Hot & Healthy Academy Affiliate Terms and Conditions
Affiliate Agreement
1. Operative part
Hot & Healthy ABN 27 862 617 476 (Hot & Healthy Academy) operates the Hot & Healthy Academy (Academy Membership). Hot & Healthy Academy is prepared to grant Affiliates the right to resell access to the Academy Membership to End Users on the Terms and Conditions of this Affiliates Agreement.
The Affiliate makes this offer to Hot & Healthy Academy to resell the Academy Membership in exchange for the Referral Fees described herein. Hot & Healthy Academy and the Affiliate are referred to as a Party or the Parties to this Agreement the case may be.
1.1 Defined terms
Agreement means the terms and conditions contained in this Affiliates Agreement.
Confidential Information means all information, know-how, trade secrets, expressions, ideas, concepts, technical and financial information and other commercially valuable or sensitive information in whatever form disclosed by a Party to the other Party, and in the case of Affiliate includes all information in or relating to the Academy Membership, Documentation, Licensed IP, sales volumes, Referral Fees paid, except information which lawfully is or comes into the public domain, which is lawfully in a Party’s possession prior to disclosure under this Agreement.
Documentation means any user operating manual, explanatory notes or memoranda that may or may not be supplied with the Academy Membership provided by Hot & Healthy Academy as updated from time to time on Hot & Healthy in Business’s Website or provided during training.
End-User means a customer of Hot & Healthy Academy that has been introduced by the Affiliate.
EUAMTC means the End User Academy Membership Terms & Conditions which all End Users of the Academy Membership agree to be bound by available at: https://
Force Majeure means an act of God, fire, lightning, explosions, flood or other natural disaster, subsidence, act of terrorism, insurrection, civil disorder or military operations, power or gas shortage, government or quasi-government restraint, expropriation, prohibition, intervention, direction or embargo, inability or delay in obtaining governmental or quasi-governmental approvals, consents, permits, licences or authorities, strikes, lock-outs or other industrial disputes of any kind and any other cause, whether similar or not to the foregoing, outside of the affected Party’s control.
Intellectual Property means statutory and other proprietary rights in respect of copyright and neighbouring rights, all rights in relation to inventions, patents, registered and unregistered designs, utility models, circuit layouts, know-how and rights to require information to be kept confidential, and all other rights arising from intellectual activity and rights to apply for the above, but does not include Moral Rights that are not transferable.
Academy Membership means Hot & Healthy Academy website management system used as a software solution to enable users to edit, promote and host websites.
Services mean any services which may be provided by the Affiliate in conjunction with the Academy Membership.
Referral Fee means the amount of money to be paid to the Affiliate within fourteen (30) days after the Affiliate requests a payment through the Affiliate Control Panel based on the amount of End Users introduced and the amount paid by End Users.
Affiliate Control Panel means a section of Hot & Healthy Academy’s website which is designed for use by Affiliates to monitor various details in regard to the End Users they have introduced and to monitor and make claims for Referral Fees.
Technical Information means Confidential Information being artwork, specifications, designs, research and development results, test results, and other technical information relating to the Academy Membership, or the and any material form in which the above materials or information are contained or embodied, or from which they can be reproduced.
Term means the period of five (5) years.
1.2 Interpretation
Reference to:
(a) one gender includes the others;
(b) the singular includes the plural and the plural includes the singular;
(c) a person includes a body corporate;
(d) a Party includes the Party’s executors, administrators, successors and permitted assigns;
(e) to an amount of money, to $, $A or dollar is a reference to the currency of Australia;
(f) a statute, regulation or provision of a statute or regulation (a Statutory Provision) includes:
(i) that Statutory Provision as amended or re-enacted from time to time; and
(ii) a statute, regulation or provision enacted in replacement of that Statutory Provision.
(a) including and similar expressions are not words of limitation.
(g) where a word or expression is given a particular meaning, other parts of speech and grammatical forms of that word or expression have a corresponding meaning.
(h) headings are for convenience only and do not form part of this Agreement or affect its interpretation.
(i) a provision of this Agreement must not be construed to the disadvantage of a Party merely because that Party was responsible for the preparation of this Agreement or the inclusion of the provision in it.
2. Appointment of Affiliate
2.1 Appointment
(a) In signing this Agreement, communicating your acceptance, or clicking the “I Accept” button, the Affiliate is making an offer to Hot & Healthy Academy to resell the Academy Membership on the terms and conditions contained in this Agreement.
(b) Hot & Healthy Academy accepts the offer contained in this Agreement by communicating its acceptance of the Affiliates offer to the Affiliate.
(c) Hot & Healthy Academy appoints the Affiliate and the Affiliate agrees to act as an Affiliate of Hot & Healthy Academy’s Membership Sign-ups.
2.2 Grant of rights
(a) The Affiliate agrees to promote, market and sell the Academy Membership to potential End Users on the terms and conditions contained herein.
(b) The Affiliate acknowledges that its appointment under this Agreement is not exclusive and that Hot & Healthy Academy may appoint other Affiliates to sell the Academy Membership.
(c) The Affiliate has a limited right to:
(i) introduce End Users of the Academy Membership to Hot & Healthy Academy;
(ii) customise and configure the Academy Membership supplied by Hot & Healthy Academy for End Users;
(iii) in exchange for receiving the Referral Fees earned because of the introduction as contained in clause 11.
2.3 Separate contract
(a) Each order for the Academy Membership made by the Affiliate on behalf of an End User constitutes a separate agreement between Hot & Healthy Academy and the End User.
(b) Hot & Healthy Academy may choose at its sole discretion not to accept an End User introduced by an Affiliate for any reason.
(c) An End User introduced by the Affiliate must accept the EUAMTC.
3. Financial arrangements
3.1 Pricing
(a) The Affiliate acknowledges that the Academy Membership price provided at https://hotandhealthyglobal.com/business-training is determined by Hot & Healthy Academy and does not include the Affiliate’s right to charge End Users fees associated with:
(i) consulting on the use of the Academy Membership;
(ii) installing, configuring and customising the Academy Membership for an End User;
(iii) an element related to promoting, consulting, and the right to install and configure the client.
(b) The Affiliate may contract separately with End Users to provide these services.
3.2 Goods and Services Tax
Referral Fees are exclusive of GST unless the Affiliate is registered for GST.
3.3 Recipient created tax invoices
(a) If the Affiliate is registered for GST:
(i) Hot & Healthy Academy agrees to issue tax invoices to the Affiliate and the Affiliate has agreed to accept those invoices in respect of Referral Fees in satisfaction of the taxation requirements for recipient created tax invoices.
(ii) the Affiliate acknowledges its registration status for GST is current on the day that the Affiliate accepts this agreement and that the Affiliate will notify Hot & Healthy Academy if it ceases to be registered for GST.
(b) If the Affiliate is not registered for GST then the recipient created tax invoices will not include GST.
3.4 Expiration of Referral Fees
Unclaimed accrued Referral Fees will expire after a period of two (2) years. Please provide your bank details to ensure live payments.
3.5 Minimum payment
The Affiliate will receive payments as the end-user is charged.
3.6 Timing and method of payment
The payment for the End Users introduced to Hot & Healthy Academy by the Affiliate will occur thirty (30) after the Affiliate requests a payment through the Affiliate Control Panel. The amount payable will be determined in accordance with the amount of End Users introduced in accordance with clause 12.
4. Affiliate’s obligations
4.1 Care and skill
The Affiliate must market and promote the Academy Membership and solicit and obtain End Users for the Academy Membership with all due care and skill and in a competent and prudent manner and in compliance with all guides and documents provided by Hot & Healthy Academy.
4.2 Duty of diligence
The Affiliate must:
(a) make it’s best endeavours to introduce potential End Users to the Academy Membership whilst this Agreement in force;
(b) diligently, faithfully and conscientiously carry out its obligations under this Agreement;
(c) at all times preserve and enhance Hot & Healthy Academy’s good reputation;
(d) use its best endeavours to sell, promote, market and support the Academy Membership; and
(e) not do anything that may interfere with the sale, promotion, marketing and support of the Academy Membership.
4.3 Use of Hot & Healthy Academy’s name, logos and trademarks
(a) The names and logos specified used by Hot & Healthy Academy and any logo or characteristic decoration used in relation to them may not be used as part of the business or corporate name or trading style of the Affiliate but may be used by the Affiliate only in connection with the performance of the Affiliate’s obligations under this Agreement.
(b) The Affiliate must not disseminate in any manner whatsoever to any person any promotional or marketing documentation (whether in paper or electronic form) which bears any of:
(i) the name or logos of Hot & Healthy Academy
(ii) the name of Hot & Healthy Academy; or
(iii) unless Hot & Healthy Academy has first been provided with a copy of such proposed promotional or marketing material and has provided its written consent to its dissemination, which will not be unreasonably withheld.
4.4 Promotional assistance
(a) To assist the Affiliate in the performance of its obligations under this Agreement, Hot & Healthy Academy may:
(i) provide the Affiliate with sales literature and other sales aids that Hot & Healthy Academy considers necessary; and
(ii) list the Affiliates of its Academy Membership on its website and in other promotional literature including the names and contact details of the Affiliate.
4.5 No sub-agents
The Affiliate must not appoint sub-agents to carry out any of the functions which it is required or permitted by this Agreement to perform, without the prior written consent of Hot & Healthy Academy, which may be withheld at Hot & Healthy Academy’s absolute discretion.
4.6 Representations
(a) The Affiliate must not:
(i) make any representation or claim or give any warranty or guarantee regarding the Academy Membership which has not been authorised by Hot & Healthy Academy in writing or which is inconsistent with any Documentation or information provided by or on behalf of Hot & Healthy Academy, including all warranties and disclaimers contained in such documentation or information;
(ii) without the prior express approval of Hot & Healthy Academy commit Hot & Healthy Academy in any way to the performance of any contract whatever nor incur any liabilities on behalf of Hot & Healthy Academy nor pledge the credit of Hot & Healthy Academy nor make any representations nor give any warranty on behalf of Hot & Healthy Academy, nor will it hold itself out, or permit any person to hold itself out as being authorised to bind Hot & Healthy Academy in any way.
4.7 Affiliate training
(a)
The Affiliate must submit to a quality and accreditation process administered by Hot & Healthy Academy to ensure that they have achieved competence using and customising the Academy Membership for End Users.
(b) At any time during the Term of this Agreement Hot & Healthy Academy may require any of the Affiliates staff to pass any form of reasonable test to establish that they possess sufficient skills to comply with the obligations contained in this Agreement.
4.8 Invoicing options
For any End Users introduced by the Affiliate, the Affiliate doesn’t need to charge or invoice the end user. Hot & Healthy Academy will invoice the End User directly, with the Referral Fees accruing in the Affiliate’s Control Panel; or
5. Hot & Healthy Academy’s obligations
5.1 Promotional assistance
(a) Hot & Healthy Academy will provide to the Affiliate such information and documentation regarding the nature, characteristics, operation and use of the Academy Membership as Hot & Healthy Academy considers necessary to enable the Affiliate to promote and market the Academy Membership.
(b) Hot & Healthy Academy will provide reasonable technical support for the Academy Membership to the Affiliate and or to End User.
5.2 Hot & Healthy Academy’s exclusions
(a) Hot & Healthy Academy excludes all liability to the Affiliate in respect of the suitability of the Academy Membership, the quality or performance or the claims of third parties arising from the commercialisation of the Academy Membership.
(b) Without limiting the generality of the foregoing, Hot & Healthy Academy is to have no liability to the Affiliate, however arising and under any cause of action or theory of liability, in respect of special, indirect or consequential damages, loss of profit or loss of business opportunity, unless this Agreement expressly provides otherwise.
5.3 Non-competition by Hot & Healthy Academy
Hot & Healthy Academy agrees not to approach End Users to offer competitive services of the Affiliate to any End Users introduced by the Affiliate whilst this agreement is in force.
6. Warranties and representations
6.1 Mutual warranties
(a) Each Party warrants that as at the Commencement Date:
(i) it has the power and authority to enter into and perform its obligations under this Agreement and that the execution of this Agreement by it has been duly and validly authorised by all necessary corporate action; and
(ii) its obligations under this Agreement are valid and binding and enforceable against it in accordance with their terms.
6.2 Hot & Healthy Academy warranties
(a) Hot & Healthy Academy warrants that, to the best of its knowledge and belief as at the Commencement Date, it is entitled to grant the right to resell its Academy Membership to the Affiliate in accordance with the terms of this Agreement.
(b) Hot & Healthy Academy has permission to use all registered or common law trademarks and produce names as specified throughout this Agreement and any End User Licence Agreement.
6.3 Affiliate warranties
The Affiliate warrants that to the best of its knowledge and belief that:
(a) it has the resources, skills, knowledge and abilities necessary to perform its obligations under this Agreement; and
(b) it will at all times comply with all applicable laws and regulations and hold all necessary approvals in performing its obligations under this Agreement and in any of its dealings with respect to the Academy Membership.
7. Restraint and non-competition
7.1 Definitions for this clause
Engage In means to carry on, participate in, provide competitive services, or otherwise be directly or indirectly involved as an Affiliate, unit holder, director, consultant, adviser, contractor, shareholder, agent, manager, employee, beneficiary, partner, Associate, trustee or financier.
Business means the business of Hot & Healthy Academy when this Agreement is terminated.
7.2 Prohibited activities
(a) The Affiliate undertakes to Hot & Healthy Academy that it will not:
(b) engage in a business or an activity that is:
(i) the same or similar to the Business or any material part of the Business; and
(ii) in competition with the Business or any material part of the Business;
(iii) solicit, canvass, approach or accept an approach from a person who was at any time whilst this Agreement is in force ending on the date when the Affiliate stops being an Affiliate, a customer of Hot & Healthy Academy with a view to obtaining their custom in a business that is the same or similar to the Business and is in competition with the Business;
(iv) interfere with the relationship between Hot & Healthy Academy and its End Users, employees or suppliers;
(v) apply for or maintain any copyright, trademark or Intellectual Property registrations held in the Affiliate’s name in relation to the Academy Membership.
(vi) induce or help to induce an employee of an officer or other Affiliates of Hot & Healthy Academy to cease involvement with Hot & Healthy Academy.
7.3 Duration of restraint
(a) The Affiliate agrees that they will not in any capacity, either directly or indirectly:
(i) whilst this Agreement is in force; and
(ii) for the period of eighteen (18) months after termination;
(b) be involved in any of the prohibited activities as specified in clause 7.2.
7.4 Interpretation
Clauses 7.2 and 7.3 have effects together as if they consisted of separate provisions, each being severable from the other. Each separate provision results from combining each undertaking in clause 7.2, with each period in clause 7.3 If any of those separate provisions is invalid or unenforceable for any reason, the invalidity or unenforceability does not affect the validity or enforceability of any of the other separate provisions or other combinations of the separate provisions of clauses 7.2 and 7.3.
7.5 Exceptions
(a) This clause 7 does not restrict an Affiliate from:
(i) holding 5% or less of the Shares of a competitor that is listed on a Stock Exchange;
(ii) holding Shares in Hot & Healthy Academy; or
(iii) recruiting a person through a recruitment agency (except if the agency targets employees of Hot & Healthy Academy) or in a response to a public employment advertisement.
7.6 Acknowledgments
(a) The Affiliate acknowledges that:
(i) the prohibitions and restrictions in this clause 7 are reasonable in the circumstances and necessary to protect the goodwill of Hot & Healthy Academy;
(ii) damages are not an adequate remedy if the Affiliate breaches this clause 7; and
(iii) Hot & Healthy Academy or another Affiliate may apply for injunctive relief if:
(iv) the Affiliate breaches or threatens to breach this clause 7; or
(v) Hot & Healthy Academy or the other Affiliate believes the Affiliate is likely to breach this clause 7.
8. Termination
8.1 Termination by End User
(a) If at any time, the End User is dissatisfied with the service provided by the Affiliate, because the Affiliate’s conduct is deemed to be offensive or unprofessional for any reason (as solely determined by the End User), then by providing notice to Hot & Healthy Academy, the End User may elect to continue using the Academy Membership without the assistance of the Affiliate.
(b) Hot & Healthy Academy will provide a notice on its website to allow End Users to report Affiliates that are not representing Hot & Healthy Academy in a professional manner, the completion of which gives effect to this clause.
(c) If the End User terminates with the Affiliate according to this clause, then:
(i) the End User will continue directly with Hot & Healthy Academy; and
(ii) the Affiliate’s administrative access to the Academy Membership for the terminated End User will be revoked;
(d) the Affiliate’s Commission for the terminated End User will cease immediately.
8.2 Termination by Hot & Healthy Academy
(a) Hot & Healthy Academy may terminate this Agreement with immediate effect by giving written notice to the Affiliate at any time if Hot & Healthy Academy loses its rights to provide the Academy Membership.
(b) The Parties agree that should Hot & Healthy Academy lose its right to provide the Academy Membership then the terms and conditions contained in this Agreement are terminated and each Party will have no recourse to the other.
(c) Hot & Healthy Academy, may at its sole discretion terminate this Agreement for cause, if:
(i) it has received complaints from at least 10% of End Users in accordance with the clause 8.1;
(ii) the Affiliate fails to provide a reasonable level of support of the Academy Membership to the End User, after first being provided with notice that its level of support is insufficient;
(iii) the Affiliate fails to achieve a reasonable standard of skill in using the System after having received training;
(iv) the Affiliate harasses or otherwise interferes with the contract between Hot & Healthy Academy and the End User;
(v) the Affiliate encourages at least 10% of End Users to move to another System; and
(vi) the Affiliate engages in any conduct which casts Hot & Healthy Academy’s good name into disrepute.
(vii) the Affiliate is unable to be contacted or appears to have abandoned its business after Hot & Healthy Academy has made reasonable attempts to contact the Affiliate;
(viii) the Affiliate is the subject of an insolvency event or becomes personally bankrupt.
8.3 Termination by the Affiliate
The Affiliate may terminate this Agreement by providing ninety (90) days notice to Hot & Healthy Academy.
8.4 Termination notice period
Hot & Healthy Academy may terminate this Agreement with immediate effect or by giving ninety (90) days written notice to the Affiliate.
8.5 Force Majeure
(a) If the performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by reason of Force Majeure, the affected Party, upon giving prompt notice to the other Party, is excused from such performance to the extent of such prevention, restriction, or interference.
(b) The affected Party must use its best efforts to avoid or remove the Force Majeure or to limit the impact of the event on its performance and must continue performance with the utmost dispatch when the Force Majeure is removed.
(c) If an event of Force Majeure has the effect of substantially preventing performance of this Agreement by a Party for a period of more than ninety (90) days, the unaffected Party may by notice to the other Party terminate this Agreement.
8.6 Effect of termination
(a) Upon termination or expiry of this Agreement for any reason, the Affiliate must:
(i) immediately cease offering Hot & Healthy Academy’s Academy Membership to End Users;
(ii) immediately discontinue the display or use any of Hot & Healthy Academy’s name or logos;
(iii) or any name, logo or decoration bearing any resemblance to them which may be likely to cause confusion or to mislead any person.
(b) The Affiliate acknowledges that its Referral Fees will cease after ninety (90) days if for any reason this Agreement is terminated.
9. Confidential Information
9.1 Permitted use
The Affiliate may use the Confidential Information in or relating to the Academy Membership solely for the purpose of marketing and promoting the Academy Membership and soliciting and obtaining sales in accordance with this Agreement.
9.2 Use of Confidential Information
Subject to clause 9.1, each Party undertakes to keep the Confidential Information of the other Party confidential at all times, not to use or disclose that Confidential Information except to the extent necessary for the purpose of this Agreement or as required by law and to take all action reasonably necessary to maintain the confidential nature of that Confidential Information.
10. Injunctive relief
(a) In the event that any of the terms contained in this Agreement are breached by the Affiliate, the Parties acknowledge that irreparable damage will result to the Company, and to its business and that damages may not be an adequate remedy.
(b) The Parties agree that the Company will be entitled to injunctive relief should the Affiliate breach any of the terms and conditions of a clause which references this clause 10, which include provisions relating to Confidential Information and property of the Company.
(c) This equitable remedy shall be in addition to (and will not supersede) any action for damages the Company may have for breach of any part of this Agreement.
(d) Should Hot & Healthy Academy be the prevailing Party in any action, at law or equity, to enforce the terms of this Agreement, it will be entitled to legal fees and costs incurred enforcing its rights on an indemnity basis.
11. General provisions
11.1 Assignment
Hot & Healthy Academy may assign its rights and obligations contained in this Agreement to a third party at any time without notice or permission of the Affiliate. The rights of the Affiliate cannot be assigned without the permission of Hot & Healthy Academy.
11.2 Amendment
This Agreement may only be amended by agreement of the Parties evidenced in writing.
11.3 Entire Agreement
This Agreement contains the entire Agreement of the Parties with respect to its subject matter.
11.4 Further assurances
Each Party agrees, at its own expense, on the request of another Party, to do everything reasonably necessary to give effect to this Agreement and the transactions contemplated by it, including, but not limited to, the execution of documents.
11.5 Form of notice
A notice, approval, consent or other communication in connection with this Agreement must be in writing sent to the address of the receiving Party appearing in this Agreement or such other address as may be communicated by the receiving Party, marked for the attention of any person nominated for that purpose by the receiving Party (and who in the absence of any such nomination is the signatory to this Agreement on behalf of the Party), and may be sent by prepaid post (air mail if international), courier, facsimile transmission or electronic mail.
11.6 Governing law
The laws of Queensland and Australia govern this Deed. The Parties submit to the non-exclusive jurisdiction of the Supreme Court of Queensland and the Federal Court of Australia.
12. Referral Fee structure
12.1 Fees payable to the Affiliate
The Affiliate Commission will be calculated based on the following:
Number of End Users
(Introduced & Supported)
Referral Fee Amount
(net of GST)
10% per initial sale, and 10% of every payment thereafter.
Affiliate Fees are only payable on licence fees invoiced to and paid by End Users.
Affiliate Fees exclude excess usage fees for overages beyond the limits of the package selected by the End User.
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