It's important that you read this Herbalife Weight Loss Challenge ("WLC") Coach Tools Subscription Agreement. If you don't read and accept this Subscription Agreement, you will not be able to access this WLC Coach Tools Website.
A. You are applying to subscribe to the WLC Coach Tools Website ("WLC Site") as it is provided generally from time to time by Herbalife International of America, Inc. ("Herbalife") to independent Herbalife Members ("Members") in the United States who act as WLC coaches ("Coaches") and who wish to subscribe to this WLC Site. You understand that the WLC Site may change from time to time, and Herbalife may suspend or terminate the WLC Site at any time, without advance notice.
YOU ACKNOWLEDGE THAT ANY OR ALL OF THE WLC SITE MAY BE PROVIDED BY THIRD PARTIES ON HERBALIFE'S BEHALF. YOU AGREE THAT EXCEPT WITH REGARD TO THE PROCESSING OF PERSONAL DATA, ANY THIRD PARTY PROVIDER SHALL BE AN EXPRESS BENEFICIARY OF ALL RELEVANT PROVISIONS OF THIS AGREEMENT.
C. If Herbalife accepts your subscription, we will use commercially reasonable efforts to commence providing the WLC Site to you promptly thereafter.
D. You agree to abide by all of Herbalife's rules, regulations, policies and procedures, as amended from time to time, relating to the WLC Site. You understand that Herbalife's rules, regulations, policies and procedures relating to the WLC Site may change from time to time without advance notice, and that such rules, regulations, policies and procedures in effect at any time will be available to you at the WLC Site and/or www.myherbalife.com.
E. You may terminate your subscription to the WLC Site by calling Herbalife at (866) 866-4744. If you are the only Coach running your Challenge (as defined below), after your notification of termination, we will use commercially reasonable efforts to cause your Challenge to be inaccessible to potential Participants (as defined below) after the effective date of such termination. If you are running your Challenge with other Coaches, you will be removed from the Challenge but the Challenge will remain active so your Participants can complete the Challenge.
F. Your subscription to the WLC Site will terminate automatically and without prior notice upon the termination or deletion of your Herbalife Membership. In addition, and notwithstanding any provision of your Membership Agreement or Herbalife's rules, regulations, policies and procedures, Herbalife may temporarily suspend or permanently terminate your subscription to the WLC Site at any time with or without giving prior notice, for any reason or no reason.
G. During the period of any suspension of the WLC Site or your subscription, and from and after any termination of the WLC Site or your subscription, you will have no access to any information in or functionality of the WLC Site, including any content that you have uploaded or entered into the Site, except as otherwise permitted by Herbalife in our sole discretion.
H. No termination of this Agreement will relieve you of any liability that arose before such termination. You understand that the following provisions of this Agreement will survive any termination of The WLC Site or your subscription: Sections I.A, II.A, II.B, III, IV, V and VI.
II. WEIGHT LOSS CHALLENGE RULES AND GUIDELINES
A. You understand that you continue to be bound by all of your existing agreements with Herbalife (including the Membership Application and Agreement) and with all of Herbalife's rules, regulations, policies and procedures as amended from time to time. This Agreement sets forth obligations specific to the WLC Site that are in addition to such existing agreements, rules, regulations, policies and procedures.
B. You confirm that you have read, understand and accept the current Weight Loss Challenge Rules and Guidelines for the USA and Puerto Rico ("WLC Rules"), which are as follows (Non-italicized content represents the Rule itself and is mandatory. Italicized content represents "best practices" and/or further details):
Maximum Number of Participants
Each Weight Loss Challenge ("Challenge") is limited to a maximum of 40 participants. We recommend that you have 20 to 30 participants per Challenge. Keep in mind that a Challenge may include as few as 3 and up to the maximum of 40 participants. For example, if you have 120 people ready to start their Challenge today, you must start 3 or more separate Challenges in order to comply with this Rule. We also recommend that a Member be assigned as a personal coach to every 12 to 15 participants.
Participation Fee: The Participation Fee covers all prize payouts, plus minimal operational costs. Participation fees may not be used to generate a profit and, under no circumstance, may they exceed $35.
Weight Gain Fee: Members may charge a weight-gain fee of $1 per pound for weight gained since a participant's last recorded weigh-in.
Absence Fee: Members may charge an absence fee of $5 for each absence from a weekly meeting. One (1) absence is allowed without penalty.
The only permissible action for non-payment of weight-gain and absence fees is disqualification from the Challenge; Members may not otherwise press or pursue participants (or former participants) for payment.
First prize payout for each Challenge may not exceed $599.
There are 2 reasons for this maximum payout amount:
- Participants should be driven by the results they will achieve, with the "extra" benefit of possibly winning money.
- Larger funds could encourage participants to engage in unhealthy or excessive weight loss and exercise practices; therefore, we dictate this reasonable maximum prize amount.
Each Challenge must run for a minimum of 6 weeks.
- We recommend that each Challenge runs for 12 weeks. This allows the participants to better reach their goals during the course of the Challenge.
- Thishe Weight Loss Challenge Manual, MyHerbalife.com support materials, and Herbalife's Weight Loss Challenge website for participants (HerbalifeWLC.com) are based on a 12-week program.
Weekly meetings are a required element of any Challenge. They may be conducted in any suitable location or online.
Meetings should include a weekly weigh-in, discussion of the participants' progress, educational talks by the Member(s)/coach(es), and formulation of a plan and/or goal for the coming week.
Recommending Herbalife Products
Members may always recommend, promote and educate on Herbalife products, but may not require that the products be purchased or consumed as part of a Challenge.
Refunding the Participation
The participation fee must be fully refunded if requested by the participant within the first 48 hours of the Challenge start date. Refunds requested more than 48 hours after the Challenge commences may be granted at the discretion of the responsible Member(s).
Herbalife creates a variety of finished ads for the Weight Loss Challenge. These tools can be found at MyHerbalife.com. Member-created ads must be compliant with all Herbalife Rules, including the Rules of Conduct, the U.S. and Puerto Rico Supplemental Rules and (where appropriate) the Herbalife Nutrition Club Rules.
When advertising a Weight Loss Challenge, Members may include their name and phone number in the ad. If the Challenge is to take place at a Nutrition Club, the ad may include the name of the Nutrition Club, name of the Club operator, and the Clubs phone number; however, Members may only provide the address for the Challenge through personal interaction, not through the advertisement.
In addition, Weight Loss Challenge ads may not state or imply that persons will receive money for the mere act of participating in a Challenge. Only 4 participants in each Challenge actually receive cash payouts. Ads may state or imply that persons who win the Challenge can earn money for doing so.
Examples of Acceptable Ad Statements:
- "Weight Loss Challenge winners can earn dollars for losing pounds!"
- "Challenge winners can earn cash to lose weight!"
Examples of Unacceptable Ad Statements:
- "Earn dollars for losing pounds!"
- "We pay you to lose weight!"
Required Participation AgreementEvery participant must review and sign a Participation Agreement, which must be kept on file by the Member(s) for at least 1 year from signing and produced to Herbalife upon request.
State of VermontThe standard Weight Loss Challenge model, as set forth in this Manual and these Rules, is prohibited by law in the State of Vermont. If you are interested in using this tool in Vermont, you must contact the Herbalife Distributor Relations department for specific guidance.
The minimum age for participation in a Weight Loss Challenge is 14, and persons ages 14 to 17 require written permission from a parent or legal guardian.
C. Your subscription to the WLC Site does not change your legal relationship as an independent Member running an independent business. In particular:
- The WLC Site is designed only to help you manage your WLC online. It is your sole responsibility to manage your WLC and to maintain your own WLC and participant records.
- Herbaliferbalife is not responsible for verifying the identities of participants or the validity of information supplied by participants.
- You are solely responsible for calculating, charging and collecting any Participation Fees, Weight Gain Fees or Absence Fees and Herbalife is not responsible for the accuracy of figures you have entered into the Site.
- Fees tracking features are provided for your convenience and Herbalife does not receive any proceeds from the fees you collect from your participants.
III. INTELLECTUAL PROPERTY
A. Herbalife, our licensors, and/or service providers retain all right, title, and ownership in and to all of our respective trademarks and logos, all software and technology supporting or involved in providing the WLC Site, and all worldwide copyrights, trademarks, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary rights, whether now known or hereafter recognized in any jurisdiction, related thereto (collectively, "Intellectual Property Rights"). Herbalife is only delivering services to you under this Agreement and has not granted you any licenses, express or implied, with respect to any software or other subject matter. Any rights not expressly granted to you under this Agreement are reserved by Herbalife, our licensors and service providers, as applicable.
B. You will not: (i) distribute, license, lease, rent, loan, or otherwise transfer or provide access to the WLC Site or any technology used to provide the WLC Site; or (ii) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for any such technology used to provide the WLC Site. You will not remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Herbalife or our licensors or our respective service providers on or within any web pages or other materials provided as part of the WLC Site.
IV. PARTICIPANT PERSONAL DATA
B. You acknowledge and agree that all Personal Data that you enter into or collect through the WLC Site or otherwise disclose to Herbalife in the framework of the WLC Site and any related services:
- has been collected, and is, in compliance with the relevant data protection laws (including, if applicable, consent, information and registration requirements);
C. Herbalife has implemented appropriate security measures to protect the Personal Data on the WLC Site against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access. Any changes to the WLC Site, including Herbalife's rules, regulations, policies and procedures, will not result in a material reduction in the level of protection provided for the Personal Data you have entered into or collected through the WLC Site.
D. You understand that Herbalife may need to provide the Personal Data to third parties in order to generate the necessary functionality of the WLC Site. These third parties are required to abide by substantially the same obligations as Herbalife under this Agreement. You hereby consent to such transfer of the Personal Data and have secured the consent of your participants to such transfers. Should you or any customer remove their consent or not consent initially, you will inform Herbalife so that we can make arrangements to restrict the transfer of such customer personal information. You may inform Herbalife by contacting us at 866-866-4744, 800 West Olympic Blvd., Suite 406, Los Angeles, CA 90015 or email@example.com. You understand and agree that you will be liable for any breach of this representation and you will fully indemnify Herbalife for any breach of data privacy laws if Herbalife incurs any damages or losses, including legal fees and expenses.
E. In case of a suspension or termination of the WLC Site or your subscription to the WLC Site, you may no longer access the Personal Data of your participants through the WLC Site and you should therefore keep your own records and copies of Personal Data at all times. Within a reasonable time period after a termination or suspension you may request copies of the Personal Data of your participants from Herbalife and we will use commercially reasonable efforts to oblige such request.
F. In the event of any (including suspected) accidental or unauthorized access to the Personal Data, or another form of data or security breach relating to Personal Data exchanged or kept in the WLC Site or the related services, you and Herbalife will each inform each other as soon as reasonably possible from the moment of detection of the problem.
G. You and Herbalife will cooperate and act in a proactive manner whenever this is required to allow either party to comply with its respective obligations under data protection laws, including to respond within a reasonable time to data protection related enquiries from your customers or prospects and/or the competent regulator.
H. You must keep the Personal Data of your participants accurate and should rectify or delete it, as appropriate, if it is incorrect, incomplete, no longer required or upon the relevant individual's justified request.
I. If you are in breach of your obligations under this Agreement, Herbalife may suspend or block your access to the WLC Site and related services until the breach is remedied. Access to and use of the WLC Site and related services may also be suspended or blocked to prevent interference with, damage to, or degradation of the WLC Site, any related services, and the Herbalife Network and to prevent abuse.
V. COACH MATERIAL
B. If you upload, enter or otherwise use any art, assets or other material in creating or designing your Challenge on the WLC Site, including but not limited to, your stories, articles, opinions, text, source and object code, directories, guides, photographs, illustrations, images, video and audio clips and advertising copy, as well as trademarks, copyrights, logos, domain names, code, tradenames, service marks, patents and any and all copyrightable material (collectively, your "Coach Material"), the following provisions will apply to you:
- As between you and Herbalife, you will own all right, title and interest in and to any Coach Material;
- You hereby grant Herbalife, during the course of your usage of the WLC Site, a non-exclusive, worldwide, royalty-free, and transferable right and license to (i) use, reproduce, access, store, cache, communicate, publicly perform and publicly display your Coach Material and Challenge Data (x) for the purpose of operating and making your Coach Material and Challenge Data available on the WLC Site and in all current and future media in which the WLC Site may now or hereafter be distributed or transmitted or (y) for Herbalife's internal business purposes so that we may derive metrics and analytics relating to the WLC Site; and (ii) disclose any such metrics and analytics regarding the WLC Site for marketing and business development purposes.
- You hereby agree that if your Coach Material is removed from any Challenge webpage due to a violation of this Agreement or because such Coach Material contains illegal images, Herbalife shall have the right to use and reproduce such Coach Material in any manner without restriction, including in response to any subpoena or other judicial or administrative order, to assist government enforcement agencies or as otherwise required by law and to protect the rights, property or safety of Herbalife, any user or individual, or the general public. Additionally, you understand and agree that your Coach Material that is displayed on the WLC Site may continue to appear on the WLC Site, even after we have terminated your account, as portions of your Coach Material may have been incorporated into other WLC Site features. In addition to the rights, licenses and privileges referred to above, you agree that Herbalife may use and refer to your Coach Material (including screen shots) throughout the universe, in perpetuity, in marketing materials, press releases, financial reports, presentations, website materials, customer lists and any and all media now known or hereafter discovered in connection with the marketing, advertising and promotion of the WLC Site and/or Herbalife, and any products, goods, features, capabilities and/or services associated with the WLC Site and/or Herbalife.
C. You understand that you are solely responsible for all Coach Material appearing on or incorporated into your Challenge. You are responsible for making sure that you have all rights in and to the Coach Material, including all of the rights necessary to grant the licenses set forth in this Section V. You represent and warrant that your Coach Material is your original work and does not violate or infringe upon the rights of any third party. You also represent and warrant that the Coach Material appearing on or incorporated into your Challenge is not detrimental to the image or reputation of Herbalife or our products or services, does not degrade the performance of the WLC Site, is not obscene, pornographic or libelous, in whole or in part, and that all postings are in compliance with Herbalife's Rules of Conduct, and any applicable federal and state laws, rules and regulations. Herbalife reserves the right, in our sole and absolute discretion, to remove any and all Coach Material from any Challenge, in whole or in part, at any time and for any reason.
D. You understand and acknowledge that Herbalife and our designees reserve the right, but shall have no obligation, to pre-screen, filter, remove, refuse to accept, post, display or transmit any Coach Material, in whole or in part, on any Challenge at any time and for any reason or no reason at all, with or without notice and with no liability of any kind.
E. If a Challenge is removed from the WLC Site, the Coach Material associated with that Challenge may also be deleted at our discretion. Herbalife is not required to and may not keep back up copies of Coach Material on any Challenge once the Challenge or Coach Material is deleted.
F. You represent and warrant that your Challenge shall not be designed or implemented in a way, that as determined by Herbalife in its sole discretion, might mislead a user into believing that: (i) he or she is interacting directly with Herbalife when interacting with you and your Challenge; or (ii) any part of your Challenge was created by or endorsed by Herbalife.
G. Herbalife reserves the right at any time (and from time to time) to modify, suspend, or discontinue providing the WLC Site or any part thereof, including adding new features to any portion of the WLC Site, with or without notice. Herbalife will not be liable to you or to any third party for any modification, suspension or discontinuance of any portion of the WLC Site or the WLC Site as a whole.
H. You agree to comply with all applicable export and reexport control laws and regulations, including the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department's Office of Foreign Assets Control ("OFAC"), and the International Traffic in Arms Regulations ("ITAR") maintained by the Department of State. Specifically, you agree that you shall not directly or indirectly sell, export, reexport, transfer, divert, or otherwise dispose of any products, software, or technology (including products derived from or based on such software or technology) received from Herbalife under this Agreement to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations. You agree to indemnify, to the fullest extent permitted by law, Herbalife from and against any fines or penalties that may arise as a result of your breach of this provision. This export control clause shall survive termination or cancellation of this Agreement.
VI. COMPLIANCE WITH LAWS; DISCLAIMERS; INDEMNITIES; LIMITS OF LIABILITY
A. At your expense, you shall comply with all applicable laws, rules and regulations regarding your activities related to this Agreement and your use of the WLC Site.
B. YOU AGREE THAT HERBALIFE AND ITS SERVICE PROVIDERS PROVIDE THE WLC SITE, INCLUDING ANY SOFTWARE USED IN CONNECTION WITH SUCH SERVICES, "AS IS", WITHOUT ANY WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HERBALIFE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS REGARDING THIS AGREEMENT AND ANY SUCH SERVICES AND THE SOFTWARE AND TECHNOLOGY USED TO PROVIDE SUCH SERVICES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AND INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NONINFRINGEMENT. HERBALIFE DOES NOT WARRANT THAT THE WLC SITE WILL BE CONTINUOUSLY AVAILABLE OR THAT THE USE OF THE WLC SITE WILL BE UNINTERRUPTED.
C. IN NO EVENT SHALL HERBALIFE BE LIABLE FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL DAMAGES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES, ARISING FROM OR RELATING TO THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE WLC SITE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
E. EXCEPT AS SET FORTH IN THIS SECTION, EACH PARTY'S TOTAL CUMULATIVE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE WLC SITE, WHETHER IN CONTRACT, IN TORT, UNDER A THEORY OF STRICT LIABILITY, OR OTHERWISE, WILL BE LIMITED TO FIFTY DOLLARS ($50.00). HERBALIFE'S SERVICE PROVIDERS WILL HAVE NO LIABILITY OF ANY NATURE TO YOU UNDER THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT ARE REASONABLE AND A FUNDAMENTAL PART OF THIS AGREEMENT, AND THAT HERBALIFE AND YOU WOULD NOT AGREE TO ENTER INTO THIS AGREEMENT WITHOUT SUCH LIMITATIONS. Notwithstanding the foregoing, there shall be no limit on your liability to Herbalife with respect to (i) Losses otherwise recoverable by Herbalife as an indemnitee pursuant to this Agreement, or (ii) damages caused by your willful misconduct or gross negligence.
VII. GOVERNING LAW
All issues and questions concerning the construction, validity, interpretation and enforceability of this Agreement, or the rights and obligations of (i) you, on the one hand, or (ii) Herbalife and its officers, directors and employees (collectively, the "Herbalife Entities"), on the other hand, in connection with this Agreement or the WLC Site shall be governed by and construed in accordance with the domestic laws of the State of California without giving effect to any choice of law or conflict of law rules or provisions that would cause the application of any other state's laws.
VIII. THE WLC SITE PARTICIPANT DASHBOARD AND MESSAGE SERVICES
A. You will not use the WLC invitation feature, participant dashboard summary feature, or other message services available through the WLC Site (the "Message Services") in a manner that violates any law or regulation. Neither you nor your affiliates will use the Message Services for purposes of, or to transmit via the Message Services, (i) any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability or otherwise violate any local, state, federal or foreign law, including without limitation the U.S. export control laws and regulations; (ii) any chain letters or other deceptive, misleading, and/or fraudulent content; (iii) any unsolicited commercial or non-commercial communication; (iv) any emails with deceptive, misleading or false subject lines or header information that makes it difficult to identify the initiator of the email; or (v) any information containing a virus, Trojan horse, worm, or other harmful component.
B. You certify that you will use the Message Services only to send messages to participants and prospective participants that have consented to receive messages from you. Additionally, you agree that you will not send unsolicited electronic messages (spam) via Herbalife's system.
- Each person as to whom email addresses are used in the WLC Site for the purpose of sending messages (i) will be categorized as an "opt-in" recipient by his, her or its agreement with you to receive such information via email, and (ii) has not or will not have notified you or any of your affiliates of his, her or its desire not to receive email (i.e., no such person has "opted out" of the receipt of email with respect to you or your products or services or any of your affiliates or their products or services).
- For any opt-in list of email addresses used in the WLC Site, you agree to provide Herbalife, upon request, with the source of the email addresses, the method used for recipient signup, and details surrounding the process used, and whatever other information relates to the transaction or sign-up process used. This includes, but isn't limited to, date and time of sign up, IP address of signup, website signed up from, and whatever other information the client asked of the recipient at point of sign up.
C. You are required to stop mailing any participant, existing or prospective Challenge participant when it is determined you are in violation of Herbalife's anti-spam policies. Repeated violations or failures to comply with our policies will result in termination of your access to the WLC Site.
D. Herbalife does not buy or sell email lists, nor do we allow Members to use purchased or harvested email lists. You certify that you will not use rented or purchased lists, email append lists, or any other list that contains email addresses captured in any other method than opt-in. The use of opt-out lists is prohibited in our system. Herbalife retains the right to review your lists, messages and emails to verify that you are abiding by the privacy and permission policies set forth herein. You are required to comply with Herbalife's policies and all applicable laws.
Last Revised on April 10, 2014
2014 Herbalife International of America. All Rights Reserved.