Independent BEMER Distributor Agreement (en_US)

Last Update: May 1, 2022

The following document constitutes the agreement between BEMER USA, LLC and a BEMER distributor in the United States.

1. Authorization and Contract

By executing the Independent BEMER Distributor Agreement (“IBD Agreement”), you are entering into a contract with BEMER USA, LLC (“BEMER USA” or "BEMER") to become an Independent BEMER Distributor (“IBD” or "you"). You acknowledge that you have received, read, understood and agreed with the terms of (i) the BEMER Compensation Plan; (ii) the Policies & Procedures, (iii) the Return & Warranty Policy, (iv) the Terms and Conditions; (v) the Terms and Conditions of BEMER promotion programs such as the Pacesetter Program; and (vi) the Privacy Policy, which are incorporated by reference into this IBD Agreement and made part of it as if restated in full (collectively with the IBD Agreement, the "Agreement"). If you have not reviewed the Policies & Procedures at the time you execute this Agreement, you understand that they are located in the BEMER Back Office, and you agree to review them within five (5) days from the date of executing this Agreement. Failure to terminate this IBD Agreement (cancel your distributorship) constitutes your acceptance of the Policies & Procedures.

In the event of a conflict between this IBD Agreement and any of the incorporated agreements, the following order of priority shall control: first this IBD Agreement with its Compensation Plan, then the Policies & Procedures, then the Return & Warranty Policy, then the Privacy Policy, and finally all Terms and Conditions. The Agreement governs your relationship as an IBD with BEMER, the sale of BEMER products and your use of all websites provided by BEMER such as the BEMER Back Office and your own BEMER-provided retail website (collectively, the "Websites"). Please read these Terms carefully before entering into this IBD Agreement and begin to use the Websites.

2. Modification of Terms

BEMER may, in its discretion, which shall be exercised reasonably and in good faith, from time to time amend the Agreement. Amendments will be effective the earlier of thirty (30) days after notice that the Agreement has been modified has been sent to the IBD via email at the email address on file with BEMER or the date on which the IBD expressly agrees to the modification. Except as otherwise provided in the Dispute Resolution Agreement contained in Section 9 below, IBDs agree that thirty (30) days after such notice, or, if applicable, upon express agreement by the IBD, any modification becomes effective and is automatically incorporated into the Agreement as an effective and binding provision. An IBD may opt out of any proposed amendments by terminating his or her Agreement prior to the effective date of such proposed amendments. An IBD’s continued participation in his or her BEMER business as authorized under the Agreement on or after the effective date of any amendment constitutes acceptance of the amended Agreement. Unless expressly agreed to by an IBD, amendments shall not be retroactive to conduct that occurred prior to the effective date of the amendment. BEMER may elect to terminate the Agreement of any IBD who does not expressly agree to a proposed amendment.

3. Expiration, Renewal, and Termination

The term of this IBD Agreement is one year, unless previously terminated by the IBD or BEMER as provided in the Policies & Procedures. Cancellation, termination or non-renewal (including full payment of any renewal fee) may result in termination of the IBD Agreement and all rights thereunder, including but not limited to any property rights to your former team structure and any commissions, bonuses, or other income derived through the sales and other activities of your former team structure. An IBD may terminate this IBD Agreement at any time, and for any reason, upon written notice (email with confirmed receipt is acceptable) to BEMER at Compliance@bemer.services. (mailto:compliance@bemer.services)BEMER may terminate this IBD Agreement for any violation of this IBD Agreement or the Policies & Procedures, as set forth in the Policies & Procedures. BEMER may also in its sole discretion take actions short of termination of the IBD Agreement if it reasonably believes that the IBD breaches any of its provisions or the IBD's acts or omissions cause BEMER to violate applicable laws.

4. Independent Contractor Status

You agree that you are not an employee, agent, joint venture partner, franchisee, principal-agent or legal representative of BEMER. As a self-employed independent contractor, you will be operating your own independent business. You shall have no authority to act for or on behalf of, or otherwise bind BEMER except as expressly authorized by BEMER. BEMER shall not be liable for any acts or omissions by you made in connection with the activities under the Agreement. You have complete freedom in determining the number of hours that you will devote to your business, and you have the sole discretion of scheduling such hours. You understand that you are not entitled to social security, workers compensation or unemployment security benefits of any kind from BEMER.

5. Presenting the Compensation Plan

You agree to present the most current and complete version of the BEMER Compensation Plan, as provided in your BEMER Back Office. You shall not utilize any literature, materials, or aids, that are not produced or authorized in writing by BEMER relating to the Compensation Plan. You agree to instruct all prospective IBDs to review the most current BEMER Income Disclosure Statement.

6. Selling Product

You agree to make no representations or claims about any products beyond those shown on product labels and/or in official BEMER literature such as the manual or BEMER produced marketing materials. You agree to familiarize yourself with your compliance obligations as set forth in the Policies & Procedures and other literature BEMER may publish from time to time. You further agree that you shall sell products available through BEMER only in authorized territories and through authorized commercial outlets, as set forth in the Policies & Procedures.

7. Media Release

You agree to permit BEMER to obtain photographs, videos, and other recorded media of you or your name, voice and likeness. You acknowledge and agree to allow any such recorded media to be used by BEMER for any lawful purpose, including without limitations in publications, promotional flyers, educational materials, derivative works, or for any other similar purpose without any compensation to you. You understand and agree that such photographs and/or video recordings of you may be placed on the Internet. You also understand and agree that you may be identified by name and/or title in printed, Internet or broadcast information that might accompany the photographs and/or video recordings of you. You agree that all such portraits, pictures, photographs, video and audio recordings, and any reproductions thereof, and all plates, negatives, recording tape and digital files are the property of BEMER. You hereby waive all claims for renumeration for such use. You hereby release, acquit and forever discharge BEMER and its agents, officers, employees, parent company or other related entities from any and all claims, demands, rights, promises, damages and liabilities arising out of or in connection with the use or distribution of said photographs and/or video recordings, including but not limited to any claims for invasion of privacy, appropriation of likeness, defamation or infringement of your copyrights or trademark rights. This Section 7 survives termination or cancellation of the Agreement for any reason.

8. Jurisdiction and Governing Law

Jurisdiction and venue of any matter not subject to arbitration shall reside exclusively in San Diego, California, except that jurisdiction and venue of any Dispute not subject to arbitration and arising under Section 3.N in the Policies & Procedures (“Involvement in Other Direct Sales Companies”) shall reside exclusively in a state or federal court sitting in the state in which the IBD resides.

This Agreement will be governed by and construed in accordance with the laws of the State in which the IBD resided at the time at which the alleged cause or causes of action first arose without regard to principles of conflicts of laws, except that, as applicable, the Federal Arbitration Act shall govern the Agreement without giving effect to any state law to the contrary. 

Louisiana residents: notwithstanding the foregoing, Louisiana residents shall be entitled to pursue resolution of Disputes in their home forum and pursuant to Louisiana law, to the extent allowed or required under Louisiana law. For such Disputes brought in Louisiana, to the extent allowed by Louisiana law, all other terms of the Dispute Resolution Agreement in Section 9 below shall apply to such Dispute, including without limitation the mutual obligation to arbitrate Disputes on an individual basis.

This Section 8 survives termination, cancellation, or expiration of the Agreement for any reason.

9. Dispute Resolution Agreement

THIS PROVISION AFFECTS HOW CLAIMS AN IBD MAY HAVE AGAINST BEMER, OR CLAIMS BEMER MAY HAVE AGAINST AN IBD, WILL BE RESOLVED. THE PARTIES UNDERSTAND AND AGREE THAT THE DISPUTE RESOLUTION AGREEMENT IN THIS SECTION 9 OPERATES AS A SEPARATE AND DISTINCT AGREEMENT THAT IS SEVERABLE FROM THE REMAINDER OF THE IBD AGREEMENT AND IS ENFORCEABLE REGARDLESS OF THE ENFORCEABILITY OF ANY OTHER PROVISION OF THE IBD AGREEMENT OR THE IBD AGREEMENT AS A WHOLE. CONSIDERATION FOR THIS DISPUTE RESOLUTION AGREEMENT INCLUDES, WITHOUT LIMITATION, THE PARTIES’ MUTUAL AGREEMENT TO ARBITRATE DISPUTES. THE PARTIES FURTHER UNDERSTAND AND AGREE THAT THE UNENFORCEABILITY OF THE IBD AGREEMENT IN WHOLE OR IN PART SHALL NOT SUPPORT A FINDING THAT THE DISPUTE RESOLUTION AGREEMENT IN THIS SECTION 9 IS UNENFORCEABLE.

BEMER MAY AMEND THE TERMS AND CONDITIONS OF THE DISPUTE RESOLUTION AGREEMENT IN THIS SECTION 9 FROM TIME TO TIME. ANY SUCH AMENDMENTS WILL BE MADE IN ACCORDANCE WITH THE DUTY OF GOOD FAITH AND FAIR DEALING. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ANY AMENDMENT BY THE COMPANY TO THE DISPUTE RESOLUTION AGREEMENT IN THIS SECTION 9 SHALL ONLY TAKE EFFECT UPON AN IBD’S EXPRESS AGREEMENT TO SUCH AMENDMENT. AN IBD MAY INDICATE HER OR HIS AGREEMENT TO SUCH PROPOSED AMENDMENT BY FOLLOWING THE INSTRUCTIONS ACCOMPANYING THE PROPOSED AMENDMENT. BEMER MAY TERMINATE THE AGREEMENT OF ANY IBD WHO DOES NOT AGREE TO A PROPOSED AMENDMENT TO THE DISPUTE RESOLUTION AGREEMENT WITHIN 30 DAYS AFTER NOTICE OF THE AMENDMENT IS PROVIDED. ANY SUCH AMENDMENT SHALL APPLY TO ALL DISPUTES SUBMITTED TO MEDIATION OR ARBITRATION BY THE IBD OR THE COMPANY (INCLUDING ANY RELATED PARTIES) ON OR AFTER THE EFFECTIVE DATE OF THE AMENDMENT, REGARDLESS OF THE DATE OF OCCURRENCE OR ACCRUAL OF ANY FACTS UNDERLYING SUCH DISPUTE.

Any controversy, claim or dispute of whatever nature arising between an IBD, on the one hand, and BEMER and/or the Related Parties (as defined below), on the other, including but not limited to those arising out of or relating to the IBD Agreement, including these Policies and Procedures, or the breach thereof; the sale, purchase or use of the Products or sales kits; or the commercial, economic or other relationship of an IBD and BEMER and/or the Related Parties (for purposes of this Dispute Resolution Agreement, each a “Party”), whether such claim is based on rights, privileges or interests recognized by or based upon statute, contract, tort, common law or otherwise (“Dispute”), and any Dispute as to the arbitrability of a matter under this provision, shall be settled through mediation or arbitration, as provided in this Section 9, except that the arbitrator(s) shall have no authority to determine that a mediation or arbitration may proceed on behalf of or against a class. The Parties understand and agree that if the arbitrator or arbitral panel awards any relief outside the authority set forth herein, any party may seek a review of the award in the exclusive jurisdiction and venue of the United States District Court for the Southern District of California in San Diego, California or in state court in San Diego, California, except that jurisdiction and venue of any suit to enforce an arbitral award on claims arising under Section 3.N of the Policies & Procedures (“Involvement in Other Direct Sales Companies”) shall reside exclusively in a state or federal court sitting in the state in which the IBD resides.

For any Dispute involving $10,000 or more, prior to instituting any arbitration as provided below, a Party must submit the Dispute to JAMS for non-binding mediation by providing notice of such request to all other concerned Parties and providing such notice to JAMS. The Parties shall cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in promptly scheduling the mediation proceedings, and shall participate in good faith in the mediation either in person at a mutually acceptable time and place or by telephone or videoconference, in accordance with the then-prevailing JAMS’s mediation procedures and this Section, which shall control. Absent the mutual agreement of the Parties, any in-person mediation shall be held in San Diego, California and shall last no more than two business days. Except as otherwise provided herein, each party shall pay its own fees, costs, and individual expenses associated with conducting and attending the mediation.

Any Dispute not resolved in writing by negotiation or mediation shall be subject to and shall be settled exclusively by final, binding arbitration in San Diego, California, in accordance with the then-prevailing Comprehensive Arbitration Rules of JAMS, unless the laws of the state or province in which the IBD resides expressly require otherwise, except that arbitration of any Dispute arising under Section 3.N of the Policies & Procedures (“Involvement in Other Direct Sales Companies”) shall take place in the state in which the IBD resides. The JAMS rules and procedures are available at jamsadr.com (http://jamsadr.com/). Unless otherwise agreed by the parties, any mediator who mediated a Dispute between the Parties previously shall be disqualified from serving as an arbitrator in the case. In order to promote to the fullest extent reasonably possible a mutually amicable resolution of Disputes in a timely, efficient, and cost-effective manner, the Parties hereby waive their respective rights to trial by jury or any court.

Any mediation, if required, under this Dispute Resolution Agreement must be commenced no later than one year after the Dispute arose, and, in the event the Dispute is not resolved via mediation, any arbitration proceeding must be commenced by the later of three months after the conclusion of the mediation or one year after the Dispute arose. Failure to timely commence an arbitration proceeding or, if applicable, mediation, constitutes both an absolute bar to the commencement of an arbitration proceeding or mediation with respect to the Dispute, and a waiver of the Dispute. The Parties agree that time is of the essence and hereby waive the applicability of any other statute of limitations.

Notwithstanding the rules of JAMS, the following will apply to all arbitration actions:

• The arbitration will be conducted in English.
• The Federal Rules of Evidence will apply in all cases.
• The parties will be entitled to bring motions under Rules 12 and/or 56 of the Federal Rules of Civil Procedure.
• The parties will be allotted equal time to present their respective cases, including cross-examinations.
• The decision of the arbitrator will be final and binding on the parties and may, if necessary, be reduced to a judgment in a court of law, except that a Party may choose to appeal certain arbitration awards as described below. Any motion or action to confirm, vacate, modify, or otherwise enter judgment on the award shall comply with Section 8. Further, any Party seeking to enforce an award of an arbitrator(s) shall submit the award under seal to maintain protections of Confidential Information, and the Parties hereby agree and consent to the filing of such a submission, motion, or order under seal.

In addition to the foregoing and notwithstanding the rules of JAMS, certain procedures will apply depending on the amount in controversy. For Disputes in which the amount in controversy is less than $1,000,000.00 (one million dollars), the following procedures will apply absent mutual agreement of the Parties to the contrary:

• The arbitration will occur within 180 days from the date on which the arbitrator is appointed and will last no more than five business days.
• There will be one arbitrator selected from the panel provided by JAMS, using the JAMS rules for arbitrator selection.
• The arbitrator shall institute discovery consistent with the goals of arbitration. Discovery and disclosure of information will be conducted under the rules provided by JAMS to achieve the usual goals of arbitration, including cost effective and efficient resolution of disputes between parties, but in no event shall the Parties be entitled to discovery rights greater than provided by the Federal Rules of Civil Procedure.

For Disputes in which the amount in controversy is equal to or exceeds $1,000,000.00, the following procedures will apply absent mutual agreement of the Parties to the contrary:

• There will be three arbitrators selected from the panel provided by JAMS, using the JAMS rules for arbitrator selection.
• The Parties will be entitled to, and limited by, all discovery rights permitted by the Federal Rules of Civil Procedure.
• The parties will be entitled to appeal any arbitration award to an Appeal Panel under JAMS Optional Arbitration Appeal Procedures. The parties agree to request oral argument for any appeal filed under the Optional Arbitration Appeal Procedures.

The arbitrator(s) will have no authority to award punitive damages, except where an applicable law or statute expressly provides for punitive damages, and may not, in any event, make any ruling, finding, or award that does not conform to the provisions of the Agreement.

NEITHER IBD NOR BEMER AGREES TO ANY MEDIATION OR ARBITRATION ON A CLASS BASIS, AND THE MEDIATOR AND ARBITRATOR(S) SHALL HAVE NO AUTHORITY TO PROCEED ON SUCH A BASIS. EXCEPT AS PROVIDED IN SECTION 11, A PARTY MAY ASSERT A CLAIM OR COUNTERCLAIM ONLY IN THAT PARTY’S INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS PROCEEDING. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE JAMS RULES, THE MEDIATOR AND ARBITRATOR(S) MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CLASS PROCEEDING. UNDER THE PROCEDURES OUTLINED IN THIS SECTION, A MEDIATOR OR ARBITRATOR(S) SHALL NOT COMBINE OR CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS WITHOUT THE WRITTEN CONSENT OF ALL AFFECTED PARTIES TO THE PROCEEDING.

In the event the prohibition on class arbitration is deemed invalid or unenforceable after exhaustion of all appeals of that issue, then, to the extent that class claims are asserted in a Dispute, such class claims shall be litigated in a state or federal court residing in San Diego, California, except that jurisdiction and venue of any such class claims arising under Section 3.N of the Policies & Procedures (“Involvement in Other Direct Sales Companies”) shall reside exclusively in a state or federal court sitting in the state in which the IBD resides.

The Parties agree that BEMER has valuable trade secrets and Confidential Information (as defined in Section 8 of the Policies & Procedures). The Parties agree to take all necessary steps to protect from public disclosure such trade secrets and Confidential Information.

Except as provided below, no Party shall be entitled to commence or maintain any action in a court of law upon any matter in dispute until such matter has been submitted and determined as provided here, and then only for the enforcement of such arbitration award. Notwithstanding this mediation and arbitration policy, either party may apply to a court of competent jurisdiction as necessary to enforce an arbitration award, or to seek a temporary restraining order or preliminary injunction to ensure that the relief sought in arbitration is not rendered ineffectual during the pendency of, or after the rendition of, a decision in any arbitration proceeding. In particular, and without limitation, IBD acknowledges that Section 3.N of the Policies & Procedures ("Involvement in Other Direct Sales Companies"), as well as the covenants set forth in this Agreement relating to the protection of BEMER’s Confidential Information, are reasonable and necessary to protect the legitimate interests of BEMER. The IBD further acknowledges that his or her breach of such provisions and covenants would cause BEMER irreparable harm, the amount and extent of which would be very difficult to estimate or ascertain, and for which BEMER may have no adequate remedy at law. Therefore, the IBD agrees that BEMER shall be entitled, without the necessity of posting a bond or other security, to obtain injunctive relief, a temporary restraining order, specific performance, or such other equitable relief as may be required to prevent the IBD from breaching or threatening to breach such provisions and covenants. The institution of any action shall not constitute a waiver of the right or obligation of any party to submit any claim seeking relief other than injunctive or enforcement relief to arbitration.

Although the IBD Agreement is made and entered into between an IBD and BEMER, the Company’s affiliates, owners, members, managers, directors, and employees (“Related Parties”) are intended third party beneficiaries of the IBD Agreement for purposes of the provisions of the IBD Agreement referring specifically to them, including the Dispute Resolution Agreement in this Section 9. The Parties acknowledge that nothing contained herein is intended to create any involvement by, responsibility of, or liability for, the Related Parties with respect to any dealings between an IBD and BEMER, and the Parties further acknowledge that nothing contained herein shall be argued by either of them to constitute any waiver by the Related Parties of any defense which Related Parties may otherwise have concerning whether they can properly be made a party to any Dispute between the other Parties.

Each Party to the mediation or arbitration will be responsible for its own costs and expenses of mediation or arbitration, including legal and filing fees, except where an applicable statute or other law provides for recovery of legal fees and costs. However, if any damages awarded are greater than $1,000,000 or the arbitrator or arbitral panel determines that the Dispute is frivolous, the arbitrator(s) may require the losing party to pay the prevailing party’s costs and expenses of arbitration, including legal, expert, and filing fees and costs, to the fullest extent allowed by applicable law.

You hereby agree, and waive any objection to, service of process on you by means of mail or email sent to the address or email address on file for you.

The Dispute Resolution Agreement in this Section 9 shall survive any termination, cancellation, or expiration of the IBD Agreement for any reason.

10. No Class Actions

BEMER and you agree that each Party may bring disputes against the other Party only in an individual capacity and not as a plaintiff or class member in any purported class or representative proceeding, including, without limitation, federal or state class actions or class arbitrations. This Section 10 survives termination, cancellation, or expiration of the Agreement for any reason.

11. Private Attorneys General Actions

Notwithstanding anything to the contrary herein, any Party may bring disputes pursuant to California’s Private Attorneys General Act (“PAGA”) or other statutes providing a right to bring representative actions that may not be waived by contract, provided, however, that any PAGA or similar such claims shall be exempt from the agreement to arbitrate in Section 9 and the waiver on representative actions in Section 10 and, to the extent permitted by applicable law, shall be brought in the exclusive jurisdiction of a state or federal court residing in San Diego, California, except that jurisdiction and venue of any such claims arising under Section 3.N of the Policies & Procedures (“Involvement In Other Direct Sales Companies”) shall reside exclusively in a state or federal court sitting in the state in which the IBD resides. This Section 11 survives termination, cancellation, or expiration of the Agreement for any reason.

12. Your Representations, Warranties and Covenants

By entering into this IBD Agreement, you represent and warrant to BEMER that: (i) if entering as an individual, you are at least 18 years of age and have the full right and authority to enter into this IBD Agreement; (ii) if entering as a company, you have the full corporate or organizational right, power and authority to enter into this IBD Agreement, make the warranties and representations made herein, and to perform the acts required of you; (iii) the execution of this IBD Agreement by you and the performance by you of your obligations and duties, does not and will not violate any agreement to which you are a party or by which you are otherwise bound, or any applicable law, rule or regulation; (iv) you agree to be bound by all policies, terms and conditions governing promotional incentive programs, prize drawings and/or bonuses that BEMER may run from time to time; and (v) you shall render all services to BEMER in a professional and commercially reasonable manner. You further represent and warrant that you shall immediately notify BEMER of any formal legal action against you by a third party -- including without limitation a governmental inquiry or investigation, for example the Federal Trade Commission, the Federal Drug Administration, the Internal Revenue Services or a state attorney general -- for matters relating to the subject matter of this IBD Agreement when the same arise. This Section 12 survives termination, cancellation, or expiration of the Agreement for any reason.

13. Disclaimers

BEMER does not guarantee, represent or warrant that your use of the Websites will be uninterrupted, timely, secure or error-free. BEMER does not warrant that the information on the Websites will always be accurate or reliable. You expressly agree that your use of, or inability to use, the Website is at your sole risk. BEMER's products, services and Websites are provided to you "as is" and "as available" for your use, without any representation, warranties or conditions of any kind, either express or implied, including all implied warranties or conditions of merchantability, merchantable quality, fitness for a particular purpose, durability, title, warranties arising out of course of dealing and non-infringement. BEMER does not warrant or guarantee any sales, enrollment or income to you through the use or non-use of the Websites or BEMER's other services.

14. Limitation of Liability

The Parties waive all claims for punitive damages, except where an applicable law or statute expressly provides for punitive damages. This Section 14 survives termination, cancellation, or expiration of the Agreement for any reason.

15. Indemnification

The IBD agrees to indemnify BEMER and the Related Parties for any and all costs, expenses, consumer reimbursements, fines, sanctions, damages, settlements or payments of any other nature (collectively “Losses”) that BEMER incurs resulting from or relating to any act or omission by the IBD that is illegal, fraudulent, deceptive, negligent, unethical, or in violation of the Agreement, irrespective of whether such Losses arise from a Dispute or other first-party claim between the IBD and BEMER or any claim, demand, lawsuit, or other dispute between BEMER and a third party. BEMER may, at its election, assume the defense and control of any matter for which it is indemnified hereunder, and the IBD agrees to fully cooperate at his or her own expense as reasonably required by BEMER. BEMER may elect to exercise its indemnification rights through withholding any compensation due the IBD. This right of setoff shall not constitute BEMER’s exclusive means of recovering or collecting funds due BEMER pursuant to its right to indemnification. The IBD shall not settle any matter involving BEMER without the consent of BEMER.

16. Force Majeure

Neither party shall be deemed in default of the Agreement to the extent that performance of its obligations is delayed or prevented by reason of any act of God, fire, natural disaster, accident, riot, act of government, shortage of materials or supplies, or any other cause beyond such party’s reasonable control; provided that the non-performing party gives reasonably prompt notice under the circumstances of such condition to the other party.

17. Cancellations

You may request a refund on your enrollment fee if it’s done within three (3) business days from the date of enrollment. If you cancel, any enrollment fees paid will be returned within thirty (30) calendar days following receipt by the seller of your cancellation notice. To cancel this transaction, mail or deliver written notice to BEMER submitting a ticket through the BEMER Backoffice, not later than midnight of the three (3) business day following the date of this IBD Agreement. Thereafter, you have a right to cancel this IBD Agreement (without refund) at any time, regardless of reason. Cancellation must be submitted in writing to BEMER via submitting a ticket through the BEMER Backoffice.

A Montana resident may cancel this IBD Agreement within fifteen (15) days from the date of enrollment and may return his or her starter kit for a full refund within such time period. Additionally, all Montana residents are entitled to a twelve-month refund on all unsold inventory and sales aids in the event of resignation or termination.

A Maryland resident may cancel this IBD Agreement for any reason within three (3) months after the date of receipt of goods or services first ordered; upon cancellation, BEMER shall repurchase the products, as long as they are in resalable condition; and the repurchase price shall be at least 90% of the original price paid by the IBD.

Louisiana, Massachusetts and Wyoming residents: Should you cancel your IBD Agreement, BEMER will refund 90% of your purchase price for any renewal fees you have incurred during the current year upon receipt of your written request.

18. Compliance with Applicable Income Tax Laws

BEMER will automatically provide a complete 1099 Miscellaneous Income Tax (“1099-MISC”) form (non-employee compensation) to each US IBD whose earnings for the year are at least $600 or who has purchased more than $5,000 of BEMER products for resale, or who received trips, prizes or awards valued at $600 or more. If earnings and purchases are less than stated above, IRS forms will be sent only at the request of the IBD, and a minimum charge of $20 may be assessed by BEMER. It will be your sole responsibility to account for such income on your individual income tax returns and to pay for all income, sales, employment, excise, withholding, and other taxes imposed on or with respect to compensation and other amounts received pursuant to this IBD Agreement.

By entering into the Agreement, the IBD agrees to receive the 1099-MISC form electronically. BEMER reserves the right to use a third-party service provider for that service.

As a precondition to receipt of any commissions or other payments from BEMER, the IBD must submit a duly executed W-9 form and any other information required by any applicable tax laws or regulations. BEMER shall have the right to withhold any payment that may otherwise be due to the IBD for failure to timely provide a complete and executed W-9 form.

By submitting a W-9 form or other tax forms to BEMER, the IBD certifies that (1) any Social Security Number, Tax Identification Number, or other identifying number is correct for the person submitting the form; and (2) he or she is not subject to backup withholding.

If an IBD’s business is tax exempt, the Federal Tax ID Number, a seller’s certificate or tax exemption certificate must be provided to BEMER in writing.

BEMER encourages all IBD’s to consult with a tax advisor for additional information for their business.

19. Miscellaneous

1. Entire Agreement: This IBD Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which, together with the other documents that constitute the Agreement, shall constitute the whole agreement between you and BEMER, and supersedes any prior agreements, understandings and obligations between you and BEMER concerning the subject matter of the Agreement. Neither BEMER nor you have relied on any promises, representations, offers, or other communications or omissions, except as expressly set forth in the Agreement.
2. Severability: If any provision of the Agreement, in its current form or as may be amended, is found to be invalid or unenforceable for any reason, only the invalid portion(s) of the provision shall be severed and the remaining terms and provisions shall remain in full force and effect. The severed provision, or portion thereof, shall be reformed to reflect the purpose of the provision as closely as possible.
3. Waiver: Failure or neglect by BEMER to enforce any of the provisions of the Agreement shall not be construed or deemed a waiver of its rights nor shall this affect the validity of the whole or any part of the Agreement, nor prejudice BEMER's rights to take subsequent action.
4. Assignment: You may not assign the Agreement without BEMER USA's prior written approval. Any attempt to transfer or assign any rights under the Agreement without the prior written approval by BEMER renders the Agreement voidable at the option of BEMER and may result in termination of your distributorship. BEMER may assign the Agreement without your consent. If you do not accept the transfer or assignment, you may provide written notice that you wish to terminate this Agreement, and the termination will become effective immediately.
5. Survival: The Parties' obligations under this Section 19 will survive the termination, cancellation or expiration of this Agreement for any reason.

Compensation Plan

BEMER USA LLC ("BEMER USA" or "BEMER") announces our Compensation Plan, which is used to reward our BEMER family of Independent BEMER Distributors ("IBDs") for their sales efforts on behalf of BEMER. BEMER offers individuals the opportunity to sell BEMER products to others, and simply requires the potential IBD to complete and submit the online IBD Agreement to BEMER and pay the enrollment fee.

The BEMER business has an incredible level of potential now and for future growth. Our goal is to establish a solid customer base throughout the United States. IBDs' main goal is to generate a personal customer base (outside of their sales organization). Obtaining customers is the goal of all BEMER IBDs. For purposes of this Agreement, "customer" means an individual who is purchasing the BEMER device for personal use and who does not participate in the Compensation Plan.

BEMER operates in the direct selling industry with a focus on direct sales to end users, using network marketing to make such sales. Once an IBDs application has been accepted and the IBD meets the initial requirements necessary for qualification, he or she will be eligible to earn commissions as outlined below. Additionally, when the IBD has been accepted by BEMER , an online computer entry is made which allocates the new IBD one position in the structure of that IBD's mentor.

BEMER’s Compensation Plan offers multiple ways of compensating our IBD family. Commissions are earned from sales of the BEMER products by IBDs. There is never a commission earned for the recruitment of any IBD.

1. IBD Enrollment

Once the new IBD has completed the enrollment process, his or her personal BEMER website will be activated upon registering in the BEMER Back Office.

2. Enrollment Fees

The current enrollment fee as set forth on the BEMER signup page covers the cost of BEMER providing BEMER Academy training, BEMER Back Office, the IBD's retail webpage and related documentation and support. The fee covers the registration fee for one BEMER Academy attendance (non-refundable once the training has been provided and is non-commissionable) and covers the annual fee for the first year from the date of enrollment. BEMER reserves the right to change the amount of the enrollment fee at any time.

3. Annual Fees

After the first year of enrollment, the IBD shall pay a non-refundable annual fee of $180 every subsequent year, or as set forth by BEMER, which covers administrative and technology costs associated with the development and maintenance of BEMER's online platforms and back office services. BEMER shall have the right to change the annual fee in its sole discretion at any time by providing notice of such change to the distributors directly affected by such change. Failure to pay the Annual Fee will result in termination of an IBD’s distributorship and any points, status and teams, and the IBD loses their right to sell BEMER products and the right to receive future commissions, bonuses or other income resulting from the sales and other activities of the IBD’s former business. Terminations are final and the account cannot be restored. Should the IBD decide to re-enroll at a later date the IBD will be required to a new registration and incur the signup fee again. BEMER reserves the right to change the amount of the enrollment fee at any time.

4. Qualification Requirements

No feature of the BEMER opportunity constitutes a personal purchase requirement to become an IBD, move up in rank or otherwise fully participate in the Compensation Plan. The Compensation Plan is built on retail sales to customers. BEMER recognizes that IBDs may wish to purchase one of the products for personal or family use. Pursuant to BEMER's Terms and Conditions and Policies & Procedures, the purchase of products primarily as an attempt to qualify for advancement in the Compensation Plan is not permitted. IBDs are prohibited from representing that there is any obligation to personally purchase products, literature or sales aids to join, move up in rank or earn commissions and bonuses under the Compensation Plan.

a) Qualification for IBDT

The BEMER entry position is an Independent BEMER Distributor Trainee ("IBDT"). This position allows a person to become a distributor with BEMER and to engage the BEMER opportunity (that is, to start making sales to customers and to build a business) without purchasing a BEMER. If an IBD does not make the optional product purchase at the time of agreeing to this IBD Agreement, he or she is classified as an IBDT.

b) Qualification for IBDJ

To become a new IBDJ, a distributor must have one individual sale equaling a minimum of 1,000 PSVP (as defined below). This sale constitutes either a product sale to a customer or an “optional product purchase”. This sale allows the applicant the ability to start making sales to customers or enrolling other IBDs to build a BEMER business, if they choose to do so.

The case of the applicant who elects to make the optional purchase at the same time as becoming a distributor, their personal purchase would be considered the “first sale” at which point the applicant becomes an IBDJ.

Once an IBD has made the first sale, all subsequent orders will be calculated as usual and the commissions will be paid in favor of the IBD making the sale. This sale creates equality for all, whether or not a person purchases a BEMER device right away and signs up as an IBDJ or a person elects to become an IBDT distributor first, and then purchases a BEMER later, if ever.

c) Demotion

BEMER reserves the right to review an IBD's position at any time in its sole discretion. Should an IBD not maintain the qualifications for the ranked position, BEMER shall have the right to demote the IBD to the rank the IBD qualifies for at the time of review.

d) Compression

When the Agreement is terminated, the IBD’s team shall automatically roll up to the first upline IBD. The upline IBD is not eligible for promotional incentive programs and/or bonuses that BEMER may offer from time to time based on compression. The ultimate decision about the eligibility for such bonuses or promotions as a result of compression is within BEMER’s discretion.

5. Timing of Qualification

The date of qualification for the next rank advancement for ranks IBDT, IBDJ and IBDS is the next business day once the qualifying sale has been duly processed by BEMER. Any management qualification (GL, TM, OM, OD, OD+) will take effect on the first day of the month following the qualifying sale. BEMER will verify that the qualifying sale is bona fide and reserves the right to reverse any rank advancement that does not meet the criteria set forth herein.

6. Payout of Compensation

a) Commissions

Commissions are paid out twice a month. The first commission period is from the 1st of each month through the 15th, and the second commission period is from the 16th of each month through the month's end. All compensation payments are made via eWallet, a service available in the BEMER Backoffice that is operated by a third party service provider. Commissions for the first month's commission period are paid out to eWallet on or before the 20th of the month, and commissions for the second month's commission period are paid out to eWallet on or before the 5th of the next month.

b) Promotion Bonuses

Promotion bonuses will be paid monthly on the 15th of each month (payout by the 20th) in arrears of the qualifications in the previous calendar month.

c) Fraud/Credit Card Disputes

BEMER reserves the right to review any commissions paid to any IBD. If BEMER or any of its third-party service providers such as credit card processors, payment gateways or the credit card companies, determine that a transaction was fraudulent, or in case of open credit card disputes, BEMER will retract paid commissions or offset them against commissions to be paid out in the future.

7. Academies

BEMER Academies are mandatory training programs that occur several times per month in multiple locations nationwide. The IBD shall complete a basic BEMER Academy training within one hundred eighty (180) days of enrollment with BEMER. Failure to attend will result in reverting to a customer status. The effect of such a termination is (i) the BEMER Backoffice and retail webpage will be deactivated, preventing any further business as an IBD; (ii) any points, status and teams that the IBD may have accrued will be lost; and (iii) forfeiture of the sign-up fee (no refunds). Terminations are final and if the person wishes to join BEMER again at a future date, they will have to sign up as a new IBD and incur the original signup fees at the time of sign up. The IBD may re-enroll under the same sponsor immediately or incur a six month wait period.

8. Compensation Plan Overview

The following overview represents the IBD levels available in BEMER's Compensation Plan with the requirements and commissions associated with each position.

For purposes of this Compensation Plan, "PSVP" is Personal Sales Volume Points, which means a point system that is directly reflective of the personal sales produced by an individual. For PSVPs that are earned for the sale of each product, please refer to the Product Pricing and Sale Points document available in the BEMER Backoffice or on the Webshop.

A. QUALIFICATIONS AND COMMISSIONS

Independent BEMER Distributor Trainee (IBDT)

• Execution of this IBD Agreement and the payment of the then-current enrollment fee.
• Must complete a BEMER Academy (online or in-person).
• Earns 17% commission on IBDT personal sales on the condition of subsequent qualification as an IBDJ, and the payout will be deferred until the IBDJ qualification.
• No commission statements or eWallet accounts will be created for IBDTs.
• Deferred commissions and earned PSVPs will be paid out upon successful qualification as an IBDJ.
• If the condition subsequent (IBDJ qualification) is not met, deferred commissions will not be paid out to IBDT or any other person.
• One transaction equal to 1,000 PSVPs or more (sale or purchase) is required to advance from the position of an IBDT to IBDJ. The entire commission will be paid to IBDT's upline.
• The PSVP from any transaction can be attributed to one IBD only. Specifically, a transaction cannot qualify more than one IBD into the next rank, whereby the concurrent payment of the enrollment fee and a BEMER product worth 1,000 PSVPs or more will qualify the purchaser as an IBDJ, not the sponsoring IBDT.

Independent BEMER Distributor Junior (IBDJ)

• Has acquired 1,000 PSVP.
• Earns 17% commission on personal sales.
• Earns 8% commission on sales generated in the first Tier.
• Earns 3% commission on all sales generated in the second Tier.
• Must complete a BEMER Academy with in the required time allotment.

Independent BEMER Distributor Senior (IBDS)

• Has acquired 5,000 PSVP.
• Earns 25% commission on personal sales.
• Earns 8% commission on sales generated in the first Tier.
• Earns 3% commission on all sales generated in the second Tier.

Group Leader (GL)

• A minimum of twenty (20) IBDJs or above in the first and second Tier, comprised of the following minimums:
  1. Five (5) IBDSs or above who are personally enrolled (on the first Tier); and
  2. Fifteen (15) IBDJs or above on first and/or second Tier.
• Earns 25% commission on personal sales.
• Earns 8% commission on sales generated in the first Tier.
• Earns 3% commission on sales generated in the second Tier.
• Earns 1.5% commission on sales generated in all Tiers (as well as all personal sales).
• If a GL in a first generation develops in a Leg, the originating GL will no longer receive the 1.5% commission in that Leg from the first generation down.

Team Manager (TM)

• Must have a minimum of eight (8) IBDSs or above (on the first Tier), and one (1) GL in either the first or second Tier. If an IBDS advances to a GL on the first Tier, the GL will continue to count as one of the eight minimum required IBDSs.
• Earns 25% commission on personal sales.
• Earns 8% commission on sales generated in the first Tier.
• Earns 3% commission on sales generated in the second Tier.
• Earns 3% commission on sales generated in all Tiers.

Organization Manager (OM)

• Must have met the qualifications of a TM and have a minimum of one (1) Team Manager or above in the Organization.
• Earns 25% commission on personal sales.
• Earns 8% commission on sales generated in the first Tier.
• Earns 3% commission on sales generated in the second Tier.
• Earns 2% commission on all sales generated under a Team Manager in a Leg (including personal sales).
• Earns 3% commission on sales generated in all Legs without a Team Manger in a Leg (including personal sales). If a second-generation TM develops, the 2% commission is not paid on the second generation and down.

Organization Director (OD)

• Must have one (1) Team Manager or above in three (3) individual Legs.
• Earns 25% commission on personal sales.
• Earns 8% commission on sales generated in the first Tier.
• Earns 3% commission on sales generated in the second Tier.
• Earns 3% commission on sales generated in all Tiers without a Team Manager in the Leg (including personal sales).
• Earns 2% commission on sales generated down to the first-generation OD.

Organization Director Plus (OD+)

• Must have one (1) Organization Director (OD) in a Leg and one (1) additional Team Managers in two (2) separate Legs.
• Earns 25% commission on personal sales.
• Earns 8% commission on sales generated in the first Tier.
• Earns 3% commission on sales generated in the second Tier.
• Earns 3% commission on sales generated in all Tiers without a Team Manager (including personal sales).
• Earns commissions as follows when there is an OD present in a Leg:
  • 2% commission on sales generated down to the first-generation OD;
  • 1% commission on sales generated by the first-generation OD;
  • 0.75% commission on sales generated by the second-generation OD;
  • 0.50% commission on sales generated by the third-generation OD;
  • 0.25% commission on sales generated by the fourth-generation OD.

B. PROMOTION BONUS

In addition to the commissions, BEMER shall pay the promotion bonuses as set forth below. Promotion bonuses are based on Qualifying Sales only (see definition below).

Group Leader (GL)

Volume Calculation:

• When a GL achieves 5,000 Qualifying Sales points in a given calendar month in Open Group Volume, whereby no more than 95% are generated from one Leg, he or she is eligible to earn:

Bonus Payout:

• • a 2% bonus on all Qualifying Sales generated in the Organization with no GL present in a Leg.

AND/OR

Volume Calculation:

• When a GL achieves 5,000 Qualifying Sales points in a given calendar month in their Organization where a GL is present in the first generation in a Leg, whereby no more than 95% are generated from one Leg, he or she is eligible to earn:

Bonus Payout:

• • a 1% bonus on all Qualifying Sales generated by the first-generation GL Group.

Team Manager (TM)

Volume Calculation:

• When a TM achieves 15,000 Qualifying Sales points in a given calendar month in the Open Team Volume, whereby no more than 95% are generated from one Leg, he or she is eligible to earn:

Bonus Payout:

• a 4% Group Bonus on all Qualifying Sales generated in the Open Team Volume.

Organization Manager (OM)

Volume Calculation:

• When an OM achieves 15,000 Qualifying Sales points in a given calendar month in the Open Team Volume, whereby no more than 95% of the 15,000 Qualifying Sales points are generated from one Leg, the OM is eligible to earn:

Bonus Payout:

• a 4% Group Bonus on all Qualifying Sales generated in the Open Team Volume; 

OR

Volume Calculation:

• When an OM achieves 25,000 Qualifying Sales points in a given calendar month in the Organization, whereby no more than 95% are generated from one Leg, the OM is eligible to earn:

Bonus Payout:

• a 4% Group Bonus on all Qualifying Sales generated in the Organization with no TM or above present in that Leg; and
• a 1% Organization Bonus on all Qualifying Sales generated in a Leg where there is a TM or OM in the first generation; and
• a 1% Organization Bonus on all Qualifying Sales generated in a Leg where there is a TM or OM in the second generation.

Organization Director (OD) and Organization Director Plus (OD+)

Volume Calculation:

• When an OD or OD+ achieves 15,000 points in a given calendar month in the Organization where no TM is present in a Leg, whereby no more than 95% are generated from one Leg, the OD or OD+ is eligible to earn:

Bonus Payout:

• a 4% Group Bonus on all Qualifying Sales generated in the Organization where no TM or above is present in that Leg;

OR

Volume Calculation:

• When the OD or OD+ achieves 25,000 points in a given calendar month in the Organization where no OD is present in a Leg, whereby no more than 95% are generated from one Leg, the OD or OD+ is eligible to earn:

Bonus Payout:

• a 4% Group Bonus on all Qualifying Sales generated in the Organization where no TM or above is present in that Leg; plus
• a 1% Organization Bonus on Open Team Volume and on all Qualifying Sales generated in a Leg where there is a TM or above in the first generation.

OR

Volume Calculation:

• When the OD or OD+ achieves 100,000 points in a given calendar month in the Organization where no OD is present in a Leg, whereby no more than 95% of the 100,000 points are generated from one Leg, he or she is eligible to earn:

Bonus Payout:

• a 4% Group Bonus on all Qualifying Sales generated in the Organization where no TM or above is present in that Leg; plus
• a 1% Organization Bonus on all Qualifying Sales generated in a Leg where there is a TM or above in the first generation and all Qualifying Sales to the next OD; plus
• a 1% Extended Organization Bonus on all Qualifying Sales generated in a Leg where there is a TM or above in the first generation and all Qualifying Sales to the next OD; plus
• a 2% Extended Organization Bonus on all Qualifying Sales generated in a Leg where there is an OD or above in the first generation.

Definitions:

For purposes of this Section B "Promotion Bonus", the following definitions apply:

0 generation = A position that begins with the originating distributor where there is no Blockage in any Leg, down to, but not including, the first distributor of the same rank or above in that Leg.

1st generation = A position that begins with the first distributor of a specified rank in a Leg, down to, but not including, the second distributor of the same rank or above in that Leg.

2nd generation = A position that begins with the second distributor of a specified rank in a Leg, down to, but not including, the third distributor of the same rank or above in that Leg.

Group = All IBDs under a specific ranked IBD. 

Qualifying Sales = Any sale by an IBDJ until the achievement of 5,000 PSVPs in the originating IBD's Organization (before the IBDJ's advancement to IBDS rank).

Leg= Segment of an Organization where IBDs are developed by the originating IBD.

Organization = All distributors enrolled in the originating IBD's genealogy.

Tier = Levels of the Organization starting with 1 to infinity. Tier 1 is considered direct to the originating IBD. 

Team: All Distributors under a TM/OM excluding anyone under an OD.

Team Volume: All volume under a TM/OM.

Open Group Volume = All volume under a Group Leader, excluding any volume under another Group Leader.

Open Team Volume = All volume under a TM/OM excluding any volume under another TM.

Organization Volume = All volume under an OD/OD+.

Open Organization Volume = All volume under an OD/OD+