AFFILIATE, COLLABORATING PROVIDER, REFERRAL AGREEMENT
Last Modified: January 2nd, 2023.
PLEASE READ THIS REFERRAL AGREEMENT CAREFULLY.
This is a contract between you (the “Referrer”) and us (“Global Guardian Services Pty Ltd ATF TWH Business Services” referred hereafter as The Mind Manual”).
It describes how we will work together and other aspects of our business relationship. It is a legal document so some of the language is necessarily “legalese” but we have tried to make it as readable as possible.
The Referral Agreement applies to your participation in our program Weight Loss Without Willpower and/or The Manifestation MBA (“Referral Program/s”). These terms are so important that we cannot have you participate in our Referral Program unless you agree to them.
We periodically update these terms. We might also choose to replace these terms in their entirety if, for example, the Referral Program changes, ends, or becomes part of an existing program, including our partner programs. If we update or replace the terms we will let you know via electronic means, which may include an in-app notification or by email. If you don’t agree to the update or replacement, you can choose to terminate as we describe below.
“The Mind Manual Affiliate” means a business owned, operated or controlled by Global Guardians Pty Ltd ATF TWH Business Services Trust.
“Referral Program/s” means our referral programs as described in this Agreement.
“Affiliate Lead” means a customer prospect who clicks on the Affiliate Link or uses a Discount Code that we have made available to you via the Discounts & Affiliate function.
“Affiliate Link” means the unique tracking link you place on your site or promote through other channels.
“Discount Code” means the unique code that has been registered to you as an affiliate of that program and entitles an affiliate lead to a pre determined discount that has been offered through you.
“Affiliate Policies” means the policies applicable to affiliates which we may make available to you from time to time.
“Discounts & Affiliates function” means the tool that we make available to you upon your acceptance into the Referral Program and for you to use and track sales in order to participate in the Referral Program.
"Agreement" means this Referral Agreement and all materials referred or linked to in here.
“Setup & Coordination Fee” means an amount described in the Affiliate Tool (or if applicable, in the Program Policies) for each Customer Transaction.
“Customer” means the authorized actual participant of the program who has purchased the program after being an Affiliate Lead.
“Customer Transactions” means those transactions by Affiliate Leads that are eligible for a fee to be paid pursuant to the ‘Customer Transactions’ section of this Agreement. Customer Transactions include customer purchases as further described in the Affiliate Tool.
"Customer Data" means all information that Customer submits or collects via the Program website and portal and all materials that Customer provides or posts, uploads, inputs or submits for public display through these Products.
"The Mind Manual Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that we incorporate into our services.
“The Mind Manual Products” means both the upfront program costs, subscriptions and Other Products.
“Program Policies Page” means the landing page: https://www.themindmanual.com/terms-conditions/ where we will provide all the up to date guidelines and policies for the Affiliate Program.
“Other Products” means those products and services that we offer, which are not included in the Weight Loss without Willpower Program (as detailed below); and, for the purposes of this Agreement, Other Products include all of our marketing software, legacy sales and marketing products, and any implementation, customization, training, consulting, additional support or other professional services, or fees for third-party products or services.
“Subscription Service” means a monthly payment option as an alternative to a one time upfront payment.
"We", "us", “our”, and “The Mind Manual” means Global Guardians Pty Ltd
“You” and “Affiliate” or "Referrer" means the party, other than The Mind Manual, entering into this Agreement and participating in the Referral Program.
This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, implementation and use of similar services and products of third parties.
Once you complete an application to become an Affiliate, Collaborating Provider or Referrer, we will review your application and notify you whether you have been accepted to participate in the Referral Program, or not. Before we accept an application, we may want to review your application with you, so we may reach out to you for more information. We may require that you complete certain requirements before we accept your application. If we do not notify you that you are accepted to participate in the Referral Program within thirty (30) days from your application, your application is considered to be rejected.
If you are accepted to participate in the Referral Program, then upon notification of acceptance, the terms and conditions of this Agreement shall apply in full force and effect, until terminated, pursuant to the terms set forth below.
You will comply with the terms and conditions of this Agreement at all times, including any applicable Program Policies.
- Referral Program Limits. Each accepted Affiliate Lead will expire according to the information provided in the Affiliate Tool (or if applicable, in the Program Policies) from the date the Affiliate Lead clicked on the Affiliate Link that was made available by you. We will pay you a fee as described in the Affiliate Tool for each new Customer who completes an applicable Customer Transaction after clicking on an Affiliate Lead made available by you, provided that you remain eligible to receive an amount pursuant to the terms of this Agreement.
- Eligibility. To be eligible for the fee (i) an Affiliate Lead must be accepted and valid in accordance with the ‘Acceptance and Validity’ section, (ii) a Customer Transaction must have occurred, (iii) the Setup & Coordination payment must not have been obtained by fraudulent means, misuse of the Affiliate Link, in violation of any Referral Program Policies that we make available to you, misuse of the Affiliate Tool or by any other means that we deem to breach the spirit of the Referral Program, or (iv) the Customer participates in any of our other programs, and you are registered as an Affiliate in relation to the Customer Transaction under any of these programs. In competitive situations with other affiliates, we may elect to provide the Fee to the affiliate that we deem to be the most eligible for the Fee, at our discretion. We may discontinue payments should any of the eligibility criteria set forth in this subsection fail to be met at any time.
- Acceptance and Validity. You will only be eligible for a payment for any Customer Transactions that derived from Affiliate Leads generated by the Affiliate Link that we make available to you and are accepted by The Mind Manual. An Affiliate Lead will be considered valid and accepted if, in our reasonable determination: (i) it is a new potential customer of ours, and (ii) is not, at the time of submission or sixty (60) days prior, one of our pre-existing customers, or involved in our active sales process. Notwithstanding the foregoing, we may choose not to accept an Affiliate Lead in our reasonable discretion. An Affiliate Lead is not considered valid if it’s first click on the Affiliate Link is after this Agreement has expired or terminated.
- Fees and Payment. In order to receive payment under this Agreement, you must have: (i) agreed to the terms of this Agreement; (ii) completed all steps necessary to create your account in the Discounts & Affiliate Tool in accordance with our directions, (iii) have a valid and up-to-date payment method in the Affiliate Tool with such account (iv) completed any and all required tax documentation in order for the Affiliate Tool to process any payments that may be owed to you. If you haven’t connected a PayPal account to your affiliate account, the discount code and affiliate link will remain inactive.
- Payment. A PayPal account is needed to split the customer payment at the checkout, which is when you will also receive payment after the transaction has been completed. We reserve the right to alter or change the amount we pay you.
Training and Support
We may make available to you, without charge, various webinars and other resources made available as part of our Referral Program. If we make such resources available to you, you will encourage your relevant personnel to participate in training as we recommend and may make available to you from time-to-time. We may change or discontinue any or all parts of the Referral Program benefits or offerings at any time without notice.
You grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos (“Affiliate Marks”) in connection with the Referral Program and this Agreement.
During the term of this Agreement, in the event that we make our trademark available to you, you may use our trademark as long as you follow the usage requirements in this section. You must: (i) only use the images of our trademark that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with the Referral Program and this Agreement; and (iv) immediately comply if we request that you discontinue use. You must not: (i) use our trademark in a misleading or disparaging way; (ii) use our trademark in a way that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
- The Mind Manual’s Proprietary Rights. No license to any software is granted by this Agreement. The Mind Manual’s Programs belong to and are the property of us or our licensors (if any). We retain all ownership rights in The Mind Manual’s Programs. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the The Mind Manual’s Content, in whole or in part, by any means, except as expressly authorized in writing by us. The Mind Manual and it’s logos, and other marks that we use from time to time are our trademarks and you may not use them without our prior written permission, except as otherwise set forth in this Agreement.
We encourage all customers, affiliates, collaborating providers and referrers to comment on The Mind Manual’s Programs, provide suggestions for improving them, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into The Mind Manual’s Programs, without payment to you.
- Customer’s Proprietary Rights. As between you and Customer, Customer retains the right to access and use the Customer portal associated with The Mind Manual’s Programs. For the avoidance of doubt, Customer will own and retain all rights to the Customer Data.
As used herein, “Confidential Information” means all confidential information disclosed by a party ("Disclosing Party") to the other party (“Receiving Party”), (i) whether orally or in writing, that is designated as confidential, and (ii) The Mind Manual customer and prospect information, whether or not otherwise designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
Term and Termination
- Term. This Agreement will apply for as long as you participate in the Referral Program/s, until terminated.
- Termination Without Cause. Both you and we may terminate this Agreement on fifteen (15) days written notice to the other party.
- Termination for Agreement Changes. If we update or replace the terms of this Agreement, you may terminate this Agreement on five (5) days written notice to us, provided that you send us written notice within ten (10) days after we send you notice of the change.
- Termination for Cause. We may terminate this Agreement: (i) upon thirty (30) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iv) immediately, if you breach the terms applicable to this agreement, (v) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
- Effects of Expiration/Termination. Expiration of this Agreement, and termination of this Agreement by either party, shall not affect our obligation to pay you a Fee, so long as the related payment by the Customer Transaction is recognized upon the date of such termination or expiration. Except as expressly set forth in this section, you are not eligible to receive a payment after expiration or termination of this Agreement. Upon termination or expiration, you will discontinue all use of and delete the Affiliate Offer that we made available to you for your participation in the Affiliate Program. Upon termination or expiration, an Affiliate Lead is not considered valid..
Upon termination or expiration, you will immediately discontinue all use of our trademark and references to this Referral Program from your website(s) and other collateral. For the avoidance of doubt, termination or expiration of this Agreement shall not cause a Customer’s agreement to be terminated.
Affiliate / Collaborating Provider / Referrer Representations and Warranties
You represent and warrant that: (i) you have all sufficient rights and permissions to participate in the Referral Program and to provision The Mind Manual with Affiliate Lead’s for our use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) your participation in this Referral Program will not conflict with any of your existing agreements or arrangements; and (iii) you own or have sufficient rights to use and to grant to us our right to use the Affiliate / Provider / Referrer Marks.
You further represent and warrant that you will ensure that you are compliant with any trade or regulatory requirements that may apply to your participation in the Referral Program (for example, by clearly stating you are an Affiliate, Collaborating Provider or Referrer on any website(s) you own where you make an Affiliate Link available). If you are a collaborating provider you warrant that you hold your own current professional indemnity insurances.
You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) your participation in the Referral Program, (b) our use of the prospect data you provided us, (c) your noncompliance with or breach of this Agreement, (d) your use of the Affiliate Tool, or (e) our use of the Affiliate Marks. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defence or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
Disclaimers; Limitations of Liability
- Disclaimer of Warranties. WE AND OUR AFFILIATED COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE THE MIND MANUAL CONTENT, THE REFERRAL PROGRAM OR THE AFFILIATE & DISCOUNT TOOL FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) AND THE AFFILIATE TOOL MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THESE PRODUCTS AND THE AFFILIATE TOOL ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE MIND MANUAL PROGRAMS AND THE AFFILIATE TOOL INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
- No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
- Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL AFFILIATE AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED CUSTOMER TRANSACTIONS IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
- Affiliate Tool. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THE AFFILIATE TOOL THAT YOU USE. WE DO NOT PROMISE TO MAKE THE AFFILIATE TOOL AVAILABLE TO YOU, AND WE MAY CHOOSE TO DO SO, OR NOT TO DO SO, IN OUR DISCRETION.
- Amendment; No Waiver. We may update and change any part or all of this Agreement, including by replacing it in its entirety. If we update or change this Agreement, the updated Agreement will be made available to you via the Affiliate Tool and/or by email. The updated Agreement will become effective and binding on the next business day after we or the Affiliate Tool have notified you. When we change this Agreement, the "Last Modified" date above will be updated to reflect the date of the most recent version at https://www.themindmanual.com/affiliate-agreement/. We encourage you to review this Agreement periodically. If you don’t agree to the update, change or replacement, you can choose to terminate as we describe above. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
- Applicable Law. This Agreement shall be governed by the laws of the Commonwealth of Australia, without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts of Sydney, New South Wales, Australia.
- Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
- Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
- Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
- Compliance with Applicable Laws. You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. Export laws and regulations of Australia and any other relevant local export laws and regulations may apply to The Mind Manual programs.
- Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
- Notices. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.
To The Mind Manual: email@example.com
To you: your address as provided in our affiliate account information for you.
We may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.
- Entire Agreement. This Agreement is the entire agreement between us for the Affiliate Program and supersedes all other proposals and agreements, whether electronic, oral or written, between us. Our obligations are not contingent on the delivery of any future functionality or features of The Mind Manual programs or dependent on any oral or written public comments made by us regarding future functionality or features of The Mind Manual programs. It is the express wish of both you and us that this Agreement and all related documents be drawn up in English. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
- Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
- No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
- Program Policies Page. We may change the Program Policies from time to time. Your participation in the Affiliate Program is subject to the Program Policies, which are incorporated herein by reference.
- No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, The Mind Manual programs, our trademarks, or any other property or right of ours.
- Sales by The Mind Manual. This Agreement shall in no way limit our right to sell the The Mind Manual programs, directly or indirectly, to any current or prospective customers.
- Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
- Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Commission and Payment’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Termination/Expiration’, ‘Indemnification’, ‘Disclaimers; Limitation of Liability’, ‘Non-Solicitation’ and ‘General’.