The purpose of this document is to set forth the terms and conditions ("Terms and Conditions") that apply to your Independent Promoter relationship with La Diva Beauty, LLC
("La Diva" or "Company"). Once your application is submitted to and accepted by La Diva, an agreement is created between you and La Diva. Accordingly, you understand and agree as follows:
"Policies"), the La Diva Commission Plan ("Commission Plan"), and complete all training materials and/or programs as may be required by La Diva; (e) provide a valid tax identification number or EIN to La Diva;
Terms used but not defined herein, will have the meanings set forth in the definitions or glossaries of relevant La Diva documents, such as the Policies or the Commission Plan.
2. Independent Contractor Status
Upon La Diva’s acceptance of this La Diva Promoter Application and Agreement, you understand that you will become a La Diva Independent Promoter (Independent Promoter or Promoter) and will be eligible to participate in the promoting of La Diva goods and services and receive commissions in connection with such sales in accordance with the Promoter Contract. As an Independent Promoter you are an independent contractor. You acknowledge and agree that you are not an agent, employee, legal representative or franchisee of La Diva. You further understand and agree that you will not be treated as an employee for federal or state tax purposes, and will not be treated as an employee for purposes of the Federal Unemployment Act, Insurance Contributions Act or Social Security Act, or any state unemployment laws, state employment security laws, or any state workers compensation laws. You understand and agree that you are responsible for and will pay all federal and state taxes, including income taxes, self-employment taxes, sales taxes, local taxes, and/or local license fees that apply to your activities and compensation received under the Promoter Contract. As a self-employed independent contractor, you will be operating your own independent business, promoting products and services available through and by La Diva on your own accord. You have complete freedom in determining the number of hours you will devote to your business, and you have the sole discretion of scheduling such hours. La Diva will not provide you with a place of business, and if you desire a place of business other than your own residence, you will be responsible for procuring, furnishing, equipping, and paying for such place of business. As a self-employed independent contractor, you are also responsible for complying with any applicable federal, state, provincial, or local business licensing requirements.
3. Payment and Remuneration
You understand and agree that substantially all of your remuneration for the services you perform will consist of commissions earn on net sales, as identified by the redemption of coupon codes assigned for your use. Remuneration is not determined by the number of hours worked.
As an Independent Promoter, you are not guaranteed any income, nor are you assured of any profit or success.
Your success as an Independent Promoter is dependent upon your own efforts and skills, as well as other factors, some of which you may not control; and you do not anticipate receiving income as a result of the efforts of any other individual or entity other than yourself.
4. Marketing Materials
You hereby agree that you will not advertise using La Diva’s name, trade names or logos in any manner, except as may be permitted under Policy 6 (Trademarks, Advertising and Internet Usage). In addition, you will not make any representations or claims about any La Diva products, including the Commission Plan, and La Diva programs beyond those statements shown on product labels and/or in La Diva authorized literature and materials. You are prohibited from producing, selling or using any written, recorded, or other materials for advertising, promoting or describing any La Diva products, including the Commission Plan, and programs that has not first been reviewed and approved by La Diva in writing. All materials must either be provided by La Diva or first approved by La Diva in writing prior to being used.
You understand that you may not delete, add, modify, tamper with, repackage, re-label, refill or alter the labels on any La Diva products or alter any La Diva literature or materials in any way.
Products or samples that are packaged together by La Diva as part of a product pack or case may not be sold individually.
5. Personal Data and Privacy
The personal data disclosed in establishing your Promoter Business as well as personal data collected in fulfilling our obligations is necessary for La Diva to operate and coordinate its distribution network and carry out its obligations under this and other agreements. The data collected is used by
La Diva’s internal and third-party service providers taking part in the operation and management of distribution network. Accordingly, you consent to the disclosure of your name, telephone number(s), fax number, e-mail address(es), shipping address(es) and other contact information listed on your application or otherwise provided to La Diva, and information regarding your Diva purchases (excluding payment card/account information), to La Diva internal departments, external service providers and Master Promoter if applicable.
6. La Diva Communications and Consent
By becoming an Independent Promoter, you agree to receive communications from La Diva, including e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from La Diva and its affiliated companies, may include but are not limited to: operational communications concerning your La Diva Account or use of La Diva services, updates concerning new and existing features, communications concerning promotions run by us or our third-party partners, and news concerning La Diva and other business
7. Limited Use of Information of Other Persons
8. Use of Name, Likeness, Image, and/or Testimonials for La Diva Promotional Purposes
By entering into this La Diva Promoter Application and Agreement, you authorize the lawful and unlimited use of your full name, likeness, image, voice, written comments, testimonials or other documentation in connection with marketing, publicizing, or otherwise promoting La Diva products, marketing programs, opportunities, services, or promotional literature and supplies, without remuneration or other consideration being paid to you. You further consent to La Diva’s publishing in any of its material, whether electronically or in hard copy, your name, photograph, city and state of residence, and any other information La Diva customarily publishes about Promoters, without remuneration being paid to you. Your testimonial or endorsement of La Diva products or other personal participation is made of your own free will and you will not be paid any monetary sum for doing so.
9. Term and Termination
The term of this La Diva Promoter Application and Agreement is one (1) year and will automatically renew on each anniversary date,
unless earlier terminated by you or La Diva. You may terminate your La Diva Promoter Application and Agreement at any time and for any reason by providing written notice to La Diva.
Written requests for cancellation are considered effective when a valid request is received by
La Diva. Cancellation notices may be mailed to: La Diva Beauty, LLC, Attn: Account Requests, 1334 East Chandler Blvd Ste #5, Phoenix, AZ 85048;
The written notice must bear your signature, printed name and address. La Diva may also terminate your La Diva Promoter Application and Agreement at any time for any reason.
If either you or La Diva elect to not renew the La Diva Promoter Application and Agreement, or if it is canceled or terminated for any reason, you understand that you will permanently lose all rights as a Promoter. You shall not be eligible to promote La Diva products and services, nor shall you be eligible to receive commissions or other income resulting from the activities of your former business. In the event of a cancellation or termination, you waive all rights you have, including but not limited to property rights, to your former business and to any commissions, or other remuneration derived through the sales and other activities of your former business.
You acknowledge and understand that the acceptance of this La Diva Promoter Application and Agreement does not constitute the sale of a franchise or a distributorship, that there are no exclusive territories granted to anyone, that no franchise fees have been paid or collected, and that you are not acquiring any security interest.
You may not transfer, delegate or otherwise assign the La Diva Promoter Application and Agreement or any portion of it or any right, privilege, authority, responsibility, duty, or obligation of such, without the prior written consent of La Diva. Any attempt to so transfer, delegate or assign without prior written consent of La Diva will be void ab initio, will be of no effect, and will be a breach of the Promoter Contract. La Diva may transfer or assign the Promoter Contract and any or all its rights or duties under the Promoter Contract at its sole discretion and without notice, consent, or acknowledgment.
Violation of any of the terms of the Promoter Contract or of any law may result in forfeiture of commissions and/or other payments from La Diva based on all or part of your business, cancellation of your La Diva Promoter Application and Agreement, or other corrective action as deemed appropriate by La Diva in its sole discretion, and as provided for in the Policies. Without limiting any of its rights or other remedies, if your Promoter Contract is terminated or cancelled by La Diva (or by you) at any time for any reason, you will permanently lose and forfeit all rights as an La Diva Independent Promoter, and you waive and forfeit all rights and claims to your business and to all commissions.
You agree to hold harmless, indemnify, and release La Diva, its shareholders, officers, directors, employees and agents from and against (a) any claims or liabilities arising from or relating to the operation or promotion of your La Diva business, and (b) any claims for consequential, special, punitive, or exemplary damages against La Diva for any reason whatsoever. In addition, you agree to waive, (a) any claims or liabilities arising from or relating to the operation or promotion of your La Diva business, and (b) any claims you may have for consequential, special, punitive, or exemplary damages against La Diva for any reason whatsoever.
You agree that any unresolved dispute will be resolved and settled in accordance with and pursuant to Policy 9.10 (Arbitration and Governing Law). If a dispute or claim arising out of, or relating to the IAAA, is not subject to arbitration as set forth in said Policy 9.10, the laws of the state of Arizona will govern, and the parties agree that proper jurisdiction and venue shall be in the state and federal courts of Arizona. This La Diva Promoter Application and Agreement shall be binding on the successors and assigns of both parties. In the event of a dispute for jurisdictional purposes, a Louisiana Associate shall be entitled to file an adjudicatory claim or lawsuit in the jurisdiction of Louisiana and the governing law shall be Louisiana law.
The provisions of the Promoter Contract are severable. In the event that an arbitrator or court of competent jurisdiction determines any portion of the Promoter Contract is unenforceable in any respect, then it will enforce the rest of the Promoter Contract to the fullest extent permitted by law without affecting the enforceability of the remaining provisions.
No waiver of any default or breach of your Promoter Contract, or failure to enforce rights contained therein, will be considered a waiver by La Diva of any subsequent default or breach of the same or any other provision.
This La Diva Promoter Application and Agreement may be executed and submitted electronically in accordance with applicable law.
The provisions of your Promoter Contract, including all documents incorporated herein by reference, embody the whole agreement between you and La Diva and supersede any prior agreements, understandings and obligations between you and La Diva concerning the subject matter hereof. You acknowledge that you have had the opportunity to have this La Diva Promoter Application and agreement, the Commission Plan, and the Policies and any other La Diva related material reviewed by legal counsel of your choice.
You understand and agree that La Diva, in order to maintain a viable marketing system and for various other reasons, may make modifications to the La Diva Promoter Application and Agreement, Policies, Guidance Documents, Commission Plan, company literature, websites and web pages, sales aids and other materials and their prices, and products and product prices. You understand that you will be bound by such modifications immediately upon publication (or on the date specified in an associated notice from La Diva or in the minimum amount of time required by applicable law, if any) in official La Diva literature or upon the posting of the modifications or notice thereof to the La Diva corporate website. If you do not agree with such changes, your only remedy is to terminate your La Diva Promoter Application and Agreement.
If you have any questions or concerns, please contact us at:
Letter: La Diva Beauty, LLC
Attention: Customer Care 1334 E Chandler Blvd
Phoenix, AZ 85048
Promoter Policies & Procedures
Section 1. Code of Ethics1.1 A promoter of La Diva Beauty LLC (La Diva) products will:
- Conduct myself and my business in a professional, ethical, moral and legal manner. Promoters will show respect to all persons they interact with
- Present La Diva products truthfully and accurately
- Protect any confidential information
- Abide by all of the La Diva Policies and Procedures as currently in effect and as may be amended by La Diva from time to time.
- Engage in any activity that would reflect negatively on La Diva, including but not limited to high pressure sales activities, deceptive or misleading or unethical business practices
- Make unauthorized, illegal or exaggerated claims about La Diva products
- Attempt to gain any advantage over other promoters by claiming or implying that you are able to obtain special treatment from La Diva.
- Disparage La Diva or its products or its commission plan, owners, employees, affiliates or other promoters. Promoters will also not disparage competitors.
- Attempt in any way, directly or indirectly, to violate or circumvent the La Diva Policies and Procedures or any other Agreements and policies that are applicable.
Section 2. Your Relationship with La Diva2.1 To be eligible to become a La Diva Promoter, you must
- Be legally competent and of legal age (at least 18 years old or age of majority) to enter into a binding contract in the jurisdiction in which you reside
- Complete a La Diva Promoter Application and Agreement
- Provide a valid tax identification number or EIN
- By becoming a La Diva Promoter and each time you receive and accept a commission payment, you agree to abide by the then most current terms and conditions of the La Diva Promoter Application and Agreement and the Promoter Policies and Procedures and any other applicable policies, agreements or obligations
Section 3. Voluntary Cancellation of Your Promoter Agreement.
You may cancel your Promoter contract (a) at any time by signing and submitting a written request or (b) by failing or choosing not to engage in any business activities where you earn commissions for a period of six (6) months. Cancellation notices should be mailed to La Diva Beauty LLC, Attn: Account Management, 1334 E Chandler Blvd, Ste 5 Phoenix AZ 85048
3.1 Divorce. La Diva will honor a valid divorce decree or settlement agreement with respect to ownership of a Promoter business, provided that the divorce decree, settlement agreement, or other resolution does not conflict with the Policies and Procedures or the La Diva Promoter Application and Agreement.
3.2 Succession. Upon the death or legal incapacitation of a Promoter, all rights to the Promoters business may be transferred to a successor as provided in the Promoter’s will, trust or other testamentary document or as otherwise ordered by a court of competent jurisdiction or other testamentary process, subject to approval by La Diva. Within six months after an Promoter's death or incapacitation, the successor(s) must present legitimate verification of death or incapacitation and proof of their right of succession, such as a grant of probate or an enduring power of attorney. The successor must sign and submit a new Promoter Application and Agreement and must, in all respects, qualify to enroll as a Promoter and be bound by all current and future terms and conditions set forth in the Promoter Application and Agreement, the Policies and Procedures and any applicable Guidance Documents.
Section 4. La Diva Beauty Products
4.1 Purchasing La Diva Products. No person is required to purchase products in order to be eligible to become a Promoter
4.2 No Inventory Loading. The La Diva Promoter commission plan is based upon net sales of redeemed coupon (referral) codes and subsequent orders from those referred customers. Promoters may not purchase quantities in excess of expected usage for themselves and their immediate household.
Section 5. Business Rules
5.1 Confidential Information. To assist you in building a La Diva Promoter business, and in reliance on your agreement to the terms of this Section, La Diva may supply you with, or grant you access to, certain reports and other confidential and/or proprietary information that belongs to La Diva. This information includes, but is not limited to, marketing plans and strategies, products, purchases, pricing, relationships with vendors and suppliers, and the identities of and contact information for La Diva Promoters, Master Promoters and Customers provided to you in any document or report, and the identities of and contact information for Promoters, Master Promoters and Customers with whom you first became acquainted as a result of your relationship with La Diva, (collectively, "Confidential Information"). To protect your business and the businesses of all Associates, you acknowledge and agree that the Confidential Information belongs to La Diva and must be kept completely confidential for as long as such information is deemed by La Diva to be confidential. You agree that you will not, directly or indirectly through a third party, use or disclose any Confidential Information for any purpose unrelated to your La Diva Promoter business, whether during the term of your association with La Diva or thereafter. You acknowledge that the Confidential Information is of such character as to render it unique and that disclosure or use thereof in breach of this policy will result in irreparable damage to La Diva. You recognize and agree that misuse of the Confidential Information cannot be fully compensated through monetary damages. Accordingly, you acknowledge and agree that La Diva will be entitled to injunctive relief to prevent breach of this Section. If any action is taken to enforce this provision or to obtain injunctive relief or recover damages, the prevailing party shall be awarded its costs and expenses, including reasonable attorneys' fees. You understand and agree that in addition to La Diva, other Promoters and Master Promoters may be entitled to seek and obtain injunctive relief and other damages if you violate this provision. You understand and agree that the confidentiality obligations and related remedies will survive the termination or cancellation of your relationship with La Diva.
5.2 Product and Weight Loss Claims. When describing La Diva products and personal experiences with La Diva, including the use of testimonials (by you or others), you understand and agree that you will only describe La Diva products and product experiences in a manner that is consistent with the product and claims contained in official La Diva marketing materials or as otherwise approved in advance in writing by La Diva. When making any product claim, you agree to accompany the claim with any appropriate disclaimers (if any), copies of which can be obtained at the appropriate La Diva website. It is your responsibility to disclose all relevant information to ensure that any representation you make is truthful and not misleading. You understand and agree that you will not represent that any La Diva product is intended to diagnose, treat, cure or prevent any diseases or health conditions, unless otherwise approved in Official La Diva Marketing Materials.
5.3 Military Base Restrictions. Promoters in the military must comply with military regulations in establishing and operating their La Diva business. We recommend that military personnel request and obtain permission from their base commander before starting a La Diva business. Promoters may be required to satisfy the base commander that (a) sales of products won’t compete with or materially affect sales by the Post Exchange.
5.4 Media Appearances and Inquiries. To protect the La Diva brand and to ensure a consistent message, La Diva has determined it is in the best interest of all Promoters and Master Promoters to have designated company spokespersons handle all communications with the media. Accordingly, you are not permitted to contact, solicit, respond to, interview with, or otherwise communicate with the media about La Diva, its products, commission plan, their La Diva experience, or anything else relating to La Diva, even if you do not mention La Diva by name, unless you receive prior written consent from La Diva. It is a violation of this policy to provide any information to the media without prior written approval from La Diva, regardless of whether the information is positive or negative, accurate or inaccurate. “Media” is defined broadly to include all traditional news outlets, television and radio shows, print media, as well as all internet-based journalistic communications, which may include blogs, forums, and bulletin boards relating to journalistic news or similar outlets. All inquiries from the media must be referred to La Diva at firstname.lastname@example.org
Section 6. Trademarks, Advertising and Internet Usage6.1 La Diva Trademarks, Copyrighted Materials, and other Intellectual Property.
LaDiva trademarks include the name La Diva and all variations thereof, as well as the names of all La Diva products and services and other marks as typically indicated by the use of the "'TM" or “®” symbols. La Diva’s trademarks also may include various word combinations relating to La Diva using "Diva" or "Divas". All La Diva marketing and sales materials, including audios, videos, websites, posts, print and digital presentations, handouts or books, or other tangible and intangible works of authorship are the copyrighted work of La Diva. A Promoter may use La Diva’s trademarks, copyrighted material, and other intellectual property only with La Diva’s prior written permission, which may be expressed through general publication (to all Promoters) or through a specific writing to one or more Promoters. Without limitation, La Diva may require conformity with specifications, may require that materials that use La Diva’s trademarks and/or copyrighted materials be sourced from La Diva or an La Diva approved supplier, and may otherwise condition use of its trademarks and copyrighted works. Any permission granted by La Diva shall constitute a limited, non-exclusive, nontransferable and revocable license to use such trademarks and copyrighted works solely in connection with the La Diva business. You agree to immediately transfer to La Diva, upon La Diva’s request, any Internet domain name or other registration or application containing a La Diva trademark, including any word combinations using “Diva” or “Divas”. This provision shall survive the termination of your relationship with La Diva.
6.2 Advertising. La Diva provides sales tools and other materials that you can use to promote La Diva’s products. Creation of your own materials is discouraged; however, you may use certain other materials, including self-created materials, if and only if you first submit the materials to La Diva’s corporate offices for review and the materials have been properly approved. The materials shall not be used prior to receiving written approval from La Diva corporate. La Diva may refuse to approve any materials at its sole discretion. All materials you create must be truthful, accurate and not misleading. Any and all statements about the benefits of La Diva’s products must comply with all Policies and the laws and regulations in the jurisdiction where the materials are used.
6.3 Internet Usage and Social Media. You may use the Internet, including social media, to promote La Diva’s products provided you do so in a responsible manner. You understand and agree that you will abide by all Policies and Guidance Documents relating to Internet usage, as may be amended by La Diva from time to time, and you will not make any inaccurate, exaggerated, or misleading statements about La Diva or its products in any media, including through the use of videos, pictures, or other means. Note: Please refer to the Supplement to the Policies and Procedures on Internet Advertising and Social Media found on La Diva website for further guidance.
6.4 Repackaging and Relabeling Prohibited. Promoters may not delete, add, modify, tamper with, repackage, relabel, refill, or alter the labels on any La Diva products or literature in any way. Nor may Promoters break out products from product bundles and sell such products individually. La Diva’s products may only be sold in their original containers and packaging. Relabeling or repackaging violates your agreements with La Diva and could violate laws that generally require persons, including Promoters, to implement and adhere to specified quality controls and procedures relating to the repackaging or relabeling of La Diva’s products. Violations of such laws could result in severe criminal penalties. Promoters should also be aware that personal civil liability may arise when, as a consequence of the repackaging or relabeling of products, the person(s) using the product(s) suffers any type of injury or damage. Promoters are also responsible for learning and adhering to the proper storing and handling instructions for Promoters products.
Section 7. Enforcement of Policies
7.1 Remedies. If a Promoter violates Policies, including the La Diva Code of Ethics, the La Diva Promoter Application and Agreement, any Guidance Documents, or other agreements with La Diva, or engages in any unethical, illegal, fraudulent, or deceptive conduct, or any other violation of any laws, statutes, or ordinances, we may, at our sole discretion, take one or more of the following actions:
- issue a written advisory;
- impose monetary fines or other penalties, which may be withheld from current or future commissions;
- temporarily suspend commissions and other payments;
- temporarily suspend or permanently terminate the Promoter’s Business and all rights thereto;
- • seek compensatory and injunctive remedies, as applicable; and/or
- take any other action or corrective measures that La Diva deems appropriate under the circumstances. You understand and agree that La Diva has the right to withhold payment of all commissions during the period that La Diva is investigating any alleged misconduct. If your Business is terminated due to a breach that occurred prior to the investigation, you will not be entitled to any commissions withheld during the investigation period, unless otherwise required by law.
Section 8. Amendments Upon proper notification, La Diva may, at its sole discretion, amend La Diva Promoter Application and Agreement Terms and Conditions, the Policies and Procedures, the Commission Plan, the Guidance Documents, and any other materials pertaining to your La Diva business, including any other agreements entered into between you and La Diva. You understand and agree that you will be bound by the most current versions of the La Diva Promoter Application and Agreement Terms and Conditions, the Policies, the Commission Plan, and the Guidance Documents, including any updates or revisions since the date of your business startup, upon any of the following occurrences: (a) completing the process to become an Promoter or Master Promoter; (b) each time a Master Promoter adds a Promoter to their business; and (c) each time you accept commissions or other payments under the Commission Plan. You will be bound by any amendments upon notification of the amendments through any La Diva official channels of communication effective three days after the posting of such notice (except where a longer notice period is required by law, in which case such notice period applies). Those channels of communication include, but are not limited to, posting of information to the La Diva website or e-mail to your email address on file, announcements in any official La Diva Newsletter or other publication, or mailed to you at the address on file.
Section 9. General Provisions
9.1 Scope, Applicability and Interpretation. These Policies govern the relationship between La Diva Beauty, LLC and/or any of its affiliates ("La Diva") with any Promoter, Master Promoter or entity that has a La Diva business. These Policies are incorporated by reference into, and form part of, the La Diva Promoter Application and Agreement. You understand and agree that La Diva’s interpretations of the Policies are final and binding. Whenever used in the Promoter Contract, including the Policies, the term “including” means “including without limitation”, unless expressly stated otherwise.
9.2 Commission Plan and Guidance Documents Incorporated by Reference. The Commission Plan and Guidance Documents, as may be amended from time to time, are incorporated by reference into these Policies and you agree to be bound by the Commission Plan and the Guidance Documents, as the same may be amended by La Diva from time to time.
9.4 Reporting and Resolving Errors. If you have any questions or believe there has been an error regarding commissions, reports, orders, or charges, you must notify La Diva in writing within 30 days of the date of the purported error in question. La Diva will not be responsible for errors, omissions or problems not so reported.
9.5 Waiver. La Diva never waives its right to insist on compliance (a) with the Policies, the La Diva Promoter Application and Agreement, the Guidance Documents, the Commission Plan and other agreements between Promoters, Master Promoters and La Diva and (b) 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 La Diva who has actual and specific authority to bind La Diva to such waivers explicitly states in writing that La Diva waives any of these provisions. In addition, any time La Diva approves a waiver of any provision, that approval is specific to the single occurrence, unless otherwise stated, and does not extend to any other violation, whether past, present, or future. This provision deals with the concept of "waiver", and the parties agree that La Diva does not waive any of its rights under any circumstances short of the written confirmation alluded to above.
9.6 Indemnification. You agree to indemnify and hold harmless La Diva, its owners, officers, managers, directors, employees, beneficial owners, and agents (collectively “La Diva Indemnitees”) against and from any claim, damage, loss, or liability, including judgments, civil penalties, refunds, attorneys’ fees, court or arbitration costs, or lost business La Diva Indemnitees incur, arising from any of your actions or inactions that violate your Promoter Contract, including without limitation, the La Diva Promoter Application and Agreement Terms and Conditions, these Policies, the Compensation Plan and the Guidance Documents, each as may be amended. You understand and agree that you are responsible for any verbal or written representations you make regarding La Diva’s products, including the Commission Plan, and you agree you will not make any unauthorized or unlawful representations, express or implied, verbal or nonverbal. You agree to indemnify and hold harmless La Diva Indemnitees against and from any and all liability including judgments, civil penalties, refunds, attorneys' fees, court, or arbitration costs or lost business we incur as a result of any unauthorized or unlawful representations that you make.
9.7 Exclusion of Damages. In no event shall any La Diva owner, officer, director, employee, affiliate, successor, or assignee be liable for any special, punitive, indirect, or consequential damages, for any claims or actions resulting from or arising out of these Policies or any other agreement you have entered into with La Diva, the functionality or operation of any website, or any acts or omissions of any La Diva party, whether based on contract, tort (including negligence), strict liability, or any other cause of action.
9.8 Severability and Judicial Modification. If any portion of these Policies, or any other agreement you have entered into with La Diva, is deemed by any arbitrator or court of competent jurisdiction to be invalid or unenforceable, it is your and La Diva’s mutual intent that the arbitrator or court shall strike or modify the applicable provision only to the extent necessary to make such provision enforceable, and enforce the provision as modified. In any event, the remainder of these Policies and all other agreements shall remain in full force and effect.
9.9 Survival of Terms. You understand and agree that each of the provisions of these Policies relating to confidentiality, resale of products, including, arbitration, and other provisions as expressly stated herein will survive the termination of your relationship with La Diva.
9.10 Arbitration and Governing Law. ANY CONTROVERSY OR CLAIM ARISING OUT OF, OR RELATING TO, THESE POLICIES AND PROCEDURES, THE COMMISSION PLAN, OR THE GUIDANCE DOCUMENTS, OR THE BREACH THEREOF, SHALL BE SETTLED BY CONFIDENTIAL ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES, AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. IF YOU FILE A CLAIM OR COUNTERCLAIM AGAINST LA DIVA OR ITS OWNERS, DIRECTORS, OFFICERS OR EMPLOYEES, YOU MAY ONLY DO SO ON AN INDIVIDUAL BASIS AND NOT WITH ANY OTHER INDIVIDUAL OR AS PART OF A CLASS ACTION. YOU WAIVE ALL RIGHTS TO TRIAL BY JURY OR TO ANY COURT. All arbitration proceedings shall be held in Maricopa County, State of Arizona, unless the laws of the jurisdiction where you reside expressly require the application of its laws, in which case the arbitration shall be held in the capital of that jurisdiction. At least one arbitrator shall be an attorney at law experienced in business law transactions. Neither the parties nor the arbitrator(s) may disclose the existence, content, or results of any arbitration without the prior written consent of both parties. Judgment on any award rendered by the arbitrator(s) may be entered in any court having jurisdiction. Each party to the arbitration shall be responsible for its own costs and expenses, including legal and filing fees; provided, however, that the arbitrator will have discretion to award legal fees and other costs to the prevailing party. The decision of the arbitrator shall be final and binding on the parties. This agreement to arbitrate shall survive any termination or expiration of your relationship with La Diva. Nothing in the arbitration provision prohibits either party from obtaining a temporary injunction, preliminary injunction, permanent injunction or other equitable relief available to safeguard and protect the party’s interests prior to, during or following the filing of any arbitration or other proceeding, or pending the rendition of a decision or award in connection with an arbitration or other proceeding. The arbitrator(s) will have the authority to continue injunctive relief and to enter a permanent order granting such relief. In addition, nothing in the arbitration provision shall prevent La Diva from filing a lawsuit to identify unknown persons, including, but not limited to, unidentified Customers, Promoters or Master Promoters, who may be selling La Diva products on the Internet, cybersquatting, registering or attempting to register, or using La Diva trademarks or confusingly similar domain names, or producing, modifying or repackaging La Diva’s merchandise without authorization. Once a person is determined to be a Promoter, Master Promoter or Associate, La Diva may take further action against such persons. The filing of a lawsuit and taking any action in that lawsuit to identify unknown persons shall not be a waiver of any right or obligation set forth in the arbitration provision. In the event that a dispute or claim arising out of, or relating to this Agreement, is not subject to arbitration as set forth above, the laws of the state of Arizona shall govern, and the parties agree that proper jurisdiction and venue shall be in the state and federal courts of Arizona. In the event of a dispute for jurisdictional purposes, persons residing in Louisiana shall be entitled to file an adjudicatory claim or lawsuit in the jurisdiction of Louisiana and the governing law shall be Louisiana law. If the laws of your place of residence impose any requirement that is different from or in addition to those set forth in these Policies, then these Policies shall be deemed amended in conformance with those laws as to that jurisdiction only.
Section 10. Glossary
Compensation --- the commissions and other consideration received by a Promoter under the Commission Plan or through other incentives or promotions implemented by La Diva for the sale of its products.
Commission Plan --- the La Diva Commission Plan, as may be amended from time to time.
Customers --- End Consumers who have purchased La Diva products for personal use.
End Consumers --- persons who acquire La Diva products for the purpose of using them.
Guidance Documents --- the guidelines, FAQs, supplements, training materials, and other tools and documents published or presented by La Diva that interpret, clarify, and provide additional detail with respect to these Policies. The Guidance Documents, as updated from time to time, are considered part of these Policies (unless otherwise stated in the specific Guidance Document) and can be found on official La Diva publications, including the Company’s website.
La Diva Promoter Application and Agreement --- the application and agreement which a person who desires to be a La Diva Independent Promoter must properly complete, execute, and submit to La Diva as one of the prerequisites to becoming a Promoter.
Master Promoter --- a Promoter that identifies, introduces and supports other Promoters to the Company. Master Promoters receive commissions identified within the Commission Plan for those activities.
Official La Diva Marketing Material --- literature, audio recordings, video recordings, and other materials developed, published, printed or distributed by La Diva or its approved third-party suppliers. Materials and recordings developed, published, printed or recorded by Promoters, Master Promoters, or any other person or entity is not “Official La Diva Marketing Material.”
Policies and Procedures --- rules and regulations governing the conduct of Promoters with respect to their independent La Diva businesses, including this document and the Guidance Documents, as may be amended by La Diva from time to time.
Promoters --- independent contractors that are approved after submitting the La Diva Promoter Application and Agreement. Promoters perform business activities that market La Diva’s products
Promoter Contract --- the contract between La Diva and each Promoter which includes the La Diva Promoter Application and Agreement, the La Diva Policies and Procedures, the La Diva Commission Plan, the Guidance Documents, all in their current form or as amended by La Diva from time to time in its sole discretion. These documents, including items incorporated by reference in such documents, may be collectively referred to as and comprise the “Agreement.”
La Diva Internet Advertising & Social Media Policies & Procedures
La Diva is committed to providing you with tools to facilitate the growth of your independent business, we are pleased to offer an opportunity for you to use certain web-based marketing platforms, including developing and maintaining your own websites and using social media to market La Diva products. La Diva understands that Internet-based marketing has become an invaluable tool to attract customers, provide information about LaDiva’s products, and generate additional product sales. To help you understand what you can and cannot do when considering and using web-based marketing platforms, we have developed the following guidelines to supplement Section 6.3 of the La Diva Policies and Procedures, so you may successfully and properly market La Diva products and using the Internet.
1. Foundational Principles. The following principles apply to any action by a Promoter or Affiliate (Promoter) involving the marketing and sale of La Diva products using a web-based marketing tool or application:
- All content, including but not limited to blog posts, websites and advertisements, must be submitted for review prior to publication (email@example.com).
- All testimonials or claims must comply with the Policies and Procedures and La Diva company practices.
- La Diva products and advertisements for La Diva may be displayed with other products or services so long as the other products and services are consistent with La Diva values.
- La Diva products and advertisements for La Diva may not be displayed online with content that result in non-compliant implications. For instance, promoting La Diva on a website or social media group that aims to cure medical conditions implies that our products are beneficial for such conditions.
- All La Diva product orders must be placed using the La Diva website or approved retail websites, such as Amazon.com. Product orders may not be taken on any non- approved website, including but not limited to retail websites like eBay.
- You must be truthful and honest when marketing La Diva products You must always identify yourself as a La Diva Independent Promoter
2. Domain Names, Meta-Data, Targeted/Paid Advertisements, and Pay-Per-Clicks. When selecting terms for use in domain names, meta-data, or for targeted advertising and pay-per-click keywords, you may not include “La Diva” or any term that may be a derivative of or confusingly similar to the La Diva trademark, such as “LaDivas.us” or “LeDivo.com”. You additionally may not use a term that suggests an improper medical or drug. For example, “cure-skincancer.com” or entering ‘skin cancer’ in the meta-data or keyword option is misleading and an improper marketing practice. La Diva maintains the right to request the removal of “La Diva” from the ad copy or title if the advertisement conflicts with corporate interests. When creating a pay per-click advertisement, you should always identify the following as negative keywords on a campaign level for each campaign: La Diva, + La Diva Beauty.
3. Independent Websites. La Diva believes in responsible use of websites to market our products and grow your business. Accordingly, you may operate an independently created website to market La Diva’s products (an “Independent Website”) if the following policies are followed: a. All materials or links that appear on your Independent Website comply with all of the Policies and Procedures. b. When possible, you should use the approved material in the Print and Web Media Gallery in the Marketing Materials section of the corporate website. c. If your Independent Website features, advertises, or references La Diva’s products, either directly or indirectly, or, is used in your marketing efforts whether or not it mentions La Diva, you must first receive written approval from the La Diva prior to its publication or any modification after approval is given. If your Independent Website is password protected La Diva must receive passwords or credentials allowing unlimited access. d. All product orders must be processed using the shopping cart found on the corporate website or an approved retail website (i.e. Amazon). If a customer can select La Diva’s products to purchase on your Independent Website, the customer must be redirected to the La Diva’s corporate shopping cart to process any payments. e. Your Independent Website must prominently indicate that the site is maintained by a La Diva Independent Promoter and may not be identified as a corporate La Diva website. Your Independent Website must t prominently disclose your name. Your Independent Website must have the following disclaimer conspicuously present on each page in a legible font in addition to any necessary disclaimers identified elsewhere in the Policies and Procedures: i. “This website is owned and operated by an La Diva Independent Promoter and is not endorsed by La Diva Beauty, LLC. Any opinions expressed on this website are made by and the responsibility of the individual Promoter and should not be construed as a representation of the opinions of La Diva Beauty, LLC.” f. Promoters must use appropriate disclaimers according to the content of the Independent Website. All disclaimers must be the same font and text size as the items referenced. g. La Diva reserves the right to revoke your right to use an Independent Website at any time if La Diva believes, in its sole discretion, that such revocation is in the best interest of La Diva.
4. Banners and Advertisements. Any use of independently created banners or ad copies or alterations to any approved banners or ad copies must be submitted to La Diva for written approval prior to use. Banners and links may not be placed on any website that is inconsistent with La Diva values, including, without limitation, any websites on which the sale of La Diva products is prohibited, such as online auctions or non-approved retail sites.
5. Social Networking Websites. Social networking websites can provide useful tools for a Promoter to build and maintain contacts. You may advertise your La Diva business on your social networking website if the advertisement is limited to the social networking sharable content provided by La Diva, posting a video link, banner, or other approved marketing tool found on the corporate website, or by posting material approved by La Diva. While you are encouraged to advertise La Diva on your social networking website, you may not use La Diva or a confusingly similar name as your account name, group name, page name, discussion name, or other social networking presence, and may not use the La Diva logo or a La Diva product picture as your profile picture. If you use a social networking website to market La Diva, you must identify yourself as a La Diva Independent Promoter and not represent yourself as an official representative or employee of La Diva. If you participate in any company other than La Diva, you may not advertise both La Diva and the other opportunity on the same social networking profile. La Diva maintains its own social networking profiles that permit our Promoters to join pages created by La Diva to communicate with the La Diva community. You may not, however, create your own groups and pages using the La Diva name, trademarks, or brands.
6. Blogs, Micro-Blogs, and Podcasts. La Diva does not encourage the use of blogs by Promoters to advertise their La Diva business or provide information regarding La Diva or its products. Claims made by a Promoter in his or her blog reflects directly on La Diva. La Diva asks that you submit a testimonial to La Diva if you wish to tell your La Diva story on an online forum. If you choose to use a blog, it may not be titled, branded, or advertised as a La Diva blog. You must be identified on the blog as a La Diva Independent Promoter. All content on the blog must comply with the most recent version of the Policies and Procedures applicable to testimonials and drug and medical claims, and should always use the proper disclaimers. La Diva may be discussed in a blog, but you may not operate a blog where La Diva is the primary focus. Any discussion of La Diva must be done so without the functionality to enable comments by readers. The policy for blog postings applies to your use of a forum or a discussion board to post La Diva content on the Internet. La Diva maintains our own blogs that permit our Promoters and customers to subscribe to content via their RSS feeds to communicate with the La Diva community. We strongly discourage Promoters from publishing any independent conference calls they have or distributing that content as a podcast, as that content has not been approved by La Diva and should only be shared among and used for the sole purposes of the call attendees. Any recorded content must receive prior written approval from La Diva prior to its distribution.
7. E-Mail All advertisements sent via e-mail, telephone or facsimile must comply with all anti-spamming laws for the state or country where the intended recipient resides. You are under obligation to research and comply with all laws concerning unsolicited commercial e-mail. Under United States law, it is unlawful “to use any telephone, facsimile machine, computer, or other device to send an unsolicited advertisement. Electronic mail advertisements is defined as any e-mail message, the principal purpose of which is to promote, directly or indirectly, the sale or other distribution of goods or services to the recipient.” (CAN-SPAM Act of 2003)