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Xyngular Distributor Policies (Effective 5/1/16)
Table of Contents
Section 1: Definitions ............................................................................................................................... 2 Section 2: Becoming a Distributor .......................................................................................................... 5 Section 3: Restrictions on Becoming a Distributor ................................................................................ 6 Section 4: Responsibilities of a Distributor ............................................................................................ 9 Section 5: Sponsoring ............................................................................................................................. 13 Section 6: Change of Sponsor ................................................................................................................ 14 Section 7: Compensation Plan ............................................................................................................... 15 Section 8: Becoming a Manager in the Corporate Sales Pools ........................................................... 17 Section 9: Awards, Rewards, Events, Promotions and Trips: ............................................................ 17 Section 10: Ordering Products or Services and Personalized Sales Aids .......................................... 19 Section 11: Income and Sales Tax ......................................................................................................... 20 Section 12: Autoship Policies ................................................................................................................. 21 Section 13: Product Exchange Policy ................................................................................................... 23 Section 14: Refund Policy ...................................................................................................................... 23 Section 15: Distributor Lists .................................................................................................................. 28 Section 16: Product Claims ................................................................................................................... 29 Section 17: Income and Compensation Plan Claims ........................................................................... 30 Section 18: Xyngular Income Summary ............................................................................................... 32 Section 19: General Business Ethics ..................................................................................................... 33 Section 20: Advertising and the Use of the Company Name .............................................................. 36 Section 21: Audio/Visual Release .......................................................................................................... 39 Section 22: Sales Aids ............................................................................................................................. 41 Section 23: Internet and Websites ......................................................................................................... 42 Section 24: Online and Retail Store Sales Policy ................................................................................. 45 Section 25: Contract Changes ............................................................................................................... 46 Section 26: Breach of Contract/Termination of Contract Procedures .............................................. 46 Section 27. Governing Law, Jurisdiction Arbitration, Injunctive Relief Policy ............................... 50 Section 28: Waiver ................................................................................................................................. 52 Section 29: Integrated Contract ............................................................................................................ 52 Section 30: Severance ............................................................................................................................. 52 Section 31: Notices .................................................................................................................................. 52 Section 32: Successors and Claims ........................................................................................................ 53 Section 33: Litigation and Claims ......................................................................................................... 53 Section 34: Headings .............................................................................................................................. 54
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Xyngular Policies These Policies, the Distributor Agreement, and the Compensation Plan constitute the complete agreement (the “Contract”) between a Distributor and Xyngular (the Company). In order to protect the rights of the Company and of Distributors who comply with provisions of the Contract, failure to comply with the provisions of any of these documents may result in the loss of a Distributor’s rights to receive Commissions, other remedies as outlined in the Contract, up to and including the termination of an individual’s contract. The Company reserves the right to modify any of these documents, but will publish notice of any change at least 30 days before that change is made effective. Modifications shall not apply retroactively to conduct that occurred prior to the effective date of the amendment. Notification of modifications shall be posted in Company publications, by separate mailing or email, social media, or through publication on the Company website. The continuation of a Distributor’s Xyngular business, the acceptance of any benefits under the Contract, or a Distributor’s acceptance of commissions constitutes acceptance of all amendments. For assistance with any questions or concerns about these policies, the Company or any Distributors, please contact Member Service at (801) 756-8808 or [email protected] or fax 801-228-1768.
Section 1: Definitions
Autoship – an optional program through which participating Distributors automatically receive a specified product or products on a monthly basis; payment is made through an established automatic billing method.
Back Office: offered to Members to help them manage their Independent Distributorship. It can be accessed from the Company website by using their unique username and password.
Business Entity: any business entity such as a corporation, partnership, limited liability company, or other form of business organization legally formed under the laws of the state in which it was organized.
Business Entity Form: a supplemental document to the Distributor Agreement. The Business Entity Form must be completed and signed by an authorized representative of the partnership, corporation, limited liability company, or other legal entity (See Business Entity definition) applying to become a Distributor. The Business Entity Form should list all Persons who are partners, shareholders, principals, officers, directors or Distributors.
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Commission: compensation paid by the Company to a Distributor based on the volume of products or services sold by the Distributor and the Distributor’s Sales Organization upon meeting all requirements as set forth in the Compensation Plan. Commission Periods are calculated both daily and on a calendar-month basis.
Company: Xyngular Corporation
Company Approved Sales Aids: marketing materials approved in writing by the Company.
Compensation Plan: the specific plan utilized by the Company that outlines the details and requirements of the Commission structure for Distributors.
Contract: the agreement between a Distributor and the Company which is composed of these Policies; the Compensation Plan; and the Distributor Agreement.
Distributor Agreement Form: The agreement submitted by an applicant to become a Distributor. In signing the Distributor Agreement Form, an applicant certifies that he or she has read and will abide by the terms and conditions of the Contract.
Distributor: an independent contractor authorized by the Company to purchase and sell products and services, recruit other Distributors, Members and Retail Customers through their Independent Distributorship, and receive Commissions in accordance with the requirements of the Compensation Plan. A Distributor’s relationship to the Company is governed by the Contract. More than one Person may be included on a Distributor Agreement. In such a case “Distributor” refers to all such Persons collectively and individually. Each such person is individually bound by the terms and conditions of the Contract.
Distributor Conduct Review Committee (DCRC) – The governing committee which reviews Independent Distributorships and business practices to ensure they are compliant with the Company’s policies. They also receive and review sales aid and trademark use requests.
Distributor Fee: the Distributor fee is a non-commissionable fee that is submitted with an application to become a Xyngular Distributor and is renewed annually. Upon receipt of the Distributor Fee and acceptance of the application by the Company, the Distributor may order product at the wholesale price, receive commissions, sign up other Distributors, Members, and Retail Customers; obtain a Distributor website and Back Office to assist them in starting and conducting their business as a Xyngular Distributor.
Distributor ID Number (aka XID): the number assigned to the Distributor by the company used to link Retail Customers, Members, and new Distributors to the referring Distributor.
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Group Volume (GV): the Personal Sales of a Distributor plus the Personal Sales of all Distributors in eight (8) qualified levels of the Distributor’s Sales Organization.
Independent Distributorship: the business structure or account created as a Distributor enters into a contractual relationship with the Company.
Member – a customer who registers with the Company, pays the Member Fee and may participate in an automatic monthly (Autoship) purchase of Xyngular products. Members are able to purchase products directly from the Company at the Wholesale price, but do not participate in the compensation plan. Members are enrolled by Distributors.
Member Fee: the Member Fee is a one-time fee submitted with a Member Agreement to become a Xyngular Member. Upon receipt of the Member Fee and acceptance of the Member Agreement by the Company, the Member may order product at the wholesale price and receive a Back Office to assist them in purchasing product.
Passport Program: the Company’s rewards program that awards cash, trips, and prizes to Distributors when they reach specific volume requirements. The program rewards, requirements, rules and qualifications are available on the Passport Program document.
Pay-For-Placement Service: a service used in internet advertising to direct traffic to websites. The advertiser pays a service or search engine for their advertisement to appear higher in search engine results. Generally the advertiser will be in an open auction for their right to present an advertisement with specific search terms.
Pay-Per-Click (PPC) Service: a service that is used in internet advertising to direct traffic to websites. The advertiser pays the publisher (usually the website owner) when the ad is clicked. This type of service is also known as cost per click.
Person: an individual, corporation, partnership, limited liability company, or other legal entity.
Personal Sales: the value of products and services purchased by a Distributor, or by the Distributor’s Retail Customers, in one (1) calendar month.
Personalized Sales Aid: business cards, letterhead, stationary, envelopes, note pads, self-stick labels, name badges, etc. imprinted with the Company name or logo and a Distributor’s name, address, telephone number and other personal contact information.
Policies: the policies and procedures governing how a Distributor is to conduct his or her business as set forth in this document and defining all rights and relationships of the parties.
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Retail Customer: a customer who has not registered as a Member and purchases Xyngular products from a Distributor’s website or a Distributor’s inventory.
Sales Aid: any material used in the offer or sales of products, recruitment of prospective Members and Distributors, or training of Distributors, which makes reference to the Company, the products, the Compensation Plan, or the trade names or logos, even if the material is intended to primarily be used online.
Sales Organization (Downline): the group of Distributors directly sponsored by the Distributor and by those in a direct chain of sponsorship from the Distributor.
Search Engine Optimization (SEO) Service: a service used to affect the visibility of a website or page, making the website appear earlier or higher in search engine results.
Sponsor: a Distributor that assists a Person in becoming a new Distributor and is listed as the sponsor on the Distributor Agreement Form.
Tax Identification Number (TIN): an identifying number assigned by the government to be used for tax purposes in a Distributor’s government jurisdiction.
Xyngular Volume (XV): the Personal Sales of all Distributors who were sponsored into the Company after the Distributor. Xyngular Volume is one of the qualifiers for the 12 Corporate Sales Pools.
Section 2: Becoming a Distributor
A. A Person may apply to become a Distributor by paying the Distributor Fee and completing the Distributor Agreement Form. The Distributor is bound by the Contract as set forth in these Policies. The Company reserves the right, in its sole discretion, to refuse to accept any application for becoming a Distributor.
1) Upon request by the Company, a Distributor must provide proof of residency and proof of the Distributor’s ability to legally conduct business in the country for which the Distributor’s application was submitted. If a Distributor fails to provide that documentation, the Company may declare the Independent Distributorship void from its inception.
B. A Distributor Identification number will be issued at signup. Social Security and Federal Tax Identification Numbers must be provided to the Company for tax purposes. All Commissions are paid by check or EFT, which will be issued in the name of the first applicant on the Distributor Agreement Form.
C. Except for the payment of the Distributor Fee, no person or entity is required to pay any other charge or fee or purchase any products or sales aids in order to become an Independent Distributor.
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D. The term of the Contract is one year from the date of its acceptance by the Company (subject to prior termination as provided herein). Members and Independent Distributors must renew the Contract each year and pay the applicable renewal fee on or before the anniversary date of the Contract. If the renewal fee is not paid within 30 days after the expiration of the current term of the Contract, the Contract will be canceled.
Section 3: Restrictions on Becoming a Distributor
A. An applicant must be of legal age in his or her state of residence (usually 18 years old).
B. A Distributor may operate, receive compensation from, or have an ownership interest, legal or equitable, as a sole proprietorship, shareholder, trustee, or beneficiary in only one Xyngular Independent Distributorship. Married Couples shall share a single Independent Distributorship.
1) Distributors who subsequently marry may maintain separate Independent Distributorships unless one is the direct Sponsor of the other, in which case their Independent Distributorship entities may be consolidated.
2) When a couple sharing an Independent Distributorship divorces or separates, the Company will maintain the account as stands and continue to pay commission checks in the same manner as before the divorce or separation until it receives written notice, signed by both parties or issued by a court decree which specifies to whom future commission checks should be paid, provided the couple has complied with Company Policies.
3) If a Business Entity that is enrolled as a Distributor dissolves, the Contract will automatically dissolve unless prior to the dissolution the Business Entity provides written instructions to the Company regarding the disposition of the Contract and the Distributor rights thereunder. The Independent Distributorship may be sold, transferred or assigned to one of the owners of the Business Entity or to a Business Entity composed of one or more of the owners of the original Business Entity subject to the requirements of paragraph 3.E below. No other disposition of the Independent Distributorship will be permitted.
4) The Xyngular Passport Program is a rewards program that operates separately and in addition to the Xyngular Compensation Plan. As such, Passport Program rewards are limited to one per household/partnership. If
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a Distributor and his or her spouse or a partnership has more than one account, a Passport Program award will only be awarded once to the first person qualified for that particular award.
C. Subject to subparagraphs 1 – 2 below, A Distributor or Person must wait at least six months after termination of his or her Independent Distributorship before obtaining a beneficial interest in an Independent Distributorship under a different Sponsor. A Distributor whose Independent Distributorship has been terminated by the company is prohibited from purchasing or obtaining a beneficial interest in an existing Independent Distributorship.
1) A Distributor may not under any circumstances encourage, entice, or otherwise assist another Distributor to transfer to a different Sponsor. For example, this includes, but is not limited to, a Distributor offering financial or other incentives that would encourage or entice another Distributor to terminate his or her existing Independent Distributorship and then re-apply to become a Distributor under a different Sponsor.
2) Any Person listed on a Distributor Agreement Form and/or Business Entity Form, and the spouse or co-habitant of a Person listed on said forms, must wait at least six months after termination of the Independent Distributorship pertaining to the Business Entity Form before obtaining a beneficial interest in an Independent Distributorship under a different Sponsor.
D. A Distributor who wishes to change his or her status from that of an individual Distributor to a participant in a Business Entity Independent Distributorship under the same Sponsor may do so at any time, subject to applicable law and upon completion and delivery to the Company of the requisite information (e.g., an Amended Distributor Agreement Form and a Business Entity Form).
E. A Distributor may not sell, dispose of, transfer, or otherwise assign Independent Distributorship assets (including by sale, gift, bequest, or otherwise) without the prior written consent of the Company. Please submit any requests of account sales or transfers to the Company within 15 business days prior to the sale of the account to provide time for the Company to review the information of the seller and potential buyer of the account. Any assets that take the form of claims to compensation or satisfaction of contractual obligations from or by the Company will not be recognized as assets of the transferee on the records of the Company until the Company has received written notification of the transfer and has given its formal written approval. The Independent Distributorship assets transferred are
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subject to all remedial measures under the Contract that may have arisen prior to the transfer
1) Except as provided herein, if the buyer is an existing Distributor, the buyer must first terminate his or her existing Distributor Agreement and wait six (6) months before acquiring an interest in the Independent Distributorship being sold. There is an exception to the six (6) month waiting period if the buyer is either within seven (7) levels above or one (1) below the seller in the same line of sponsorship. In that event, the buyer need not terminate his or her existing Independent Distributorship prior to purchasing the subject Independent Distributorship. However, as soon as the purchase transaction is completed, in order to be in compliance with Section 3.B above, the buyer must terminate one of the Independent Distributorships—either his or her pre-existing Account or the purchased Account.
2) The Company reserves the right to terminate the Independent Distributorship if the Company finds that the sale of or purchase of the Independent Distributorship is in violation of Company policy. For example, a Distributor that previously had an Independent Distributorship terminated by the Company may not purchase an Independent Distributorship from an existing Distributor. Please send any Independent Distributorship ownership change requests to [email protected].
F. Death of an Individual Distributor or Distributor of a Business Entity:
1) In the event of an Individual Distributor’s death, their Independent Distributorship may be passed to their heirs, or other beneficiaries whether by will, intestate succession, or otherwise. The Company will review the transfer when a court order or proper legal document addressing the transfer to a qualified transferee is submitted to the Company. The Company, at its sole discretion, reserves the right to reject the transfer to the transferee. The Company wants to encourage Distributors to consult with an estate-planning attorney to make appropriate arrangements for the transfer of the Independent Distributorship.
2) In the event of the death of a person that has an interest in a Business Entity, the Independent Distributorship will be transferred according to the legal documents of the Business Entity and applicable law governing the transfer, provided that all persons of the transferee are qualified to hold an interest in a Distributorship under these Policies. The transfer of your interest will be reviewed by the Company when a court order or proper legal document addressing the transfer to a qualified transferee is submitted to the Company.
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G. The Company, upon finding that an Independent Distributorship was established in violation of these Policies, may at its sole discretion, impose reasonable remedial measures including but not limited to termination of the Independent Distributorship, backing out of part or all of the Commissions paid to the up line Distributors, loss of rights to Commissions, withholding of Distributor recognition, changing the Sponsor of the Independent Distributorship, placing part or all of the Sales Organization under the proper Sponsor, and any other remedies described in Section 26.A.
H. A Distributor may not convey, assign, or otherwise transfer any right conveyed by the Contract to any person or entity without the express, prior written consent of the Company. A Distributor may delegate his or her responsibilities but the Distributor is ultimately responsible for ensuring compliance with the Contract and applicable laws. Any person working with or for the Distributor as part of the Independent Distributorship will do so only under the Distributor's direct supervision.
Section 4: Responsibilities of a Distributor
A. A Distributor is an independent contractor.
1) A Distributor is not an agent, employee, partner, or joint venture with the Company. A Distributor is prohibited from representing himself as such.
2) Distributors shall not be treated as employees of Company for Federal or State tax purposes. The Company is not responsible for withholding, and shall not withhold or deduct from Distributors’ commissions, if any, FICA, or taxes of any kind. Distributors understand that they are not entitled to workers compensation or unemployment security benefits of any kind from the Company.
3) All Distributors are responsible for paying local, state, and federal taxes due from all compensation earned as an Independent Distributor. Distributors have no authority (expressed or implied), to bind the Company to any obligation.
4) Each Distributor shall establish his or her own goals, hours, and methods of sale, so long as he or she complies with the terms of the Contract and applicable laws.
5) Distributors may establish their own prices for products and services. However, distributors may not create their own marketing or advertising
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materials to be made available for viewing by the general public that offer or advertise any Xyngular products at prices less than the current wholesale prices plus shipping and applicable taxes. This restriction shall not apply to advertising in which a free product is offered with a purchase.
B. A Distributor must represent the products, services, and opportunity ethically and professionally and is fully responsible for all of his or her verbal and written statements made regarding the products, services, and opportunity that are not expressly contained in official Company materials. This includes statements and representations made through all sources of communication media, whether person-to-person, in meetings, online, through Social Media, in print, or any other means of communication. Distributors agree to indemnify the Company and its directors, officers, employees, and agents, and hold them harmless from all liability including judgments, civil penalties, refunds, attorney fees, court costs, or lost business incurred by the Company as a result of the Distributor’s unauthorized representations or actions. This provision shall survive the termination of the Contract.
1) No representation or sales offer may be made relating to the Company’s products or services, which is not accurate and truthful as to price, grade, quality, performance, and availability. No drug claims may be made for the products. See Section 16 below.
2) No unreasonable, misleading, or unrepresentative earnings claims may be made. No income guarantees of any kind may be made. Exhibiting actual or facsimile Commission checks is prohibited. See Section 17 below.
C. Conflicts of Interest. The parties agree that any violation of these Conflicts of Interest policies shall cause the Company irreparable harm for which there is no adequate remedy at law, and that such harm will outweigh any injury to Distributor should injunctive relief be granted to the Company. The Company shall therefore be entitled to immediate and permanent equitable relief to prevent further violations of the policy.
1) Nonsolicitation. Distributors are free to participate in other multilevel or network marketing business ventures or marketing opportunities (collectively “network marketing”). However, during the term of this Agreement, Distributors may not directly or indirectly recruit other Distributors or Members for any other network marketing business.
Following the cancellation or transfer of a Distributor’s Contract for any reason, and for a period of 12 calendar months thereafter, with the exception of a Distributor who was personally sponsored by the former
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Distributor, a former Distributor may not recruit any other Distributor or Member for another network marketing business.
Distributors and the Company recognize that because network marketing is conducted through networks of independent contractors dispersed across the entire United States and internationally, and business is commonly conducted via the internet and telephone, an effort to narrowly limit the geographic scope of this non-solicitation provision would render it wholly ineffective. Therefore, Distributors and Company agree that this non-solicitation provision shall apply nationwide and to all international markets in which Xyngular Distributors are located. This provision shall survive the termination or expiration of the Agreement.
The term “recruit” means the actual or attempted sponsorship, solicitation, enrollment, encouragement, or effort to influence in any other way, either directly, indirectly, or through a third party, another Distributor or Member to enroll or participate in another multilevel marketing, network marketing or direct sales opportunity.
2) Distributor Participation in Other Direct Selling Programs. If a Distributor is engaged in any other direct selling programs, it is the responsibility of the Distributor to ensure that his or her Xyngular business is operated entirely separate and apart from all other businesses and/or direct selling programs. To this end, the Distributor must adhere to the following:
a) Distributors must not sell, or attempt to sell, any non-Xyngular programs, products or services that are sold through another direct selling program to Xyngular Members or Distributors.
b) Distributors shall not display Xyngular promotional materials, sales aids, products or services with or in the same location as any non-Xyngular promotional materials, sales aids, products or services.
c) Distributors shall not offer the Xyngular opportunity, products or services to prospective or existing Members or Distributors in conjunction with any non-Xyngular program, opportunity, product or service.
d) Distributors may not offer any non-Xyngular opportunity, products, services or opportunity at any Xyngular-related meeting, seminar, convention, webinar, teleconference, or other function.
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D. A Distributor is responsible for his or her own business decisions and expenditures.
E. A Distributor must comply fully with the Contract.
F. A Distributor is personally responsible for compliance with all federal, state, and local laws and regulations. A Distributor may not rely on the Company to provide any tax, financial, legal, or other professional advice. If any such advice is given by any employee of the Company, the Distributor agrees that they will not rely on it as it is the Distributor’s responsibility, being an independent entrepreneur, to research and comply with any government regulations.
G. There are no exclusive territories or franchises; a Distributor may operate in a country for which the Distributor has submitted a Distributor Agreement Form that has been accepted by the Company.
H. The Company may take action against a Distributor or an Independent Distributorship as provided in the Contract if the Company determines, in its sole discretion, that a Distributor's conduct or the conduct of any participant to an Independent Distributorship violates the terms of the Contract or is detrimental, disruptive, or damaging to the reputation of the Distributor network or the Company.
I. Each person identified on the Distributor Agreement Form or the Business Entity Form as a participant in an Independent Distributorship shall be jointly and severally liable for the conduct, activities, expenses, debts and liabilities attributable to the Independent Distributorship.
J. A Distributor may not send announcements, notices, offers, group/bulk mailings or email messages promoting or relating to Company products, services or opportunity, or relating to training, events or support offered by the Distributor, to a Xyngular Distributor outside of the Distributor’s Sales Organization unless the Distributor not in the Sales Organization expressly requests to be included as a recipient of such announcements, notices, offers, mailings or messages.
1) A Distributor with the Compensation Plan level of Director, or above, may request that his or her Sales Organization be removed from mailing or email lists of an up line Distributor. Such a request shall be made in writing directly to the up line Distributor.
2) Upon receipt of such a request, the up line Distributor shall remove the names and contact information of the requesting Distributor’s Sales Organization from the up line Distributor’s mailing and email lists.
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Failure to honor a request made pursuant to subsection 1 above shall be a breach of the Contract.
Section 5: Sponsoring
A. Becoming a Sponsor. A Distributor may act as a Sponsor only if the Distributor meets all requirements and accepts all responsibilities described in the Contract.
1) A Distributor may refer a person to the Company as an applicant to become Distributor. Upon acceptance by the Company of the Distributor Agreement Form, an applicant is placed in the Sales Organization of the Sponsor listed on the Distributor Agreement Form.
2) In order to be a successful Sponsor, a Distributor should assume training and support obligations for Distributors in his or her Sales Organization. A Distributor's success is aided by the systematic sharing and sale of Company products or services and by assisting Distributors within a Sales Organization.
B. Responsibilities of a Sponsor. Successful leadership of a Sales Organization involves:
1) Providing regular sales and organizational training, guidance, and encouragement to the Sales Organization. A Sponsor should maintain contact with all group Distributors and be available to answer questions;
2) Exercising best efforts to ensure that all Distributors in the Sales Organization properly understand and comply with the terms and conditions of the Contract and applicable national and local laws, ordinances, and regulations;
3) Resolving any disputes arising between a Member and Distributor of the Sales Organization and attempting to resolve the dispute promptly and amicably; and
4) Training to ensure that product or service sales and opportunity meetings are conducted in accordance with the Contract and any applicable laws, ordinances, and regulations.
C. Online Sponsoring. When sponsoring a new Distributor through the online Distributor Agreement Form, the Sponsor may assist the new applicant in filling out the enrollment materials. However, the applicant must personally review and agree to the online Distributor Agreement Form and agreement, the Policies, and the Compensation Plan. The Sponsor may not fill out the online Distributor
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Agreement Form on behalf of the applicant and agree to these materials on behalf of the applicant unless the applicant has completed a hard copy version of the Distributor Agreement Form. In that event, the Sponsor must retain the hard copy version of the Distributor Agreement Form for a minimum of six (6) months and provide it to the Company upon request.
D. Targeting the Sales Force of Other Direct Selling Companies. The Company does not condone Distributors specifically or consciously targeting the sales force of another direct sales company to sell Xyngular products or to become Distributors. Nor does the Company condone Distributors solicitation or enticement of Distributors of the sales force of another direct sales company to violate the terms of their contract with such other company. Should a Distributor engage in such activity, the Distributor bears the risk of being sued by the other direct sales company. If any lawsuit, arbitration or mediation is brought against a Distributor by a third party alleging that he or she engaged in inappropriate recruiting activity of its sales force, Members or Retail Customers, or in any way violated their contract with the third party, the Company will not pay any of the Distributor’s defense costs or legal fees, nor will the Company indemnify the Distributor for any judgment, award, or settlement. Should the third party bring or threaten legal action against the Company based on the conduct of the Distributor, the Distributor agrees that it shall indemnify the Company for all judgments, settlements, payments of any other nature, litigation costs, and attorney’s fees that the Company incurs in relation to such legal action or threat of legal action.
Section 6: Change of Sponsor
A. Except as provided herein, changes in sponsorship are prohibited. Requests for change of sponsorship must be submitted in writing to [email protected], and must include the reason for the transfer. Transfers will only be considered in the following circumstances:
1) Misplacement. In cases in which the new Distributor is sponsored by someone other than the individual he or she was led to believe would be his or her Sponsor, a Distributor may request that he or she be transferred to another organization with his or her entire Sales Organization intact. Requests for transfer under this policy will be evaluated on a case-by-case basis and must be made within three (3) business days from the date of enrollment. The Distributor requesting the change has the burden of proving that he or she was placed beneath the wrong sponsor. It is up to the Company’s discretion whether the requested change will be implemented.
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2) Cancellation and Re-application. A Distributor may legitimately change organizations by voluntarily canceling his or her Contract and remaining inactive (i.e., no purchases of products for resale, no sales of products, no sponsoring, no attendance at any Company functions, no participation in any other form of Distributor activity, no operation of any other Xyngular business, and no income from the Xyngular business) for six (6) full calendar months. Following the six (6) month period of inactivity, the former Distributor may reapply under a new Sponsor, however, the former Distributor’s Sales Organization will remain in the original line of sponsorship. The Company will consider waiving the six (6) month waiting period under exceptional circumstances. Such requests for waiver must be submitted to the Company in writing.
B. Waiver of Claims. In cases in which the appropriate sponsorship change procedures have not been followed, and a sales organization has been developed in the second business developed by a Distributor, the Company reserves the sole and exclusive right to determine the final disposition of the sales organization. Resolving conflicts over the proper placement of a sales organization that has developed under an organization that has improperly switched sponsors is often extremely difficult. Therefore, DISTRIBUTORS WAIVE ANY AND ALL CLAIMS AGAINST THE COMPANY, ITS OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AND AGENTS THAT RELATE TO OR ARISE FROM COMPANY’S DECISION REGARDING THE DISPOSITION OF ANY SALES ORGANIZATION THAT DEVELOPS BELOW A DISTRIBUTOR THAT HAS IMPROPERLY CHANGED LINES OF SPONSORSHIP.
Section 7: Compensation Plan
A. A Distributor receives no compensation for sponsoring other Distributors.
B. A Distributor is neither guaranteed a specific income nor assured any level of profit or success. A Distributor's profit and success can come only through the successful sale of products or services and the sales of other Distributors within the Distributor’s Sales Organization. Success is based primarily on the efforts of the Distributor. Regardless of his or her level of achievement, a Distributor has an ongoing obligation to continue to personally promote product sales through the generation of new Members and through servicing his or her existing Members.
C. Without affecting a Distributor's right to profits based on the Distributor’s retail sales of products or services, a Distributor can receive a Commission only if, during a given Commission Period, the Distributor fulfills all requirements of the
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Compensation Plan and is not in default of any material obligations under the Contract.
D. An order for the purchase of products or services from the Company (accompanied by a proper payment) will be included in the Commission and Distributor sales computations for the Commission Period in which it is received by the Company. If a Company credit is issued on products ordered but not available at the time of the order, Personal Sales value for those unavailable products or services will only be included in the Distributor’s Personal Sales for Commission qualification and computation purposes for the Commission Period in which that credit is redeemed.
E. In addition to all rights otherwise set forth in these Policies, the Company reserves the right to recoup any or all Commissions paid to a Distributor on products or services:
1) returned under the Company's refund policy;
2) returned to an authorized Distribution Center under any applicable law; or
3) Returned in relation to any incident of Distributor misconduct, including but not limited to unauthorized or misleading representations made either in connection with the offer or sale of any product or service, the opportunity or operation of the Compensation Plan.
F. In recouping Commission payments as provided in this Section 7, the Company, in its sole discretion, may require direct payment from an affected Distributor or offset the amount of the recoupment against any present or future Commission.
G. A Commission is paid by check, eWallet, or EFT issued in the name of the primary applicant on the Distributor Agreement Form.
H. To the extent required by law, the Company will send notification of a Distributor's product or service purchases and Commission payments to relevant tax authorities.
I. The Company reserves the right to offset a Distributor’s Commissions by any amount owed by the Distributor to the Company.
J. The Company, at its sole discretion, reserves the right to hold, maintain, or promote a Distributor to any level in the Compensation Plan without regard to fulfillment of level requirements.
K. Distributor’s Commission checks that are not cashed within 90 days of their issue date will each be accessed a cumulative $5/month administration fee.
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L. Commission Statements
1) The daily/monthly Commission Statements that are provided to each Distributor are the confidential and proprietary property of Company. The Company has derived, compiled, configured, and currently maintains the Statements through the expenditure of considerable time, effort, and monetary resources. The Statements, in their present and future forms, constitute commercially advantageous proprietary assets and trade secrets of the Company.
2) All Statements are provided for the exclusive and limited use of each Distributor to facilitate the support and servicing of Members and Retail Customers and for the furtherance of the Company business only. Each Distributor agrees that any such use, within its intended scope, constitutes a separate exclusive license agreement between the Distributor and the Company.
3) These Statements remain, at all times, the exclusive property of the Company, which may, at any time and in the Company’s sole discretion, reclaim and take possession of the Statements. Accordingly, each Distributor agrees that these Statements and the use of such Statements are subject to Section 15 of the Company’s Policies.
4) The Company reserves the right to pursue all appropriate remedies under applicable federal or local laws to protect its proprietary and trade secret rights relating to the Statements; any failure to pursue such remedies will not constitute a waiver of those rights.
Section 8: Becoming a Manager in the Corporate Sales Pools
A. In order to take advantage of Sales pools, a Distributor must attain and maintain the status of at least a Manager as set forth in the Compensation Plan.
B. After earning a rank, if the Distributor does not meet the earned title sales requirements, they will revert to the title they are qualified for and lose all earned title benefits beginning with the month in which those requirements are not maintained. The Distributor will be recognized by their earned rank, but will be compensated by their qualified rank.
Section 9: Awards, Rewards, Events, Promotions and Trips:
A. The Company offers awards and incentive trips via the Passport Program and promotions to Distributors who meet the qualification requirements to earn those awards or trips. No payment or credit will be given to those who cannot or choose
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not to attend trips or to accept awards from these incentive trips or at Company sponsored events. Trips and/or non-cash awards cannot be exchanged or redeemed for cash.
B. Notwithstanding anything to the contrary herein, the Distributor agrees to indemnify and hold harmless the Company from any claim, injury, loss or other damage sustained in association with the trip by the Distributor, dependents of the Distributor, and/or its guests. The Distributor cannot make claim upon, or rely upon, any insurance policy of the Company to cover the costs and expenses of any injury, loss or other damage to the Distributor, dependents of the Distributor, and/or the Distributor’s guests.
C. The Company may be required by law to report the fair market value of any awards, trips, etc. on the Distributor’s end of the year tax report. The Distributor is liable and accountable for all applicable taxes and agrees that the Company shall be held harmless from any claims of tax liability regarding these awards and trips.
D. If the Company discovers or is informed that a Distributor has violated the Contract or misrepresented their qualifications for any of these awards or trips, the Company may immediately disqualify a Distributor from the award or trip and/or charge the Distributor for any costs incurred by the Company (including, but not limited to any benefits, bonuses, or awards the Distributor may have received from these deceptive practices). The Company reserves the right, at its sole discretion, to disallow or terminate a Distributor’s participation in the Passport Program, bonuses, and promotions for any reason it deems necessary. Some examples of deceptive practices are:
1) Signing up new Independent Distributorship, Member, or Retail
Customer: a) Without the knowledge of the person or entity. b) Fraudulently as a person or entity. c) Of a non-existent person or entity. d) By using a credit card by or on behalf of a person or entity, when
the person or entity is not the account holder of the credit card and does not have written authorization from the account holder.
2) Deceptive order processing or sign-up. This includes, but is not limited to:
a) Enrolling a new Distributor or Member in excess of two (2) business days after receiving a completed new Distributor Agreement Form or after receiving payment for the new Distributor’s inception order.
b) The manipulation or placement of Distributor or Member Agreement Form for the purpose of maximizing compensation pursuant to the Compensation plan. This includes changing the
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sponsors of new Distributors or Members during the sign up process without the knowledge and approval of the new Distributor and original sponsor.
c) An Independent Distributor buying products or drop shipping through another Distributorship or Member, or by providing financial assistance to other Distributors or Members to place orders for the purpose of increasing the payout of your sales organization, to become eligible to receive a bonus, or to qualify for a promotion or trip.
Section 10: Ordering Products or Services and Personalized Sales Aids
A. A Distributor has no specific inventory requirements. A Distributor must use his or her own judgment in determining inventory needs based upon reasonably projected personal sales and personal use. Distributors must never purchase more products than they can reasonably use or sell to Retail Customers in a month, and must not influence or attempt to influence any other Distributor to buy more products than they can reasonably use or sell to Retail Customers in a month.
1) When selling products to a Retail Customer, a Distributor must give two copies of the official Xyngular sales receipt to the Retail Customer with the Distributor’s name and contact information. See also Section 14.D.
B. Orders may be placed over the Internet; by telephone; mailed, sent via facsimile, or hand-delivered to the Company's corporate headquarters for processing.
1) Payment may be made by credit card, Company credit, debit card, check or cash.
2) Orders are not shipped until they are paid in full and are normally shipped within seven (7) days of such payment. Orders that have not been paid, or if payment is declined, will continue to be processed each day until the end of the month, at which time the order will be marked as cancelled.
3) Distributors are responsible for ensuring their billing and shipping information is accurate at the time of the order.
C. Orders must be received by the Company by the last working day of a Commission Period to be included in that period’s Commission computations.
D. A Company credit may be issued in instances of overpayment, product exchanges, or in other circumstances when an order cannot be completely filled. Personal Sales and Group Sales will be credited when the Company credit is used.
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E. The Company maintains the right to change product prices without prior notice. Distributors are independent contractors and may establish their own price for reselling products. However, Distributors must still abide by Section 4.A.
F. A Distributor is prohibited from submitting orders in the name of another Distributor without the other Distributor's specific written approval for that order which shall be submitted to the Company upon request.
G. A service fee of $25 will be assessed when a check is returned or denied due to insufficient funds. No Personal Sales or Group Sales will be awarded for an order until acceptable payment is received by the Company. The date of the order is the date acceptable payment is received.
H. A Distributor is prohibited from using another individual's credit card without the other individual's specific, prior, written approval which must be retained by the Distributor for at least six (6) months and submitted to the Company upon request.
Section 11: Income and Sales Tax
A. Every Distributor is responsible for paying all applicable local, state, and federal taxes on any income generated as an Independent Distributor. If a Distributor is tax exempt, the Tax Identification Number (TIN) must be provided to the Company. Every year, Xyngular will provide an applicable tax form or earnings statement to each Distributor, according to Distributor’s local law regarding cash and non-cash earnings.
B. Distributors are required to provide the Company with the identification number their government uses for tax purposes, which will be referred to as a Tax Identification Number (TIN).
1) If a Distributor does not provide a valid TIN to the Company, they may be
subject to backup withholdings, possible processing fees, and will be required to submit the appropriate tax documentation for their jurisdiction. The Distributor’s name and TIN must match the records of their government tax authority.
2) Any fines or penalties incurred by Xyngular due to a Distributor failing to provide a TIN, providing an incorrect TIN or wrong name associated with the TIN, will be the Distributor’s responsibility and the Distributor agrees to reimburse Xyngular for these costs, which the Distributor agrees may be withheld from the Distributor’s commission payments by Xyngular at its discretion.
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C. Xyngular will collect and remit applicable sales taxes on your behalf based on the sales price of the product and according to the applicable rates of the jurisdiction of the “ship to” address on any given order. Moreover, Xyngular may be required by other countries to collect value added taxes, customs fees, or duties. A Distributor may be required to cover these additional fees.
1) Purchases made at Corporate events are subject to the applicable local tax
rates of the event location.
2) If a Distributor has filed for tax-exempt status with their local government, please contact Member Service at (801) 756-8808 for assistance in adjusting your tax status.
Section 12: Autoship Policies
A. Responsibility for Participation
1) Prior to referring a new Distributor to Autoship, a participating Distributor must have had personal contact with the new Distributor for the purpose of introducing and promoting the products and the Autoship program. Distributors are responsible for ensuring that all Distributors, prior to sign-up, understand that participation in Autoship is not required of Distributors and that there will be an ongoing debit to their credit account and they must cancel the Autoship account to prevent ongoing charges.
2) Each Distributor is responsible for providing ongoing customer service to each Distributor he refers to the Autoship program. In performing customer service, each Distributor is responsible for:
a) providing necessary customer attention and satisfaction, and
b) providing product orientation.
B. Sales Volume
1) The Company must receive Autoship orders by the 25th of each month to be included in that month's Commission computations. The Company will not extend ordering through the Autoship program past the 25th of any month.
2) An Autoship order date can be chosen by the Distributor. When an Autoship order date falls on a weekend or a holiday recognized by the Company, the Autoship will generate on the first business day prior to the weekend and/or holiday.
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3) If the Autoship order date chosen by the Distributor is at the beginning of the month and falls on a weekend or holiday recognized by the company, then the Autoship will be generated on the first business day after the weekend and/or holiday.
4) Changes to an order set up on the Autoship program must be made prior to the Autoship generation date. Distributors are responsible for ensuring that all their order information is correct prior to the Autoship generating. If a Distributor is changing their Autoship online, they must do so at least one (1) business day before the Autoship generation date. If a Distributor is contacting the Company to change their Autoship, they must contact the Company at least two (2) business days prior to the generation date. The generation date may change due to a Company recognized holiday or weekend, as cited above.
5) When selling directly to Retail Customers, a Distributor is not obligated to charge his or her Retail Customers the suggested retail price for products, but rather may independently determine the prices at which products are to be resold, so long as the pricing complies with Section 4.A.5. However, all items ordered through the Autoship program will be automatically sold at the predetermined prices established by the Company.
C. Automatic Delivery Enrollment Procedure and Contract
1) Autoship is an optional convenience program for Distributors and Members. No one is required to participate in the Company’s Autoship program. Any Distributor or Member wishing to participate in the Autoship Program is an “Enrollee”.
2) The Enrollee will continue to receive product each month until such time that the Enrollee either cancels or amends his or her Autoship account or such account is terminated by the Company under the terms of the Company’s Policies.
3) The Enrollee understands that the Company will automatically charge his or her credit card on the date he or she has chosen, unless the date falls on a holiday or weekend (See Section 12.B.2). The payment of such charges and obligations are the sole responsibility of the Enrollee.
4) The Distributor agrees to inform his or her enrolling Distributors or Members of all policies pertaining to the Autoship program.
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5) Returns and exchanges are to be handled according to the instructions listed in Sections 13 & 14 of the Policies.
Section 13: Product Exchange Policy
A. The Company will exchange products if the returned products are damaged in shipment or are incorrectly sent for products of equal or lesser value. The request must be submitted for an exchange within 30 days from the date of the order, and will apply only to products that are unopened and unaltered.
B. To exchange products, a Distributor must comply with these procedures:
1) Obtain an Exchange Authorization Number (EAN) from the company prior to returning the products to the company. An EAN may be obtained either by telephone or in writing and the actual shipment must include this EAN;
2) The company will provide the Distributor with the correct procedure and location for the exchange. All shipping costs must be paid for by the Distributor.
3) A Distributor must provide or confirm the address for the product shipment at the time of the exchange request.
4) If the replacement product is a lesser value than the original product, the difference will be issued as a credit to the original form of payment used minus a $3.95 handling cost.
5) If the replacement product is of equal value to the original product, a $3.95 handling cost will be charged to the original form of payment used for the original order.
6) Prior authorization from the company is required to initiate the exchange. The Member Service Department of the company will instruct the Distributor on the correct procedure for returning the products at (801-756-8808).
C. When an exchange is not feasible, the Company reserves the right to issue a Company credit for the amount of the exchanged products.
D. Products included in product packs or cases (i.e. a 4 pack of Global Blend) are not eligible for exchange but can be returned for a 90% refund if unopened. See Xyngular’s Refund Policy (Section 14) for more information.
Section 14: Refund Policy
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A. Inception (initial) Purchase
1) Day 1-30: The Company has a 100% satisfaction guarantee and will refund 100% of the purchase price less Membership/Independent Distributorship fees, shipping and handling fees, and applicable Commissions if postmarked by the 30th day from the order date.
a) If a Member or Distributor reconsiders his or her decision to enroll as a Member or Distributor and the purchase of their Inception order, they may contact the Company within three (3) business days from the Inception order date in order to request a refund of their Membership or Independent Distributorship Fee. The Company will refund the fee at the time of the request. Any products that were ordered will be refunded once they are returned to and processed by the Company. Once a Membership or Independent Distributorship Fee is refunded, the Member’s or Distributor’s Independent Distributorship will be cancelled.
i. Montana Distributors may return product for 100% refund within fifteen (15) day of purchase.
2) Day 31-365 (1 year) from the order date: 90% will be refunded less
handling fees and applicable Commissions on unopened, unaltered, resalable, and restockable products or Sales Aids if postmarked within 12 months from the order date.
B. First Paid Autoship
1) Day 1-30: 100% of the purchase price will be refunded less handling fees and applicable Commissions on unopened, unaltered, resalable and restockable products or Sales Aides if postmarked by the 30th day from the order date.
2) Day 31-365 (1 year) from the order date: 90% will be refunded less
handling fees and applicable Commissions on unopened, unaltered, resalable, and restockable products or Sales Aids if postmarked within twelve months from the order date.
C. Subsequent Purchase(s)
1) Day 1-365 (1 year) from the order date: 90% of the purchase price will
be refunded less handling fees and applicable Commissions on unopened, unaltered, resalable, and restockable products or Sales Aids if postmarked within 12 months from the order date.
D. Retail refunds
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1) Federal and state law requires that Distributors notify their Retail
Customers that they have three business days (5 business days for Alaska residents and 15 days for residents of North Dakota age 65 or older) within which to cancel their purchase and receive a full refund upon return of the products in substantially as good condition as when they were delivered. Saturdays, Sundays and legal holidays are not business days recognized by the Company. Distributors shall verbally inform their Retail Customers of this right, shall provide their Retail Customers with TWO copies of a retail receipt at the time of the sale, and shall point out this cancellation right stated on the receipt. It is the responsibility of each Distributor to honor refund requests made by Retail Customers pursuant to these consumer protection laws. Such refunds must be issued within 10 days of the Retail Customers’s request. See the Notice of Cancellation language on the Retail Customer’s retail receipt for additional information.
2) The Company encourages you to honor your Retail Customers’ requests for refunds even if made more than three (3) business days after the date of sale
3) In addition to the above consumer protection rights, the Company offers a 100% 30-day money-back satisfaction guarantee (less shipping charges) to all Retail Customers. Depending on who the Retail Customer purchased the product from (directly from the Company or from a Distributor), the refund will be issued by the selling party.
4) Products sold by and shipped directly to the Retail Customer by the Company must be returned to the Company and a refund will be issued to the Retail Customer by the Company. If the Retail Customer paid by credit card, debit card or electronic funds transfer, the refund will be made to the applicable payment method.
5) Products delivered to the Retail Customer by a Distributor must be returned to the selling Distributor, and it shall be the responsibility of the Distributor to issue the refund to his or her Retail Customer. Distributors must make a refund for returned Products within 10 days of the Retail Customer’s request. This product satisfaction guarantee does not apply to products damaged by abuse or misuse, and shipping costs are not refundable.
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6) If a Distributor issues a refund to a Retail Customer pursuant to this policy, the Distributor may return the product to the Company for an exchange of those same products as long as the product is returned to the Company within 10 business days of the date that the refund was issued to the Retail Customer. The Distributor must contact Member Service at (801)756-8808 to receive return instructions and how to provide documentation to the Company that the refund was issued as well as a copy of the Retail Customer’s retail sales receipt.
7) If a Distributor’s Retail Customer purchases a Product directly from the Company, then unless otherwise required by applicable law or a specific Product guarantee, the Company will provide the Retail Customer with
a) A 100% refund on the returned Product, following the process in Section 14; or
b) A Product exchange if the Product was incorrectly sent or is defective as provided in Section 13.
E. Creating and Sending the Return 1) A Return Merchandise Authorization (RMA) must be obtained prior to
returning the products or Sales Aids to the Company. An RMA may be obtained either by telephone or in writing and must be included on the actual return shipment.
2) The original sales order number from the invoice must be provided to the Company at the time of RMA request.
3) The Company will provide the Distributor with the correct procedures
and location for returning the products or Sales Aids.
4) All shipping costs must be paid for by the Distributor.
5) All packaging/containers (full, empty or used) must be returned to receive credit for the item(s).
6) The refund will be submitted to the original form of payment, provided
that the Return process is followed properly. Although refunds are generally processed within seven business days of the Company’s receipt of the returned products, please allow 30 days before contacting the Company to inquire. Delays to refunds may be caused by inaccurate or missing information.
F. Important Information
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1) Order date and day 1 are defined as the date the Company receives full
payment for an order through the Xyngular system.
2) Excessive returns and/or exchanges by Distributors may be deemed as an abuse of Xyngular’s Return Policy and may result in suspension of return privileges and/or Distributor status. In general, returns by Distributors will be deemed excessive if the Company, at its discretion, determines that a Distributor is purchasing product in an effort to qualify for compensation under the Compensation Plan and then returning the products for a refund. Excessive returns and/or exchanges may be reviewed on a case by case basis.
3) This refund procedure may vary in jurisdictions where different
repurchase requirements are imposed by law. Applicable laws where the original purchase or return occurs may dictate the terms of the refund policy.
4) International returns may require a different procedure than outlined
above. Contact Member Service for details at 801-756-8808 or [email protected].
G. Commission Impact
1) The Company reserves the right to review each return or exchange on a
case-by-case basis. The return of products that generated personal volume will cause credits, commissions, promotions, and bonuses to be adjusted or reversed, both for the person making the return and for any upline Distributors who received compensation on such purchases.
2) The Company reserves the right to require a Distributor to repay Commissions paid to them on products returned by the Distributor’s Sales Organization. This may be achieved either through contact with the Distributor to arrange for direct repayment or by withholding amounts from the refund and/or present or future Commission payments. This policy encompasses all refunds allowed under the Company’s Refund Policy. Extension of the refund policy as required by applicable law, or instances in which Distributor misconduct, misrepresentation, or other extenuating circumstances necessitates a Distributor refund in excess of the stated refund policy will be considered on a case-by-case basis.
3) The Company reserves the right to require a Distributor to repay Commissions, Bonuses, and/or shares of Corporate Sales pools paid to them when the return of products purchased by the Distributor reduces the Distributor’s Personal Sales (PV) so that the minimum PV requirement for receiving Commissions is not satisfied for the
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Commission Period when the Commissions were paid to the Distributor. The repayment of these Commissions to the Company may be accomplished via a direct repayment to the Company, by withholding amounts from the refund, and/or from present or future Commission payments.
4) In the event a Distributor returns product that qualified them for a Company promotion or a Passport Program Reward, the Company reserves the right to recoup the cost of the promotional item or Passport Program Reward. The Company may recoup this cost via direct repayment from the Distributor, withholding amounts from the refund, and/or present or future commissions; or remedial action.
Section 15: Distributor Lists
A. Distributor lists and all contacts generated therefrom ("Lists") are the confidential and proprietary property of the Company. The Company has derived, compiled, configured, and currently maintains the Lists through the expenditure of considerable time, effort, and monetary resources. The Lists in their present and future forms constitute commercially advantageous proprietary assets and trade secrets of the Company. The right to disclose Lists and other Distributor information maintained by the Company is expressly reserved by the Company and may be denied at the Company's discretion.
B. The Company provides a uniquely tailored portion of the Lists to Distributors on a monthly basis. Each portion of the Lists provided to a Distributor contains information specific to the Distributor’s Compensation Plan level and Sales Organization.
1) These Lists, and portions thereof, are provided for the exclusive and limited use of the Distributor to facilitate the training, support, and servicing of the Distributor’s Sales Organization for furtherance of Company-related business only. Each Distributor agrees that each use, within its intended scope, constitutes a separate exclusive license agreement between the Distributor and the Company.
2) These Lists and all portions thereof, remain, at all times, the exclusive property of the Company, which the Company may, at any time and in its sole discretion, reclaim and repossess. Accordingly, each Distributor agrees:
a) To hold confidential and not disclose any Lists or portion thereof to any third person, including, but not limited to, existing Distributors, competitors, and the general public;
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b) To limit use of the Lists to their intended scope of furthering the Distributor's Company-related business;
c) That any use or disclosure of the Lists outside of those authorized herein, or for the benefit of any third person, constitutes misuse, misappropriation, and a violation of the Distributor’s license agreement, which causes irreparable harm to the Company;
d) That, upon any violation under this section, the Distributor stipulates to injunctive relief as an appropriate remedy enjoining inappropriate use or disclosure of the Lists and Distributor will immediately retrieve and return to the Company all Lists previously provided to the Distributor upon the Company's request; and
e) That violation of this Section constitutes a breach of the Contract for which the Company may impose all of some of the remedies identified in these Policies.
f) That the obligations under this section will survive the termination of the Distributor’s Contract.
3) The Company reserves the right to pursue all appropriate remedies under applicable national or local laws to protect the Company’s rights to the above-stated proprietary and trade secret information covered by the Lists; any failure to pursue any applicable remedies will not constitute a waiver of those rights.
4) The provisions of this Section 15 shall survive the termination of the Contract.
Section 16: Product Claims
A. Distributors may make only product claims and representations found in the literature distributed by the Company. You must comply with both state and federal regulations regarding any statements made.
B. A Distributor may not make any medical claim for any product nor specifically prescribe or recommend any Company product as suitable for any specific ailment as that type of representation implies that the product is a drug rather than a nutritional product. Under no circumstance should any product be likened to a drug product prescribed for the treatment of specific ailment or ailments. Written and printed materials that make such medical claims are not acceptable. This includes claims made on electronic media. If personal testimonials are given they
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must not include that products are for disease prevention, cure or treatment. Our products are intended to improve nutrition: not diagnose, cure, treat or prevent disease.
C. While the Company makes every effort to achieve full compliance with complicated and periodically amended FDA regulations, no Distributor should state or intimate that any product is approved by the FDA. The FDA does not require or grant specific approval for individual nutritional products. Products claims that are nutritional are structure/function claims and must have the following disclaimer:
“These statements have not been evaluated by the U.S. Food and Drug Administration or any other local authority. This product is not intended to diagnose, treat, cure, or prevent any disease.”
The structure/function claims describe a role of a nutrient or dietary ingredient intended to affect normal structure or function in humans. An example is: "calcium builds strong bones.”
The statement is not pre-approved by the FDA but must be truthful and not misleading.
D. Modifications to product packaging or labels by re-packaging products may not be done. If you modify packaging or reduce quantities and resale products it will result in your own personal liability and not the Company’s with further action by the Company to follow. Distributors who persist in this practice are subject to termination. Products should remain in original containers as described in Company literature with packaging, labels and literature remaining intact.
Section 17: Income and Compensation Plan Claims
A. It is vital that all Distributors have realistic expectations and are fully informed on the income potential available through the Xyngular opportunity. Distributors must follow all aspects of Sections 17 and 18 when sharing the Xyngular opportunity with individuals and groups. A Distributor may not make any claims, specific or implied, regarding the income opportunity that are false or misleading, including income guarantees of any kind. You may not exhibit commission payouts, commission summaries, actual or facsimile bonus or commission checks.
B. You may only make income or lifestyle claims (e.g., my Xyngular business allowed me to buy an infinity pool, quit my job, purchase a new home, etc.) or claims regarding the level of bonuses or income associated with your Xyngular business if the following conditions are met:
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1) The information must be accurate and not misleading;
2) The information must be based on your experience and actual compensation level, or the experience and income level of Distributors in your immediate upline or Downline Organization, or be consistent with information in Company literature.
3) The compensation claim must be stated in a monthly or annual amount and the actual percentage of Distributors earning that amount;
4) You must simultaneously disclose in immediate proximity to the compensation claim, the most recent Xyngular Income Summary. (See Section 18 below);
5) You cannot allude to or make any claim regarding the amount of time or effort required to reach specific compensation levels or titles without prior written approval from the Company;
6) If a Distributor makes claims regarding “income” or “profit” rather than “bonuses” or “compensation” they must either explain all the expenses you incurred in generating such income or disclose the total amount of expenses that were incurred in generating such income; and
7) If a Distributor makes claims regarding Bonus levels they must note that such amounts are gross amounts before the deduction of expenses associated with doing the business.
C. Sharing another Distributor’s income claims or examples found in social media (i.e. Facebook, Twitter, Pinterest, etc.) is not permitted.
D. Each Distributor agrees that any claims or representations concerning the opportunity must be congruent with, and limited to, those found in the materials and literature currently distributed by the Company. Such claims and representations may only be made if allowed by applicable laws, ordinances, and regulations for the jurisdiction in which the claim or representation is made.
E. No Distributor may represent that, any person can or will receive Commissions without substantial effort on his or her own behalf.
F. When presenting or discussing the Compensation Plan, Distributors must make it clear to prospective Distributors that financial success as a Xyngular Distributor requires commitment, effort, and sales skill. Conversely, Distributors must never
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represent that one can be successful without diligently applying themselves. Examples of misrepresentations in this area include:
1) It’s a turnkey system; 2) The system will do the work for you; 3) Just get in and your downline will build through spillover; 4) Just join and I will build your downline for you; 5) The company does all the work for you; 6) You don’t have to sell anything; or 7) All you have to do is buy your products every month.
The above are just examples of improper representations about the Compensation Plan. It is important that Distributors do not make these or any other representations that could lead a prospective Distributor to believe that he or she can be successful as a Distributor without commitment, effort, and sales skill.
Section 18: Xyngular Income Summary
A. The Company has developed the Xyngular Income Summary (“XIS”). The XIS is designed to convey truthful, timely, and comprehensive information regarding the income that Distributors earn. In order to accomplish this objective, a copy of the XIS must be presented to all prospective Distributors.
B. A copy of the XIS must be presented to a prospective Distributor anytime the Compensation Plan is presented or discussed, or any type of income claim or earnings representation is made.
C. The terms “income claim” and/or “earnings representation” (collectively “income claim”) include:
1) Statements of actual earnings,
2) Statements of projected earnings,
3) Statements of earnings ranges,
4) Income testimonials,
5) Lifestyle claims, and
6) Hypothetical claims.
D. A lifestyle income claim typically includes statements (or pictures) involving large homes, luxury cars, exotic vacations, or other items suggesting or implying wealth. They also consist of references to the achievement of one's dreams, having everything one always wanted, and are phrased in terms of “opportunity”
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or “possibility” or “chance.” Claims such as “My Xyngular income exceeded my salary after six months in the business,” or “Our Xyngular business has allowed my wife to come home and be a full-time mom” also fall within the purview of “lifestyle” claims.
E. In any non-public meeting (e.g., a home meeting, one-on-one, regardless of venue) with a prospective Distributor or Distributors in which the Compensation Plan is discussed or any type of income claim is made, you must provide each prospect with a copy of the XIS. In any meeting that is open to the public in which the Compensation Plan is discussed or any type of income claims is made, you must provide every prospective Distributor with a copy of the XIS. If copies of the XIS are not provided to everyone in any meeting in which any type of video display is utilized (e.g., monitor, television, projector, etc.) a slide of the XIS must be displayed continuously throughout the duration of any discussion of the Compensation Plan or the making of an income claim.
F. Copies of the XIS may be printed or downloaded without charge from the corporate website at http://www.xyngular.com/XIS.
G. Distributors who develop Sales Tools in which the Compensation Plan or income claims are present must incorporate the XIS into each such Sales Tool prior to submission to the Company for review.
Section 19: General Business Ethics
A. A Distributor agrees that they will operate their Independent Distributorship professionally, ethically, and in a considerate manner. This means, among other things, the Distributor will do the following:
1) You will operate your Independent Distributorship honorably and honestly.
2) When working with prospective Retail Customers, Members and Distributors, you must share who you are, what products you are selling or opportunity you are offering, and why you have contacted them. You must also present this as an entrepreneurial opportunity and not as a job or employment opportunity.
3) You will abide by this Contract and with any applicable law(s).
4) A Distributor may not pressure any (current or prospective) Distributor
to operate their business in a financially irresponsible way, including, but not limited to, pressuring them to buy more products, Sales Aids or
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business support materials than they can reasonably use or sell, or to maintain specific inventory requirements.
5) A Distributor may not approach a prospective Distributor to get them to
sign up underneath them, when they know the prospective Distributor is currently being trained or coached by another Distributor.
6) You may not make any misleading or false claims about benefits using
the Company’s products or potential earnings that one could make under the Company’s Compensation Plan.
7) You may not engage in deceptive practices to mislead prospective
Distributors as to the benefits of the product or income potential. Such deceptive practices include, but are not limited to:
a) Altering a photograph to make it appear that you have lost
weight when you have not. b) Using before and after pictures of people you don’t know or you
are unaware if they have used the Company’s products, but promote it as if they have lost weight using Company products
c) Creating your own income document on income you have not received.
8) You will accept that some prospective Distributors may lack commercial experience and will help them the best you can.
9) You will not abuse the trust of a current or prospective Distributor, nor will you exploit a current or prospective Distributor’s illness, handicap, age, lack of understanding or unfamiliarity with a language.
10) You must not encourage or recommend that a current or prospective Distributor incur debt to participate in the business.
11) You must explain how to return products, cancel an order, and how to
cancel or change an Autoship.
12) You must not represent or in any way inform prospective Distributors that they are required to purchase products to become Distributors. Prospective Distributors must be informed that they can sign up as Members or Retail Customers or that they may purchase products individually.
13) You shall not require or encourage other current or prospective
Distributors to execute any agreement or contract other than official Company agreements and contracts in order to become a Distributor. Similarly, you shall not require or encourage other current or prospective
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Distributors to make any purchase from, or payment to, any individual or other entity to participate in the opportunity other than those purchases or payments identified as recommended or required in official Company literature.
B. A Distributor must take appropriate steps to safeguard and protect all private
information provided to you by Distributors in the operation of your sales organization. Private information includes, but is not limited to, names, addresses, phone numbers, tax identification numbers, credit card numbers, bank account information, etc. This includes current and prospective Distributors, as well as Distributors who either may no longer be with the Company or no longer part of your organization.
C. If a Distributor learns that they have private information of a prospective Distributor who chose not to sign up with the Company or of a Distributor who is either no longer with the Company or part of the Distributor’s sales organization, the Distributor in possession of the private information will take appropriate steps to ensure the information is disposed of in a secure manner.
D. Each Distributor agrees that he or she will not make any misleading, unfair, inaccurate, or disparaging comparisons, claims, representations, or statements about the Company; its products, services, Company employees, or commercial activities; or about other persons; other companies (including competitors); their products; or their commercial activities.
E. Distributors are authorized to sell Xyngular products and enroll Distributors and Members only in the countries in which the Company is authorized to conduct business, as announced on the Company’s official website or other official Company literature. Products or sales aids may not be shipped into or sold in any country that the Company has not announced is officially open for business. Distributors may only sell, transfer, or distribute sales aids, products or product formulations that are authorized in the recipient’s country. In addition, Distributors may not, in any unauthorized country:
1) Conduct sales, enrollment or training meetings;
2) Enroll or attempt to enroll potential Distributors; or
3) Conduct any other activity for the purpose of selling products, establishing a sales organization, or promoting the Xyngular opportunity.
F. Each Distributor agrees that he or she has no authority to take any steps in any
country or other political jurisdiction to introduce or further the Company's business. Such prohibited activities include, but is not limited to, any attempt to register or reserve Company names, trademarks, or trade names; to secure approval for products or business practices; or to establish business or
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governmental contacts of any kind in the Company's name or on the Company’s behalf. A Distributor agrees to indemnify the Company for all costs and attorneys' fees incurred by the Company for any remedial action needed to exonerate the Company in the event the Distributor improperly acts on behalf of the Company or to protect the Company’s interests harmed by the Distributor’s unauthorized conduct. The Distributor agrees to immediately assign any registration of Company names, trademarks, or trade names registered or reserved in violation of this Section to the Company. The provisions of this Section survive the termination of the Contract.
G. Distributors must operate their Independent Distributorships in a manner that is free of threats, intimidation, harassment and abuse. Harassment of any kind will not be tolerated, including, but not limited to, religion, race, physical and verbal abuse, or soliciting, encouraging, or consummating any inappropriate or unwelcome written, verbal, electronic or physical relationships, sexual advances, requests for sexual favors, or other physical, verbal or visual behavior of a sexual nature, with a Retail Customer, Member, or another Distributor, corporate employee, board member, or owner.
H. Distributors may not contact, either directly or indirectly, the Company’s suppliers, vendors, research partners, scientific advisory board members, or any other advisors or consultants of the Company without the prior written consent of the Distributor Conduct Review Committee (“DCRC”). Please submit any requests to [email protected]
I. Xyngular adheres to the DSA Code of Ethics (www.dsa.org/code-of-ethics/overview)
Section 20: Advertising and the Use of the Company Name
A. A Distributor is expressly prohibited from using any form of media advertising to promote the Company’s products, services or opportunity without prior approval by the Company via the DCRC. Products, services, or the opportunity may be promoted only by personal contact or by literature produced and distributed by the Company or by Distributors in accordance with Section 22 of this document. In addition, a Distributor may not promote the products, services, or opportunity through interviews with the media, articles in publications, news reports, or any other public information, trade, or industry information source, or any private, paid or “closed group” publications, unless specifically authorized, in writing, by the Company. All media contacts or inquiries should be immediately referred to the Company (1-801-610-4580).
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1) If a Distributor creates any video, audio, or text presentations about the products, services or opportunity of the Company, whether the media format is shared through social media, digital storage or other presentation format, they must ensure that the information they share is accurate and found in current Company literature. The sharing of any product claim must also include an FDA disclaimer. The sharing of any income claim must include a link to the Distributor Income Summary (http://www.xyngular.com/XIS). If a Distributor shares any misleading or inaccurate information that is not found in current literature provided by the Company, the Distributor agrees to take full responsibility and indemnifies the Company from any fault.
2) Additionally, if a Distributor creates a video presentation, they must clearly show their name and “Independent Distributor” on the screen at the beginning of the video.
B. Company logos or names may not be used or displayed on any apartment, house, office, storefront, or other physical premise, where they may be viewed by persons passing by.
C. No Distributor may use any of the Company's trade names, trademarks, service marks, product names, logos, or other intangible commercial assets, registered or otherwise, in any form of advertising or promotion without first entering into a separate, written licensing agreement with the Company for each proposed use of any of the above-stated names or devices. Each Distributor agrees that any use in violation of these provisions constitutes a breach of the Contract and causes irreparable harm to the Company. The Company, in its sole discretion, reserves the right to prohibit any advertising or promotion.
D. Except for separate, written licensing agreements noted above, none of the Company's copyright-protected materials may be reproduced, in whole or part, by any means.
E. Promotional materials including but not limited to flyers, business cards, banners, and brochures prepared in accordance with Section 20, H below, may be distributed through personal contact only. They may not be posted in public places, mass mailed, placed on parked cars, put in mail boxes, or disseminated by any other non-personal contact means. Materials may not be disseminated through unsolicited faxes or E-mail messages.
F. In order to advertise or list their name in any print or online directories, a Distributor must have previously attained, and currently maintain at the time of
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entering into the advertising of listing agreement, status as a Director-level Distributor or above.
1) This advertisement or listing is to be limited to two lines containing the words "Xyngular, Independent Distributor, John Doe (Distributor's Name), and a telephone number. Neither bold print nor display advertisements are allowed. The advertisement or listing must be in the Distributor's personal name only.
2) The Company recommends that leads obtained from this listing be alternately disbursed throughout the Sales Organization of the Distributor. However, Distributors are prohibited from selling the leads that they obtain to other Distributors.
3) In case of a violation, the Company may require that the offending telephone number be disconnected, in addition to taking other remedial actions under the Contract against the responsible Distributor.
G. A Distributor may not use a celebrity endorsement without the specific, prior, written approval of the endorsing celebrity for each use of the celebrity’s name or likeness. Celebrity endorsements must also be approved in writing by the Company. Please submit any endorsement requests to [email protected]. The Company, at its sole discretion, will determine who is considered a celebrity.
H. A Distributor may not use business cards or other Personalized Sales Aids containing the Company's logo and/or name unless approved in writing by the DCRC. Please submit any business card or Sales Aid requests to [email protected]. These items approved by the Company will follow the general format listed below:
1) The Company's logo and name must always appear with the registered trademark designation (except as prohibited by law);
2) When the Company's logo or name is used, the business card or Personalized Sales Aid must also contain the words "Independent Distributor;"
3) A Distributor may not use the names of any of the Company's products; and
4) Under no circumstance may any Distributor use any title or name which may infer that the Distributor is an employee, officer, director, shareholder, agent or representative of the Company.
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I. Each separate use of the Company's name or logo must be preceded by the completion of a separate written agreement with the Company for the use. Unauthorized use of the Company's logos, names, trademarks, or trade names is prohibited. Any unauthorized use constitutes a breach of the Contract and also a violation of trademark laws and will cause irreparable damage to the Company and its Distributors. The Company reserves the right to pursue all legal and equitable remedies against any Distributor or any other individual or entity who wrongfully uses the Company's logos or name or any of the Company's trademarks or trade names.
J. A Distributor, including each and every agent or representative of the Distributor, is prohibited from participating in non-personal retailing Activities. Such activities include, but are not limited to, the following activities: the mass-mailing of promotional materials, mass-telephone solicitations/telemarketing (i.e. hired telephone soliciting, voice recorded messages), unsolicited e-mails or faxes, and other advertising methods aimed at the mass-distribution of promotional materials, a customer order line telephone number, or a Distributor XID Number. There must always be prior personal contact by the Distributor.
1) The Distributor XID Number may only appear on material produced, or reviewed, and distributed by the Company.
2) The promotion of products or customer use of these programs may be conducted only through personal contact and by material(s) produced, reviewed, and distributed by the Company.
K. At Company-sponsored events and city meetings, Distributors may not, unless specifically authorized in writing by the DCRC, advertise, sell, or promote non-Company products or services, including, but not limited to:
1) The promotion of non-Company events, systems or materials,
2) Organized person to person solicitations,
3) Distribution of flyers, DVDs, promotional items and apparel or other materials, or
4) The use of any other form of promotion deemed inappropriate by the Company.
Section 21: Audio/Visual Release
A. The Company may take photos, recordings (audio or video), or statements (written or verbal) of a Distributor, family Distributor of a Distributor, or guest at
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a Company sponsored event (i.e. XyngFest, Passport Program Reward, City Meeting, etc.) or may request the same directly from a Distributor. The Distributor agrees to and hereby grants the Company the absolute and unalterable right and permission to use, re-use, publish, republish, broadcast, or rebroadcast any such photo, audio, video, or endorsement, in all or in part, individually or in conjunction with any other photograph or video, or any other endorsement, in any current or future medium and for any purpose whatsoever, including (but not by way of limitation) marketing, advertising, promotion, and/or publicity; and to copyright such photograph and/or video, in the original or as republished, in the name of the Company, or in any other name. A Distributor will not be compensated for the use of their likeness in any media presentation by the Company.
1) Regardless of any other agreements or contracts the Distributor may have with any other entity, the Distributor agrees that any use by the Company as set forth in this Section shall be royalty free, is a work made for hire, and is not subject to any other claim. The Distributor agrees to defend and indemnify the Company against any claims by any other party arising out of the Company's use of the rights granted herein. The Distributor confirms that the information he or she may give as a testimonial endorsement, or as represented in a photograph, video or audio is true and accurate to the best of his or her knowledge. The Distributor waives any right he or she may have to inspect or approve the finished or unfinished product(s), the advertising copy, printed, recorded, photographic or video matter which may be used in connection with it or any use that may be made of it.
2) If a Distributor has a guest attending a Company sponsored event, it is the Distributor’s responsibility to ensure that his or her guests fill out a waiver, either online or at the registration desk.
3) If a Distributor has any religious or moral objection to having their picture taken or appearing in a video, please notify a Distributor or the Company’s staff at the event where photographs and videos are being taken.
4) The provisions of this Section will permanently survive the term of the Contract.
B. The Distributor agrees that photos, audio or video recordings taken by the
Distributor or any third party at the Company’s events or activities may not be used by the Distributor or any third parties to promote any business other than the Distributor’s Xyngular Business.
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C. Any Distributor giving a presentation at a Company sponsored event or City meeting agrees that any media (photographs, videos, visual aids, audio clips, etc.) used in the presentation and the presentation itself may be used by the Company.
Section 22: Sales Aids
A. A Distributor may only use, distribute, or sell printed or digital Sales Aids either:
1) Produced and distributed by the Company and bearing the Company’s copyright designation, or
2) Produced and distributed by an Independent Distributor, only after review by the Company and bearing the specific designation "content reviewed" followed by a designated review identification number. The above-stated designation may be obtained through the process outlined below but may only be used after a certificate has been received from the Company by the submitting Distributor. That certificate must specifically indicate that the material may be made available for distribution.
B. The Company may impose a reasonable fee for reviewing a Sales Aid. Distributors should allow a minimum of three weeks for the Company to complete its review of submitted materials. Please submit Sales Aids for review to [email protected]. The Company will assess the submission and will let the Distributor know the fee that will need to be paid before the full review of the submission can be done.
C. The Company reserves the right to require any change to a Sales Aid it deems necessary to ensure appropriate content before allowing the Sales Aid to bear a review designation as stated above.
D. The Company reserves the right to deny approval for any proposed Sales Aid and, if changes in regulatory requirements or other circumstances so dictate, to require, at the Company's sole discretion, the removal from the marketplace and/or discontinuing the use of previously reviewed Sales Aids without the Company incurring any liability or financial obligation to the affected Distributor.
E. Any Distributor who produces or has previously produced or distributed materials as set forth in this section bears ultimate responsibility for the material contained therein. The Company's review process does not guarantee that the Sales Aid complies with all applicable federal or state legal and other regulatory requirements. The review process does not constitute legal advice from the Company to any Distributor. In addition to the Company's review, all Distributors
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who intend to produce and distribute Sales Aids in accordance with this Section are strongly advised to seek the advice of independent legal counsel with regard to the legality and regulatory compliance of Sales Aids.
F. Distributors are free to establish their own prices for Sales Aids reviewed by the Company under this Section 22.
G. Each Sales Aids shall be identified by the name of the Distributor that produced the Sales Aid. Group or organizational identifiers shall not be used in connection with the production of Sales Aids.
H. All mailing lists of the Company's Distributors obtained in connection with the production or sale of an independently produced Sales Aid are the confidential and proprietary property of the Company. Independent tape duplicators, publishers, producers, mailing service providers, and other persons obtaining access to Distributor information or Lists through their involvement with the production or distribution of the Sales Aid must contractually agree to the confidentiality and proprietary nature of those mailing lists and that any use of such information or Lists, or contacts generated therefrom, except for the sole purpose of furthering the Company's business is expressly forbidden. They must also agree that such information and Lists are the proprietary property of the Company. They must also agree that any offers for materials, services or opportunities made to Distributors which make any reference to or mention of the Company or its products or programs may be made only with the prior written consent of the Company for each separate offer.
I. A Distributor’s return policy with regard to Sales Aids which the Distributor produced or sold must be in full compliance and consistent with the Sales Aid return policy employed by the Company for Company Approved Sales Aids (see Section 14).
J. Distributors who create or use Sales Aids in violation of this Section are subject to appropriate remedial action by the Company, up to and including termination of the violating Independent Distributorship.
Section 23: Internet and Websites
A. Distributors may create their own Internet sites to promote the products and opportunity. If Distributors wish to incorporate any Intellectual Property and Proprietary information into their sites, it may only be used as specified, without alteration.
B. Distributors may only use Company trademarks and logos, and must bear the designation "Independent Distributor;" Distributors may use their own personal
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pictures, which do not violate these Policies, and which do not include any intellectual property or proprietary information of the Company or third parties;
C. Distributors may only make product and business claims, which are already found in current Company literature (e.g., websites, catalogues, brochures, etc.) and also comply with Sections 16 and 17 of these policies;
D. All website content must comply with these policies, including but not limited to, Policies Sections 16, 17, 18, 19, and 20. Additionally, all website content must first be reviewed and approved by the Company in accordance with Section 22 of these Policies, and contain a Company-designated review seal with identifying number before it can be used;
E. Distributors may not use, register, or attempt to register any of Xyngular’s trade names, trademarks, service marks, product names, corporate employee names, or any derivative thereof for any Internet domain name/sub-domain, email address, or social media profile name. In the event of non-compliance with this policy, Distributors agree to transfer to the Company, or terminate, the Internet domain name/sub-domain, email address, or social media profile name at issue in a timely fashion as directed by the Company;
F. Distributors may not include any third party intellectual property or proprietary information in the unique domain names/URL or meta-tags of your websites or in any other form of internet use, including but not limited to, tags, links, blog names, social networking sites, social media and applications, and other sites that have content based on user participation and user generated content, forums, message boards, blogs, wikis, and podcasts (i.e. Facebook, YouTube, Wikipedia, Flickr, Instagram, Twitter), or as “wallpaper”. For example, a Distributor cannot use another company’s name in a website name or meta-tag to link to their Xyngular promoting site.
G. Distributors may not register their website(s) with web directories or search engines using any Company or third-party owned intellectual property or any proprietary information (i.e., trade names, copyrighted material, trademarks, and trade secrets) without written approval and permission from the DCRC and property owner;
H. Distributors must include the following language, and any other language the Company may require, in all independently produced websites: "This material is produced by an Independent Xyngular Distributor who is solely responsible for its content. All Xyngular trademarks, copyrights, and other Xyngular intellectual property appearing on this site are Xyngular property and have been used only with the Xyngular's permission;"
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I. Distributors are required to promote their independent Internet sites through one-on-one personal contact. Additionally, Distributors are prohibited from forwarding information regarding their independent sites to individuals who have not specifically requested information regarding the Company's opportunity or products (i.e., "SPAM"). However, Distributors are free to place their Internet addresses on Company-produced Personalized Sales Aids or within generic advertisements that have been produced and disseminated in accordance with this Section of these Policies; and
J. Distributors may not use sponsored links or pay-for-placement advertising with Internet search engines and web directories. This includes the use of services like Google Adwords, pay-per-click (PPC) services, Search Engine Optimization (SEO) services, or other similar services.
K. Distributors who sell Company products through their personal website are responsible for handling any customer concerns that are brought to their attention. They are not to have the Company’s contact information or information directing the customer to contact the Company about an order or return concern. For example, having the Company’s return policy with the Company’s contact information on your personal website is prohibited. Violators of this policy may face disciplinary action.
L. Any Distributor using social media (Facebook, Twitter, YouTube, Pinterest, Blogs, etc.) to promote their Xyngular business must use their social media presence solely for Xyngular. Distributors are prohibited from sharing other network marketing opportunities through these channels.
M. Distributors are responsible for the content of all material they produce and all
postings on any personal website and/or social media sites. In addition, Distributors are responsible for all postings (comments, shares etc…) on any social media site that they manage, own, operate or control.
N. Distributors who use social media (Facebook , Google+, etc.) to promote the
Xyngular opportunity or Xyngular products are required to “friend” or invite Xyngular Compliance. Invites are not only required for personal/business Independent Distributorships used to promote Xyngular, but also any groups set up to promote or discuss the Xyngular opportunity or Xyngular products. These groups include public and private groups and can be testimonial or instructional based. Such access is to help Distributors promote their business in a compliant manner. Distributors who do not invite or friend Xyngular Compliance, or are found to have adjusted privacy settings to hide posts from Xyngular Compliance may face disciplinary action. To add Xyngular Compliance to your Friends or Group, please use [email protected].
O. Distributor Internet sites must comply with all of the guidelines set forth within these Policies. The goal of this policy is to enable access to professional quality
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websites, while helping maintain a level-playing field on the Internet for all Distributors, hence the prohibition on the use of meta-tags or search engines with respect to any intellectual property or proprietary information. Furthermore, in the event this policy is violated, the Company requires the offending Distributor to immediately remove the advertisement and information that is in violation of these Policies, in addition to taking other remedial actions (in accordance with Section 26 of the Policies) against the responsible Distributor. These actions could include prohibiting the Distributor from any future use of the Internet when promoting the Company's opportunity or products, termination of the offending Distributor's Independent Distributorship, or other remedies.
P. The Company reserves the right to rescind approval for any Distributor-created Internet site at its discretion, and Distributors waive all claims for damages or remuneration arising from or relating to such rescission.
Section 24: Online and Retail Store Sales Policy
A. A Distributor may not sell products or services or promote the opportunity through retail stores, including online outlets such as eBay, Amazon, online classified ads and similar sites, except as described in Section 24.C below. A Distributor is also prohibited from selling to any person who will ultimately sell products or services either through online outlets such as eBay or retail stores. Any Distributor using social media (Facebook, Twitter, YouTube, Pinterest, Instagram, Blogs, etc.) to promote their Xyngular business is prohibited from sharing other network marketing opportunities through these channels. Anyone doing so is in violation of the Xyngular cross-recruiting policy.
B. A Distributor may not sell any products or services of the Company nor promote the Company's opportunity at conventions, trade shows, swap meets, bazaars, or any other gatherings where the opportunity or products are displayed at booths, stalls, or any similar display venues without prior written DCRC approval. Please send any requests for approval to [email protected].
C. A Distributor who owns or is employed by a service-related establishment may provide the Company's products to customers through this establishment as long as the Distributor is providing proper prescreening and ongoing support to his or her customers as called for by the Contract. In any event, no product banners, or other Sales Aid materials may be displayed visibly to the general public in a manner as to attract the general public into the establishment to purchase products or services.
1) A service-related establishment is one whose revenue is earned primarily by providing personal service rather than by selling products and whose
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use by customers is established or controlled by membership or appointment.
2) Distributors may only sell products through a service-related establishment that provides services related to the Company’s products.
D. The Company reserves the right, in its sole discretion, to make a final determination as to whether an establishment is service-related or is a proper place for the sale of the products or services.
Section 25: Contract Changes
The Company expressly reserves the right to make any modifications to the Contract. The Company shall provide notice of modifications to the Contract in Company publications, by separate mailing or email, social media, or through publication on the Company website: www.Xyngular.com. Each Distributor agrees that 30 days after publication of such a notice, the modification(s) becomes effective and is automatically incorporated into the Contract between the Company and its Distributors as an effective and binding provision of the Contract. By continuing to act as a Distributor, or engaging in any Distributor activity (i.e. ordering products, sponsoring Members or Distributors, conducting Xyngular meetings, receiving or a promise to receive Commissions from another Member or Independent Distributorship) after a modification becomes effective, a Distributor acknowledges acceptance of the modification as a term of the Contract. Modifications shall not apply retroactively to conduct that occurred prior to the effective date of the modification. For the avoidance of doubt, no unilateral modification will retroactively modify the agreed dispute-resolution provisions of the Contract for then-pending disputes unless the parties expressly agree otherwise.
Section 26: Breach of Contract/Termination of Contract Procedures
A. A Distributor’s rights under the contract are conditioned upon and subject to the Distributor’s continued performance in accordance with the terms of the Contract. Upon failure by a Distributor to perform his or her obligations as set forth in the Contract, the Company may immediately terminate the Contract and the Distributor’s rights hereunder cease. Violation of the Contract, 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 Distributor 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 Distributor’s Xyngular business), may result, at the Company's discretion, in the termination of the Contract. The Company may excuse a Distributor’s breach or
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non-performance in whole or in part without waiving its rights and remedies under the Contract. Furthermore, in addition to, or in lieu of terminating the Contract, the Company may:
1) Provide oral or written notification to the Distributor of the Company’s concerns and of the Company’s intent to terminate the Contract if the Distributor’s non-performance continues;
2) Suspend the Distributor’s Independent Distributorship or rights under the Contract for a specified period of time or until the Distributor comes into compliance with the Contract;
3) Examine the Distributor’s future performance over a specified period of time;
4) Identify specific actions a Distributor must take to correct any non-performance concerns. The Distributor may also be required to provide the Company a written description of how the Distributor intends to comply with their contractual obligations.
5) Stop performing the Company’s obligations under the Contract and suspend the Distributor’s privileges under the Contract. This includes, without limitation, terminating or suspending rights to receive awards, terminating the ability to place orders, remove or terminate recognition in corporate media (publications, websites, social media, etc.), terminating recognition at corporate events, terminating the option to receive commissions (residual, retail, bonus pools, etc.); rescind rights to participate in, or receive products from, a corporate promotion; temporarily or permanently suspend the ability to sponsor internationally; limiting the number of levels a Distributor may receive compensation from in their Sales organization; reduction of earned or paid title; terminating the Distributor’s rights to participate in Corporate sales pools;
6) Recover from your Independent Distributorship any damages that have been caused by the breach;
7) Discontinue or limit payment of Commissions and bonuses attributable to the Personal Sales of the non-performing Distributor or the Distributor’s Sales Organization;
8) Require the Distributor to reimburse the Company for any promotions, bonuses, trips, etc. that the Distributor may have received. This may
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include, but not be limited to, monthly promotions, Passport Program prizes, President’s Club trips and privileges, etc.
9) Reassign part or all of the non-performing Distributor’s Sales Organization, Members, and Retail Customers to a different Sponsor;
10) Take any action that the company deems necessary or appropriate to protect the Company and/or its Network associations;
11) Seek injunctive relief and/or other remedies available by law.
B. If the Company determines, in its sole discretion, that a disagreement requires immediate action; or if the Distributor received prior notification that the Company would take immediate action for the same or similar Contractual violations or actions to those defined in a notice, then the Company reserves the right to take immediate action or solution that it finds appropriate, including termination of the Contract or any of the actions mentioned in Section 26.A. The Company will provide the Distributor with written notice of its action. The Distributor will have 10 days to appeal this action, as cited in Section 26.C.2.
C. The following procedure applies when the Company investigates an alleged breach of the Contract by a Distributor:
1) The Company will either provide verbal notice or send a written notice of the alleged breach of Contract to the Distributor. Each Distributor agrees that the relationship between a Distributor and the Company is entirely contractual. Accordingly, the Company will neither honor nor respect any claim by a Distributor that the relationship is or has been quasi-contractual, has arisen by implication from any continuing practice or course of action, has been verbally authorized by an employee of the Company in contradiction of the terms of the Contract, or is otherwise implied in fact;
2) In a case when written notice of an alleged breach is sent to a Distributor, the Company will give the Distributor ten business days from the date of dispatch of a notification letter during which time the Distributor may respond by presenting information relating to the alleged breach for review by the Company. The Company reserves the right to prohibit or limit activity (e.g. placing orders, sponsoring, modifying Distributor information, receiving Commissions, etc.) by the Independent Distributorship in question from the time notice of an alleged breach is sent to the Distributor until a final Company decision is rendered;
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3) On the basis of any information obtained from collateral sources and from the Company's investigation of the statements and facts taken together with information submitted to the Company during the response period, the Company will make a final decision regarding the alleged breach and implementation of an appropriate remedy, which may include the termination of an Independent Distributorship and Contract with the Company. The Company reserves the right to impose remedies for Contract violations on a case-by-case basis without reference to prior violations or remedies. Prior remedial actions of the Company shall not be deemed as binding precedent. The Company will promptly notify the Distributor of its decision. Any remedies will be effective as of the date on which notice of the Company's decision is dispatched; and
4) Additional information outlining an appeal of the decision by the Company and the Company's Governing Law, Arbitration, Injunctive Relief Policy noted in Section 27 herein will be provided by the Company upon receipt of a written request from the Distributor.
D. A Distributor may terminate his or her Contract at any time, and for any reason, by sending a written notice of termination to the Company. Termination becomes effective as of the date the Company receives the written notice of termination. Certain obligations regarding confidentiality and use of information and the Distributor network survive termination of the Contract as outlined in Section 15. Once an Independent Distributorship is terminated, either by the Distributor or by the Company, any downline are compressed up to the next active Independent Distributorship. If a Distributor voluntarily terminates their Independent Distributorship, the six-month waiting period required under Section 3.C of these Policies begins the date the Company receives the written notification of termination.
E. No written notice of termination need be given by either the Distributor or the
Company when an Independent Distributorship is dormant for three months. An Independent Distributorship is considered dormant when no personal volume is posted within a three-month period. After three months of dormancy, the Distributor’s Contract (and the Distributor’s rights under the Contract) is automatically terminated. Also, after three months of dormancy, the Independent Distributorship is removed from the Autoship Program and will remain in a status allowing regular order placement for the duration of the paid Independent Distributorship year. At that point the Independent Distributorship will be changed to an official inactive status. Independent Distributorships not submitting a letter of termination must wait at least three (3) months after their Independent Distributorship is marked dormant to comply with the six-month waiting period required under Section 3.C of these Policies.
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F. The act of any person having a beneficial interest in an Independent Distributorship or any agent, representative or employee acting on behalf of such a person, spouse or partner of a Distributor is attributable to the Independent Distributorship and remedies, including termination of the Contract, necessitated by such act may be applied to the Independent Distributorship generally.
G. The Company will not review any violation of the terms and conditions of the Contract not brought to the Company's attention within two years of the initiation of the alleged violation. Failure to report a violation within the two-year period will result in the Company not pursuing the allegations in order to prevent stale claims from disrupting the ongoing business activities of Independent Distributorships. All reports of violations must be in writing and sent to the attention of the Company's Distributor Conduct Review Committee (DCRC). Please submit violation concerns to [email protected].
Section 27. Governing Law, Jurisdiction Arbitration, Injunctive Relief Policy
A. The State of Utah is the place of the origin of this Contract and is where the Company accepted the offer of the Applicant to become a Distributor and where the Distributor entered into the Contract with the Company. The Contract is therefore to be construed in accordance with the laws of the State of Utah (without giving effect to any conflict of law provision or rule) as to contracts made and to be wholly performed within the State. Any controversy or claim arising out of or relating to the Contract or the breach thereof, or any controversy or claim relating to the business relationships arising between Distributors shall be resolved by mandatory, final, binding, non-appealable arbitration in Salt Lake City, Utah, United States of America.
B. There shall be one arbitrator, who shall be impartial, independent, and mutually agreed upon by the parties to the arbitration within seven (7) days following receipt of the written notice for demand for arbitration. If the parties do not reach agreement on a single arbitrator within such seven (7) day period, the parties agree that the arbitration shall be administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules (except that there shall only be one arbitrator) and shall be governed by Utah state law, including, but not limited to, the rules pertaining to the discovery process as found in the Utah Rules of Civil Procedure. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof and enforcement of the judgment shall be governed by Utah state law.
C. The parties shall equally share the assessed costs associated with the arbitration, including all arbitrator fees. If one party fails to pay its assessed costs, and such
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failure prevents the timely appointment of an arbitrator or delays ongoing arbitration proceedings, the other party may seek provisional remedies under the Utah Uniform Arbitration Act, Utah Code Section 78B-11-109, to compel the non-paying party to comply with its payment obligations. Such provisional remedies may be sought in the courts of the State of Utah, Utah County, as the exclusive and sole jurisdiction and venue for such provisional actions, and each party hereby consents to personal jurisdiction and proper venue in those courts for such actions. The failure to pay assessed costs under this Section, and any resulting costs, expenses, or damages resulting from the other party being required to seek provisional relief, shall become an additional claim of the injured party in the underlying arbitration.
D. The parties, AAA, and the arbitrator shall maintain the confidentiality of the entire arbitration process and may not disclose to any other person not directly involved in the arbitration process: (i) the substance of, or basis for, the controversy, dispute, or claim; (ii) the content of any testimony or other evidence presented at an arbitration hearing or obtained through discovery in the arbitration; or (iii) the terms or amount of any arbitration award. AAA and the arbitrator shall have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The parties agree that before or after a demand for arbitration is made that a party (in addition to any other remedies which it may have and which are hereby exclusively reserved) is entitled to preserve its rights under the Contract by seeking interim injunctive relief (a temporary restraining order, preliminary injunction and all other forms of interim relief available to the party filing the action) without a bond, and that the only venue for any suit shall be in the state courts located in Utah County, Utah or, at the sole discretion of the Company, in the federal court located in Salt Lake City, Utah. The parties agree that such suit filed with the court: (a) is not a waiver of the rights of the party who filed the suit to proceed with any demand for arbitration it previously filed, and (b) will not in any way affect the rights of the party filing the suit to thereafter demand arbitration once the interim relief is obtained.
E. The parties expressly waive any objections to personal jurisdiction or venue of such courts and to the arbitration being conducted in Salt Lake City, Utah, United States of America. The Distributor and the Company waive their right to commence, be a party to or class member of, a collective action in any court action against the other party or relating to the Contract. Further, the Company and Distributor waive their right to commence or be a party to any group, class or collective action claim in arbitration or any other forum. The parties agree that
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any claim by or against Distributor or the Company shall be heard without consolidation of such claim with any other person or entity's claim
Section 28: Waiver
The waiver by the Company of a Distributor's breach of any provision of the Contract must be in writing and will not be construed as a waiver of any subsequent or additional breach. The failure by the Company to exercise a right or prerogative under the Contract will not operate as a waiver of that right or prerogative.
Section 29: Integrated Contract
A. The Contract is the final expression of the understanding and agreement between the Company and a Distributor concerning all matters touched upon in the Contract and supersedes all prior and contemporaneous agreements of understanding (both oral and written) between the parties. The Contract invalidates all prior notes, memoranda, demonstrations, discussions and descriptions relating to the subject matter of the Contract. The Contract may not be altered or amended except as provided in these Policies. The existence of the Contract may not be contradicted by evidence of any alleged prior contemporaneous oral or written agreement.
B. Should any discrepancy exist between the terms of the Contract and verbal representations made to any Distributor by any employee, the express written terms and requirements of the Contract will prevail.
Section 30: Severance
Any provision of the Contract that is prohibited, judicially invalidated, or otherwise rendered unenforceable in any jurisdiction is ineffective only to the extent of the prohibition, invalidation, or unenforceability in that jurisdiction, and only within that jurisdiction. Any prohibited, judicially invalidated or unenforceable provision of the Contract will not invalidate or render unenforceable any other provision of the Contract, nor will that provision of the Contract be invalidated or rendered unenforceable in any other jurisdiction.
Section 31: Notices
Unless otherwise provided in the Contract, any notice or other communications requested or permitted to be given under the Contract shall be in writing and shall be delivered personally, transmitted by facsimile, receipt notified email, or sent by first class, certified (or registered) or express mail, postage prepaid. Unless otherwise provided in the
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Contract, notices shall be deemed given when delivered personally, or if transmitted by facsimile, receipt notified email, one day after the date of that facsimile or email, or if mailed, five days after the date of mailing to the address of the Company's headquarters or to the Distributor's address as provided on the Distributor Agreement, unless notice of an address change has been received by the Company. The Company shall have the right, as an alternative method of notice, to use mailers, Company publications, the Company website, or other normal and regularly used channels of communications with Distributors.
Section 32: Successors and Claims
The Contract shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
Section 33: Litigation and Claims
A. In order to protect the Company, its assets, and its reputation from claims or disputes created by outside (non-Distributor) third parties, the Company requires the following: if any Distributor is charged with infringing upon any proprietary right of an outside third party (who is not a Distributor) arising from the use of the Company's products, services, Sales Aids, or other proprietary assets, or if the Distributor becomes the subject of any claim or suit related to that Distributor's business-related conduct or any other action that directly or indirectly negatively affects or puts the Company, its reputation, or any of its tangible or intangible assets at risk, the affected Distributor shall immediately notify the Company. The Company may, at its own expense and upon reasonable notice, take whatever action it deems necessary (including, but not limited to, controlling any litigation or settlement discussion related thereto) to protect itself, its reputation, and its tangible and intangible property. The Distributor shall take no action related to that claim and suit, unless the Company consents, which consent shall not be unreasonably withheld.
B. In order to expedite the prompt resolution of any disputes with the Company or between Distributors, which may arise under the Contract, the Company has instituted a Governing Law, Arbitration, and Injunctive Relief Policy. This policy deals with the disposition of disputes arising out of the independent contractor relationship between the Company and its independent contractors and/or disputes arising out of the relationship between the Company's independent contractors themselves. Distributor complaints are first handled by the Distributor Conduct
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Review Committee as described by Section 26.G of these Policies. The Governing Law, Arbitration, Injunctive Relief Policy will also apply in the event a Distributor disagrees with any disciplinary action or interpretation of the Contract by the Company. The Governing Law, Arbitration, Injunctive Relief Policy is mandatory and binding for resolving Distributor disputes. The complete Governing Law, Arbitration, Injunctive Relief Policy is available upon request from the Legal Department to parties who are involved in a controversy as defined above.
Section 34: Headings
The headings in the Contract are for convenience of reference only and shall not limit or otherwise affect any of the terms or provisions of the Contract.
