Affiliate Agreement – Tathata Golf

Affiliate Agreement

THIS AGREEMENT (“Agreement”) is made and effective between Bryan Hepler Golf, LLC dba Tathata Golf and all brand affiliates.

In consideration of the mutual promises contained herein, the parties agree as follows: 

1.   Terms and Conditions
Affiliate (also described hereinafter as “You” or “Your”) agrees to the terms and conditions outlined in this Terms of Use Agreement (‘Agreement’) with respect to the promotion and sale of the Tathata Golf Membership and 60 Day In-Home Training Program (Program) and the websites (Sites) on which it resides. This Agreement constitutes the entire and only agreement between the Company (also described hereinafter as “Us”) and You, and supersedes all prior or contemporaneous agreements, representations, warranties and understandings with respect to the content and programs provided and the subject matter of this Agreement.

2.    Use and Promotion of the Site. 
You agree to promote the sale of the Membership for use “as designed”and use the Site in accordance with this Agreement and in the manner in which it was designed.  This may be promoted through email communication, banner ad advertising or in videos, television or personal presentations or communication (Outreach).  The Company will provide You with a unique URL that will account for all activity tied to your promotion(s) through the Company’s affiliate software.  You will be provided a commission for each sale (Event) that comes directly through your Outreach as described above.  For each Event you will earn a commission of fifteen percent (15%), unless otherwise contracted.

3.    Branding and License. 
The branding and promotion of Tathata Golf is of paramount importance to the Company and accordingly Company reserves the right to solely determine where and how the program is promoted and sold and reserves the right to terminate any affiliate agreement that does not comply with the items outlined in Exhibit 1, or for any other reason.

4.    Payment. 
Parties understand and agree that payment will be owed to Affiliate on terms of NET 30 EOM. All accounts will be paid in US dollars ($US). No checks will be issued for any amounts less than $75 US Dollars. To maintain active status as a Tathata Golf Affiliate, you must maintain the minimum sales requirements. Every Affiliate must generate a minimum of three (3) membership sales to him or herself per month to stay active. Every Affiliate account must have a unique, valid taxpayer identification number (TIN) or valid Social Security number. All payments are based on actual figures as defined and accounted for through the Company’s affiliate program software.   Any questions regarding the data provided by Company need to be submitted in writing within 30 days of receipt, otherwise the information will be deemed accurate and accepted as such by You.  Company will not be responsible to compensate You for Events that are not recorded due to your error.  Company exclusively reserves the right to change the content and pricing of all products at anytime.

5.    Termination. 
This Agreement shall commence upon Your acceptance and remain in effect as stated.  This Agreement may be terminated by either Party upon two weeks (14) days’ notice.  All payment obligations accruing prior to the termination date shall survive until fully performed unless fraudulently obtained. This Agreement shall terminate immediately upon the dissolution or insolvency of either Party. Company reserves the right, in its sole and absolute discretion, to terminate a Program. Affiliates are provided with a one month grace period if the Affiliate is not able to generate the minimum sales standards discussed above. If the Affiliate cannot generate a minimum check of $75.00 to him or herself, even after a one month grace period then this agreement may be terminated.

6. Representations and Warranties. 

  • You represent and warrant that: Your Media is in compliance with all applicable laws and meets the criteria outlined in Attachment 1.
  • You will not attempt in any way to alter, modify, eliminate, conceal, or otherwise render inoperable or ineffective the Site tags, source codes, links, pixels, modules or other data provided by or obtained from Company (‘Site Data’);
  • If instructed to do so by Company and/or if this Agreement terminates, You will immediately remove and discontinue the use of any Site Data;
  • You acknowledge that Company does not represent, warrant, or make any specific or implied promises as to the successful outcome of any Programs;
  • You agree to display the creative exactly as it appears on the Program and will not alter any creative that has been submitted to the Site;
  • If You are notified that fraudulent activities may be occurring on Your Media, and You do not take any actions to stop the fraudulent activities, then You are responsible for all associated costs and legal fees resulting in these fraudulent activities;
  • If any errors or undesirable results occur due to no fault of Company, Company shall not be responsible for losses and You may not be compensated.

7. Customer Information; Non-Disclosure. 
All information submitted by end-user customers pursuant to a Program is proprietary to and owned by Company. Such customer information is confidential and may not be disclosed by Company. In addition, You acknowledge that all non-public information, data and reports received from Company hereunder or as part of the services hereunder is proprietary to and owned by Company.  All proprietary information is protected by copyright, trademark and other intellectual property law. You agree not to reproduce, disseminate, sell, distribute or commercially exploit any proprietary information in any manner. These non-disclosure obligations shall survive the termination of this Agreement.

8. Limitation of Liability; Disclaimer of Warranty.
The information, content and services on the site are provided on an “as is” basis with no warranty.  To the maximum extent permitted by law, company disclaims all representations and warranties of any kind, express or implied, with respect to operation of the site, the information, services or content or warrant that the information on the site is accurate, complete or current.  In no event shall Company be liable for any damages of any kind arising from your use of the site or operation of a program including but not limited to broken images, videos, Site performance or display of any creative on your media even if Company has been advised of the possibility of such damages.

9. Indemnity. 
You shall indemnify, defend and hold Company harmless from and against any and all claims, allegations, liabilities, costs and expenses (including reasonable attorneys’ fees) by third parties arising out of Your: (a) improper use or promotion of the Site; (b) improper operation of a Program; or (c) breach or violation of this Agreement. Company shall indemnify, defend and hold You harmless from and against any and all claims allegations, liabilities, costs and expenses (including reasonable attorneys’ fees) by third parties arising out of any actual infringement of intellectual property rights resulting from Your display of Company’s promotional creative provided in connection with operating a Program.

10. Assignment and Jurisdiction. 
Company may assign this Agreement to a subsidiary or business successor. You may not assign this Agreement without the prior written consent of Company, which shall not be unreasonably withheld. This Agreement shall be construed and governed by the law of the state of Arizona. You expressly consent to the exclusive venue and personal jurisdiction of the state and federal courts located in Maricopa County, Arizona for any actions arising from or relating to this Agreement.

11. Severability. 
If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability shall not effect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had not been contained herein.

12. Force Majeure. 
Neither Party shall be liable to the other by reason of failure or delay in the performance of its obligations hereunder on account of unforeseeable circumstances, labor conditions, natural disasters, interruption in internet service or any other cause which is beyond the reasonable control of such Party.

13. Attorneys’ Fees. 
Company shall be entitled to an award of its reasonable costs and expenses, including attorneys’ fees, in any action or proceeding arising out of this Agreement.

14. Miscellaneous.
This Agreement contains the sole and entire agreement and understanding between the Parties relating to the subject matter herein, and merges all prior discussions, whether through officers, directors, salespersons, employees or consultants. Each Party is an independent contractor and not a partner, joint venturer or employee of the other. All notices shall be sent to the addresses submitted by You when signing up for the service by certified mail, fax, email or courier.

15. Copyright and Service Mark Information:
The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to the Site are protected under applicable copyrights, trademarks and other proprietary (including but not limited to intellectual property) rights. The copying, redistribution, use or publication by You of any such matters or any part of the Site, except as allowed under ‘Limited Right to Use’, is strictly prohibited. You do not acquire ownership rights to any content, document or other materials viewed through the Site. All trademarks are the property of their respective owners.

Attachment 1

Website and Email Promotion Requirements

Website Promotion Requirements

Websites must:

  • Have a top-level domain name and be content-based, not simply a list of links or advertisements.
  • Be written in English and contain only English language content.
  • Be fully functional at all levels; no ‘under construction’ sites or sections.
  • Spawning process pop-ups and exit pop-ups are prohibited.

Websites must not be promoted in any manner considered fraudulent or misleading or contain content,  a link or be affiliated with any objectionable content (at the sole discretion of the Company) including but not limited to:

  • Racial, ethnic, political, violence, profanity, adult-related, gambling, hacking, illegal substances or activities, etc
  • Investment, money-making opportunities or advice not permitted under law
  • Any spoofing, redirecting, or trafficking from adult-related websites in an effort to gain traffic

Email Promotion Requirements

Email list must be property of the affiliate or a related party.  Affiliates must comply with The CAN SPAM Act which regulates the form (what information must be included and the required format) commercial email must take including, but not limited to;

  • Clear and conspicuous identification that the message is an advertisement or solicitation, if the email is unsolicited, with a truthful subject line
  • Clear, conspicuous and functioning mechanism to opt-out with a valid postal address for the sender

In addition, Affiliate shall not participate in promoting the program through any illicit method(s) including but not limited to fraudulent lead data or transactions.

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