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THE HUMAN DIVER AFFILIATE TERMS & CONDITIONSÂ
Last Updated: 30 September 2023
These Affiliate Terms & Conditions (“Terms”) is a contract between The Human Diver and the person applying for acceptance as a marketing affiliate of the Company (“Affiliate”) and are effective upon such person’s submission of an application to become an Affiliate of the Company.Â
The Company offers Affiliates the opportunity to promote the Company’s products and services in exchange for a share of the sales proceeds resulting from the Affiliate’s efforts (the “Affiliate Program”). By participating in the Affiliate Program the Affiliate is agreeing to these Terms without modification. If the Affiliate does not agree to these Terms the Affiliate must not participate in the Affiliate Program. Â
- Application Process. The Company shall provide an application for all persons interested in becoming an Affiliate. Applications shall not be considered complete unless they are filled out in their entirety and all information is true and accurate and reflects the applicant’s true identity. The Company shall review applications submitted and may accept or reject any application in its sole discretion. The Company shall notify applicants by email within a reasonable time following submission of the application and shall not be required to specify a reason if Company rejects the application.Â
- Commission.Â
- The Company provides compensation to Affiliates on a commission basis for purchases made through the Affiliate’s referral (“Commission”). The Company offers the following Commission structure:
40% of Gross Revenue for Level 0: Essentials of HF in Diving
15% of Gross Revenue for HFiD Events
- Gross Revenue means the price actually paid by the customer after any discounts and before any processing fees. By way of example only, if the product typically sells for $197 and the customer used a $50 coupon and paid $147 for the product, the Commission would be based on $147.Â
- Commissions are determined automatically by tracking software using IP addresses, cookies, and other tracking technologies. Tracking does not last indefinitely and will expire according to the applicable tracking software. Many factors may influence whether a particular Affiliate is credited with the Commission. For example, if a customer clicks through to a product through an Affiliate link and the next day clicks through to the same product through a different Affiliate’s link, the last link clicked will receive credit for the sale. Similarly, if a customer clears cookies from their browser or uses different browsers or devices, this will delete or alter the tracking cookies and the Affiliate may not receive credit for the sale even though at one point the customer used the Affiliate’s link. Sometimes the tracking software is down or fails to accurately capture a referral. The Company shall not make any adjustments for the source of the sale as determined by the Affiliate Program’s tracking software.Â
- Payment of Commissions.Â
- The Company shall pay all Commissions via PayPal. The Affiliate shall be responsible for supplying correct payment information and updating the Company regarding any changes to this information. The Company shall not be responsible for payments not received due to incorrect or outdated information.Â
- The Company shall pay Commissions [[quarterly. monthly]]. [[Optional: The Company reserves the right to skip payments if the Commission due is less than [[$___ ]] and shall only pay Commissions when the amount due exceeds this amount. No interest shall be due on any amounts held back and funds on holdback shall not be segregated from the Company’s other assets.]]
- Where applicable, the Affiliate shall provide the Company with a W-9 or a W8-BEN completed with truthful and accurate information regarding the identity and tax information of the Affiliate.
- The Company shall only be required to pay Commissions if it has received the funds from the customer. The Company shall not pay Commissions if it has issued a refund, if the customer has initiated a chargeback, or if fraud was involved. If the Company has paid a Commission and a refund or chargeback subsequently occurs, the Company shall have the right to charge back the Commission to the Affiliate or offset future Commission due to the Affiliate.Â
- The Company shall have the right to withhold up to 30% of the Commission until the next payment period to cover refunds and chargebacks. If the Company determines an Affiliate has an excessive rate of chargebacks or refunds the Company shall have the right to increase the withholding amount or the length of the withholding period or terminate the Affiliate. The Company shall notify an Affiliate if it withholds Commissions.
- Relationship of the Parties. The relationship between the Affiliate and the Company is that of independent contractors. Nothing in these Terms shall create a partnership, agency, joint venture, employment, fiduciary, or any other relationship between the Company and the Affiliate. The Affiliate shall be responsible for payment of all taxes resulting from the Affiliate’s participation in the Affiliate Program, including without limitation federal, state, and local income tax, social security tax, international tax, and any other tax imposed by any jurisdiction or taxing authority.
- Marketing Materials.
- The Company may provide images, Company logos, email or social media copy, and other materials for use in promoting the Company’s products or services (“Marketing Materials”).Â
- The Company grants to the Affiliate a revocable, non-exclusive, non-transferable, worldwide, royalty-free license to use the Marketing Materials while participating in the Affiliate Program.Â
- The Affiliate shall not make any other use of the Marketing Materials and may not alter the Marketing Materials or create any derivative works from them.Â
- Upon termination of the Affiliate Program, the Affiliate shall immediately cease using any Marketing Materials and shall immediately stop representing itself as an Affiliate of the Company.Â
- The Affiliate may use the Marketing Materials solely to promote the products or services of the Company. The Affiliate shall not state or imply the Company has endorsed the Affiliate.Â
- Marketing Practices.Â
- The Affiliate shall maintain on any website on which Affiliate Program links are posted a privacy policy that complies with all federal, state, local, and where applicable, international law.Â
- The Affiliate shall not promote the Company’s products or services in connection with any illegal activity, in any manner that infringes on the Company’s intellectual property rights or in any manner that damages the reputation of the Company.Â
- The Affiliate shall comply with all laws, rules, and regulations from any applicable jurisdiction governing marketing, email marketing, and affiliate marketing.
- The Affiliate shall not make any claims, guarantees, representations, or warranties about the Company’s products or services inconsistent with the Company’s own published materials.Â
- The Affiliate shall not offer monetary incentives or prizes to customers in return for the customer’s use of the affiliate link. The Affiliate may offer customers its own products or services for a reduced or no charge for using the affiliate link provided the Affiliate accurately describes such products or services and states that they are not endorsed by the Company. Â
- Term and Termination.Â
- An Affiliate’s participation in the Affiliate Program commences upon the acceptance by the Company of the Affiliate’s application to participate in the Affiliate Program.Â
- The Company may discontinue the Affiliate Program at any time without advance notice. All Commissions earned in accordance with these Terms prior to termination shall be due to the Affiliate and paid in accordance with these Terms.
- The Company may terminate an Affiliate if the Company determines in its sole discretion that the Affiliate has breached these Terms or has engaged in conduct that would negatively impact the reputation or credibility of the Company. Termination of an Affiliate shall be effective upon notice to the Affiliate and may be made without offering a reason.Â
- The Affiliate may terminate participation in the Affiliate Program at any time upon written notice to the Company.Â
- The Affiliate’s obligations regarding confidentiality, indemnification, limitation of liability, intellectual property, and dispute resolution shall survive the termination of the Affiliate’s participation in the Affiliate Program. Â
- Disclaimers.Â
- The Affiliate Program, the Marketing Materials, and the products and services are provided as-is. To the maximum extent permitted by law, the Company expressly disclaims all warranties, express, implied, or statutory, including but not limited to the implied warranties of merchantability or fitness for a particular purpose, non-infringement, and any warranties arising out of the course of dealing, usage or trade.Â
- The Company does not warrant that the Affiliate Program or Marketing Materials will meet the Affiliate’s specific requirements or will be error-free or uninterrupted.Â
- The Company expressly disclaims any liability for any conduct of any third-party provider.
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The Company makes no representations, warranties, or guarantees that the Affiliate will earn any specific amount of Commissions or that participation in the Affiliate Program will result in the achievement of any level of income or other results in the Affiliate’s business. Â
- Confidentiality.
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The Affiliate acknowledges that while participating in the Affiliate Program the Affiliate may have access to and contact with Confidential Information (as defined below) of the Company. Neither the Affiliate nor any person acting under Affiliate’s control during or after termination of the Affiliate’s participation in the Affiliate Program shall disclose to others, or use for the Affiliate’s benefit or the benefit of others, any Confidential Information obtained. The term Confidential Information shall mean, by way of illustration and not limitation, and whether or not marked as confidential, all business information, electronic or otherwise, owned, possessed, or used by the Company, including without limitation, trade secrets, designs, business methods and processes, vendor information, customer information, reports, technical data, computer programs, software, marketing or business plans, forecasts, and unpublished financial data.Â
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The Affiliate’s obligations regarding Confidential Information shall not apply to any information that (i) is or becomes known to the general public under circumstances involving no breach by the Affiliate; (ii) is generally disclosed to third parties by the Company without restriction on such third parties; (iii) is approved for release by written authorization of the Company; or (iv) is disclosed by the Affiliate in response to governmental or legal action.Â
- Limitation of Liability.
- If the Affiliate is dissatisfied with the Affiliate Program the Affiliate’s exclusive remedy shall be to discontinue participation in the Affiliate Program.Â
- The Affiliate absolves the Company of any liability that Affiliate or any person associated with the Affiliate incurs from participating in the Affiliate Program. The Company shall not be liable to the Affiliate for any kind of damages, including but not limited to direct, indirect, special, incidental, equitable, consequential, or lost profits that may result from participation in the Affiliate Program, whether arising out of contract, tort, negligence, strict liability or other legal theory even if the Company has been advised of the possibility of such damages. Some states may not recognize the exclusion or limitation of damages in which case the foregoing limitations may not apply to the Affiliate.
- To the extent that any court or arbitrator determines the Company is liable for damages notwithstanding the Company and Affiliate’s agreements hereunder absolving the Company of any liability, the Company’s cumulative liability for any loss or damage to the Affiliate or any person claiming through the Affiliate shall be limited to the Commissions paid during the immediately preceding month prior to the date giving rise to any claim for liability or damages. Â
- Indemnification. Affiliate shall defend, indemnify and hold the Company harmless from and against any and all losses, damages, settlements, liabilities, costs, charges, assessments, expenses, and third-party claims and causes of action, including, without limitation, reasonable attorney’s fees, relating to or arising out of (a) Affiliate’s breach of these Terms, (b) misuse, fraud, or deceptive conduct by Affiliate or anyone acting on Affiliate’s behalf, or (c) claims related to any marketing media created by Affiliate.
- Disputes/Choice of Law. The Affiliate expressly waives any claims the Affiliate may have related to the Affiliate Program. To the extent the Affiliate attempts to assert any such claim, the Affiliate shall present such a claim only through binding arbitration. The Affiliate shall arrange for virtual arbitration or if virtual arbitration is not available then such arbitration shall occur in [[City, State where Company is located - in my client agreements I make it an online process]] or the geographically closest location to such city. The Affiliate shall only bring individual claims and waives any right to class arbitration. It shall be a precursor to any arbitration filing that the Affiliate first attempts to resolve any dispute through good faith negotiations with the Company. These Terms shall be governed by and construed in accordance with the internal laws of the United Kingdom.
- Severability. If any term or provision of these Terms is found invalid, illegal, or unenforceable by a court or arbitrator, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms. Upon a determination that any term or provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify such term or provision or shall instruct a court or arbitrator to modify such term or provision to effect the original intent of the parties.
- Waiver. No waiver by the Company of any of the provisions of these Terms shall be effective unless explicitly set forth in writing and no waiver by the Company shall operate as a waiver of the same or any other provision in the future.
- Assignment. The Affiliate may not assign, transfer, subcontract or delegate any right or obligation under these Terms.
- Section Headings. Section headings are for convenience only and shall not be used to interpret these Terms.
- Entire Agreement/Amendment. These Terms constitute the entire agreement of the parties with respect to the subject matter of these Terms and supersede all prior agreements, written and oral. These Terms may be amended at any time by the Company upon notice to the Affiliate, which may be by email or by posting the modified Terms within the affiliate portal. The Affiliate’s continued participation in the Affiliate Program shall be deemed acceptance of the modified Terms.
- Notice. Each party shall deliver all notices under these Terms (a “Notice”) by email, if to the Company to the email used by the Company to communicate with the Affiliate, and if to the Affiliate to the email included in the application. Either party may modify their email address by notifying the other party.Â
- Force Majeure. The Company shall not be in breach of these Terms for any failure or delay in fulfilling its obligations under these Terms to the extent such failure or delay is caused by acts or circumstances beyond the reasonable control of the Company (a “Force Majeure Event”), including without limitation acts of God, natural disasters, governmental actions, pandemics, war or conflict, terrorism, power outages, or telecommunications failures.
- Electronic Signatures and Counterparts. These Terms may be signed electronically and copies of these Terms shall have the same effect as originals.Â
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