Xooma Worldwide, (hereinafter "XOOMA" or "the Company") is a unique direct sales company which provides consumers with premium health products as well as a business opportunity for health conscious and business minded individuals.
Distributor (an Independent Contractor) AGREES:
The following Policies & Procedures for XOOMA's Independent Distributors are effective as of May 4, 2005.
These Policies & Procedures are specifically incorporated by reference into the Distributor Application and Articles of Agreement and have the same effect and force. The Distributor Application, including the Articles of Agreement set forth on the back thereof, along with these Policies & Procedures, form the Agreement between Xooma Worldwide (hereinafter "XOOMA" or "the Company") and the Independent Distributor (an Independent Contractor, hereinafter also known as "Distributor") and shall be effective only upon acceptance by the Company at its Corporate office. These Policies & Procedures have been adopted in order to define the duties, responsibilities and rights of Distributors among themselves and with the Company. The purpose is to develop relationships that are conducive to good business practices while maintaining the right of each Distributor to engage in a free and independent business. As a Distributor you need to remember that the structure of the Company Compensation Plan causes your actions to directly and indirectly affect the business of other Distributors as well as your own.
Distributorship
A Distributor is an individual whose signed Distributor Application and Agreement has been accepted by XOOMA, and who purchases product at least once in a two-month period. Distributors who do not purchase at least every two months will be considered canceled and may be removed from the system. Those that are removed may re-sign immediately but not in their original position. XOOMA reserves the right to refuse any Distributor Application and Agreement. Anyone applying for an XOOMA Distributorship must do so by faxing or mailing a completed Distributor Application and Agreement to XOOMA's corporate offices. Applications which are not complete will be returned to the applicant. No application will be accepted by phone, since a signature is required by law. If a Distributor applies over the internet they must complete the "I agree" section on XOOMA's web site with constitutes a signature. Distributorships becomes effective when processed and approved by the XOOMA Corporate Office. Distributorships must be renewed every year.
Enrollment
A new Independent Distributor may enroll in the XOOMA program by completing and submitting a signed Distributor Application & Agreement form. When submitting the application, the applicant must purchase a Distributor Kit from the Company by enclosing the proper payment in order to become eligible to sponsor other distributors or receive compensation through our system. The Distributor Kit is the most important tool for success in XOOMA. It includes the company manual plus pertinent information regarding products, compensation, sales techniques, policies and procedures, etc. Also enclosed in the Distributor Kit is a start-up inventory of forms, and other sales and marketing tools the Distributor will need to achieve financial success.
The Company reserves the right to reject any application at its sole discretion. Authorization as a Distributor includes the right to sell XOOMA products and to participate in the Company's Compensation Plan.
ID Number
A Distributor's Social Security Number, Social Insurance Number or Federal ID number must be provided on the Distributor Application & Agreement Form. The Company uses its best efforts to keep all identification numbers confidential. The Company will assign a Personal Identification Number (PIN) for each new Distributor; the PIN is not considered confidential. Our Distributors' name, address, phone
Expenses
Any and all expenses arising from a Distributor's business operations are the sole responsibility of the Distributor, including, but not limited to legal costs, telephone expenses, advertising, etc. A Distributor is an Independent Contractor and may not represent by implication or otherwise that they are an officer, employee, agent, or owner of the Company, and as such cannot bind or contract the Company in any manner.
Representation of Status
In all cases, any reference the Distributor makes to themselves must clearly set forth the Distributor's independent status. For example, if the Distributor has a business telephone, the telephone may not be listed under the Company's name or in any other manner that does not disclose the Independent Contractor status of the Distributor; this is also true for answering machine messages, business cards, or any communication of any kind. Distributor's should likewise identify themselves as Independent Distributors at the beginning of a meeting or, training.
Corporations, Proprietorships, Partnerships, Trusts & LLC
Corporations, Proprietorships, Partnerships, Trusts and LLC ("Business Entities") may become Distributors. However, one (1) individual must be designated as the responsible party for the Business Entity's actions and must sign the Distributor Application and Agreement. That Distributor must also provide verification of ownership and tax identification number. Commission and bonus checks will be made payable to the Business Entity.
When a Business Entity applies to be a Distributor, the Distributor Application and Agreement may be submitted in the name of the Business Entity, but must include the name and signature of at least one (1) corporate officer, general partner, or trustee authorized to execute contracts for the Business Entity. Distributors may change their status from individual Distributor or Partnership to a Corporate Distributorship under their existing sponsor. The request must be received and approved by the Company in order to be effective. (See: Advertising, Trademarks and Trade names).
Distributors may not apply using a fictitious or assumed name and/or SSN, SIN, or ID number. Should it be found or learned that the Company accepted such an Application, the Distributor Application and Agreement will immediately be considered null and void. All Distributor benefits and privileges, including commissions and bonuses, will also be revoked
Corporate and Partnership Guarantee for Owners
Although the Company has offered Distributors the opportunity to conduct their business as corporate, proprietorship, partnership, or trust entities, it is agreed that since the Business Entity is under the control of its owners or principals, the actions of individual owners as they may affect the Company and the Distributor position are also critical to the Company's business. Therefore, it is agreed that actions of shareholders, officers, directors, partners, principals, trustee beneficiaries, agents or employees, which are in contravention to the Company's policies shall be attributable to the corporate, partnership, or respective entity.
Husband and Wife Sponsoring: If a husband and wife both desire a XOOMA Distributorship, one must be sponsored by the other. A husband and wife are not allowed to be sponsored into separate downline organizations. If a violation is found, XOOMA will terminate the second Distributorship sponsored.
U.S. and International Business: Distributors may sponsor only in states, regions or countries designated by XOOMA. XOOMA does not guarantee registration in every state, region or country. The company does not accept applications from the state of North Dakota, as long as North Dakota is closed to future MLM companies.
Territories/Franchises
The Distributor shall not represent that any exclusive territories or franchises are available under the Company marketing program or that the Distributor has the authority to grant exclusive rights for the Company products to anyone. There are no exclusive territories.
The Distributor Application and Agreement (including the guarantees, compensation plan, rules and regulations, and policies and procedures) is not binding for any products sold or Distributors sponsored outside the United States and Canada.
Sale or Transfer of a Distributor Position
Distributors may not sell, assign or otherwise transfer their Distributor position or other rights and privileges without prior written approval by XOOMA. XOOMA reserves the right to review and verify all Sales Agreements. Therefore, all Sales Agreements and supporting documentation must be received at the XOOMA Corporate Office accompanying the Sales Request. A Distributor who sells his/her position in the Company Compensation Plan shall not be eligible to re-sign as a Distributor for a period of six (6) months from the original date of sale.
Inheritance
Upon the death or incapacity of a XOOMA Distributor, the right to commissions, bonuses and position in the Company Compensation Plan, together with Distributor responsibilities, shall pass to their successors. The beneficiary must fulfill all responsibilities of XOOMA Distributorship.
Cancellation of Distributorship
A Distributor may cancel their Distributorship at any time in writing, by completing and signing the Change Form or the Cancellation Notice section of the Articles of Agreement and forwarding it to XOOMA. Such cancellation shall constitute voluntary termination of the Member's right to represent the company and its products and to sponsor other Distributors. No Distributor may cancel the Distributorship of another. XOOMA must have an original signature on file for each Distributor cancellation.
When a Distributor cancels, all commission earnings immediately cease and their personally sponsored Distributors automatically roll-up to their Personal Sponsor.
Voluntary Termination (Resignation)
The Distributor may voluntarily terminate his or her Distributorship at any time upon written notice to XOOMA. The Distributor who has voluntarily terminated his or her Distributorship is eligible to re-apply for a new Distributorship six (6) months or more after the termination. The Distributor re-applying after resignation will not retain prior rights to bonuses or position in any former sales organization. Immediately upon resignation, the Distributor will remove, discontinue the use of, and thereafter not use any names, marks, signs, labels, stationery, advertising, or material referring or relating to XOOMA products or the business opportunity.
Conduct And Ethics
The Company will not permit activity that is unethical. Even though the line between aggressive marketing efforts and unethical behavior can be vague, the Company will intercede when unethical behavior is evident and reserves the right at its sole discretion to determine whether an unethical practice has been committed and the appropriate action to be taken.
Medical Claims
A Distributor should make no medical claims for any XOOMA product, whether expressed or implied. Distributors must inform all customers who are pregnant, lactating, have high blood pressure, any chronic disorder, or undergoing any kind of medical treatment to consult with their physician prior to using XOOMA products.
Confidentiality and Nondisclosure
The Company may supply reports to the Distributor that will provide information concerning their downline sales organization. The Distributor agrees that such information is proprietary and confidential to the Company and is transmitted to the Distributor in confidence. The Distributor agrees that he/she will not disclose, use, capitalize upon or exploit any Confidential Information for his/her own benefit, or for the benefit of anyone else, other than for the purpose of conducting his/her business for XOOMA, except in support for his/her downline. Distributor will not use the information to compete with the Company directly or indirectly. To violate this agreement will result in termination.
The Distributor and XOOMA agree that, except for this agreement of confidentiality and non-disclosure being in-place, the Company would not provide the above confidential information to the Distributor.
In consideration to XOOMA for the receipt of Confidential Information, you further agree that for the term of your Distributorship, you shall not take or encourage any action, the purpose or effect of which would be to circumvent, breach, interfere with or diminish the value or benefit of XOOMA's contractual relationships with any XOOMA Distributor. Without limiting the generality of the foregoing, for the term of your Distributorship, you agree not to directly or indirectly, contact, solicit, persuade, enroll, sponsor or accept any XOOMA Distributor, XOOMA Preferred Customer or any one who has been a XOOMA Distributor or Preferred Customer for the last six months, into, or to encourage any such person in any way to promote opportunities in marketing programs of any direct sales company other than XOOMA. Furthermore, during the term of your Distributorship, you are prohibited from appearing in, being referenced in, or allowing your name or likeness to be featured or referenced in any promotional, recruiting or solicitation materials or activities for another direct sales company.
Retail Sales
The Company's program is built upon retail sales to the ultimate consumer. The Company also recognizes that Distributors may wish to purchase product in reasonable amounts for their own personal or family use. For this reason, a retail sale for bonus purposes shall include sales to nonparticipants as well as sales to Distributors for personal or family use, which are not made for purposes of qualification or advancement. It is Company policy, however, to strictly prohibit the purchase of product or large quantities of inventory in unreasonable amounts solely for the purpose of qualifying for bonuses or advancement in the marketing program. Distributors may not "inventory load" nor encourage others in the program to load up on inventory. Distributors must fulfill any published personal and downline retail sales and training requirements, as well as supervisory responsibilities, to qualify for bonuses, overrides and/or advancements.
Retail Customer Warranty
The Company guarantees its products as to the quality of manufacture. In addition, the Company offers the customer a full money back warranty through its Distributors. Each Distributor is expected to honor the Customer Warranty in a prompt and courteous manner.
If a retail customer is dissatisfied with a XOOMA product for any reason the unopened product should be returned to the Independent Distributor with the original Retail Sales Receipt within thirty (30) days of purchase. The Independent Distributor from whom the products were purchased should immediately refund the full purchase price.
The Company's longer retail customer guarantee policy notwithstanding, all retail sales must comply with the FTC Three-Day Cooling Off Rule which requires statutory language and notice of cancellation on the Retail Sales Receipt. The three (3) day right of cancellation must be orally explained to the customer and the customer must receive two copies of the Notice of Cancellation form (found on the back of the Distributor Application and Agreement form).
Retail and Service Oriented Establishments
Distributors may sell or display Company products in service oriented establishments only. A "service oriented establishment" is defined by XOOMA as any business that earns 50% or more of their gross income through the provision of a service. Examples of these service oriented establishments include, but are not limited to, Beauty Salons, Chiropractic and Physician offices etc. Distributors may not sell Company products through any retail outlet or export from the United States without written Company approval. This does not prohibit any retail owner from being a Distributor and is meant to protect the Distributor and the Customer.
Distributor can promote products at fairs and trade shows with the condition that the products are not shown or displayed with any other products that are sold via Direct Sales, Party Plan, Network Marketing or Multi-Level Marketing (MLM).
Sales Tax: XOOMA Distributors are responsible for complying with all state and local laws and regulations governing the collection and payment of sales tax. The appropriate tax (according to your state) on the Suggested Retail price must be included with all orders unless a resale certificate/license is on file with XOOMA.
Sponsoring
The Company does not require a Distributor to sponsor or recruit anyone to participate as a Distributor in the Company program.
A Distributor Position may have only one (1) sponsor. An individual, whether using a company name or not, may be in only one (1) line of sponsorship. Distributors may be in only one (1) organization. The Company discourages transferring from one (1) sponsor to another. In addition, once a person has been placed, the placement may be changed only under extreme circumstances
It is strictly prohibited for a Distributor to recruit a Distributor from another XOOMA downline (cross-recruit) into his/her own downline. Any such attempts shall result in termination of Distributorship.
In the event a prospective Distributor is sponsored by more than one (1) "person," an evaluation will be necessary to determine who has the sponsoring right. The date on the application form will be the first criteria for evaluation. The Company's Corporate Office will use its best judgment to determine who the sponsor will be.
When a prospect is in the company of a Distributor, or has been brought (or sent) to a meeting or event (with the intent of recruiting that prospect as a Distributor), other Distributors must refrain from recruiting the prospect for their own purposes. This refrain is required regardless of whether or not there has been previous knowledge of or acquaintance with the prospect by other Distributors (people rarely attend meetings or events without an invitation). Distributors have a right to absolute confidence that when they bring or send prospects to an activity, the prospects will be safe from being "cross-recruited" by other Distributors. A Distributor has a right to expect that other Distributors, whether in the same downline organization or not, will fully support their recruiting efforts. It is, however, the responsibility of the recruiting Distributor to educate their prospects about how Network Marketing and Sponsoring works, so that the prospect can act responsibly and appropriately in a recruiting situation. Violation of this paragraph may lead to the termination of the offending Distributor.
Unjust Enrichment
Any Distributor who sponsors other Distributors must fulfill the obligation of performing a bona fide supervisory, distributing and selling function in the sale or delivery of product to the ultimate consumer and in the training of those sponsored. Distributors must have ongoing contact, communication and management supervision with his or her sales organization. Examples of such supervision may include, but are not limited to: newsletters, written correspondence, personal meetings, telephone contact, voice mail, electronic mail, training sessions, accompanying individuals to Company training and sharing genealogy information with those sponsored. Distributors should be able to provide evidence to the Company upon request as often as quarterly of ongoing fulfillment of sponsor responsibilities.
Husband and Wife Sponsoring
If a husband and wife both desire XOOMA Distributorship, one must be sponsored by the other. A husband and wife are not allowed to be sponsored into separate downline organizations. If a violation is found, XOOMA will terminate the second Distributorship sponsored.
U.S. and International Sponsoring
Distributors may sponsor only in states, regions or countries designated by XOOMA. XOOMA does not guarantee registration in every state, region or country.
Advertising And Promotion
Meetings and Training
All business presentations and training sessions shall be conducted in strict conformity with corporately produced scripts, slides and printed material. These materials may not be altered or deviated from in any way. They have been developed and refined to insure that prospects have accurate information upon which to base their decision and to assist new Distributors in learning proven techniques for achieving success within prescribed guidelines. For this reason, any alteration of scripts, slides, printed materials or videos, or any deviation in the prescribed presentation thereof, which compromises the integrity and/or intent of the Company program, may result in disciplinary action including termination of the offending Distributor(s).
Medical Claims
A Distributor should make no medical claims for any XOOMA product, whether expressed or implied. Distributors must inform all customers who are pregnant, lactating, have high blood pressure, any chronic disorder, or undergoing any kind of medical treatment to consult with their physician prior to using XOOMA products.
Distributor shall not represent or imply, directly or indirectly, that the Company program has been approved or endorsed by any governmental agency. Federal and State regulatory agencies do not ever approve or endorse any marketing company, product or program.
Copyright
U.S. Copyright Statutes protect all Company materials. All rights are reserved, including the right to alter, revise, and reprint these materials in whole or in part. Reproduction in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system is not permitted now or in the future without the prior written consent of the owner of this copyright.
Because of this copyright and the technical information required to market the Company opportunity, no one shall have the right to reproduce for personal use or for sale, any Company names or logos, marketing materials, literature, recorded Company events, speeches, flyers, videos, brochures or other aids relevant to the Company without prior written consent of the Company. Producing or using unauthorized materials may be grounds for immediate termination.
Advertising, Trademarks and Trade Names
All advertising copy, direct mailing, radio, TV, Internet web site, newspaper and display copy must be approved in writing before being disseminated, published or displayed with the exception of blind ads where no reference is made to the Company name or product name.
The name of the Company and other names as may be adopted by the Company are proprietary trade names and trademarks of the Company. As such, these marks are of great value to the Company and are supplied to Distributors for their use only in an expressly authorized manner. The Distributor agrees not to advertise the Company product in any way other than the advertising or promotional materials made available to the Distributor by the Company. The Distributor agrees not to use any written, printed, recorded or any other material in advertising, promoting or describing the product or the Company marketing program, or in any other manner, which has not been copyrighted and supplied by the Company, unless such material has been submitted to the Company and approved in writing by the Company before being disseminated, published or displayed.
The Distributor, as an Independent Contractor, is fully responsible for all of their verbal and written statements made regarding the product and marketing program which are not expressly contained in writing in the current Distributor Application and Agreement, the Policies and Procedures, and advertising or promotional materials supplied directly by the Company. Distributor agrees to indemnify the Company, its officers and employees and hold all harmless from any and all liability including judgments, civil penalties, refunds, attorney fees, court costs or lost business incurred by the Company, its officers and employees as a result of Distributor's unauthorized representations.
The Company will not permit the use of its copyrights, designs, logos, trade names, trademarks, web site etc. without its prior written permission. However, all Distributors in good standing may use the corporate logos for business cards and letterhead.
All Company materials, whether web site, printed on film, on videotape, or produced by sound recording, are copyrighted and may not be reproduced in whole or in part by Distributors or any other person except as authorized by the Company. All web sites must be approved by the company as well as any piece of advertising copy.
A Distributor may not produce, use or distribute any information relative to the contents, characteristics or properties of Company product, which has not been provided directly by the Company. This prohibition includes but is not limited to web site, print, audio or video media.
A Company Distributor may not produce, sell or distribute literature, films, videotapes, web sites or sound recordings which are similar in nature to those produced, published and provided by the Company for its Distributors. Nor may a Distributor purchase, sell or distribute non-company materials that imply or suggest that said materials originate from the Company.
Any display ads or institutional or trademark advertising copy, other than covered in the foregoing rules, must be submitted to the Company and approved in writing by the Company prior to publication.
No claims as to therapeutic or curative properties about the products may be made except those officially approved in writing by the Company or as contained in the official Company literature. In particular, no Distributor may make any claim that the Company products treat or cure any disease. Such statements can be perceived as medical claims. Not only is this totally against Company policy, but it is also against the laws governed by the United States Food and Drug Administration.
The Company reserves the right to approve or disapprove Distributor's change of business name, formation of partnerships, corporations, and trusts for tax, estate planning, and limited liability purposes. If the Company approves such a change by Distributor, the organization's name and the names of the principals of the organization must appear on the Distributor Application and Agreement along with a social security number or federal identification number. (See Corporations, Proprietorships, Partnerships & Trusts).
Without prior written approval, no Distributor may use the Company's name or any derivation thereof within a business name or in any electronic media network, such as E-mail or on the Internet. Failure to comply with this paragraph may lead to termination of the Distributor.
Representation of Status
In all cases, any reference the Distributor makes to themselves must clearly set forth the Distributor's independent status. For example, if the Distributor has a business telephone, the telephone may not be listed under the Company's name or in any other manner that does not disclose the Independent Contractor status of the Distributor; this is also true for answering machine messages, business cards, or any communication of any kind. Distributor's should likewise identify themselves as Independent Distributors at the beginning of a meeting, or training
Business Cards and Stationery
Approval for business cards and stationary may be revoked if the quality of the materials as well as properly setting forth the independent status of the Distributor is not protected.
Telephone Solicitation
The use of the Company's name or copyrighted materials may not be made with automatic calling devices or "boiler room" operations either to solicit Distributors or retail customers. The use of these methods in ways that are legal and are the equivalent of the "blind ads" alluded to above cannot be regulated by the Company.
Web Site
The Company must approve any web site or web site materials in writing, in advance. Criteria for approving any web site and these materials will include a judgment regarding the quality as well as properly setting forth the independent status of the Distributor.
Media Contacts
To maintain accuracy and the correct Company image, all requests for interviews intended for the media in any form and in any way concerning the Company shall be forwarded to the Company for determination as to whether or not such interview should be granted. Any such determination by the Company shall be final and any action by the Distributor contrary to such decision shall result in the termination of this agreement.
Without prior written approval, Distributors may not solicit coverage or publicity from the media regarding their Company business. Nor may they appear on radio or television to promote their activities. Any violations may lead to termination.
Testimonial Release
XOOMA will have the right, in consideration of its possible use of your appearance, statements and/or materials supplied by you in written, spoken, or visual form: To edit, broadcast and/or print said material and the right to license others to use these rights. To use your name, likeness, voice, biographical information and the material supplied by you for the proposed advertising, publicity and sales promotion. XOOMA's use of your appearance, statements and/or material provided by you as described above will not violate the rights of any person or organization and will not incur any liability for payment to any person or organization. Said statements must be honest, sincere and truthful.
Compensation Payments
Commission/Bonus Check Disputes
Commissions and/or bonus checks are mailed to the billing address on the account. If the bonus payment is made via electronic payment method, the bonus is sent to the email address registered with the account. Any questions or disputes about bonuses, commission calculations or checks pertaining to the Compensation Plan must be raised with the XOOMA Sales & Marketing Department within two (2) calendar months after the payment date. All disputes must be submitted in writing.
Debiting of Bonus
XOOMA reserves the right to debit a Distributor's commission in any amount owed to the Company by the Distributor.
Commission/Bonus Adjustments
XOOMA pays commissions and bonuses (i.e., compensations) from product and equipment sales (Sales Aids are excluded). However, we cannot pay on products that are sold but subsequently returned for refund. So, when a commissionable product or equipment item is approved for refund, XOOMA will charge back all commissions and bonuses (i.e., compensations) that were paid on the returned product/equipment item to the upline Distributors who received them on the original purchase. These charge backs will be deducted from the upline Distributor's future compensations, if sufficient. Should future commissions be insufficient within two (2) commission periods, a collection letter will be sent for monies due. Failure to respond will result in collection action. Twenty-five percent (25%) attorney's fees will be added for any actions involving an attorney in any collection efforts.
Likewise, XOOMA will charge back all commissions and bonuses (i.e., compensations) that were paid on any product/equipment item purchased by either non-sufficient funds check or improperly processed, fraudulent, or disputed credit card to the upline Distributors who received them on the original purchase. These charge backs will be deducted from the upline Distributor's future compensations, if sufficient. Should future commissions be insufficient within two (2) commission periods, a collection letter will be sent for monies due. Failure to respond will result in collection action. Twenty-five percent (25%) attorney's fees will be added for any actions involving an attorney in any collection efforts.
Reissue of Commission Checks
If a Distributor requests the reissue of a commission check due to that check being lost by the Distributor, a $30.00 stop payment fee may be imposed to cover the cost of the bank charges, etc. incurred by XOOMA.
If the original check and the reissued check are both cashed, an additional $25.00 penalty fee will be levied, plus the check totals will be deducted from the Distributor's future commissions until the penalty and reissued funds are paid in full. Should future commissions be insufficient within sixty (60) days of the reissue date, a collection letter will be sent for monies due. Failure to respond will result in collection action. Twenty-five percent (25%) attorney's fees will be added for any actions involving an attorney in any collection efforts.
Distributors purchase product and Sales Aids directly from XOOMA. Sales Aids do not carry any commissionable value. All commissionable orders must be received by 11:59 p.m. EST on the last business day of each month to qualify for that month's business. Internet orders are electronically time stamped when successfully submitted through the website. Xooma is not responsible for internet delays that result in an order being late for a period.
Auto-Ship Discount Program: This program allows Distributors to receive their products conveniently and automatically for personal use and/or sale every month. Distributors participating in the Auto-Ship Program are eligible to receive savings over 30% off the suggested retail price (SRP) on eligible product orders. Auto-Ship Discount Distributors establish a standing monthly product order with XOOMA that may qualify them for commissions and bonuses. Distributors may enroll and authorize XOOMA to debit their standing order each month from their credit card, as designated. Distributors must use their own credit card unless written authorization is received by XOOMA from the cardholder. Only the verified cardholder can make changes to an autoship of a Xooma account of which he/she is the owner of the credit card.
If the Distributor for any reason terminates the Auto-Ship agreement, they may re-establish it in writing via fax or mail.
The Auto-Ship agreement may be terminated by XOOMA without notice if the contract, as stated in the Policies & Procedures, is violated. If the Company terminates an agreement, prior written approval from the Company is required to re-establish an Auto-Ship agreement.
All Distributors using Auto-Ship will establish a standing-monthly product order with XOOMA that may qualify them for commissions and bonuses. Distributors participating in the Auto-Ship Savings Program are eligible to receive savings over 30% off the Suggested Retail Price on commissionable products.
By choosing Auto-Ship, Distributors authorize XOOMA to debit their credit card monthly for their purchase. Auto-Ship users will be shipped their monthly standing order regardless of any other orders placed during the month. However, by request, Distributor's may skip to the next month and still remain on Auto-Ship if they have placed an order that month. A reoccurring monthly "Autoship Date" is set at the time the Distributor establishes Autoship. A Distributor may choose any date between one (1) and twenty eight (28) as their "autoship date". Should the Distributor fail to choose a date the Company will choose a date for them that is closest to the date on the Distributor's Application and Agreement which falls within the first twenty eight (28) days of the month. Distributors can change their autoship date by logging into the back office. This MUST be done BEFORE the date of the autoship. If the distributor does not have access to their backoffice, they must call the customer service department 3 day in advance of the autoship date.
Payment Information
XOOMA accepts MasterCard, VISA, Discover and American Express credit cards. It is the responsibility of the Distributor to inform XOOMA of new "Valid Thru" (expiration) dates for credit cards. Expired "Valid Thru" dates could result in a debit decline and voided order. Distributors must use their own credit cards and checking accounts unless written authorization is received by XOOMA from the card holder. All credit card information submitted with any order must be accurate and verifiable by the issuing bank.
Sales Tax: XOOMA Distributors are responsible for complying with all state and local laws and regulations governing the collection and payment of sales tax. The appropriate tax (according to your state) on the full suggested retail must be included with all orders unless a valid Sales and Use License is on file with the Company. A valid Sales and Use Tax License must be on file at XOOMA for a Distributor to avoid paying Sales Tax at the time of purchase from XOOMA. If the Distributor placing the order pays with their own credit card and has the order shipped directly to them, they may use their Sales Tax License.
Return Check Policy: XOOMA will charge a $25.00 fee for all checks returned for ANY reason. XOOMA will proceed with collection of funds and the Distributor's account will be suspended. Suspended Distributors are not eligible for commissions and bonuses. No future orders will be accepted until the debt is settled.
Declined Credit Cards: If a credit card order is declined for any reason, XOOMA may attempt to receive an authorization three (3) times. If no authorization is received the order will be voided. It is the Distributor's responsibility to ensure funds are available in their account for each order.
Distributor Account Research: If a Distributor feels that a debit error has occurred with their account, they may request that XOOMA research it. If an overcharge has occurred, XOOMA will adjust the account accordingly. XOOMA makes every attempt to answer all inquiries within one (1) week.
On all purchases, Canadian Distributors must include the appropriate combined GST and Duty rate applicable in their province. Provincial Sales Tax (PST) and Harmonizing Tax (HST) must be included as appropriate.
Back Orders
If the Company is temporarily out of stock of an item, XOOMA will ship all the other items on your order along with a "Back Order Notice." Back orders will be filled in the order they were received, once the item is available. Back Orders will be shipped according to the method chosen on the original order.
Shipping
Distributors should allow seven (7) to ten (10) business days for their order to be received.
Tracing an Order: Before a Distributor requests XOOMA to trace an order, they must allow ample time from the date the order was shipped. U.S. Mail is not traceable and shipments will not be replaced if original order is not received.
Damaged Product: Distributors should carefully check all orders upon receipt. If the order is damaged and was shipped by UPS, the Distributor should contact the shipper immediately. In the event the product was shipped U.S. Mail (excluding Express Mail) no coverage for loss is available. If the damaged product is from an XOOMA equipment order, you MUST obtain a Return Material Authorization (RMA) number from Customer Service within ten (10) days and prior to shipping the equipment back to XOOMA.
Missing Items from an Order: It is the Distributors responsibility to check each order. If the order is incomplete or the wrong item has been shipped, they should contact XOOMA upon receipt. Distributor must be prepared to give the packing and inspector information that is found on the invoice. XOOMA will ship replacement items upon verification of missing merchandise.
Return And Exchange Policy
Returns
XOOMA Preferred Customers may return a XOOMA product (unopened, partially used) for a full refund of the product price within 30 days of the original date of purchase. XOOMA Distributors may return a XOOMA product (unopened, in resalable condition) for a full credit of the purchase price within 30 days of the original date of purchase. The credit amount is posted to the Distributors internal account with XOOMA and can be used toward future product purchases. A refund can be issued instead of a credit in the event the Distributor wished to terminate their Distributorship with XOOMA.
Policy Enforcement
Violations of Agreement
General - Violations or infractions of any part of the Distributor Application and Agreement or these Policies & Procedures, should be reported immediately to the Company indicating all the pertinent facts (date, time, place, names of all persons involved, etc.). A notification must be signed as well. Anonymous complaints will not be investigated nor retained in Company files. After receiving a signed complaint, the Company will assign a person or persons to investigate the matter and take appropriate action, including termination of the Distributor, if necessary.
Ethics - The Company will not permit activity that is unethical. Even though the line between aggressive marketing efforts and unethical behavior can be vague, the Company will intercede when unethical behavior is evident and reserves the right at its sole discretion to determine whether an unethical practice has been committed and the appropriate action to be taken.
Fraud - The Company reserves the right at it's sole discretion to investigate and terminate any Distributor account where fraud exsists. The most common type of fraud is credit card fraud. All credit cards for all invoices, either past or present must be authorized by the cardholder and may be subject to bank re-verification at anytime. The name and address must match the name and address the card issuing bank has on file for the cardholder. The card issuing bank must approve the transaction based on the information we have in the Distributor's file. Additionally, all account information must be truthful, accurate, and up-to-date. This especially includes taxpayer id information, company name, first name, last name, full address, email address, and phone number.
Disciplinary Process
Failure to abide by these Policies & Procedures or the Agreement will lead to appropriate disciplinary action. In most cases, policy violations will be dealt with in the following manner:
Warning
The Distributor will be notified, verbally or in writing, that he or she is in violation of XOOMA policies. If the violation is severe enough to warrant it, a formal written warning will be sent to the offending Distributor stating that failure to discontinue the stated violation will result in further disciplinary action
Suspension
This is the final warning. The Distributor will be notified in writing of the suspension and that if policy violations continue after the date of this notification, the Distributor will be terminated. Further, this suspension notice will list actions that must be taken in order for the Distributor to reinstate his/her account. Suspended Distributors are not eligible to place product orders, receive compensation from the Company or participate in any of its functions or programs. XOOMA reserves the right to withhold compensation until the disciplinary process has been completed to the Company's satisfaction. Because suspended Distributors may not place product orders, they will not qualify for compensation during their term of suspension.
The Company reserves the right to terminate any distributorship at any time for cause when it is determined that the Distributor has violated the provisions of the Distributor Application and Agreement, including the provisions of these Policies & Procedures as they may be amended or the provisions of applicable laws and standards of fair dealing. The Company at its discretion shall make such involuntary termination. Upon an involuntary termination, the Company shall notify the Distributor by mail at the latest address listed with the Company for the Distributor. In the event of a termination, the terminated Distributor agrees to immediately cease representing themselves as a Distributor. All costs of enforcing this agreement shall be born by the Independent Distributor.
Involuntary Termination
Immediately upon termination of the Distributorship, the affected Distributor will remove, discontinue the use of, and thereafter not use any names, marks, signs, labels, stationary, advertising or reading material referring or relating to XOOMA products or opportunities
The Distributor who is terminated by the Company may not re-apply for a position as a XOOMA Distributor without express written consent of an officer of the Company who has the authority to give such permission.
The Distributor who is involuntarily terminated is not entitled to receive commissions or any other remuneration that is accrued past the date of his or her termination.
Notices
Written notices between the Company and its Distributors are effective as follows: All notices to the Company are effective when received by the Corporate Office. All notices from the Company are considered effective when deposited in the U.S. mail to the Distributor's last known address. Notices to Distributors as a group may also be contained in other Company communication, such as newsletters or posted information on the official company website.
The Company trusts that with these guidelines, Distributors and the Company will act in the best interest of all and conduct their businesses in a manner that reflects the highest standards of honesty, integrity and responsibility toward customers, other Distributors, the industry and the public, observing the spirit as well as the letter of the law and in this agreement.
The parties agree to be bound by the terms of the Distributor Application and Agreement and these Policies and Procedures. Signatures on the face of the Distributor Application and Agreement or acceptance via the agree to terms checkbox on the website electronic application and capture of users ip address signify acceptance of this agreement by Distributor and shall be effective upon acceptance by the Company, at its Corporate Office.
Waiver
The Company never gives up its right to insist on compliance with these rules or with the applicable laws governing the conduct of a business. This is true in all cases, both specifically expressed and implied, unless an officer of the Company who is authorized to bind the Company in contracts or agreements specifies in writing that the Company waives any of these provisions. In addition, any time the Company gives permission for a breach of the rules, that permission does not extend to future breaches. This provision deals with the concept of "waiver," and the parties agree that the Company does not waive any of its rights under any circumstances short of the written confirmation alluded to above.
Headings
The subject headings of the sections, paragraphs, and subparagraphs of this agreement are included solely for purpose of convenience and reference only, and shall not be deemed to explain, modify, limit, amplify, or aid in the meaning, construction or interpretation of any of the provisions of this agreement.
Cost Effective Dispute Resolution / Waiver of Jury Trial
If a dispute arises relating to any relationship between or among XOOMA, its officers, employees, distributors, vendors or arising out of any products or services sold by XOOMA, it is expected that the parties will attempt, in good faith to resolve any such dispute in an amicable and mutually satisfactory manner. However, all such disputes shall be governed by this provision.
In the event such efforts are unsuccessful, either Party may serve a Notice of Mediation/Arbitration on the other Party. Notice of Mediation/Arbitration shall be personally delivered or sent by prepaid registered mail or air courier, and shall be effective on receipt thereof by the Party to whom it is addressed. Proof of receipt shall be a receipt signed by an officer or responsible official of the Party to whom it is addressed. The Notice of Mediation/Arbitration shall be dated, and without prejudice to any right under the Rules permitting subsequent modifications, and it shall specify the claims or issues that are to be addressed in the mediation/arbitration.
If differences cannot be resolved by mediation, the Parties agree that in order to promote to the fullest extent reasonably possible a mutually amicable resolution to the dispute in a timely, efficient and cost effective manner, they will waive their rights to a trial by jury and settle their dispute by submitting the controversy to arbitration in accordance with the commercial rules of the American Arbitration Association ("A.A.A."), except that all Parties shall be entitled to all discovery rights allowed under the Federal Rules of Civil Procedure as those rules exist in United States Federal Court for the Eastern District of Virginia.
The Parties shall attempt to select a mutually agreeable mediator/arbitrator. If no agreement can be reached within sixty (60) days of the first written notice of intent to mediate/arbitrate, and the parties do not mutually agree to waive this provision, the current Director of Professional Services for A.A.A. in Virginia shall randomly select the Mediator/Arbitrator from A.A.A.'s current panel of Mediator/Arbitrators.
This arbitration shall be governed by the Federal Arbitration Act 9 U.S.C. 1 et. seq. and the judgment upon the award rendered by the arbitrator may be entered by a court having jurisdiction thereof. Either Party may elect to participate in the arbitration telephonically. Any substantive or procedural rights other than the enforceability of the arbitration agreement shall be governed by Virginia law, without regard to Virginia's conflict laws principle.
The Parties further expressly agree: (i) the arbitrator shall only reach his decision by applying strict rules of law to the facts, (ii) the arbitration shall be conducted in the English language, (iii) the sole and exclusive jurisdiction and venue for the arbitration shall be in the City of Hampton, Virginia, (iv) the Party in whose favor the arbitration award is rendered shall be entitled to recover costs and expenses of the arbitration including, but not limited to, attorney's fees and cost and expense of administering the arbitration proceedings, as well as any costs and attorneys fees incurred in executing or enforcing the arbitration award; and (v) the arbitral award shall be issued in the City of Hampton, Virginia, USA.
Except as provided in the following sentences, no Party shall be entitled to commence or maintain any action in a court of law upon any matter in dispute until such matter has been submitted and determined as provided herein, and then only for the enforcement of such arbitration award. Provided that, not withstanding this dispute resolution policy, either Party may apply to a court of competent jurisdiction in the City of Hampton, Virginia, to seek injunctive relief before or after the pendency of the arbitration proceeding. The institution of any action for injunctive relief shall not constitute a waiver of right or obligation of any Party to submit claim seeking relief other than injunctive relief to arbitration. Judgment upon the award my be entered in the United States District Court or the City of Hampton Superior Court located in the Commonwealth of Virginia, or application may be made to such court for the judicial acceptance of the award and order of enforcement, as the case may be if the arbitrator's award or decision is not complied within seven (7) days of the arbitrator's decision. Arbitration shall be the sole and exclusive procedure for resolution of disputes between the parties, including any disputes that might arise after the termination of this agreement.
General Policies
The Company reserves the right, at its sole discretion, to amend, revise, institute, alter, or modify changes including but not limited to: prices, literature, policies, agreements, and the Company Compensation Plan. Any such revisions become effective by letters or by publication in official Company literature or publication on the official company website. The Distributor agrees to be bound by these changes and the changes shall become part of this agreement.
Partial Validity
Should any portion of these Policies & Procedures, Distributor Application and Agreement or of any other instruments referred to herein or issued by the Company be declared invalid by a court of competent jurisdiction, the balance of such rules, applications, or instruments shall remain in full force and effect.
The Company recognizing that some laws and/or rules may change from time to time and/or differ from state to state, honors the prevailing law or rule in any state. The changing of a policy and/or procedure does not automatically alter any other policy or procedure, which remains in force.
The Company does not discriminate in its acceptance of the Distributors because of race, creed, sex, color, or national origin.
XOOMA™ ANTI-SPAMMING POLICY
Nothing seems to irritate Internet users more than receiving - in many cases being barraged by - unsolicited junk e-mail. "Spam" or "Spamming" is a derisive term referring to broadcasting of unsolicited junk e-mail. Unwanted e-mail messages congest the Internet's pipelines and increase costs to service providers; they force some users to pay additional long-distance charges when they have to retrieve the messages; and they are sometimes nothing more than electronic fronts for fraudulent solicitations.
XOOMA prohibits the transmission, distribution or delivery of any unsolicited bulk or unsolicited commercial email also known as Spam.
Spamming is perhaps the most harmful in the way it unsettles the confidence of Internet users in their online privacy and security. The clearest message that a spamming recipient gets is usually not what the senders intend, but rather the disturbing news that his/her privacy has been breached - that someone has obtained his/her e-mail address, and perhaps other personal information, without his/her knowledge or consent. Sensitive to the full dimensions of this serious problem, XOOMA has enacted strict policies with respect to spamming and other abusive behaviors. XOOMA's policy makes it expressly clear that we will not tolerate the use of spamming or other similarly abusive behavior. Under XOOMA's policy, Distributors who are caught spamming or who persist in the mass distribution of unsolicited e-mail messages will be immediately suspended and/or their membership will be terminated and forfeit any and all bonuses owed and in holding at that time.
It is considered a severe policy violation for any XOOMA Distributor to participate in any of the following activities through the XOOMA Corporate Server or any other on-line service providers:
XOOMA considers the above practices to constitute abuse of our Site and policies and of the recipients of such unsolicited mailings and/or postings, who often bear the expense. Therefore, these practices are prohibited by XOOMA. Engaging in one or more of these practices will result in suspension and/or termination of the offender's Distributorship and/or access to XOOMA's Site.
This policy addresses only the kinds of network abuse specifically enumerated above. In addition to these activities, XOOMA's policies prohibit other forms of abuse such as harassment and the posting of illegal or unlawful materials, and XOOMA will respond as appropriate to these other activities as well.
If you believe that you have received spam from or through XOOMA's facilities, please send a complaint from your email account along with the unsolicited email, with completed header, to customerservice@tryedge.com. Please provide any other information that you believe may help us in our investigation. XOOMA does not investigate or take any action based on "anonymous" spam complaints. In addition, XOOMA may report you to your ISP Provider as a Spammer with the possible termination of your ISP account.
Furthermore, by violating our anti-spam policy, if your violation has caused damage or loss to our servers, or causes normal service on one (or more) of our websites to be interrupted, you will be held liable for damages and loss of business.
XOOMA supports the efforts of various organizations working to responsibly eliminate spam activities. However, if an individual has opted-in to receive email from a customer of XOOMA, and then falsely or maliciously files a spam complaint against XOOMA or its customers, XOOMA will cooperate fully with the appropriate agencies to ban the complainant from use of anti-spam software and the Internet community.
Notwithstanding anything to the contrary, XOOMA reserves the right to amend the aforementioned policies without prior notification
