Client Membership Agreement
This Client Membership Agreement (“Agreement”) is a legally binding contract between you and Profile Development, LLC (“Profile”, “we” or “us”) and governs your use of the Service (as defined below). Read the terms and conditions of this Agreement carefully before continuing. Children under the age of majority should review this Agreement with their parent or legal guardian to ensure that you and your parent or legal guardian understand it. BY PROCEEDING WITH PROFILE REGISTRATION OR USE OF THE SERVICE, YOU INDICATE YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THOSE REGARDING ASSUMPTION OF RISK AND THE LIMITATION OF PROFILE’S LIABILITY. IF YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT, DO NOT PROCEED WITH PROFILE REGISTRATION OR USE OF THE SERVICE. By using the Site, as defined herein, or the Service after we post any changes to these Terms and Conditions, you agree to accept those changes, whether or not you have reviewed them.
Capitalized terms used in this Agreement have the meaning ascribed to them in this Section.
“Acceptance Date” means the date you indicate your acceptance of this Agreement by proceeding with Profile registration.
“Client” means, collectively, any individual who has registered for the Service.
“Client Data” means the data about you that Profile gathers in the course of providing the Service, including but not limited to your contact information, physical characteristics, medical history and physician information, lifestyle habits, eating habits and caloric intake, changes in weight, and progress with respect to exercises and activities. “Client Data” also includes recordings of virtual or telephone conversations and any information that you post on the Profile-operated website or any Profile-affiliated electronic interface at any time before, during or after your receipt of Services.
“Confirmation Email” means any e-mails providing instruction on the Services, and/or confirming your Plan selection, participation in the Services, and/or purchase of Services from Profile. Certain Clients may request that Confirmation Emails be sent in a paper format.
“Documentation” means, collectively, all Client guides, protocols, Plan(s), Confirmation Emails, and other reference materials generally furnished by Profile with respect to the Service, whether in printed or electronic format, as may be updated by Profile from time to time.
“Plan” means one or more packages of a defined set of benefits comprising the Service, which are offered to a Client in exchange for a Membership Fee or Membership Voucher.
“Proprietary Information” means all non-public business or technical information or materials disclosed to you by Profile or any Profile Coach, including the Documentation, any educational materials, any method of carrying out or delivering the Service, and any pricing or commercial terms related to the Service, including the price you have paid for the Plan and Service.
“Profile Products” means, but is not limited to, the scale, wireless activity tracker, blood pressure monitor, digital tape measure, wireless bridge, food products and any other equipment provided by Profile to you for purchase as part of the Plan and Service.
“Service” means Profile’s weight loss and weight management program, which is delivered in one or more Plans.
“Site” means the Profile-operated website through which the Service is made available to you.
“Membership Fee” means, as set forth in the Plan, the charge to the Client for Services provided by Profile.
“Membership Voucher” means an official offer created by Profile that waives all or part of the charge for the Service.
“Subsidiary” means any entity controlling, controlled by, or under common control of Profile.
“Profile Coach” means an employee of Profile who has been engaged or assigned by Profile to consult with and make recommendations to Profile’s Clients as part of the Service.
“Weight Loss Goal” means your specific weight loss percentage as defined in the Plan or such other agreed upon weight loss percentage that would not drive your weight below a healthy weight range.
2. Use of the Service
2.1 General. Subject to the terms and conditions of this Agreement, and during the term of this Agreement, Profile grants you a non-exclusive and non-transferable right to access and use the Service in accordance with the terms of this Agreement, a specific Plan, and any Documentation made available to you by Profile. The Service has been designed by Profile with the goal of assisting people with weight loss and weight management. YOU UNDERSTAND AND AGREE THAT INDIVIDUAL RESULTS VARY, AND THAT PROFILE DOES NOT GUARANTEE WEIGHT LOSS. You also understand and agree that we may, but are not obligated to, modify the Service, Plan, and the Documentation for a variety of reasons, including for consistency with the most recent weight loss and weight management research. Your specific Weight Loss Goal will be modified to a lower agreed upon weight loss percentage if your weight loss would drive your weight below a healthy weight range.
2.2 Profile Promise. If at the end of twelve (12) months on the Plan you notify Profile in writing that you have not achieved fifteen percent (15%) body weight loss or a lesser agreed upon goal (all goals must be within a healthy BMI and weight range), and you have in good faith met the requirements of the Plan’s protocols, including but not limited to: (1) attend a minimum of 20 Profile Coach appointments; (2) weighed in at least twice per month; (3) purchase Profile Products according to the Plan; and (4) complied with all dietary and activity recommendations provided to you by Profile and your Profile Coach(es), Profile will extend your membership in the same Plan for an additional twelve (12) months at no charge. You will, however, be responsible for the cost of all Profile Products in such event.
2.3 Profile Coaches. As part of the Plan and Service, Profile will provide you with access to Profile Coaches, who will consult with you virtually or in person. You agree to work with your Profile Coaches in good faith solely with respect to the Service, and you will not seek consultation from your Profile Coaches for any other purpose. Unless instructed otherwise by Profile, you agree to conduct your sessions with Profile Coaches alone, with no observers, and you will not record any such session in any way.
2.4 Your Health. PROFILE IS NOT A MEDICAL ORGANIZATION. YOU SHOULD NOT CONSIDER THE SERVICE OR THE DOCUMENTATION AS MEDICAL ADVICE OF ANY KIND, AND THE SERVICE IS NOT INTENDED TO TREAT ANY ILLNESS, DISEASE, OR ADVERSE MEDICAL CONDITION. Profile is not a licensed medical care provider, and we have no expertise in diagnosing, examining, or treating medical conditions of any kind, or in determining the effect of any specific exercise on a medical condition. You are urged and advised to seek the advice of a physician before beginning your use of the Service, and to get periodic medical check-ups as recommended by your primary care physician. The information and reports generated by Profile should not be interpreted as a substitute for physician consultation, evaluation, or treatment. By using the Service, you represent that you are healthy enough to begin a weight loss regimen that includes dieting and exercise. If you are currently under the care of a health care professional or are living with a chronic health care condition, you represent that you have obtained the express approval from a health care professional to receive the Services before beginning. Never disregard professional medical advice or delay in seeking it because of something you have been told by Profile staff or any Profile Coach.
2.5 Registration and Use of the Site. You represent and warrant that the data that you provide about yourself in filling out the Profile account registration form are and will remain accurate and complete, and you agree to update such data as necessary to maintain its accuracy, including without limitation your email address. You agree not to (i) select, register, or attempt to register, or use a user name of another person with the intention of impersonating that person; (ii) use a user name of anyone else without authorization; (iii) use a user name in violation of the intellectual property rights of any person; or (iv) use a user name that Profile considers in its sole discretion to be offensive. Profile reserves the right to reject or terminate the registration of any user name or password that, in its sole judgment, violates a provision of this Agreement. You are responsible for maintaining the confidentiality of the login and password you use to access the Site. You will be responsible for all uses of your login and password, whether or not authorized by you. You agree to immediately notify us of any unauthorized use of the Site, including any unauthorized use of your login or password. Profile in its sole discretion reserves the right to remove any content posted by users on the Site or any Profile-affiliated electronic interface.
2.6 Restrictions. You may not: (a) license, sell, transfer, distribute, or otherwise commercially exploit or make available to any third party, access to the Service or any of the Documentation; (b) modify or make derivative works based on the Documentation or the Site; (c) use any robot, spider, or other automatic device or manual process to monitor or access the Site, record any interaction with a Profile Coach, or in any way duplicate the Documentation; (d) copy any content, features, functions, or graphics of the Documentation or the Site other than in connection with your own personal use of the Service; (e) use the Site or the Service in a manner intended to abuse or violate the privacy or property rights of others; (f) tamper with or knowingly take any other action that may negatively affect the use of the Service or Documentation, or the functionality of the Site or any Profile Products; (g) reverse engineer, disassemble, or decompile the Site or any Profile Products; or (h) use the Service, Site, Documentation, or Profile Products to build a competitive website or service, or to build a product or service using similar ideas, features, or functions.
2.7 Use by Minors. Any Client under the age of 18 must have a signed physician referral form and a signed parent/guardian consent form before using the Service.
3. You Assume All Risk in Using the Service
3.1 Weight Loss Services. You are urged and advised to seek the advice of a physician before beginning any weight loss effort or change in diet or program. Profile is intended for use only by healthy individuals. Pregnant women, individuals with any type of health condition, or individuals taking medications or supplements are specifically warned to seek professional medical advice prior to initiating any form of weight loss effort or regimen. Not all exercises or activities recommended by Profile or any of the Profile Coaches, or otherwise made available on the Site or in the Documentation, are suitable for everyone. You understand and agree that when participating in any exercise or exercise program, there is the possibility of injury or death. As such, YOU AGREE TO USE YOUR OWN JUDGMENT AT ALL TIMES DURING YOUR USE OF THE SERVICE IN ORDER TO DETERMINE IF ANY RECOMMENDED EXERCISE OR ACTIVITY IS SUITABLE FOR YOU. If you feel any discomfort or pain, including but not limited to constipation, muscle cramps, dehydration, diarrhea, dizziness, dry or cold skin, fatigue, gallbladder inflammation or gallstones, gout, hair loss, headaches, heart palpitations, loss of lean body mass, irregular or stopping of menstruation, or reduced tolerance to cold during your use of the Service, you must immediately stop the exercise or activity causing such discomfort or pain, consult with a physician, and dial 911 using your telephone if you need emergency help. Losing weight may affect some medical conditions and medications. Your physician may need to adjust your medications due to changes in your diet, exercise, or weight while on this program. You should discuss your continued participation in the Profile program with your physician. Profile will not be responsible for any health problems or injuries that you may experience as a result of receiving the Services, including from training programs, products, or events you learn about through the Service. YOU HEREBY AGREE THAT YOUR USE OF THE SERVICE, INCLUDING YOUR USE OF ANY EXERCISE PROGRAM RECOMMENDED BY PROFILE OR ANY PROFILE COACH, IS AT YOUR OWN RISK AND THAT YOU ARE VOLUNTARILY PARTICIPATING IN THESE ACTIVITIES, EVEN IF ANY ASPECT OF THE SITE OR DOCUMENTATION IS INACCURATE, INCOMPLETE, OR INAPPROPRIATE IN THE MANNER IT WAS PRESENTED.
3.2 Content and Information. The contents of the Site and Documentation, including but not limited to text, graphics, images, videos, and information, whether created by Profile or licensed from a third party, are for informational and educational purposes only. Despite our efforts to provide useful and accurate information, errors may appear from time to time. Before you act on said information, you should confirm any facts that are important to your decisions. Profile and its information providers make no warranty as to the reliability, accuracy, timeliness, usefulness or completeness of the information on the Site and in the Documentation. The information is not intended to be a substitute for professional medical advice, diagnosis, or treatment.
4. Term and Termination
4.1 Term. Unless otherwise specified in the Plan or Confirmation Email, the term of this Agreement will begin on the Acceptance Date and will continue for an initial term of 12 months from the Acceptance Date. Unless Profile elects not to renew your membership, Profile will send by email a notice of renewal to you, which will set forth the associated annual Membership Fee before the end of the initial term. If you agree to renew in accordance with the notice of renewal, the term of this Agreement will continue for a 12-month renewal term, and the foregoing notice and renewal process will be repeated.
4.3 Effect of Termination. Upon the termination of this Agreement, you agree to delete all copies of any Documentation in your possession or control.
4.4 Survival. Sections 2.6, 3, 4.3, 5.1, 5.3, 5.4, and 6 through 10 will survive the termination or expiration of this Agreement. In addition, any provisions in this Agreement that by their nature would be expected to survive the termination of this Agreement shall survive and not be affected by termination or expiration.
5.1 Membership Fee. Your Membership Fee, as set forth on the payment page of the Plan, is presented to you during the registration process and in the Plan and/or Confirmation Emails. Unless otherwise specified in the Plan and/or Confirmation Emails, the Membership Fee is for a full one-year term, and you are responsible for the full Membership Fee from the Acceptance Date, even if you stop using the Service before the end of one year. Your Membership Fee entitles you to access a Profile Coach but in the event you do not purchase a minimum of $25.00 in Profile Products per Profile Coach visit, you will compensate Profile in the sum of $40.00 for said visit.
5.2 Promotions. Any promotion or Membership Voucher offered has no independent cash value and may not be combined with any other offers.
5.3 Taxes. You will be responsible for all taxes of whatever kind or nature imposed by any governmental authority upon any Services provided to you hereunder, exclusive taxes based upon Profile’s income or property.
5.4 Shipping Costs. Client shall be responsible for all shipping costs associated with orders of Profile Products.
5.5 Refunds. Subject to any applicable state or federal laws, there are no refunds of Membership Fees. However, if at the end of the initial 12-month term you notify us in writing that your use of the Service has not resulted in the achievement of fifteen percent (15%) body weight loss or a lesser agreed upon goal (all goals must be within a healthy BMI and weight range), and you have in good faith met the requirements of the Service’s protocols (as set forth in the Documentation), and you have complied with the dietary and exercise recommendations provided to you by Profile and the Profile Coaches, Profile will extend participation in the same Plan to you for an additional 12-month renewal term at no charge. Notwithstanding the foregoing, upon Client request, Profile reserves the right to freeze a Client’s membership within Profile’s sole discretion. THERE ARE NO REFUNDS OR MODIFICATIONS OF FOOD ORDERS OR PURCHASES. However, if you are unsatisfied with the food products you purchased, Profile will allow you to exchange any unopened, unexpired food products for other food products of an equal or lesser value.
6. Referral Program
6.1 Physician Referral Program. If you become a Client following recommendation by a physician you may be entitled to a Membership Voucher or discounted Membership Fee pursuant to further Documentation provided by Profile.
6.2 Employer Referral Program. If you become a Client through your employer’s contractual relationship with Profile, you are entitled to a discounted Membership Fee and/or a discount on all food products pursuant to further Documentation provided by Profile.
6.3 Client Referral Program. Profile offers an optional referral program. If you opt in to participate in the program in accordance with further Documentation provided by Profile, you may be entitled to free or discounted food products and/or Profile Products and Service.
6.4 Promotional Events. Profile may offer other promotional events from time to time, and said Profile events shall be subject to the terms and conditions of this Agreement and any further Documentation provided by Profile.
7. Proprietary Rights
7.1 Reservation of Rights by Profile. Profile is the owner or licensor of all rights, title, and interest in the Service, Site, Documentation, and Profile Products, including all related intellectual property and other proprietary rights therein. No rights in these items are granted to you except as expressly set forth in this Agreement. You acknowledge and agree that the Service, Site, Documentation, and Profile Products, and any technology, written materials, and logos used in connection with these items, contain Profile’s and its licensors’ intellectual property and other Proprietary Information, and are protected by United States and international intellectual property and other laws. Your infringement or misappropriation of such intellectual property and other Proprietary Information could expose you to both civil and criminal penalties under applicable laws.
7.2 License to Client Data. You grant, and represent and warrant that you have the right to grant, Profile a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, and perpetual right and license to store, copy, and use Client Data in order to (a) provide the Service to you, (b) analyze and improve the Service, Site, Documentation, and Profile Products, (c) conduct internal research on the efficacy of the Service, Site, Documentation, and Profile Products in order to improve the Service and Profile Products, and (d) using de-identified Client Data, market and advertise Profile, the Service and the Profile Products. You further grant Profile permission to publish de-identified Client Data (i.e., Client Data that is made anonymous by removing your name and other identifiers that could foreseeably be used to identify you) as part of research studies, academic papers, and scholarly articles based on any such research.
7.3 Suggestions. You hereby grant Profile a royalty-free, worldwide, transferable, sub-licenseable, irrevocable, and perpetual right and license to use or incorporate into the Service, Site, Documentation, and Profile Products any ideas, suggestions, enhancement requests, recommendations or other feedback that you provide to us.
7.4 Copyright Notices. If you believe any materials on the Site or in the Documentation infringe your copyright, you may request removal of those materials by providing the following information (in one document): (1) the identity and location of the copyrighted work that you believe to be infringed, (2) the identity and location of the material that you believe infringes the copyrighted work, (3) your name, address, telephone number and (if available) e-mail address, (4) a statement that you have a good faith belief that the complained-of use of the materials is not authorized by the copyright owner, its agent, or the law, (5) a statement that the information that you have supplied is accurate, and indicating that "under penalty of perjury," you are the copyright owner or are authorized to act on the copyright owner's behalf, and (6) a signature, or the electronic equivalent, from the copyright holder or authorized representative. All requests should be sent to: Profile Development, LLC, Attn: Legal Department, P.O. Box 2010, 801 Broadway North, Fargo, ND 58122-0206. We will provide notice to you if we believe you are violating the copyright of any content on the Site. We may provide general notice to you and others on any of our websites, by electronic mail to your e-mail address in our records, or by written communication sent by mail to your physical address in our records.
8.1 Your Obligations. You may not, without Profile’s prior written consent (a) use the Proprietary Information except in conjunction with your use of the Service, or (b) disclose any of the Proprietary Information to any other person.
8.2 Profile’s Obligations. Profile will use commercially reasonable efforts to safeguard Client Data and any other information we collect about you in accordance with Profile’s Privacy Statement.
9. No Warranties; Limitation of Liability; Indemnification
9.1 Disclaimer of Warranties. THE SERVICE, SITE, DOCUMENTATION, AND PROFILE PRODUCTS ARE PROVIDED BY PROFILE STRICTLY ON AN “AS IS”, WITH ALL FAULTS, AND “AS AVAILABLE” BASIS. PROFILE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE OR ACCESS TO THE SITE WILL BE UNINTERRUPTED, VIRUS-FREE OR ERROR-FREE. PROFILE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND HEREBY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
9.2 Limitation of Liability. THE CUMULATIVE AGGREGATE LIABILITY OF PROFILE, ITS SUBSIDIARIES, AND THEIR OFFICERS, DIRECTORS, MANAGERS, MEMBERS, AGENTS, AND REPRESENTATIVES (INCLUDING THE PROFILE COACHES), ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE SERVICE WILL BE LIMITED TO THE FEES PAID BY YOU HEREUNDER DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. NOTWITHSTANDING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL PROFILE, ITS SUBSIDIARIES, OR THEIR OFFICERS, DIRECTORS, MANAGERS, MEMBERS, AGENTS, AND REPRESENTATIVES (INCLUDING THE PROFILE COACHES), HAVE ANY LIABILITY FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR SPECIAL DAMAGES INCURRED BY YOU (INCLUDING DAMAGES FOR LOST BUSINESS, LOST PROFITS, OR LOST WAGES), REGARDLESS OF HOW SUCH DAMAGES ARISE AND REGARDLESS OF WHETHER OR NOT PROFILE WAS ADVISED SUCH DAMAGES MIGHT ARISE. YOU EXPRESSLY AGREE THAT THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION CONSTITUTE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN YOU AND PROFILE.
9.3 Indemnification. You agree to defend and indemnify Profile, its subsidiaries, and their officers, directors, managers, members, agents, and representatives (including the Profile Coaches) against any claim, demand, action, lawsuit, and liability (including reasonable attorneys’ and experts’ fees) arising out of, or alleged to result from, your use of the Services or your breach of this Agreement.
10.1 Your Online Data. You acknowledge and agree that Profile shall have access to your online account associated with your Profile Products (including your account on https://www.profileplan.net/) so that we may monitor your data on these accounts. For avoidance of doubt, all such data will be deemed Client Data for purposes of this Agreement.
10.2 Subcontractors. Profile may subcontract some or all of its obligations under this Agreement without providing any prior notice to you.
10.3 Links. You are usually free to establish a hypertext link to the Site so long as the link does not state or imply any sponsorship or endorsement of your site by Profile or any of Profile’s agents, successors, assigns, or partners. However, you must confirm the copyright policies of the page to which you wish to post a link to ensure that no such policies prohibit such links. We may provide links to third-party websites on the Site. We do not recommend and do not endorse the content on any third-party websites. We are not responsible for the content of linked third-party sites and do not make any representations regarding their content or accuracy. Your use of third-party websites is at your own risk and subject to the terms and conditions of use for such sites.
10.4 No Third Party Beneficiaries. Nothing in this Agreement is intended to create any rights in, or confer any benefits upon, any person or entity other than you and Profile.
10.5 Assignment. You may not assign or transfer your rights or obligations under this Agreement to any other person or entity. Profile may assign its rights or obligations under this Agreement to a Subsidiary without prior notice.
10.6 Amendments. Profile may amend this Agreement at any time without notice to you.
10.7 Use of “Including”. Wherever the word “including” is used in this Agreement, it is not intended to limit the proposition preceding it, but is rather intended to mean “including but not limited to.”
10.8 Force Majeure. Neither party will be responsible for delays or failure in performance (other than failures to make payments due under this Agreement) resulting from acts beyond the reasonable control of such party, including acts of God, strikes, lockouts, riots, acts of war, terrorism, epidemics, fire, communication line failures, power surges or failures, earthquakes or other disasters.
10.9 Governing Law; Jurisdiction and Venue. The Services and this Agreement, including without limitation this Agreement’s interpretation, shall be treated as though this Agreement were executed and performed in Sioux Falls, South Dakota, and shall be governed by and construed in accordance with the laws of the State of South Dakota without regard to its conflict of law principles with exclusive venue for resolution of disputes in the State Circuit Court for the Second Judicial Circuit, Minnehaha County. ANY CAUSE OF ACTION BY YOU ARISING OUT OF OR RELATING TO THE SERVICES OR THIS AGREEMENT MUST BE INSTITUTED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER WAIVED AND BARRED. ALL ACTIONS SHALL BE SUBJECT TO THE LIMITATIONS SET FORTH ABOVE. The language in this Agreement shall be interpreted in accordance with its fair meaning and not strictly for or against either party.
10.10 Entire Agreement. This Agreement, the Terms and Conditions of Use, the Profile Privacy Statement, and the Confirmation Emails constitute the sole and complete agreement between the parties with regard to the Service, and supersede all prior and contemporaneous agreements, proposals, representations, warranties, or promises, whether written or oral, relating to the Service.
10.11 Severability. If any provision of this Agreement is adjudicated to be contrary to law, the provision will be modified and interpreted so as to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
10.12 Notice. All notices, permissions and approvals hereunder will be in writing and will be deemed to have been given if personally delivered or deposited into the United States mail in a properly stamped envelope, certified or registered mail, return receipt requested, addressed to the party to whom it is to be given. Profile will send notices to the address you provide to Profile during your use of the Service. You agree to send notices to Profile at the following address:
Profile Development, LLC, Attn: Legal Department,
P.O. Box 2010
801 Broadway North
Fargo, ND 58122-0206
10.13 Construction of Headings. The captions or headings are for convenience only and are not intended to limit or define the scope or effect of any provision of this Agreement.
10.14 Version. Last updated August 8, 2016. This Agreement was written in English (US). To the extent any translated version of this Agreement conflicts with the English version, the English version controls.