreement between the parties relating to its subject matter. I have carefully read and agree to comply with this Agreement and the Policies & Procedures and Compensation Plan, each of which are incorporated into and made a part of this Agreement. I understand that I must be in good standing to be eligible for bonuses or commissions from Scout & Cellar. I also understand that this Agreement may be amended by Scout & Cellar in its sole discretion, and I agree to abide by all such amendments. Notification of amendments shall be posted to my Back Office. Amendments shall become effective thirty (30) days after notice of the amendment is posted, but amended policies shall not apply retroactively to conduct that occurred prior to the effective date of the amendment. The continuation of my Scout & Cellar business or my acceptance of bonuses or commissions after the effective date of amendments shall constitute my acceptance of any and all amendments.
18. Indemnification/Offset. I will indemnify and hold harmless Company, its subsidiaries, managers, officers, employees, agents and assigns from and against any damages, claims or liabilities and expenses (including attorneys’ fees) incident to my: (a) activities as an Independent Consultant including, without limitation, any unauthorized representations made by me; (b) any negligent, reckless or intentionally wrongful act of myself or my assistants, employees, contractors or agents, including with respect to claims by third parties related to infringement of third party intellectual property rights; (c) a determination by an arbitrator, court, agency, or other tribunal that the I am not an independent contractor, (d) breach by me or by my assistants, employees, contractors or agents of any of the terms of this Agreement; or (e) violation of or failure to comply with any applicable federal, state or local laws or regulations. Company shall have the right to offset any amounts owed by me to Company (including, without limitation, the repayment of commissions as a result of charge backs and/or product returns) against the amount of any commissions or bonuses owed to me to the fullest extent permitted by applicable law.
19. Limitation of Damages. TO THE EXTENT PERMITTED BY LAW, COMPANY AND ITS AFFILIATES, OFFICERS MANAGERS, ASSOCIATES AND OTHER REPRESENTATIVES SHALL NOT BE LIABLE FOR, AND I HEREBY RELEASE THE FOREGOING FROM, AND WAIVE ANY CLAIM OF ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST BUSINESS, AND LOST OPPORTUNITIES, HOWEVER CAUSED, ARISING OUT OF OR RELATING TO THE COMPANY’S PERFORMANCE, NON-PERFORMANCE, ACT OR OMISSION WITH RESPECT TO THE BUSINESS RELATIONSHIP OR OTHER MATTERS BETWEEN MYSELF AND THE COMPANY, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHER THEORY OF LIABILITY (INCLUDING BUT NOT LIMITED TO NEGLIGENCE OR STRICT LIABILITY, OR OTHERWISE, EVEN IF SCOUT & CELLAR OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, IT IS AGREED THAT ANY DAMAGE TO ME SHALL NOT EXCEED, AND IS HEREBY EXPRESSLY LIMITED TO THE AMOUNT OF UNSOLD SCOUT & CELLAR PRODUCTS AND SERVICES OWNED OR HELD BY ME, COMMISSIONS, BONUSES AND OVERRIDES.
20. Cumulative Remedies/Waiver. All rights, powers and remedies given to either party are cumulative, not exclusive and in addition to any and all other rights and remedies provided by law. No failure or delay of either party to exercise any power or right under this Agreement or to insist upon strict compliance by me with any obligation or provision shall constitute a waiver of such party’s right to demand exact compliance therewith. Waiver by Scout & Cellar can be effective only in writing by an authorized officer of Scout & Cellar.
21. Injunctive Relief. Either Scout & Cellar or I may apply to a court of competent jurisdiction for temporary, preliminary or permanent injunctive relief on the ground that without such relief the agreement to arbitrate in this Agreement may be rendered ineffectual. For example, any breach of the confidentiality or non- solicitation provisions of this Agreement by me would cause Scout & Cellar immediate and irreparable harm that could not be made whole solely by monetary damages; therefore, seeking injunctive relief in court before or simultaneous with demanding arbitration, is appropriate.
22. Other Terms.
a) I have full legal capacity to enter into this Agreement in the state in which I reside. I agree to comply with all laws, rules and regulations governing the conduct of my business.
b) I will refer to the Company’s website and/or the Policies & Procedures to confirm the Company’s current states of operation, which may change at any time. I understand that I may not conduct business in any state that has not been confirmed by Scout & Cellar as an authorized state for the sale of wine via the Scout & Cellar program.
c) I certify that I am not in the Upline or Downline team of any other household member who is a Scout & Cellar Independent Consultant.
d) If any provision of this Agreement is determined to be invalid or unenforceable, that determination will not affect any other provision of this Agreement and the provision in question will be modified by the reviewing arbitrator, court, agency, or other tribunal so as to be rendered enforceable. The headings in this Agreement are inserted for convenience only and are not part of the Agreement.
e) All written notices required by this Agreement to be given to me will be deemed effective three (3) business days after mailing to my most current mailing or immediately if sent to the email address on file with Scout & Cellar.
23. Dispute Resolution. I agree that any controversy, claim or dispute of whatever nature arising between me, on the one hand, and Scout & Cellar, on the other, including but not limited to those arising out of or relating to this Agreement, including the Policies & Procedures, or a breach thereof, or the commercial, economic or other relationship of a Consultant and Scout & Cellar, whether such claim is based on rights, privileges, or interests recognized by or based upon statute, contract, tort common law, or otherwise (“Dispute”), shall be settled through negotiation, mediation, or arbitration, as provided in this Section 23.
a) Negotiation. If a Dispute arises, the parties shall first attempt in good faith to resolve it promptly by negotiation. Any of the parties involved in the Dispute may initiate negotiation by providing notice (the “Dispute Notice”) to each involved party setting forth the subject of the Dispute and the relief sought by the party providing the Dispute Notice, and designating a representative who has full authority to negotiate and settle the Dispute.
b) Mediation. At any time twenty-one (21) days or more after the Dispute Notice is provided, but prior to the initiation of arbitration, regardless of whether negotiations are continuing, any party may submit the Dispute to the American Arbitration Association (“AAA”) for mediation by providing notice of such request to all other concerned parties and providing such notice and a copy of all relevant Dispute Notices and notices responding thereto to AAA.
c) Arbitration. Any Dispute not resolved in writing by negotiation or mediation shall be subject to and shall be settled exclusively by final, binding arbitration before a single arbitrator in Dallas, Texas, in accordance with the then-prevailing Commercial Arbitration Rules of AAA. No party may commence Arbitration with respect to any Dispute unless that party has pursued negotiation and, if requested, mediation, as provided herein, provided, however, that no party shall be obligated to continue to participate in negotiation or mediation if the parties have not resolved the Dispute within seventy (70) Days after the Dispute Notice was provided to any party (or a longer period as may be agreed by the parties).
d) Class Action Waiver. Consultant agrees that by entering into the above agreement to arbitrate, Consultant is waiving Consultant’s right to have any dispute or claim brought, heard or arbitrated as a class action lawsuit or class action arbitration, any private attorney general lawsuit or private attorney general arbitration, or any joint or consolidated lawsuit or joint or consolidated arbitration of any kind. The Parties agree that an arbitrator shall not have any authority to hear or arbitrate any class or collective action. The Parties agree that any claim that all or part of this class action waiver is unenforceable shall be determined by a state or federal court located in Dallas, Texas and not by an arbitrator. The Parties further agree that if a court determines that the limitations of this paragraph are deemed invalid or unenforceable, any putative class, private attorney general, or representative action must be brought in a court of proper jurisdiction and not in arbitration.
e) Dispute Documents Confidential. All communications, whether oral, written or electronic, in any negotiation, mediation or arbitration pursuant to this Section shall be treated as confidential and those made in the course of negotiation or mediation, including any offer, promise or other statement, whether made by any of the parties, their agents, employees, experts, attorneys, or mediator or any AAA employee, shall also be treated as settlement negotiations for purposes of applicable rules of evidence and shall be inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in negotiation or mediation.
f) Costs of Dispute. The costs of negotiation, mediation, arbitration, a proceeding for injunctive relief or an action to enforce an arbitration award, including fees and expenses of any mediator, arbitrator, AAA, or other persons independent of all parties acting with the consent of the parties to facilitate settlement, shall be shared in equally by Consultant, on the one hand, and Scout & Cellar on the other. The parties shall bear their own legal fees and other expenses incurred in negotiation, mediation, arbitration or any court proceeding. Nothing in this paragraph shall prevent a party from seeking recovery of its/their attorney’s fees and costs in any legal proceeding if such recovery is permitted by statute or applicable law.
g) Venue and Jurisdiction. Any party may seek specific performance of this Section, and any party may seek to compel each other party to comply with this Section by petition to any court of competent jurisdiction. An action to enforce an arbitrator’s award hereunder may be brought before any court of competent jurisdiction. For purposes of any provisional or equitable relief sought under this Section, the parties consent to exclusive jurisdiction and venue in the courts of the State of Texas residing in the City of Dallas, or the United States District Court for the Northern District of Texas. The pendency of mediation or arbitration shall not preclude a party from seeking provisional remedies in aid of the arbitration from a court of appropriate jurisdiction, and the parties agree not to defend against any application for provisional relief on the ground that mediation or arbitration is pending. Each party in any proceeding under this policy shall be responsible for its own attorney’s fees, legal expenses, and costs. If any portion of this Section is held to be unenforceable for any reason, the remainder shall remain in full force and effect. Nothing in this Section shall preclude any party from seeking interim or provisional relief concerning the Dispute, including a temporary restraining order, a preliminary injunction, or an order of attachment, either prior to or during negotiation, mediation or arbitration. In the event any portion of this provision regarding arbitration is found to be unenforceable, such portion shall be severable from the remainder of this provision, which shall remain in full force and effect. Any amendment to this provision, or to the Dispute Resolution provision in the Policies & Procedures, shall not apply to: (1) a dispute arising prior to the effective date of such amendment; or (2) a Consultant who declines to participate in the Scout & Cellar Program following the Effective Date of any such amendment. Nothing in this Agreement requires arbitration of claims that as a matter of law (after application of Federal Arbitration Act preemption principles) cannot be made subject to a predispute arbitration agreement.
h) Governing Law. The Federal Arbitration Act shall govern all matters relating to arbitration. The law of the State of Texas, without regard to principles of conflicts of laws, shall govern all other matters relating to or arising from the Agreement, the Scout & Cellar Business, relationship between the parties, or any other claim between the parties.
i) Louisiana Residents. The foregoing dispute resolution provisions shall apply to Louisiana residents with the exception that governing law, jurisdiction, and venue shall be in Louisiana.
24. Entire Agreement. The Policies & Procedures are incorporated into this Agreement, along with the Compensation Plan, and constitutes the entire agreement of the parties regarding their business relationship.
25. California Consumer Privacy Act Addendum
The California Consumer Privacy Act of 2018, Civil Code Sections 1798.100 et seq. together with any amendments, rules, regulations, and decisions (the “CCPA”) impose specific obligations on the Company as a Business and on the Consultant as a Business with regard to the processing, handling, use, and protection of Personal Information of California Consumers. This CCPA Addendum sets forth the data privacy requirements imposed by the CCPA and is incorporated by reference into the Agreement.
For purposes of this CCPA Addendum, the following terms shall mean as follows:
i) “Consumer” means a natural person who is a California resident as defined under the CCPA.
ii) “Personal Information” means information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular Consumer or household received by Consultant in connection with the Services including, but not limited to, the examples of Personal Information identified in the CCPA.
iii) “Personal Information Breach” means any breach of security leading to the unauthorized access and exfiltration, theft, or disclosure of nonencrypted or nonredacted Personal Information resulting from the failure to implement and maintain reasonable security procedures and practices as set forth in the CCPA.
iv) “Reasonable Security Procedures and Practices” means security measures appropriate to the nature of the Personal Information that are implemented and maintained to prevent the unauthorized access and exfiltration, theft, or disclosure of nonencrypted or nonredacted Personal Information and which comply with the applicable Center for Internet Security (“CIS”) Controls.
v) “Sell” means selling, renting, releasing, disclosing, disseminating, making available, transferring, or otherwise communicating orally, in writing, or by electronic or other means, a Consumer’s Personal Information by the Consultant to a third party for monetary or other valuable consideration.
vi) “Service Provider,” means the Consultant and the services (“Services”) provided by the Consultant as specified in the Agreement.
b) Service Provider Relationship. The Company and Consultant agree that Consultant is a separate business entity and is acting as a Service Provider to Company under the Agreement and under the CCPA. The services provided by the Consultant are specified in the Agreement. The Company may direct the Consultant to collect Personal Information directly from a Consumer on the Company’s behalf and also may provide Personal Information to the Consultant. In such event, Consultant shall be deemed a Service Provider under this CCPA Addendum and the CCPA.
c) Obligations of Consultant.
i) Consultant shall implement Reasonable Security Procedures and Practices regarding the Personal Information.
ii) Consultant shall notify the Company immediately upon becoming aware of a Personal Information Breach involving the Personal Information.
iii) If Consultant receives a request to know or a request to delete from a Consumer regarding the Personal Information and does not comply with such request, Consultant shall explain the basis for the denial and inform the Consumer to submit the request directly to the Company and provide the Consumer with the contact information for the Company.
iv) Consultant, as a Service Provider, agrees that it will not:
(1) Sell the Personal Information;
(2) Retain, use, or disclose the Personal Information for any purpose other than for the specific purpose of performing the Services as specified in the Agreement; and
(3) Retain, use, or disclose the Personal Information outside the direct business relationship between the Consultant and the Company, including to provide services to another person or entity. However, Consultant may combine the Personal Information with personal information received from other persons or entities to which it is a Service Provider to the extent necessary to detect data security incidents, or protect against fraudulent or illegal activity.
v) Consultant hereby certifies that it understands the restrictions set forth in (c)(iv)(1)-(3) above.
d) Deletion. Upon Company’s written request, and subject to and in accordance with all applicable laws, Consultant, as a Service Provider, agrees to promptly delete any and all Personal Information.
e) Termination. The Company shall have the right to terminate the Agreement and/or CCPA Addendum in the event that Consultant is or becomes non-compliant with this CCPA Addendum or the CCPA regarding the Personal Information.
Indemnification. Notwithstanding any other limitation of liability or indemnity provisions to the contrary in the Agreement, if Consultantbreaches any of its obligations under this CCPA Addendum or the CCPA, Consultant shall indemnify, defend, and hold the Company harmless from and against all loss, cost, harm, expense (including reasonable attorney’s fees), liabilities or damages (“Damages”) arising from the breach. For avoidance of doubt, Damages include (i) monetary fines and penalties issued by any regulatory or governmental authority, and (ii) amounts paid to third parties as damages or amounts paid under the Company’s indemnity obligations to third parties, which shall be considered direct damages.
I acknowledge that I have read, understand and agree to the terms set forth in this Scout & Cellar Independent Consultant Agreement. I certify that all of the information provided by me in connection with becoming an Independent Consultant and in this Agreement is true and accurate. I am 21 years of age or older, and I have a valid Social Security number or individual Taxpayer Identification number.
Policy and Procedures
Terms and conditions
SECTION 1: THE COMPANY
Wine Retriever LLC DBA Scout & Cellar LLC (“Scout & Cellar” or the “Company”), a Texas Limited Liability Company, and its successors and assigns, is a federally licensed and bonded Texas winery. “Scout & Cellar “or the “Company” includes any of its affiliated or subsidiary wineries.
Independent Consultants should be guided by the Scout & Cellar Core Values. Those Core Values are:
We DO THE RIGHT THING, no matter what it’s as simple as the golden rule and always has been.
We wear our purpose on our sleeve because we believe in Clean-Crafted, we’re committed to complete TRANSPARENCY.
We love what we do, fiercely and honestly, even that’s an understatement. Our PASSION for wine, for the planet, and for those we love, is at our very core.
We are who we are and that’s all we are. We’re here because we believe in making tomorrow better. Our AUTHENTICITY guides every decision we make.
We’re at our best when we’re together. –We empower each other through our collective energy, and we celebrate our victories, no matter how big or small. This isn’t a team, it’s a FAMILY.
SECTION 2: POLICIES AND PROCEDURES INCORPORATED INTO CONSULTANT AGREEMENT
These Policies and Procedures in their current form and as amended from time to time in the sole discretion of the Company (the “Policies and Procedures”) are incorporated into and form a part of the Consultant Agreement(hereinafter, “Consultant Agreement”), which sets forth Scout & Cellar’s and the Independent Consultant’s legal rights and obligations regarding the Program. The Program is defined as:
Marketing, promoting, and educating consumers about Scout & Cellar products as described herein;
Participating in the Compensation Plan (receiving Commissions and Bonuses, when and if eligible);
Mentoring other Consultants into the Program;
Building a downline;
Advancing through the levels in the Compensation Plan;
Receiving information and communications from Scout & Cellar; and
Participating in Scout & Cellar’s support, service, education, recognition and incentive programs for Consultants, upon payment of any applicable charges.
In the event of any conflict between the Scout & Cellar Independent Consultant Agreement, on the one hand, and these Policies and Procedures, on the other hand, these Policies and Procedures shall control. Each Consultant is responsible for reading, understanding and following the most current version of these Policies and Procedures. As used in these Policies and Procedures, the term “Mentor” refers to a Consultant who enrolls another Consultant into the Scout & Cellar program and is listed as the Mentor in the Company database. The act of enrolling others and training them to become Consultants is called “mentoring”. When mentoring a Consultant or potential Consultant, the Mentor shall provide access to the most current version of these Policies and Procedures (including the Compensation Plan).
Amendments shall not apply retroactively to conduct that occurred prior to the effective date of the amendment. However, due to the “live” nature of such items, social media posts, email addresses, and URLs that are non-compliant shall be considered ongoing conduct and must be updated to remain compliant with any Amendments on or before the Amendments’ effective date. Consultant’s continued participation in Scout & Cellar’s Program, including marketing of the Company’s products and receiving commission payments, shall constitute acceptance of any changes or additions to the Policies and Procedures.
SECTION 3: JOINING AS A CONSULTANT
To become a Consultant, you must:
Be 21 years of age or older;
Be a legal resident of the United States or the District of Columbia;
Have a valid Social Security number;
Not be in jail or in another correctional institution;
Not have ever been convicted of a felony;
Not be a current employee, officer, or director of Scout & Cellar and/or its affiliates;
Not be an owner of any interest in any entity that is also registered as a Consultantand whose Consultant account has been Active in the past 6 months;
Not have or be associated as an owner, officer, member,shareholder and/or affiliate with more than two accounts with the Company - 1) a single Consultant Account and 2) a single Customer Account;
Complete and submit a Consultant Agreement that is accepted by the Company;
Purchase a Business Basics Kit (except for residents of North Dakota, where the purchase of a Business Basics Kit isoptional); and
Have a valid email address that complies with these Policies & Procedures and a valid credit card
Scout & Cellar reserves the right to accept or reject any Consultant Agreement for any reason in its sole discretion.
Term of Agreement and Renewal
The Consultant Agreement is effective from the date of acceptance by Scout & Cellar and will automatically renew every twelve (12) months on the anniversary of the date Consultant entered into the Consultant Agreement pursuant to these terms, unless terminated earlier as provided in the Consultant Agreement. One year after a person becomes an Independent Consultant, the Consultant will be billed an annual $99.95 Renewal Fee (increasing to $129.95 for renewals occurring on or after 1/1/2021) plus applicable sales tax, which includes the renewal of the Consultant’s Personal Scout & Cellar website and access to additional technology programs and initiatives which may be rolled out from time-to-time for Consultant best practice education and support. This Renewal Fee will be charged automatically to Consultant’s primary credit card on file, or any credit card designated for payment of Personal Website Membership by Consultant in The Cellar, and paid to Scout & Cellar unless you cancel your Consultant Agreement.
The Consultant Agreement will there after automatically renew for successive one-year terms unless either party notifies the other in writing that it does not wish to renew the Consultant Agreement on the anniversary date. If the Company does not receive a Consultant’s Renewal Feeduring the calendar month containing their anniversary date, the Consultant’s account will be suspended until the Consultant does one of the following: contacts Customer Support to pay the Renewal Fee; informs the Company that Consultant wants to cancel the applicable Consultant Agreement; or the Consultant’s account has been suspended for 30 days. In the case of this last option, Scout & Cellar reserves the right to cancel any Consultant Agreement for which the Consultant account has been suspended for over 30 days due to failure to pay the Renewal Fee.
W-9s are required for all Consultants and should be submitted via email to [email protected] immediately upon joining, or prior to the effective date of these Policies and Procedures if the Consultant has not previously submitted a W-9. Consultants can find a copy of the W-9 form in The Cellar.
Independent Contractor Status
Consultant acknowledges and agrees that Company’s usual course of business is selling wine. Consultant represents and warrants that Consultant is not in the business of selling wine. Consultant represents and warrants that Consultant is in the business of education, marketing and promotions. Consultant acknowledges and agrees that Company’s usual course of business is not education, marketing and promotions.
Consultant represents and warrants that Consultant is customarily engaged in the business of education, marketing and promotions, that Consultant can and does have business relationships other than that which Consultant has with Company for which/whom Consultant can and does perform education, marketing and promotional services, and that Consultant can maintain Consultant’s education, marketing and promotional business without reliance upon Company.
Consultant acknowledges and agrees that these acknowledgments, representations, and warranties in this section are material inducements to Company’s willingness to enter into the Consultant Agreement with Consultant, upon which Company has relied when deciding whether to enter into the Consultant Agreement with Consultant.
Joining and Becoming Active
Once an applicant(“Applicant”) has submitted a signed Consultant Agreement, purchased a Business Basics Kit (except for residents of North Dakota), submitted any other documents that the Company may require, and Scout & Cellar has accepted and processed the Consultant Agreement, the Applicant will become a Consultant and will be assigned a Scout & Cellar Identification Number(“ID Number”) and Password.
Consultant shall use Consultant’s ID Number to identify the Consultant to the Company, place orders, structure organizations and track commissions and bonuses. A Consultant may provide the ID Number to Customers and potential Customers to assist the Company in identifying and linking the Customer or potential Customer to that Consultant.
Consultants shall use the Password to access The Cellar through which Consultant can order products, access performance records, and communicate with Customers and downline Consultants.
Spouses and Common Law Married Couples; Adult Children
Except as described in this section, spouses, registered domestic partners, or common law married couples who wish to become Consultants must be jointly mentored as a single Consultant under a single Mentor using a single Social Security Number.
Spouses, registered domestic partners,and common law married couples may neither mentor each other directly or indirectly nor have different Mentors.
Children over the age of twenty-one (21) residing with their parents who meet all of the eligibility requirements may have their own Scout & Cellar independent business.
For information regarding the disposition of a Consultant Agreement and the independent Scout & Cellar business operated by a married couple upon divorce, see Section 12b.
The above provision prohibiting spouses, registered domestic partners, or common law married couples from each having their own separate independent Scout & Cellar businesses is not applicable where two existing Consultants marry each other (or enter into a registered domestic partnership or common law marriage) or where one spouse, registered domestic partner, or member of a common law married couple receives an independent Scout & Cellar business via inheritance.
Each Consultant is responsible for keeping all Consultant Information current and accurate, specifically including email and phone number contact information. Each Consultant may modify any Consultant Information, including address, email address and phone number at any time. Consultant must contact the Support department to update the email address on Consultant’s profile. To change from a sole proprietorship to a business entity, or from one type of business entity to another, please refer to the steps in Section 3k. Without limitation of the foregoing, Business Entities that are Consultants must immediately report any changes in the Ownership of the Business Entity. A Consultant must submit relevant legal documentation in support of a name change request.
Actions of Household Members, Employees or Agents
Each Consultant is responsible for the actions of Consultant’simmediate household members, except for children over the age of twenty-one (21) that have their own Scout & Cellar independent businesses. Each Business Entity Consultant is responsible for the actions of its owners, officers, directors, members, shareholders, partners, employees, contractors and agents, if any, and as otherwise allowed by these Policies & Procedures. If such individuals engage in any activity which, if performed by the Consultant, would violate the Consultant Agreement, such activity will be deemed a violation by the Consultant and the Company may take remedial action pursuant to the Consultant Agreement and seek other appropriate remedies against such Consultant.
Handling Personal Information
If a Consultant receives Personal Information from or about prospective Consultants or Customers, it is the Consultant’s responsibility to maintain the security of such information. A Consultant should shred or irreversibly delete the Personal Information of others as soon as the Consultant no longer needs it. Personal Information is information that identifies or permits a person or entity to contact an individual. It includes an individual’s name, address, email address, phone number, credit card information, social security or tax identification number and other information associated with these details. The California Consumer Privacy Act Addendum to the Independent Contractor Agreement is expressly incorporated into and made part of these Policies & Procedures.
Business Entities as Consultants
A corporation, limited liability company, partnership or trust incorporated or organized in the United States and having its principal place of business in the same (hereinafter “Business Entity”) may apply to be a Consultant. In addition to the Consultant Agreement, a Business Entity must submit a properly completed Business Entity Registration Form and at least one of the following: Certificate of Incorporation, Articles of Organization, Partnership Agreement or relevant Trust documents via the form at https://scoutandcellar.com/contact/. The Company must receive these documents within fourteen (14) days from the date the Consultant signed the Consultant Agreement and purchased a Business Basics Kit (except residents of North Dakota where the purchase of Business Basics Kit is not required). If not received within such 14-day time period, the Company reserves the right to terminate the Consultant Agreement without notice.
All Owners of a Business Entity that enrolls as a Consultant (hereafter “Business Entity Consultant”) shall be jointly and severally liable for and shall indemnify and hold harmless Scout & Cellar from and against any breach of the Consultant Agreement by that Business Entity or any indebtedness or other obligation to Scout & Cellar of such Business Entity. Owners are responsible for complying with all applicable laws in any and all jurisdictions or localities in which the Business Entity conducts business and maintaining the Business Entity in good standing with all applicable jurisdictions. Owners of a Business Entity are responsible for any and all fees relating to the formation and maintenance of the Business Entity.
All education, marketing and mentoring activities of a Business Entity Consultant must be conducted only by the Owners of the Business Entity; these activities cannot be conducted by persons (including employees, agents or contractors) who are not Owners of the Business Entity without the express written consent of the Company.
A Business Entity Consultant that undergoes a change of Ownership must comply with Section 12d or it may have its Consultant Agreement terminated.
No Consultant may use any trade name, business name or DBA that includes any Scout & Cellar trademark, trade name, brand name or that otherwise violates Scout & Cellar Brand Guidelines or these Policies & Procedures. When naming a business entity, Consultants may not use any words or phrases that are inconsistent with the Company’s Core Values, Mission Statement, or these Policies & Procedures.
Subject to the above requirements and restrictions, a Consultant may change status from a sole proprietorship to a corporation, limited liability company, partnership or trust, or from one type of Business Entity to another, by submitting a signed Consultant Agreement and, if applicable, a Business Entity Registration Form and, where applicable, at least one of the following: Certificate of Incorporation, Articles of Organization, Partnership Agreement or relevant Trust documents. In addition, a Consultant may add Consultant’s spouse to a sole proprietorship as a co-applicant to the Consultant’s existing independent Scout & Cellar business by submitting a new Consultant Agreement. In each such case, upon the Company’s acceptance of the new Consultant Agreement and, if applicable, the Business Entity Registration Form (and applicable supporting document) and the Consultant’s original Consultant Agreement will automatically terminate and be replaced and superseded by the newly formed Consultant Agreement. Note that none of the changes described above will permit a Consultant to change Mentors, except as specified in Section 7d, or to assign or transfer a Consultant Agreement except as specified in Section 13d.
For purposes of compensation, incentives, recognition, or other perks and programs, Business Entities will be treated as one Consultant, regardless of the number of owners.
Restrictions on Interest in Multiple Consultant Accounts
Each person is limited to being affiliated with one single Consultant Account and one single Customer Account. Any person who is a Consultant or has any interest or ownership in any entity that is affiliated with a Consultant Account is prohibited from maintaining or being affiliated with an additional Consultant Account. A Consultant may, however, maintain or otherwise be associated with one Customer Account (e.g. A married couple may not have a Consultant account and more than one Customer account, regardless of whose name appears on the accounts).
Consultant Accounts Associated with Multiple Individuals
For purposes of compensation, incentives, recognition, or other perks and programs, each Consultant account will be treated as one Consultant, regardless of the number of individuals associated witha given Consultant account. As such, each Consultant account may earn one (1) of any bonus, incentive, or other reward.
No informal Consultantteams will be recognized by Scout & Cellar, with the exception of married couples who joined as an informal team prior to March 15, 2019.
At Scout & Cellar’s sole and exclusive discretion, married couples acting as a single Consultant may purchase access to one additional incentiveslotor reward, but only if the incentive has already been earned by the Consultant.
SECTION 4: CONSULTANT REQUIREMENTS AND RESTRICTIONS
The sale and transportation of wine is carefully controlled in the United States on both the state and federal levels. As a result, the Company must obtain various approvals, permits and licenses and dobusiness in certain prescribed ways. To facilitate the company’s compliance with applicable laws and regulations pertaining to the sale and transportation of wine, the Company has developed procedures and guidelines, which must be followed by Consultants. Scout & Cellar, without exception, expects Consultants to adhere to the procedures and guidelines providedin The Cellar, which will be updated from time to time as necessary. Scout & Cellar leadership works to stay informed of all legal and regulatory issues in the wine industry relating to its business. Any Consultant who fails to adhere to the procedures and guidelines that pertain to the Company’s compliance with the sale and transportation of wine will have breached the Consultant Agreement, resulting in the Company’s right to immediately terminate the Consultant Agreement pursuant to the terms of the Consultant Agreement.Any concerns related to alcohol regulation should be sent via email to [email protected]
In addition, it is important for Consultants to note that each state has different laws, restrictions and requirements to host or conduct a tasting and to own and operate an independent business. As independent business owners, each Consultant is advised to seek legal counsel in the Consultant’s state to ensure compliance with all additional requirements unique to Consultant’s state.
Labeling, Packaging and Display of Scout & Cellar Products
Consultants may not re-label, re-package, refill or alter labels of any Scout & Cellar package or merchandise, information, materials or program in any way. Any such repackaging or relabeling may violate federal and state law, which may result in criminal or civil penalties.
Consultants may not cause Scout & Cellar product or trade names to be sold or displayed in a retail establishment, including restaurants and trade shows, except upon the prior written approval from the Company.
Consultants are strictly prohibited from reselling wine to Customers or anyone else. All Customer purchases are directly fulfilled by Scout & Cellar.
Cash & Carry, Offers, Gifts & Charitable Donations
Cash & Carry
Consultants are not sellers, but rather marketers and promoters of Scout & Cellar products. As a result, Consultants are not licensed or authorized to sell any product directly to Customers or among consultants. In addition, as a result of laws limiting volume of wine shipped, which vary state to state, all orders must be placed through the Scout & Cellar website and wines must be shipped directly to the end-consumer from Scout & Cellar. Local Pickup is an exception to the shipping requirement of this rule. All cash and carry activities or exchange of value for wine are prohibited. Due to the serious nature of Cash & Carry violations, any such violation may result in immediate suspension or termination as allowed under Section11A.
Because Consultants are not licensed or authorized to sell directly to Customers, Consultants may not create their own offers outside of the Scout & Cellar website. This includes, for example, offering a percentage discount, a free bottle of wine with a minimum purchase, free shipping or any other offerif it requires that the Consultant and Customer exchange any funds. Consultants may transfer Sky Wallet dollars to a Customer account to help pay for all or part of a Customerorder or to cover the cost of shipping. Consultants may also transfer Sky Wallet dollars to other Consultants as allowed. Any offer of “free wine” must fully comply with the Gifts policy in Section 4d, item 3.
Consultants are welcome to give free gifts to anyone. For a gift to be free, there cannot be a quid pro quo or exchange of value attached to it. As a result, wine cannot be considered a gift if it is being given away at a tasting. If the gift is contingent on a behavior (including on social media) or purchase, it is considered an exchange of value and is not allowed. Giveaways of non-wine items via social media may be allowed if there is no purchase requirement or other quid pro quo and the giveaway complies with the social media platform’s Terms and Conditions and any applicable laws.
Consultants are welcome to donate wine to a charitable organization, subject to the Consultant’s local tax laws. Consultants may not, however, donate or otherwise assign a value to a wine tasting, as tastings have no value and are not a compensatory event.As a result, such donations would violate most state alcohol and beverage laws.
As with all activities as a business owner, Consultants are responsible for ensuring that any gifts or charitable contributions including marketing messages and promotions - comply with all applicable laws, regulations and codes governing advertising, promotions, competitions and prize-draws where the Consultant lives.
Tasting & Pouring Policy
Approved In-Person Tasting Locations
Consultants may hold in-person wine tastings in the following places if invitations are sent to specific individuals:
In a private room at a public venue if walkups are not allowed access to the private room; and
In a yoga studio, boutique, or other similar establishment if the tasting is held after hours and walkups are not allowed access to the establishment during the tasting.
For purposes of this provision, an invitation is an announcement sent to a specific group of individuals by mail, e-mail or other electronic means. It expressly allows the use of sites such as Evite, Paperless Post or Red Stamp, where Consultants are creating a distribution list of specific email addresses for a limited group of people.
Use of sites such as Eventbrite, Event Bee, Facebook (including but not limited to Facebook Event pages or other groups, regardless of whether they are private) or other social media where the in-person event is being publicized at large to a social network, including any private pages or functionality of such networks, or the public is expressly disallowed. Under these Policies & Procedures, events publicized using these channels do not comply with the above Tasting & Pouring Policy and will constitute a Brand Standards violation. This includes posts by the Consultant, host, or venue holding the tasting. Virtual Tastings are not an exception to this policy –all tasting invitees (including those invited to Virtual Tastings) should be contacted through private means of communication, such as email.
Opportunity events which include a tasting are not an exception to these rules. Consultants may hold Opportunity Tastings so as long as such events are free to attend, and the events comply with the guidelines stated above. Resources exist in The Cellar to ensure all messaging and visual assets for Opportunity Tastings comply with Brand Standards and are expected to be used.
Prohibition Against Charging
Consultants may not charge a fee for admission to any venue where wine is being served, regardless of what the charge is for. Nor may Consultants pour wine at an event where a mandatory fee is being charged by someone else, regardless of what the charge is for. To further clarify, a ticketed event (whether for-profit or charitable) including “free” drinks is not really free. Likewise, if a tip jar sits next to the wine expecting “donations,” it is not free. An event which requires an individual to pay for food while having access to Scout & Cellar wines or at an otherwise compliant wine tasting constitutes an impermissible sale of alcohol and is not compliant with this policy.
Consultants must adhere to the following guidelines when conducting in-person tastings:
Designated tasting hosts/hostesses should pour the wine using the Posi-Pour provided in the Business Basics Kit and should never serve more than 10 ounces total to any one tasting guest.
All tasting attendees must be of legal drinking age. If a Consultant is unsure of a guest’s age, the Consultant should check the attendee’s government issued ID.
Attendees should never be allowed to drive if they do not appear to be able to do so safely.
Open but unfinished bottles of wine should be left with the host or hostess to avoid violation of open carry or other similar laws and to positively impact the hosting experience.
Consultants may host private, virtual tastings via video chat platforms including (but not limited to) Facebook Live, Zoom, and Skype. Consultants are responsible for ensuring that attendees are of legal drinking age, and should use Consultant’s best judgment in ensuring the tasting is carried out safely. Consultants must comply with the guidelines in Section 4E.1.iii regarding public posts about virtual tastings, but are permitted to promote Scout & Cellar-generated Tasting Links2 publicly via social media.
No Consultant shall claim or imply that Consultanthas ownership of, or exclusivity in, any particular geographic area, territory, market or region. This includes using a specific location (e.g., The name of a city, state, or uniquely-named region) as part of the Consultant’s Personalized URL, email address, or social media profile if used for Scout & Cellar business purposes. There are no exclusive territories granted to any Consultant, and all Consultants have the full right to market, promote, and educate consumers about Scout & Cellar products and otherwise conduct Consultant’s Scout & Cellar Independent Businesses in all geographic areas and territoriesin accordance with the terms of the Consultant Agreement and applicable law.
Consultants may not market or promote Scout & Cellar products outside the Active Market and may not conduct Consultant’s Scout & Cellar independent businesses in any geographic area or territory outside the United States. For purposes of this Section, the term “Active Market” means those municipalities, counties, and states within the United States in which wine may be sold and distributed by Scout & Cellar. Because the Active Market may change from time-to-time, please refer to The Cellar for the current Active Market.
Consultants are not authorized to interact with the media, including but not limited toradio, podcasts, television, billboards, print, online publications, speaking engagements, mass mailings or through any other channel Scout & Cellar may deem to be unfair, regarding the Scout & Cellar business or products. All opportunities and inquiries from the media shall be directed to the Company at https://scoutandcellar.com/contact to ensure that accurate and consistent information regarding the Scout & Cellar brand is being presented to the public.
Subject to the above, Consultants are permitted to advertise in Consultant’s local newspaper, community newsletters, and local business directories, and through local opportunities, including Consultant’s local Chamber of Commerce, provided that any publication containing such advertisement has a circulation no greater than 10,000. Consultants may also promote Consultant’s independent businesses with social media influencers who have less than 10,000 total followers across platformsat the time of the promotion, as long as that influencer’s platform is consistent with Scout & Cellar’s Core Values. Scout & Cellar has the sole and exclusive right to determine whether an influencer’s platform satisfies these requirements. Influencers who have over 10,000 total followers across all platforms and are interested in marketing Scout & Cellar products should be directed to contact the Company at https://scoutandcellar.com/contact.
SECTION 5: CONSULTANT RESPONSIBILITIESAND LEGAL CONSIDERATIONS
Consultants are expected to conduct themselves in a professional manner at all times and shall protect and promote the good reputation of Scout & Cellar through the following:
Be forthcoming, transparent and professional and conduct business with integrity, understanding and respect;
Not engage in illegal, deceptive, misleading or unethical conduct or practices, including making statements, representations, guarantees or warranties, or publishing misleading or deceptive advertising materials about the Company, its products or the Program;
Refrain from making disparaging or misleading statements about Scout & Cellar, including but not limited to its employees, Consultants, partners, products and Compensation Plan;
Refrain from making disparaging or misleading statements about Scout & Cellar’s actual or perceived competitors; and
Not engaging in behaviors that fall outside the level of professional conduct, including, but not limited to, substance abuse; verbal abuse and bullying; harassment or discrimination because of race, gender, religion, sexual orientation, sex, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, gender identity, gender expression, age, or military and veteran status; hate or violence-inciting or driven activity; or fraudulent, misleading or deceptive conduct.
The determination of what violates the Professional Conduct terms is in Scout & Cellar's sole discretion. The Company may determine, in its sole discretion, that violation of the Professional Conduct terms constitutes a breach of the Consultant Agreement, resulting in the termination of the Consultant Agreement.
Consultants who become aware that another Consultant has violated the Consultant Agreement should notify Scout & Cellar. A link to submit a ticket to Brand Standards is located in The Cellar>Brand & Marketing>Submit a Ticket to Brand Standards. Details and screenshots of the occurrence should be included in the report if available.
Confidential Information, Non-Solicitation, and Competitive Businesses
By completing and submitting the Consultant Agreement, the Consultant acknowledges that all product, Consultant and customer information and data that the Consultant may create or compile, including but not limited to Business Reports, Customer lists (including names, contact information, and other data), Consultant lists (including names, contact information and other data), information pertaining to Downline genealogy, and any other information which may contain financial or business information, product and purchasing information, customer and Consultant contact and profile details, Consultant lists, operating and production procedures, product development information, financial data and marketing materials are confidential and proprietary and constitute trade secrets belonging to Scout & Cellar (hereinafter “Confidential Information”). Consultants agree not to disclose any Confidential Information. A Consultant shall use the same level of care to protect Confidential Information that Consultant uses to protect Consultant’s own sensitive and proprietary information. A Consultant shall use Confidential Information only for the purposes of performing Consultant’s obligations or exercising rights under the respective Consultant Agreement.
A Consultant shall limit access to Confidential Information to only those persons who have a legitimate need to know such information in the performance of Consultant’s rights and obligations under the respective Consultant Agreement. Each person who is given access to Confidential Information shall be bound by this confidentiality obligation. A Consultant shall be responsible for the acts and omissions of Consultant’s respective employees, contractors, and agents with respect to such confidentiality obligations.
Consultant will not use or disclose Confidential Information to any person except in strict accordance with the Consultant Agreement and will take all reasonable precautions to prevent its unauthorized dissemination, both during and after the term of this Agreement. Consultant will not use Confidential Information to sell products or services other than Scout & Cellar products and services or in connection with any other business during the term of and after termination of this Agreement. Consultant understands that Consultant will be deemed to breach Consultant’s obligations to Scout & Cellar with respect to Confidential Information or trade secrets if Consultant works or performs services (including consulting or advisory services) for a competitor of Scout & Cellar in any position in which Consultantis required to or does use, disclose or otherwise employ any Confidential Information obtained during Consultant’s relationship with Scout & Cellar. Consultant understands and agrees that this provision does not prohibit Consultantfrom working for a competitor of Scout & Cellar during the term of the Consultant Agreement or after the termination of the Consultant Agreement, but requires Consultant not to use, share or otherwise communicate Confidential Information (including trade secrets) to such a competitor or to perform services for such a competitor.
During the term of the Consultant Agreement and for one year thereafter, a Consultant may not, using Company’s trade secrets, directly or indirectly solicit any Scout & Cellar Consultant or any Scout & Cellar employee for engagement as an employee, or as an independent consultant, contractor or distribute or of any direct selling or network marketing company, nor will Consultant solicit any Scout & Cellar employee to become a Consultant of Scout & Cellar during this period. “Solicit” includes (i) communicating information or offering to provide information about any other direct selling or network marketing business opportunity to a Scout & Cellar Consultant or employee; (ii) posting or messaging information about another direct selling or network marketing business opportunity on any social media site utilized by the Consultant to promote Consultant’s Scout & Cellar business; (iii) tagging any Scout & Cellar Consultant or employee with a post on any social media site that provides information or offers to provide information about another direct selling or network marketing business opportunity; and(iv) enrolling or attempting to enroll a Scout & Cellar Consultant or employee as a consultant, independent contractor or distributor in another direct selling or network marketing company. This conduct constitutes soliciting even if the Consultant’s actions are in response to an inquiry made by another person who is a Consultantor a Scout & Cellar employee.
If a Consultant is engaged in another non-Scout & Cellar business, it is the responsibility of the Consultant to ensure that the Consultant’s independent Scout & Cellar business is operated entirely separate and apart from all other businesses and/or competitive businesses, including but not limited to: for-profit blogs (such as those receiving ad revenue), social media channels, Independent Websites, at all Scout & Cellar-related events and on any Scout & Cellar-related materials or displays.
Consultants may not directly or indirectly recruit other Scout & Cellar Consultants for any other earning opportunity. Consultants found to be in violation of this non-solicitation policy are subject to significant disciplinary actions, as outlined in Section 11A of these Policies and Procedures.
Consultant further agrees that the provisions contained in this Section are reasonable and necessary to protect the legitimate interests of the Company and that the Company would not have accepted the Consultant’s Consultant Agreement in the absence of the Consultant’s agreement to these provisions. Nevertheless, it is further agreed that such covenant shall be regarded as divisible and shall be operative as to time, area and scope to the extent that it may be so operative, and if any part of it is declared invalid or unenforceable as to time area, or scope, the validity and enforceability of the remainder shall not be affected, and the agreement shall be read to be restrictive to scope, area and duration to the fullest extent of applicable law. Consultant agrees that the Consultant’s breach or threatened breach of such provisions would cause the Company irreparable harm and significant injury, the amount of which would be extremely difficult to estimate and ascertain, thus making any remedy at law or in damages in adequate. Each Consultant therefore agrees that the Company shall be entitled, without the necessity of posting a bond or security, to the issuance of injunctive relief by any court or arbitrator of competent jurisdiction, enjoining any breach or threatened breach of the above provisions and for any other relief such court deems appropriate. The rights granted to the Company in this Section are in addition to any other remedy available to the Company at law or in equity.
No International Sale or Marketing
Due to legal restrictions on the sale of alcohol, Scout & Cellar must limit the sale and marketing of the Scout & Cellar products and the presentation of the Program to potential Customers and Consultants located in an Active Market within the United States and the Districtof Columbia. Scout & Cellar products and Marketing Materials may not be shipped into or sold in any foreign countries, including Canada.
SECTION6: TEAM BUILDING AND TRAINING
Mentoring Other Consultants
Consultants may mentorother persons to become Consultants. However, Consultants earn Commissions and Performance Bonuses in the Program only based on the marketing and promotion of products, and not based on the recruitment or enrollment (mentoring) of other Consultants.
It is not the responsibility of the Scout & Cellar Customer Support team to onboard and train new Consultants. Instead, training and onboarding of new consultants is the responsibility of Mentors.
Responsibilities of Mentors
To ensure that Mentors are acting in accordance with the Scout & Cellar Core Values, Mentors should present the products and the Program to others in a manner that complies with the Consultant Agreement, including the requirements of these Policies and Procedures regarding business ethics. In addition, Mentors are responsible for helping, motivating, and training their Downlines. As such, Mentors should:
Train and communicate to their Downlines to ensure that their Downline Consultants do not make improper productor income claims, engage in illegal or inappropriate conduct or otherwise violate the Consultant Agreement;
Assist, motivate, and train their mentored Consultants by having ongoing contact and communication, which may include written correspondence, personal meetings, telephone contact, voicemail, e-mail, text messages and training sessions and/or accompanying their mentored Consultants to Scout & Cellar trainings; and
Motivate and train their mentored Consultants in subject matter regarding Scout & Cellar products, effective education and marketing techniques, the Compensation Plan, and compliance with these Policies and Procedures.
Always remember that Mentoring and educating a Downline Consultant is an essential part of ensuring your Downline is effectively communicating and abiding by the Core Values and requirements of these Policies and Procedures and as such is the responsibility of the Mentor.
Because of mentoring ethics, Scout & Cellarencourages any new Consultant to enroll in the Program under the Mentor who initially introduced the Applicant to the Program. Every Consultant, however, has the right to choose who Consultant’s Mentor will be. As such, if an Applicant asks to be registered under another Mentor prior to submitting the Consultant Agreement, Scout & Cellar reserves the right to honor such a request.
Scout & Cellar does not endorse or condone any of its Consultants to recruit the Customers or Consultants of any other Consultant under any circumstances relating to the Scout & Cellar opportunity. If such conduct is reported to the Company, the Company may deem such conduct to be a breach of the Consultant Agreement, resulting in termination of the Consultant Agreement.
If two Consultants both claim to be the Mentor of an Applicant, Scout & Cellar shall regard the first Consultant Agreement received as the controlling Consultant Agreement and shall designate the Consultant listed as the Mentoron such Consultant Agreement as the Applicant’s Mentor.
Scout & Cellar reserves the sole and exclusive right to determine the final disposition between Consultants regarding claims of Mentorship of another Consultant. CONSULTANTS WAIVE ANY AND ALL CLAIMS AGAINST THE COMPANY, ITS OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AND AGENTS THAT RELATE TO OR ARISE FROM THE COMPANY’S DECISION REGARDING THE DISPOSITION OF ANY DOWNLINE ORGANIZATION THAT IS IMPLICATED IN A DISPUTE BETWEEN CONSULTANTS.
Change of Mentor
Consultants changing from one Mentorto another is strictly prohibited absent extra ordinary circumstances at the discretion of the Companyas further described below.
The only means by which a Consultant may legitimately change Consultant’s Mentoris by voluntarily canceling Consultant’s Consultant Agreement in writing and remaining inactive for at least six months. Following the period of inactivity, the former Consultant may reapply under a new Mentor. The Consultant will lose all rights to Consultant’s former downline organization upon cancellation.
The Company has sole discretion to authorize a change of Mentor in extraordinary circumstances such as a mistake in the enrollment process, serious illness or a life-altering change in circumstance. In such instances, the Consultant requesting the transfer must submit a written request to the Company for the change of Mentor and also submit a written authorization from Consultant’s current Mentor as well as the two (2) Consultants immediately above such Mentor. Additional documentation related to the extraordinary circumstances may be required.
The Company will not authorize such a change to support any placement exercises or compensation plan gaming. Examples of this include (but are not limited to):
Genealogy Changes made to redistribute Downline Volume;
Encouraging Consultants to cancel a Consultant Agreement for reasons related to Compensation (via verbal or written statements, offering to purchase a Consultant’s business, or other means);
Any activity that results in higher commission payments for a Consultant without that Consultant engaging in business-building activity (such as adding new Downline Consultants, adding new Customers, or placing orders).
Further, the Company maintains a record of all genealogy change requests made under this provision so that it may take appropriate action with regard to Consultants who repeatedly make such requests or who share a common upline demonstrating a team trend with respect to these requests.
In cases in which a Consultant has improperly changed Consultant’s Mentor, Scout & Cellar reserves the sole and exclusive right to determine the final disposition of the Downline organization that was developed by the Consultant in Consultant’ssecond line of mentorship. CONSULTANTS WAIVE ANY AND ALL CLAIMS AGAINST SCOUT & CELLAR, ITS OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AND AGENTS THAT RELATE TO OR ARISE FROM SCOUT & CELLAR’S DECISION REGARDING THE DISPOSITION OF ANY DOWNLINE ORGANIZATION THAT DEVELOPS BELOW A CONSULTANT WHO HAS IMPROPERLY CHANGED MENTORS.
SECTION7: ORDERING AND SHIPMENTS
General Order Policies
Federal law requires a signature be obtained from an individual over the age of 21 for all wine shipments. Notes with a signature left for the common carrier cannot be accepted as a replacement for an individual signing for the shipment. Orders should be shipped to a business address or a nearby holding facility for prompt, successful delivery and to protect the wine. Consultants are trained to advise their Customersof this important practice. The Company cannot guarantee the condition of any wine if delivery is not made on the first delivery attempt. Orders that are not delivered on the initial attempt may be held in a facility that is not temperature controlled.
A Consultant shall not use another Consultant’s or Customer’s credit card to join the Company or purchase product without the account holder’s written permission. Such documentation must be kept by the Consultant indefinitely in the event the Company needs to refer to the same.
Regarding an order with an invalid or incorrect payment, the Company will attempt to contact the Consultant by phone, mail or e-mail in order to obtain another form of payment. If these attempts are unsuccessful after ten (10) business days, the order will be canceled.
Prices are subject to change without notice.
A Consultant or Customerwho is the recipient of an incorrect order must notify the Company within 14 (fourteen) calendar days from receipt of the order.
When a card processor forcibly reverses a credit card transaction resulting in a return of funds to the cardholder, this is known as a chargeback. When Scout & Cellarreceives a chargeback notice, the account in which the service was purchased is immediately blocked, and all related services in the account are terminated.
If a chargeback was requested inadvertently, a Consultantor Customer must contact the credit card provider and issue a chargeback reversal. Reversing the chargeback is the only way to restore a blocked account.
In some cases, an order may be returned to the Company because the common carrier is unable to deliver it to the provided shipping address, which may happen because the Customer or Consultant did not accept the order; the Customer or Consultant was not available to accept delivery for the order, which requires an adult signature upon delivery; or the Customer of Consultant provided incorrect shipping information.
When this happens, the Company will, at its sole discretion, contact the Consultant and attempt to reship the order. If reshipment is not possible or desired, no later than five (5) days after the initial contact, the Company will refund the cost of the order less a twenty-five percent (25%)restocking fee and shipping and handling fees and neither the Consultant nor Consultant’s Upline will receive credit for the order.
SECTION8: ORDER CANCELLATIONS, RETURNS AND REFUNDS
The Company desires that its Customers and Consultants be completely satisfied with their purchases. If a Consultant or Customer is dissatisfied, they may return all or part of their order according to the following guidelines. The following policy is the exclusive method for requesting or processing returns or refunds, and any return or refund transaction shall be solely between the end-use Customerand Scout & Cellar.
A Consultant or Customer may cancel an order placed through a tasting within three (3) business days of placing the order. If the cancellation is timely, the Consultant or Customer will receive a 100% refund of the purchase price, applicable sales taxes, and shipping costs. Tasting orders are not cancellable following this three-business day time periodand are then subject to the Company standard return policies as further described below. Orders placed outside of a tasting may be cancelled for a full refund any time before a shipping label has been printed for the order. After a shipping label has been printed for an order, the order is considered “shipped” and is subject to the Company standard return policies.
Returns of Damaged or Defective Products:
If a Consultant or Customer receives a broken or leaking bottle(s), they may contact Customer Service immediately at https://scoutandcellar.com/contact/. Scout & Cellar will (i) ship replacement(s) of equal value to the end consumer on the original order; or (ii) provide a credit of the amounts paid. To help the Company resolve the issue, photos may be requested to determine the best course of action. Consultants and Customers may be given the opportunity to keep bottles with damaged labels at exclusive pricing, at the discretion of the Company. All claims must be made within seven (7) days of receipt.
If a Consultant or Customer believes they have received a defective bottle of wine, the Consultant or Customer may contact the Customer Service Department within sixty (60) days from the date of the order. Scout & Cellar will (i) ship equal value replacement(s); or (ii) provide a credit of the amounts paid. Defective means that the wine is flawed or corked; not “I don’t like it.”
Defective or incorrectly-sized Merch items may be exchanged within sixty (60) days of the original purchase date by contacting Customer Service to obtain a return shipping label. Once the Merch item to be exchanged is received at Scout & Cellar, the Company will either (i) create a new order without charging the Customer or Consultant tore-ship the item if exchanging for the same item or a different size of the same wearable item, or (ii) issue Company store credit in the original amount paid if exchanging for a different item. For best results on entertaining related merchandise, please hand wash only. Any wear and tear outside of this practice will not be eligible for replacement. All Merch purchased while on "sale and/or clearance” is final sale.
Returns Under the Satisfaction Guarantee Policy
If a customer is not satisfied with a Scout & Cellar wine, the customer or the corresponding Consultant may contact Customer Service within sixty (60) days from the date of the order for a credit to be used at Scout & Cellar for the amount paid (less applicable shipping charges and taxes.) Consultants who are not satisfied with a Scout & Cellar wine ordered under the Consultant’s Customer or Consultant account, in the absence of any damage or defect, may return unused bottles as further described in this item. If a Customer or Consultant would like to return any unused bottles, the Consultant or Customermay contact Customer Service for a return shipping label. Once the shipment has been received at our warehouse, the Company will issue a credit in the amount paid (less applicable shipping charges and a 25% restocking fee.)
Consultant Abuse of Refund, Credit, and Order Placement Policies
Excessive and/or improper refund, credit, or order placement activity may constitute a breach of the Consultant Agreement. Scout & Cellar reserves the right to review this activity and terminate the Consultant Agreement of any Consultant for excessive or improper refund, credit, or order placement activity.
Out of Stock, Backorders, and Missing/Wrong Bottles
When wine is out of stock, is on backorder, or there are missing/incorrect bottles in an order, Scout & Cellar will abide by the following procedures to resolve the issue:
If a wine is on backorder, Scout & Cellar will immediately split the order, ship the wines in stock right away and ship the backordered wines when they arrive in the warehouse at no additional cost. The packing slip for the first shipment will identify the wine missing from the box and provide details about when it will be received.
Out of Stock
If a wine is out of stock, Scout & Cellar will select a comparable substitute. The packing slip will identify the wine that sold out and the wine being substituted. In most substitution scenarios, the replacement wine will be of equal or greater value than the wine originally purchased at no additional cost. In rare circumstances where this is not the case, Scout & Cellar will extend a credit towards a future purchase for the difference.
In the event a shipment contains incorrect bottles, Customers or Consultants should submit an inquiry using the contactform at https://scoutandcellar.com/contact/. Scout & Cellar will ship the correct bottles right away and will make arrangements to pick up the bottles sent by mistake at no additional cost. Customers or Consultants who would like to keep any incorrect bottles from a shipment should submit an inquiry at https://scoutandcellar.com/contact/to purchase the bottles with special pricing.
In the event a shipment ismissing bottles, Customers or Consultants should submit an inquiry using the contact form at https://scoutandcellar.com/contact/. Scout & Cellar will ship the missing bottles right away or extend a refund or store credit at the Customer or Consultant’s choice.
Storage (Abandonment Policy)
Completed orders by Scout & Cellar that are not picked up from our warehouse located in Farmers Branch after thirty (30) calendar days are considered abandoned and will be returned to stock and refunded less a 25% restocking fee.The Company will notify the order owner via email that suchorder is still available for pickup at least five (5) days prior to the order being considered abandoned.
SECTION9: ADVERTISING POLICIES
Consultant-Created Education, Advertising and Marketing Tools
Consultants are permitted to create their own educational materials, training materials, advertising materials, promotional materials, and marketingaids, including social media assets, videos, and other print materials (collectively “MarketingTools”) to promote the Scout & Cellar opportunity and products only as provided in this Section.
To ensure that any Marketing Tools that a Consultant creates or uses a) are not deceptive, b) contain only substantiated claims, and c) properly identify Scout & Cellar’s trademarks and copyrights, all Marketing Tools that a Consultant creates or has created on Consultant’s behalf (with the exception of Marketing Tools that are only used in social media posts) must be submitted to the Company for review at https://scoutandcellar.com/contact at least two weeks prior to the date that the Consultant anticipates using the MarketingTool(s). Such Marketing Tools may only be used or displayed to the public if the Consultant receives written approval from the Company. Consultants who receive written authorization from Scout & Cellar to produce and publish Marketing Tools may make approved Marketing Tools available to other Consultants free of charge if they wish but may not sell the Marketing Tools to other Consultants. Any sale or attempt to sell Marketing Tools to another Consultant may constitute a breach of the Consulting Agreement. Scout & Cellar reserves the right to rescind approval for any previously approved MarketingTool(s), and Consultants waive all claims against Scout & Cellar, its officers, directors, owners, employees, and agents for damages, expenses, costs, or remuneration of any other nature arising from or relating to such rescission.
At Scout & Cellar’s discretion, approved Marketing Tools will be made available for use by other Consultants, free of charge, by including the same in each Consultant’s Cellar. A Consultant who has created an approved Marketing Tool grants Scout & Cellar and other Consultants an irrevocable and royalty-free license to use the Marketing Tools for Scout & Cellar business purposes, and waives all claims, including but not limited to intellectual property rights claims, and/or claims for remuneration against Scout & Cellar, its officers, directors, owners, agents, and other Independent Consultants for the posting and/or use of the Marketing Tools.
Use of Company Names and Protected Materials
Consultants must protect and promote the good reputation of Scout & Cellar. The marketing and promotion of Scout & Cellar, the Scout & Cellar opportunity, the Compensation Plan, and Scout & Cellar products will be consistent with the public interest, and must avoid all discourteous, deceptive, misleading, unethical or immoral conduct and practices.
All promotional materials supplied or created by the Company must be used in their original form and cannot be changed, amended or altered except upon prior written approval from Scout & Cellar.
The name of Scout & Cellar, each of its product offerings and other names that have been adopted by Scout & Cellar in connection with its business are proprietary trade names, trademarks and service marks of the Company. As such, these marks are of great value to Scout & Cellar and are supplied to Consultants for their use only in an expressly authorized manner.
Consultants’ use of the name “Scout & Cellar” and/or "clean-crafted" and any of Scout & Cellar’s other brands, marks, or tradenames is restricted to protect Scout & Cellar's proprietary rights so that the Company's protected names will not be compromised by unauthorized use. Use of “Scout & Cellar”, "clean-crafted", or any of Scout & Cellar’s other brands, marks, or tradenames or any derivative of anyof theseon any item not produced by the Company is prohibited except when the Consultant is identifiedas a "Scout & Cellar Independent Consultant" or "S&C Independent Consultant."
Further guidelines relating to the use of the Scout & Cellar name are as follows:
All stationery (e.g. thank-you cards, letterhead, envelopes, and business cards) must include the specific Scout & Cellar Independent Wine Consultant logo provided by the Company.
All emails related to Consultants’ independent business must include the Scout & Cellar approved signature block which can be found in The Cellar.
Consultants may not use the name “Scout & Cellar” while answering the telephone, creating a voice message, using an answering service; or as a handle, login, or username on Zoom, GoToMeeting or any other similar online communication tool, but they may state, “Scout & Cellar Independent Consultant”or “Independent Scout & Cellar Consultant”.
Particular photos and graphic images created or used by Scout & Cellar in its advertising, marketing packaging and websites are the result of paid contracts with outside vendors that do not extend to Consultants. Consultants must first receive written permission to use image spublished by Scout & Cellar which are not contained in the Brand and Marketing section of The Cellar, publicly available on the Scout & Cellar website or official Scout & Cellar social media profiles.
Consultants may not produce for sale or distribution any Company event, webinaror speech, nor may a Consultant reproduce Scout & Cellar audio or video clips for sale or for personal use without prior written permission from the Company.
Scout & Cellar reserves the right to rescind its prior approval of any marketing aid or promotional material to comply with changing laws and regulationsor brand strategies and may request the removal from the marketplace of such materials without financial obligation to the impacted Consultant.
Consultants shall not promote non-Scout & Cellar products or services in conjunction with Scout & Cellar products on the same websites, same advertisement, or same event without prior approval from the Company.
Consultants shall not advertise their Scout & Cellar business through Google Ads, Facebook Ads, Craigslist, promote function within any social media platform, or any other paid platform online, nor may they use any Search Engine Optimization for their Company provided website.
When presenting or discussing the Scout & Cellar opportunity or Compensation Plan to a prospective Consultant, Consultants may not make income projections, income claims, income testimonials, or disclose their Scout & Cellar income (including, but not limited to, the showing of checks, copies of checks, bank statements, or tax records), or the income of any other Scout & Cellar Consultant. Nor may Consultants make “lifestyle” income claims.
A “lifestyle” income claim is a statement or depiction that impliesor states that the Consultant is able to enjoy a luxurious or successful lifestyle due to the income earned from the Consultant’s Scout & Cellar business. Examples of prohibited lifestyle claims include, but are not limited to, representations (either through audio, visualor written medium) that a Consultant was able to quit ajob, acquire expensive or luxury material possessions, travel to exotic or expensive destinations, get paid to drink wine, or earn free wine.
The Company has discretion to determine what does or does not constitute a prohibited income claim. Questions should be directed to [email protected]
Compensation Plan Claims
When presenting or discussing the Scout & Cellar Compensation Plan, Consultants must make it clear to prospects that financial success in Scout & Cellar requires commitment, effort, and marketing skill. Conversely, a Consultant must never represent that one can be successful without diligently applying themselves. Examples of misrepresentations in this area include, but are not limited to:
It’s a turnkey system.
The system will do the work for you.
Just get in and your downline will build through spillover.
Just join and I’ll build your downline for you.
The Company does all the work for you.
All you have to do is buy your products every month.
The above are just examples of improper representations about the Compensation Plan and the Scout & Cellar opportunity. It is important that Consultants do not make these, or any other representations, that could lead a prospect to believe that they can be successful as a Consultant without commitment, effort, and marketing skill.
Any time a Consultant is discussing the Compensation Plan or any other aspect of the business opportunity or income, Consultant should include the following Income Disclaimerand a link to the Income Disclosure Statement (https://scoutandcellar.com/IDS or Exhibit B in this document):
Compensation Plan Claims
It’s a turnkey system.
The system will do the work for you.
Just get in and your downline will build through spillover.
Just join and I’ll build your downline for you.
The Company does all the work for you.
All you have to do is buy your products every month.
The above are just examples of improper representations about the Compensation Plan and the Scout & Cellar opportunity. It is important that Consultants do not make these, or any other representations, that could lead a prospect to believe that they can be successful as a Consultant without commitment, effort, and marketing skill.
Any time a Consultant is discussing the Compensation Plan or any other aspect of the business opportunity or income, Consultant should include the following Income Disclaimer and a link to the Income Disclosure Statement (https://scoutandcellar.com/IDS or Exhibit B in this document):
Scout & Cellar makes no representations or guarantees that Scout & Cellar Independent Consultants participating in the business opportunities described on the Scout & Cellar website, within the Compensation Plan, as re-stated by Independent Consultants during their team-building efforts (“Compensation Information”), or in any other way, will generate any income. Any representation or guarantee of earnings, whether made by Scout & Cellar or an Independent Consultant, would be misleading. As with any business, each Consultant’s business results will vary, and will be based on, among other factors, the Consultant’s individual capacity, business experience, diligence, network scope, expertise and motivation. Your success will depend upon how effectively you exercise these qualities. Interested people are cautioned not to place any reliance on any Compensation Information and are urged to perform their own due diligence prior to making any decision to participate.
Social Networking and Social Media
Scout & Cellar encourages Consultants to join social media sites, online forums, discussion groups, blogs, and other forms of internet communication to leverage the power of the Scout & Cellar brand and to share the story of the Scout & Cellar products and the Program. Online social media sites may be used to drive traffic to Consultants’replicated websites or to the Scout & Cellarwebsite. Social media sites include such sites as Facebook, LinkedIn, Twitter, Instagram, etc. Consultants may not market or promote Scout & Cellar productsor products bearing Scout & Cellar names, marks, and/or logos on retail sites including but not limited to Amazon, Ebay, Etsy, or other similar sites or sites like wine-searcher.com.
Social media sites may be used to offer or refer Scout & Cellar products and memberships. Profiles a Consultant generates in any social community where Scout & Cellar or the Program are discussed or mentioned must clearly identify the Consultant as an Independent Consultant, and when a Consultant participates in those communities, Consultants must comply with the terms and conditions of the Consultant Agreement, including without limitation, the Professional Conduct terms (including without limitation, the prohibitions against verbal abuse and bullying; harassment or discrimination because of race, gender, religion, sexual orientation, sex, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, gender identity, gender expression, age, or military and veteran status; hate-or violence-inciting or driven activity; or fraudulent, misleading or deceptive conduct). The determination of what violates the Professional Conduct termsis in Scout & Cellar’s sole discretion, The Company may determine, in its sole discretion, that violation of the Professional Conduct terms constitutes a breach of the Consultant Agreement, resulting in the termination of the Consultant Agreement. If a link is provided, it must link to the posting Consultant’s replicated website.
Consultants may not use blog spam, spamdexing or any other mass-replicated methods to leave blog comments relating to Scout & Cellar or its products. Comments Consultants createor leave must be useful, unique, relevant, and specific to the blog’s article.
Consultants who use social media sites must also comply with the rules associated with such websites or networks. For example, some sites prohibit users from advertising products or promoting financial opportunities. Federal and state agencies have established guidelines and rules for what may and may not be communicated in relation to Scout & Cellar opportunities and even a Consultant’s personal experience may not conform to these regulatory guidelines. Consultants who provide testimonials on social networking sites and otherwise on the internet are responsible for ensuring that their testimonials comply with all applicable laws and regulations.
In addition to the foregoing general provision, the Company’s specific policies regarding Social Networking and Social Media are as follows:
Consultants Are Responsible for Postings
Consultants are personally responsible for their postings (including hashtags) and all other online activity that relates to the Company. Even if a Consultant does not own or operate a blog or social media site, if a Consultant posts to any such site that relates to Scout & Cellar or which can be traced to the Company, the Consultant is responsible for the posting. Consultants are also responsible for postings which occur on any blog or social media site that the Consultant owns, operates or controls.
Consultants are further responsible for ensuring that any out-of-date materials or posts containing out-of-date or superseded materials are removed in order to avoid confusion or conflict in information.
Identification as a Scout & Cellar Consultant
Consultants may not use the words “Scout & Cellar”, “clean-crafted wine” or any variation of either in their social media usernames and/or handles unless it is accompanied by the name or business entity under which they conduct business and the words “Independent Consultant.”In all social media posts related to Scout & Cellar, they must disclose their full names and conspicuously identify themselves as Scout & Cellar Independent Consultants.
In addition to the foregoing, Consultants may use the Scout & Cellar Independent Consultant logo in social networking profiles. The Scout & Cellar Independent Consultant logo is available in The Cellar. Consultants may not use any other Scout & Cellar logo.
Anonymous postings or use of an alias is prohibited.
Use of Third-Party Intellectual Property
If Consultants use the trademarks, trade names, service marks, copyrights, or intellectual property of any third party in any posting, it is solely their responsibility to ensure that they have received the proper license to use such intellectual property and pay the appropriate license fee. All third-party intellectual property must be properly referenced as the property of the third party, and Consultants must adhere to any restrictions and conditions that the owner of the intellectual property places on the use of its property.
Consultants must respect the privacy of others and be thoughtful and courteous in their postings.
Consultants must conduct themselves with professionalism on social media sites, including by compliance with the terms and conditions of the Consultant Agreement (including without limitation, the Professional Conduct terms). Consultants should also carefully check their postings for spelling, punctuation, and grammatical errors.
Consultants may not market their Personal URL in the comments of any Scout & Cellar social media posts. Nor may Consultants use social media outlets to comment on other brand products that are competitive to Scout & Cellar in order to drive marketing efforts and direct Customers to their Personal URL.
Deceptive and Prohibited Postings
Consultants must ensure that their postings are truthful and accurate. Postings that are false, misleading or deceptive are prohibited. This includes, but is not limited to, false or deceptive postings relating to the Scout & Cellar products, the Program, and/or Consultant biographical information and/or credentials. In particular, as it relates to Scout & Cellar products, the following are specifically prohibited:
Referencing Scout & Cellar or its productsas “clean” instead of “clean-crafted”. Consultants may use “clean” to describe a lifestyle consistent with the goals of the Clean Crafted Commitment, but may not use “clean” if it implies a health or medical claimas described below.
Making health related or medical claims including but not limited to claiming that Scout & Cellar wines are “headache free” or “hangover free” or do not cause headaches, hangovers, or other physical conditions. This includes but is not limited to referring to Scout & Cellar wines as “healthy” or “good for you.”
Making generalizations about characteristics of specific Scout & Cellar products as though they apply to our entire product line, including but not limited to claiming that our wines are “gluten-free,” “organic,” or “vegan”. Consultants may only use descriptors of this nature when speaking about specific wines that have such characteristics posted on the wine’s Product Listing page at https://scoutandcellar.com.
Making statements about the specific amount of calories, sugar, or other measurable characteristics of the Scout & Cellar wines whether using numbers or percentages, either directly or in comparison to other wines in general or specifically, except as otherwise expressly stated by Scout & Cellar.
Referring to Scout & Cellar Independent Consultants as “sellers” instead of “marketers,”or referring to Consultant business activities as “selling”.
Claiming that a Consultant or Scout & Cellar is “hiring” when referring to becoming an Independent Consultant.
Consultants also shall not make any posting, or link to any posting or other material, that:
Is sexually explicit, obscene or pornographic;
Is offensive, profane, hateful, threatening, abusive, defamatory, bullying, harassing, or discriminatoryin violation of the Professional Conduct terms;
Is solicitous of any unlawful behavior;
Engages in personal attacks on any individual, group, or entity;
Is in violation of any intellectual property rights of the Company or any third party; or
Is not consistent with the standards set forth in these Policies and Procedures, including the Professional Conduct termsand Core Values.
Social Media Sites with Website-like Features
Scout & Cellar reserves the sole and exclusive right to classify certain social media sites as websites and require that Consultants using, or who wish to use, such sites adhere to the Company’s policies relating to Independent Websitesas stated in Section 9(e)(viii)).
Scout & Cellar provides Consultants with their own replicated websites from which they can market Scout & Cellar products and the Program.Consultants may not have an independent website that redirectsto their replicated Scout & Cellar websiteor exists solely or primarily to market the Consultant’s independent Scout & Cellar business.
However, if a Consultant has an independent website for other reasons and would like to promote their Scout & Cellarindependent business on that site, they may install the Scout & Cellar approved Blog Button, which is available in The Cellar. By using the Blog Button, Consultants are representing and warranting that thecontent on their independent website is consistent with the Scout & Cellar Core Values and does not violate any laws, rules, regulations or these Policies & Procedures in any way.
Unsolicited Emails and Other Communications
A Consultant may not use or transmit unsolicited mass e-mail distribution, unsolicited e-mail or engage in “spamming” in connection with the advertising, promotion or sale of Scout & Cellar products or the Program, or the operation of Consultant’s Independent Scout & Cellar Business. The term “unsolicited e-mail” meansthe transmission via electronic mail of any material or information to any person on an unsolicited basis. The exceptions to this prohibition are e-mail to: (i) any person who gave the Consultant prior consent to send such e-mail; or (ii) any person with whom the Consultant has an established business or personal relationship. Any e-mail sent by or for a Consultant advertising or promoting the Company's products, the Program or the Consultant’s independent Scout & Cellar business must comply with requirements applicable to commercial e-mailers found in the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”) and the related Federal Trade Commission (“FTC”)regulations, and any other applicable laws and regulations.Without limitingthe preceding paragraph, any e-mail sent by a Consultant advertising or promoting the Scout & Cellar products, the Program or the Consultant’s independent Scout & Cellar business must meet all of the following requirements:
the e-mail must clearly identify the Consultant as the sender of the e-mail and as a Scout & Cellar Independent Consultant;
there must be a functioning return e-mail address to the sender;
there must be a notice in the e-mail that advises that the recipient may reply to the e-mail via the functioning return e-mail address to request that future e-mail solicitations or correspondence not be sent to the recipient(a functioning “opt-out” notice);
the e-mail must include the Consultant’s physical mailing address;
the e-mail must clearly and conspicuously disclose that the message is an advertisement or solicitation;
the use of deceptive subject lines and/or false header information is prohibited; and
all “opt-out” requests, whether received by e-mail or regular mail, must be honored.
Scout & Cellar may periodically send commercial e-mails on behalf of Consultants and Consultants agree that Scout & Cellar may send such e-mails and that the Consultants’ physical and e-mail addresses may be included in such e-mails as outlined above.
Consultants must not engage in telemarketing in relation to the operation of the Consultant's business. The term “telemarketing” means the placing of one or more telephone calls to an individual or entity to induce the purchase of the Company's products, or to recruit them for the Company's Program.
The FTC and the Federal Communications Commission (“FCC”) each have laws that restrict telemarketing practices. Both federal agencies, as well as a number of states, have “do not call” regulations as part of their telemarketing laws.
While a Consultant may not be considered a “telemarketer” in the traditional sense, these regulations broadly define the term “telemarketer” and “telemarketing” so that the unintentional action of calling someone whose telephone number is listed on the federal “Do Not Call” registry could cause the Rep to violate the law. These regulations must not be taken lightly, as they carry significant penalties.
“Cold calls” or “state-to-state calls” made to prospective Customers or Consultants that promote either Scout & Cellar products or the Scout & Cellar Program is considered telemarketing and is prohibited.
Exceptions to Telemarketing Regulations
A Consultant may place telephone calls to prospective Customers or Consultants under the following limited situations:
If the Consultant has an established business relationship with the prospect;
In response to a personal inquiry or application regarding the Scout & Cellar Program or Scout & Cellar’s products, within three (3) months immediately before the date of such a call;
If the Consultant receives written and signed permission from the prospect authorizing the Consultant to call;
If the call is to family members, personal friends, and acquaintances. However, if a Consultant makes a habit of collecting business cards from everyone he/she meets and subsequently calls them, the FTC may consider this a form of telemarketing that is not subject to this exemption;
Consultants engaged in calling “acquaintances,” must make such calls on an occasional basis only and not as a routine practice.
A Consultant shall not use automatic telephone dialing systems in the operation of Consultant’s Independent Scout & Cellar Business. Failure to abide by these policies or regulations as set forth by the FTC and FCC regarding telemarketing may constitute a breach of the Consultant Agreement, resulting in the termination of the Consultant Agreement.
In all states or otherwise applicable areas where prohibited by law, a Consultant may not transmit, or cause to be transmitted through a third party, (by telephone, facsimile, computer or other device), an unsolicited advertisement to any equipment, which has the capacity to transcribe text or images from an electronic signal received over a regular telephone line, cable line, ISDN, T1 or any other signal carrying device, except as set forth in this section.
SECTION10: COMPENSATION PLAN
Bonus and Commission Qualifications
A Consultant must be active and in compliance with the Consultant Agreementto qualify for bonuses and commissions. So long as a Consultant complies with the Consultant Agreement, the Company shall pay commissions to such Consultantin accordance with the Compensation Plan. For details regarding active status, please refer to Section 11 and the Compensation Plan Summary.
Scout & Cellar will not issue a payment to a Consultant without the receipt of all required paperwork, including, in the case of a business entity, a signed Business Entity Registration Form and supporting documentation.
Scout & Cellar reserves the right to postpone bonus and commission payments until such time the cumulative amount exceeds $10.
Computation of Commissions and Discrepancies
In order to qualify to receive commissions and bonuses, a Consultant must be in good standing and comply with the terms of the Consultant Agreement. Commissions, bonuses, overrides, and achievement levels are calculated each month.
A Consultant must review eachmonthly statement and bonus/commission report promptly and report any discrepancies in writing to the Company within thirty (30) days of receipt. After the thirty-day “grace period,” no additional requests will be considered for commission, bonus, or other rewardrecalculations, except in the discretion of the Company. The thirty-day grace period for Fast Start or Consultant Tasting Rewards begins one business day after the qualifying tasting is closed by placing the Host Order.
For additional information on payment of commissions, please review the Compensation PlanSummary located in The Cellar and in exhibit A of this document.
Scout & Cellar uses an independent third-party payment processor (“Payment Processor”) to pay Commissions and Performance Bonuses earned by Consultants through the Compensation Plan. The Payment Processor will set up an account for Consultants (“Scout Account”) and will deposit monies owed to Consultants into their ScoutAccount. With the exception of certain Performance Bonus payments made on an exception basis, all Commissions or Performance Bonuses that Consultants may earn will be paid through this program. However, this payment processing service may be terminated or modified by the Company or the Payment Processor at any time upon notice as specified in these Policies and Procedures. CONSULTANTS WAIVE ANY AND ALL CLAIMS AGAINST THE COMPANY THE PAYMENT PROCESSOR AND THEIR OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AND AGENTS IN THE EVENT THAT THE COMPANY AND/OR ITS PAYMENT PROCESSOR MAKE AN ERROR THAT RESULTS IN AN UNDERPAYMENT OR OVERPAYMENT TO A CONSULTANT, AND EACH CONSULTANT AUTHORIZES THE COMPANY, THROUGH THE PAYMENT PROCESSOR, TO DEBIT OR CREDIT CONSULTANT’S ACCOUNT AS NECESSARY TO CORRECT ERRORS.
Consultant expressly authorizes that the following payment processor fees may be deducted from Scout Account funds:
Monthly Platform Fee: $1.75
Personal Check Fee: $3.00
Debit Card Transaction Fee: $1.50
Card Cost (if not loaded within 60 days): $2.95
ACH Returned Charge (Incorrect bank account or routing number): $10.00
Note: There is not a Transaction Fee associated with ACH.
When a refund is issued to a Customer or Consultant under Section 8 above, the qualifications, Commissions, and Performance Bonuses attributable to the returned product(s)upon which the refund(s) were issued will be deducted from the Consultant’s current and future qualifications, Commissions, and Performance Bonuses. These deductions will be madeas soon as the month in which the refund was given and will continue every Commission Period thereafter until the Commissions and Performance Bonuses are recovered from the Consultant who received the Commissions and Performance Bonus on the sale of the returned product. In the event any Consultant terminatestheapplicableConsultantAgreementand the amounts of the Commissions and Performance Bonuses attributable to the refunded product(s) have not yet been fully recovered by Scout & Cellar, the remainder of the outstanding balance may be set off against any earnings amounts owed to the terminated Consultant or against any refunds due the terminated Consultant.
SECTION11: TERMINATION OF AGREEMENT
Independent Consultants represent the Scout & Cellar brand any time they are working their Scout & Cellar independent business, wearing or displaying the Scout & Cellar logo, participating in a Scout & Cellar event, holding themselves out as Independent Consultants on social media or otherwise, or consuming Scout & Cellar wine. Independent Consultants should behave in such a way that is consistent with the Scout & Cellar Core Values, as described in Section 1 of these Policies and Procedures.
Disregard for or failure to behave in accordance with these Core Values constitutes a violation of the Consultant Agreement. Further, the failure to engage with and/or take corrective action at the request of Brand Standards also constitutes a violation of the Consultant Agreement.
Violation of the Consultant Agreement also includes the violation of any common law duty, including but not limited to any applicable duty of loyalty, any illegal, fraudulent, deceptive or unethical business conduct, or any act or omission by a Consultant that, in the sole discretion of the Company may damage its reputation or goodwill (such damaging act or omission need not be related to the Consultant’s independent Scout & Cellar business).
Any violation of the Consultant Agreement may result, at Scout & Cellar's discretion, in one or more corrective measures. These include but are not limited to:
Issuance of a written warning or admonition;
Requiring the Consultant to take immediate corrective measures;
Withholding from a Consultant all or part of the Consultant’s bonuses and commissions during the period that Scout & Cellar is investigating any conduct allegedly in violation of the Consultant Agreement. If a Consultant’s independent Scout & Cellar business is canceled for disciplinary reasons, the Consultant will not be entitled to recover any commissions withheld during the investigation period;
Suspension of the individual’s Consultant Agreement and independent Scout & Cellar business for one or more pay periods (without pay);
Involuntary termination of the offender’s Consultant Agreement;
Suspension and/or termination of the Consultant’s Scout & Cellar website or website access; or
Any other measure expressly allowed within any provision of the Consultant Agreement or which Scout & Cellar deems practicable to implement and appropriate to equitably resolve injuries caused partially or exclusively by the Consultant’s policy violation or contractual breach.
In situations deemed appropriate by Scout & Cellar, the Company may institute legal proceedings for monetary and/or equitable relief.
The Company has no obligation to share evidence of Policies and Procedures violations with any Consultant, including in cases of termination, except as required by law.
Company may immediately terminatethe Consultant Agreementinthe event of any prohibited actual or attempted assignment of the Agreement, or Consultant’s misrepresentation relating to Company or Consultant’s Independent Business, or Consultant’s failure to engage with and/or take corrective action at the request of the Company’s Brand Standards department,or Consultant’s breach of any provision of the Consultant Agreement. If Company terminates the Consultant Agreement due to a breach by Consultant, the Company may reject any future reapplications by Consultant as a Consultant and pursue all applicable legal remedies.
Scout & Cellar reserves the right to terminate all Consultant Agreements upon thirty (30) days written notice in the event that it elects to: (1) cease business operations; (2) dissolve as a corporate entity; or (3) terminate marketing of its products utilizing independent consultants.
Company may, in its sole discretion, and to protect its rights and avoid potential damage to itself or others, suspend a Consultant’s ability to participate in the Program while Company investigates an alleged breach of the Consultant Agreement.
A Scout & Cellar Independent Consultant has the right to terminate this Agreement at any time, for any reason.
If a Consultant who voluntarily terminates this Agreement is also enrolled in a Scout & Cellar monthly wine purchasing program, the Consultant’s participation in that program shall also be cancelled unless the Consultant uses the contact form at https://scoutandcellar.com/contact/to set up a new Customer account and wine club.
Cancellation for Inactivity
If a Consultant fails to market Scout & Cellar products resulting inat least $600 in commissionablevolumeof Scout & Cellar product over any twelve-consecutive monthperiod, such Consultant’s Consultant Agreement and independent Scout & Cellarbusiness will be cancelled for inactivity. If such a Consultant is also enrolled in a Scout & Cellar monthly wine purchasing program,the Consultant’s participation in that program shall also be cancelled. Should the Consultant desire to maintain an active wine club, the Consultant should use the contact form at https://scoutandcellar.com/contact/to set up a new Customer account.
Notice of Termination
Company shall notify Consultant of suspension or termination of the Consultant Agreement by written notice to the Consultant’s last known mailing address or email address.
Consultant shall notify Company of termination of the Consulting agreement by written notice to the Company at its principal place of business or via the contact form at https://scoutandcellar.com/contact/. Notice must include the Consultant’s name, address, and Consultant ID Number.
All written notices required by this Agreement to be given will be deemed effective three (3) business days after mailing or immediately if sent by email.
Events upon Termination
Upon termination of the Consultant Agreement, Consultant will (i) within five (5) business days pay all amounts due and owing to Scout & Cellar; (ii) immediately cease representing the individual(s) or Business Entity as an Independent Consultant of Company; and (iii) be ineligible to receive any compensation as an Independent Consultant not earned as of the date of termination of the Consultant Agreement. Consultant hereby authorizes Company to withhold from any payments due to Consultant under the Compensation Plan any amounts due and owing to Company to the fullest extent allowed by applicable law.
Consultant will immediately cease all use of Scout & Cellar Intellectual Property (as defined in the Independent Consultant Agreement) and Confidential Information (as defined in the Independent Consultant Agreement and these Policies and Procedures) and will cease holding classes, workshops, tastings, and presentation or otherwise displaying, offering for sale or promoting Company products.
If the Consultant posts on any social media site on which the individual has previously self-identified as a Consultant, there must be a conspicuous disclosure accompanying such post that the individual is no longer a Scout & Cellar Independent Consultant.
A Consultant whose Consultant Agreement is terminatedfor any reason will lose all Consultant rights, benefits and privileges. This includes the right to represent such individualas an Independent Scout & CellarConsultant, to market Scout & Cellar products and services and the right to receive commissions, bonuses, or other income resulting from Consultant’s own marketing efforts and the marketing effortsand other activities of the Consultantand the Consultant’s former downline organization. There is no whole or partial refund for Business Basics Kits that are not currently marketable or for Back-Office, Replicated Website or renewal fees if a Consultant’s Consultant Agreementis cancelled.
Each Consultant agreesto indemnify Scout & Cellar for any and all costs, expenses, consumer reimbursements, fines, sanctions, damages, settlements or payments of any other nature that Scout & Cellar incurs resulting from or relating to any act or omission by a Consultant that is illegal, fraudulent, deceptive, negligent, unethical, or in violation of the Consultant Agreement or any applicable Federal, state, or local law. Scout & Cellar may elect to exercise its indemnification rights through withholding any compensation due the Consultant. This right of setoff shall not constitute Scout & Cellar’s exclusive means of recovering or collecting funds due Scout & Cellar pursuant to its right to indemnification.
SECTION 12: TRANSFER AND DISTRIBUTION OF INDEPENDENT CONSULTANT BUSINESSES
Transfer of Consultant Agreement Upon Death
A Consultant may leave Consultant’s independent Scout & Cellar business to anyheirs. Because Scout & Cellar cannot divide bonuses or commissions among multiple beneficiaries or transferees, the beneficiaries or transferees must form a Business Entity (corporation, LLC, partnership, etc.), and Scout & Cellar will transfer the business and issue commissions to the Business Entity. In the case of a business transfer via testamentary instrument, the beneficiary of the business must provide Scout & Cellar with certified letters testamentary and written instructions of the trustee/personal representative of the estate, or an order of the court, that provides direction on the proper disposition of the business. The beneficiary must also execute and submit to the Company a Scout & Cellar Consultant Agreement within thirty (30) days from the date on which the business is transferred by the estate to the beneficiary or the subject independent Scout & Cellar business will be canceled.
Business Distribution Upon Divorce
Scout & Cellar is not able to divide bonuses or commissions among multiple parties, nor is it able to divide a downline organization. Consequently, in the event a Consultant divorces Consultant’sspouse, any settlement or divorce decree must award the business in its entirety to one party. Scout & Cellar will recognize as the owner of the business the former spouse to whomthe business is awarded pursuant to a legally binding settlement agreement or decree of the court. The former spouse who receives the Scout & Cellar business must also execute and submit a Scout & Cellar Consultant Agreementwithin 30 days from the date on which the divorce becomes final or the business will be cancelled.The other spouse need not observe the six-month waiting period set forth in Section 7d above and may immediately enroll as a Consultant under any Mentor of choice.
Dissolution of a Business Entity
Scout & Cellar is not able to divide commissions among multiple parties, nor is it able to divide a downline organization. Consequently, in the event a business entity that is enrolled as a Business Entity Consultantdissolves, the owners of the business entity must instruct the Company on the identity of the proper party who is to receive and operatethe independent Scout & Cellar business of the Business Entity Consultant. Such an independentScout & Cellar business shall be awarded to a single individual or entity that was previously recognized by the Company as an owner of the business entity; Scout & Cellarwill not divide the business among multiple parties or issue separate commission or bonus payments. If the business entity wishes to sell or transfer its independent Scout & Cellar business, it must do so pursuant to Section 12d below.In addition, the recipient of the independent Scout & Cellar business must also execute and submit a Consultant Agreementto the Company within thirty (30) days from the date of the dissolution of the business entity or the subject independent Scout & Cellar business will be cancelled.
Sale or Transfer of an Independent Business
Requests to sell or transfer an independent Scout & Cellar business must be submitted in writing to the Company using the contact form at https://scoutandcellar.com/contact/. Such requests must be accompanied by the written approval of the transferor Consultant’s Mentor and two Upline leaders with the career title of Director or higher. In the event there are not two Upline leaders at this career title, consent must be obtained from the two highest career ranking Consultants in the Upline. Regardless of a Consultant obtaining the needed consent from Consultant’s Upline, Scout & Cellar may approve or deny a business sale or transferif,in the Company’ssole discretion, the Company determines that the buyer or transferee does not meet the Company’s terms and conditions as stated in the then-current Consultant Agreement. Approval of transfers is not effective unless given in writing by the Company.
Approval of such requests is dependent on both the transferor Consultant and the transferee beingin good standing. No business that is on disciplinary suspension or under investigation may be transferred unless and until the matter is resolved. Likewise, no Consultant who is on disciplinary suspension, or under investigation may be the beneficiary of a sale or transfer. A Consultant may not transfer or sell Consultant’s business to a spouse, relative, or household member while working a competing direct selling company. Any Consultants with an active Consultant Agreement or whose Consultant Agreement was Active within the past 6 months are prohibited from purchasing a Scout & Cellar Independent Business.
In extreme cases involving family members who are Consultants within the same Downline, Scout & Cellar may authorize a position swap. Scenarios in which a position swap might be allowed include but are not limited to serious illness or accident, long-term disability, tragedy, or other circumstances involving significant life changes that impede the ability of one family member to continue running Consultant’s independent Scout & Cellar business. Requests for a position swap must follow the same procedures outlined above and are subject to the same Upline consent requirements. Regardless of a Consultant obtaining the needed consent from Consultant’s Upline, Scout & Cellar may approve or deny a position swapif, inthe Company’s sole discretion, the Company determines that the relevant parties do not meet the Company’s terms and conditions as stated in the then-current Consultant Agreement.
If a sale or transfer is approved under any circumstances, the buyer/transferee of the business must complete a Consultant Agreement before the transfer will be finalized by Scout & Cellar. Because Scout & Cellar cannot split commissions earned in the same month, Scout & Cellar will finalize the transfer after the end of the month in which the Consultant Agreement is submitted. At the end of the calendar year, Scout & Cellar will issue a 1099 to the Consultant for any commissions paid for the months prior to the finalization of the transfer and to the buyer/transferee for any commissions paid for the months after the finalization of the transfer.
SECTION 13: ADDITIONAL TERMS
If any provision of the Consultant Agreement is determined to be invalid or unenforceable, that determination will not affect any other provision of this Agreement and the provision in question will be modified by the reviewing arbitrator, court, agency, or othertribunal court so as to be rendered enforceable. The Consultant Agreement in its current form, and as may be amended by Scout & Cellar in the future, supersedes all prior communications, understandings and agreements between the parties and contains the entire agreement between the parties relating to its subject matter.