Independent Contractor Agreement for Win Big™ Affiliates and SuperGrowth™ Programs

         This WIN BIG™ INDEPENDENT CONTRACTOR AGREEMENT ("Agreement") is made between tsWB STRATEGIES, INC., an Illinois corporation ("Company") and any person (“Contractor") who executes this Agreement in conjunction with registering with Company as an affiliate marketer and/or a Win Big™ SuperGrowth™ group leaders through the Company's operated website(s).

       BY CLICKING THE ACCEPTANCE BUTTON, YOU EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED AND YOU MAY NOT ACCESS OR USE ANY PART OF COMPANY’S SOFTWARE, DOCUMENTATION OR PARTICIPATE IN ANY SERVICES OFFERED BY COMPANY.

            1.   Engagement of Services.  Contractor agrees to perform sales, marketing, and/or training services for Company (the “Project”), and to use Contractors best efforts to solicit and promote the sale of the Company’s training services and supporting materials (the “Products”).  Company has selected Contractor to perform these services based on Contractor’s promise to personally provide these services.  Contractor may not subcontract or otherwise delegate its obligations under this Agreement without Company's prior written consent.  Contractor will have no obligation to perform any services other than the Project and services related to that end. The scope of the Project and the nature of the services to be performed by Contractor pursuant to this Agreement may be modified from time to time by the parties’ mutual execution of an “ICA Modification”, in the form attached to this Agreement as Exhibit A.

            2.  Compensation.

                  2.1  Contractor will not be reimbursed for any expenses incurred in connection with the performance of services under this Agreement, unless those expenses are approved in advance and in writing by Company.

Except for sales of SuperGrowth™ Group Memberships, in which case zero percent (0%) commission is paid, Company will pay Contractor a commission equal to ten percent (10%) of the Gross Profit on all sales of Products to “New Customers” of Company obtained by Contractor (“Contractor’s Compensation”) and where Contractor does not perform any "Project" services other than referring "New Customer" to Company ("Finders Fee").  If the Contractor performs "Project" services in addition to referring "New Customer" to Company the Contractor will not receive a "Finders Fee" but instead receive a fee as defined by the fee schedule currently in effect for the product and/or service type being performed and/or sold by Contractor.  Contractor’s Compensation under this Agreement may be modified from time to time by Company by providing written notice.

For purposes of this Agreement a “New Customer” will be deemed a customer that Company or another Contractor has not actively solicited prior to the date of the New Customer’s first purchase and which Contractor secures and obtains an order and subsequent sales of Products to said customer.

For purposes of the Agreement “Actively Solicited” will be deemed a customer that Company or another Contractor has had one or more sales meetings or where customer has attended one or more events featuring Company Products, Contractor's Presentations on behalf of Company or Company presentation.  

When two or more Contractors claim the Contractor’s Compensation related to the purchases of Company Products by a New Customer, Company reserves the right to determine how the Contractors' Compensation will be allocated, if at all, among the Contractors.

For purposes of this Agreement “Gross Profit” will mean the sales price charged by Company for Products, as unilaterally amended from time to time by Company in its sole discretion, less (i) all freight and/or transportation charges or transportation allowances from the point of shipment by Company, (ii) all United States, state and local excise taxes, sales taxes and other similar charges, (iii) all C.O.D. charges, (iv) all insurance charges covering Products while in transit, (v) any trade, quantity and other similar discounts and/or allowances, (vi) any credits or allowances for returned Products, (vii) any adjustments, allowances, credits, discounts and/or settlements relating to the delivery, performance or any other aspect of the Products; and (viii) any costs, or expenses incurred by Company with respect to the delivery of the Products or the performance of services in connection therewith, including, but not limited to, printing costs, advertising costs, facility fees, speaker fees, commissions, vendor fees, management fees and/or fees Company paid to a third party to manage or facilitate a Mastermind group in the Contractors absence.

Commissions will be deemed earned by Contractor and will be due and payable to Contractor only after full payment has been received by Company.  In such event, the commission will be payable by Company to Contractor within ninety (90) days from the date of receipt by Company of full payment for the Products.

Contractor agrees to accept a commission in accord with this paragraph 2.1 as Contractor’s entire compensation for services performed under this Agreement or otherwise.  Neither Contractor, nor anyone associated with Contractor, will be entitled to receive any payments by way of compensation or expenses of any character or for any reason whatsoever except for the commission specified in this paragraph 2.1.

Commissions previously paid to Contractor on any shipment of Company’s Products with respect to which Company grants a return or allowances, including bad debts, will be deducted from commissions subsequently payable to Contractor.

Upon the expiration of the term of this Agreement or in the event Company terminates this Agreement without cause, Company will pay Contractor post-termination commissions, in the amount and in accordance with the terms set forth in this paragraph 2.1, on Products shipped by Company to New Customers during the period of six (6) months from the date of such termination. 

            3.    Independent Contractor Relationship.  Contractor and Company understand, acknowledge, and agree that Contractor's relationship with Company will be that of an independent contractor and nothing in this Agreement is intended to or should be construed to create a partnership, joint venture, agency or employment relationship.  Company agrees that neither Company, nor Company’s agents or representatives, will have any right to control or direct the details, manners or means by which Contractor accomplishes the results of Contractor’s work.  Contractor acknowledges that it shall not have the power or authority to negotiate, contract, represent, or bind Company in any manner whatsoever.

Contractor represents that its employer identification number, or social security number, as the case may be, with the Internal Revenue Service has been provided accurately in the online signup process. Contractor agrees to comply with all tax laws applicable to the operation of a business such as contractor’s, including, but not limited to, the reporting of all gross receipts therefrom as income from the operation of a business, the payment of all self employment taxes, compliance with all employment tax requirements for withholding on any employees used by Contractor, and compliance with state employment and workmen’s compensation laws.  Contractor hereby acknowledges that it is aware that it will not be treated as an employee with respect to the services rendered under this Agreement for Federal tax purposes.

            4.  Trade Secrets‑ Intellectual Property Rights.

                      4.1   Disclosure.

            (a)  Contractor represents that its performance of all of the terms of this Agreement does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data of a third party and Contractor will not disclose to Company, or induce Company to use, any confidential or proprietary information belonging to third parties unless such use or disclosure is authorized in writing by such owners.

            (b)  Contractor agrees that, with respect to any inventions or copyrighted works relating to Company's actual or anticipated business or research and development which Contractor has conceived, developed, made, or reduced to practice prior to or at the time of signing of this Agreement, Contractor hereby grants to Company a royalty-free, worldwide, perpetual, irrevocable, non-exclusive license, with the right to sublicense, to reproduce, distribute, modify, publicly perform and publicly display such inventions and copyrighted works in Company's products based on the Project.

                      4.2   Confidential Information.  Contractor agrees during the term of this Agreement and thereafter to take all steps reasonably necessary to hold in trust and confidence information which he knows or has reason to know is considered confidential by Company (“Confidential Information”).  Contractor agrees to use the Confidential Information solely to perform the Project hereunder.  Confidential Information includes, but is not limited to, technical and business information relating to Company's inventions or products, research and development, manufacturing and engineering processes, marketing methods, future business plans, and the materials created by Company.  Contractor's obligations with respect to the Confidential Information also extend to any third party's proprietary or confidential information disclosed to Contractor in the course of providing services to Company.  This obligation will extend to information and materials provided to the Company’s customers, but will not extend to any information which becomes generally known to the public without breach of this Agreement.  This obligation will survive the termination of this Agreement.

                      4.3  No Conflict of Interest.  Contractor agrees that during the term of this Agreement, Contractor will not promote or sell (either for its own account or as agent or representative of for another) any service or product competitive to the Products and will not become involved as a partner, shareholder, officer, director, employee, principal, consultant or in any other way, either directly or indirectly, in any person or entity that promotes, sells, or manufactures any competitive service or product.

                      4.4  “ Work for Hire” & Assignment of Work Product.

           (a)  “Work Product” means the artwork, logos, storylines, characters, designs, discoveries, processes, techniques, inventions, improvements, ideas or any other works of authorship solely or jointly conceived, developed or reduced to practice during the Project.                                                                  

            (b)  To the extent Contractor develops any Work Product during the Project, all such Work Product performed by Contractor for Company under this Agreement  is a commissioned “work for hire” owned by Company. 

            (c)  If the Work Product is determined not to be a “work for hire” or such doctrine is not effective, Contractor hereby irrevocably assigns, conveys and otherwise transfers to Company, and its respective successors and assigns, all rights, title and interests worldwide in and to the Work Product and all proprietary rights therein, including, without limitation, all copyrights, trademarks, design patents, trade secret rights, moral rights, and all contract and licensing rights, and all claims and causes of action of any kind with respect to any of the foregoing, whether now known or hereafter to become known.  In the event Contractor has any rights in and to the Work Product that cannot be assigned to Company, Contractor hereby unconditionally and irrevocably waives the enforcement of all such rights, and all claims and causes of action of any kind with respect to any of the foregoing against Company, its distributors and customers, whether now known or hereafter to become known and agrees at the request and expense of Company and its respective successors and assigns to consent to and join in any action to enforce such rights and to procure a waiver of such rights from the holders of such rights.  In the event Contractor has any rights in and to the Work Product that cannot be assigned to Company and cannot be waived, Contractor hereby grants to Company, and its respective successors and assigns, an exclusive, worldwide, royalty-free license during the term of the rights to reproduce, distribute, modify, publicly perform and publicly display, with the right to sublicense and assign such rights in and to the Work Product including, without limitation, the right to use in any way whatsoever the Work Product.  Contractor retains no rights to use the Work Product and agrees not to challenge the validity of the ownership by Company in the Work Product.

            (d)  Contractor agrees to assist Company in any reasonable manner to obtain and enforce for Company's benefit patents, trademarks, copyrights, and other property rights covering the Work Product in any and all countries.  Contractor agrees to execute, when requested, patent, trademark, copyright, or similar applications and assignments to Company, and any other lawful documents deemed necessary by Company to carry out the purpose of this Agreement.  Contractor further agrees that the obligations and undertaking stated in this section will continue beyond the termination of Contractor's service to Company.  If called upon to render assistance under this section, Contractor will be entitled to a fair and reasonable fee in addition to reimbursement of authorized expenses incurred at the prior written request of Company.

                      4.5   Return of Company's Property.  Contractor acknowledges that Company's sole and exclusive property includes all documents, such as drawings, manuals, notebooks, reports, sketches, records, computer programs, spreadsheet templates, marketing materials, books manuals, employee lists, customer lists and the like in Contractor’s custody or possession, whether delivered to Contractor by Company or made by Contractor in the performance of services under this Agreement, relating to the business activities of Company or its customers or suppliers and containing any information or data whatsoever, whether or not Confidential Information.  Contractor agrees to deliver promptly all of Company's property and all copies of Company's property in Contractor's possession to Company at any time upon Company's request.

                      4.6   Warranties.   Contractor represents and warrants that: (a)  The Work Product was created solely by Contractor, Contractor’s full-time employees during the course of their employment, or independent contractors who assigned all right, title and interest in their work to Contractor; (b)  Contractor is the owner of all right, title and interest in the tangible forms of the Work Product and all intellectual property rights protecting them; (c)  The Work Product and the intellectual property rights protecting them are free and clear of all encumbrances, including, without limitation, security interests, licenses, liens, charges or other restrictions; (d)  Contractor has maintained the Work Product in confidence;   (e)  The use, reproduction, distribution, or modification of the Work Product does not and will not violate the rights of any third parties in the Work Product including, but not limited to, trade secrets, trademarks, publicity, privacy, copyrights, and patents; (f)  The Work Product is not in the public domain; (g)  Contractor has full power and authority to make and enter into this Agreement; and (h)  Contractor has secured the necessary licenses for operation of Contractor’s business, and conducts such business in full compliance with all applicable laws, codes and regulations.

                      4.7   Indemnification.   Contractor agrees to defend, indemnify, and hold harmless Company, their officers, directors, sublicenses, employees and agents, from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from the breach of the warranties in Section 4.6.  Company will provide notice to Contractor promptly of any such claim, suit, or proceeding and will assist Contractor, at Contractor's expense, in defending any such claim, suit or proceeding.

            5.   Termination ‑ Noninterference with Business

                      5.1   Termination by Company.  Company may terminate this Agreement for material breach at any time upon fifteen (15) days prior written notice to Contractor.  Company also may terminate this Agreement immediately in its sole discretion upon Contractor's material breach of Article 4 and/or Section 5.3 of this Agreement and/or upon any acts of gross misconduct by Contractor directly affecting this Agreement or the independent contractor relationship.

                      5.2  Termination by Contractor.  Contractor may terminate this Agreement for material breach at any time upon fifteen (15) days prior written notice to Company.

                      5.3   Noninterference with Business.  During and for a period of four (4) years immediately following termination of this Agreement by either party, Contractor agrees not to (i) solicit or induce any employee or independent contractor to terminate or breach an employment, contractual or other relationship with Company; or (ii) solicit, divert or take away, or attempt to solicit, divert or take away, any customers of the Company, whether customers now or in the future.  Contractor recognizes that irreparable harm will result to Company in the event of the violation of any of the covenants contained in this Section 5.3, and agrees that in the event of any such violation, Company shall be entitled, in addition to its other legal and equitable remedies and damages, to temporary and permanent injunctive relief to restrain Consultant from committing any such violations.

            6.   General Provisions. This Agreement will be governed by and construed in accordance with the laws of the United States and the State of Illinois as applied to agreements entered into and to be performed entirely within Illinois between residents of that state.  In the event any term or provision of this Agreement is held to be invalid by a court of competent jurisdiction, the remainder of the provisions will continue in full force and effect, and the invalid provision will be amended to comport with such court’s ruling.  This Agreement, including any Exhibits to this Agreement, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations, discussions, negotiations, and agreements, whether written or oral.  No term or provision hereof will be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted.  No consent by either party to, or waiver of, a breach by either party, whether express or implied, will constitute a consent to, waiver of, or excuse of any other, different, or subsequent breach by either party. Contractor may not assign its rights or obligations arising under this Agreement without Company's prior written consent.  Company may assign its rights and obligations under this Agreement.  This Agreement will be for the benefit of Company's successors and assigns, and will be binding on Contractor's heirs, legal representatives and permitted assignees. If any dispute arises between the parties with respect to the matters covered by this Agreement which leads to a proceeding to resolve such dispute, the prevailing party in such proceeding will be entitled to receive its reasonable attorneys' fees, expert witness fees and out‑of‑pocket costs incurred in connection with such proceeding, in addition to any other relief to which it may be entitled.  All notices, requests and other communications required to be given under this Agreement must be in writing, and must be mailed by registered or certified mail, postage prepaid and return receipt requested, or delivered by hand to the party to whom such notice is required or permitted to be given.  Any such notice will be considered to have been given when received, or if mailed, five (5) business days after it was mailed, as evidenced by the postmark.  The mailing address for notice to either party will be the address shown on the first page of this Agreement.  Either party may change its mailing address by notice as provided by this Section.  The following provisions will survive termination of this Agreement:  Article 4 and Section 5.3.  This Agreement is effective as of the Effective Date and will terminate upon the death or incapacity of the Contractor, or on December 31, 2020, unless terminated earlier in accordance with Section 5 above.

Exhibit A
Form of ICA Modification

           THIS ICA MODIFICATION (the “Modification”) is entered into as of the ___ day of _________, 200__, by and between tsWB Strategies, Inc., an Illinois corporation (the “Company”), and ________________________________ (the “Contractor”), who hereby agree that a certain Independent Contractor Agreement, dated as of _______________, 200__, by and between Company and Contractor, as the same may have been amended, is hereby amended as follows:

            1.  The Project is (check one) _x__ unchanged / ___ amended to include the following matters: ________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________.

           2.    The provisions of this Modification shall (check one) ___ permanently modify the Agreement and shall remain in effect until the termination of the Agreement / ___ modify the Agreement only with respect to the following customers and/or matters: ____n/a__________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________.

            3.     Capitalized terms used but not defined in this Modification shall have the meanings given to such terms in the Agreement.  Except as specifically modified by the terms of this Modification, the terms and conditions of the Agreement shall remain in full force and effect.  In the event of a conflict between the terms of the Agreement and the terms of this Modification, this Modification shall govern and control.

Current Fee Schedule:

SuperGrowth™ Group Leaders will receive 65% of the monthly membership dues paid by the members of the groups they create, manage and lead.

Rev. 11/02/06