BRAND AFFILIATE TERMS AND CONDITIONS
ATTENTION: If you are currently a Brand Affiliate for GOFIGURE or you are applying to become one, you are required to read and agree to these Brand Affiliate Terms and Conditions.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY!!!!!!
BY CLICKING “I AGREE,” you are entering into a legally binding contract with GOFIGURE and are agreeing to be bound by these Brand Affiliate Terms and Conditions which will govern the relationship between you, as a participant in the Brand Affiliate Program (the “Program”), and GOFIGURE.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT SUBMIT YOUR APPLICATION OR CONTINUE YOUR PARTICIPATION IN THE PROGRAM. In addition, if at any time you no longer wish to be bound by these Affiliate Terms and Conditions, you must immediately notify GOFIGURE.
1. Definitions. The following terms will have the meanings specified below.
“Affiliate” refers to a person who has been selected by GOFIGURE, in its discretion through its online application process, to act as a promoter of the GOFIGURE Products via the Affiliate Accounts.
“Affiliate Accounts” refers to one or more of Affiliate’s accounts on Approved Media which has approximately 5,000 followers (or equivalent as determined by GOFIGURE in its discretion) and is identified in the Affiliate’s initial application to the Program (or otherwise approved by an GOFIGURE representative in writing).
“Approved Media” refers to social media outlets approved by GOFIGURE for the Promotional Activities, as the same may be updated by GOFIGURE from time to time upon written notice to Affiliates. The current list of Approved Media is as follows: Facebook, Twitter, TikTok, Pinterest, Snapchat, Instagram, and YouTube.
“Promotional Activities” refers to the advertising, marketing and promotion of GOFIGURE Products by Affiliate on an Affiliate Account that has been approved by GOFIGURE.
“Spam” means any unsolicited message (such as an e-mail, direct message, text message, or Internet posting) posted or sent to a recipient in which the message is not necessarily personal or relevant to the recipient, and which may cause annoyance to the recipient.
“GOFIGURE” refers to the fitness-related products offered and sold by GOFIGURE to consumers under its GOFIGURE® brands.
“you” or “your” refers to the individual who is currently an Affiliate for GOFIGURE or is submitting an application to become an Affiliate through the online process, together with his or her agents, business affiliates, and permitted successors and assigns.
3. Application for Enrollment. To become an Affiliate, you (a real live person) must complete and submit the online application. You may not use any “bot” or other automated method to apply for or otherwise participate in the Program. All information included in your application must be true and correct, and it is your duty to notify GOFIGURE if anything changes after you become an Affiliate and throughout your participation in the Program. GOFIGURE reserves the right to accept or reject your application for any or no reason.
4. Eligibility Criteria. You must satisfy the following eligibility criteria as of the date that you submit your application and throughout your participation in the Program if you are selected to become an Affiliate. Upon request of GOFIGURE at any time, you may be required to provide documentary evidence showing that you satisfy these criteria. If you are unable to produce such evidence, you will be discharged from the Program immediately. You represent, warrant and covenant to GOFIGURE that you meet the following criteria:
You have read, understand, and agree to be bound by the GOFIGURE Affiliate Terms.
You are 18 years of age or older.
You reside in the United States.
You are authorized to work in the United States.
You are free from any medical conditions and are otherwise cleared by your doctor to use the GOFIGURE Products.
You maintain (at least one) Affiliate Account having approximately 5,000 followers (or equivalent as determined by GOFIGURE in its discretion), which is kept in public mode (except as authorized by GOFIGURE) and used for the Promotional Activities.
5. Compliance. You agree to comply with all federal, state and local laws, rules and regulations applicable to you in the course of your participation in the Program and the performance of Promotional Activities, which include but are not limited to the FTC guidelines, these Affiliate Terms and all terms and conditions applicable to your use of the Approved Media.
6. Promotional Activities. Once you are selected as an Affiliate, you agree to use your best efforts to frequently engage in Promotional Activities on at least one Affiliate Account which has been approved by GOFIGURE. All Promotional Activities must be conducted in a manner that is consistent with the authorized use for each GOFIGURE Product as outlined on product labels and any marketing or promotional materials provided by GOFIGURE from time to time. Promotional Activities include, without limitation, the following:
Posting photo and video content promoting the GOFIGURE Products as GOFIGURE may request from time to time (“Content”).
Sharing and promoting your personal discount code for GOFIGURE Products to encourage followers to purchase them.
Communicating, networking and/or collaborating with social media influencers, GOFIGURE’s social media followers and customers, and any other individuals requested by GOFIGURE, to promote the GOFIGURE Products as a tool to achieve certain health and fitness goals.
7. Other Obligations. In order to remain in good standing in the Program, you must also comply with the following:
Keep your Affiliate Account public at all times (and notify GOFIGURE before switching to private).
Add GOFIGURE’s social media accounts as a friend/ follower to your Affiliate Account(s) (including, without limitation, @gofigureofficial and @gofigurelife Instagram accounts and other accounts as GOFIGURE may add from time to time).
Promptly respond to all communications from GOFIGURE personnel (in no event later than within 24 hours), whether in text, email, phone or any other form.
Advise GOFIGURE personnel promptly of any changes to your Affiliate Accounts or other information previously submitted (whether in your application, through the portal or otherwise); and
Read all labels on GOFIGURE Products and use them only as directed.
Inform GOFIGURE personnel IMMEDIATELY if you develop a medical condition that prevents you from using or promoting the GOFIGURE Products and DO NOT USE them.
8. Use of Content. You agree that GOFIGURE may post, re-post, upload and/ or use any and all of the Content in its advertising, in emails, on its sales pages including, without limitation, on its website and on Amazon; on social media outlets (including but not limited to the Approved Media) at its discretion, in perpetuity, with or without notice or compensation.
9. Affiliate Responsibilities. You acknowledge and agree that you are responsible for:
Any and all activity undertaken in connection with your participation in the Program and on your Affiliate Accounts.
Conducting yourself at all times with the highest degree of professionalism.
Behaving in a legal, ethical and business-like manner and maintaining the highest standards of integrity, honesty and responsibility in your dealings with GOFIGURE, its staff, customers and sales representatives.
Presenting and demonstrating GOFIGURE Products in a positive, truthful and sincere manner.
Including any product disclaimer or other language provided by GOFIGURE with respect to GOFIGURE Products in any and all of your Content as directed by GOFIGURE.
Providing your honest and truthful personal experiences with using any GOFIGURE Product in your Content.
10. Prohibitions/ Restrictions. Affiliate is expressly prohibited from taking any of the following actions, each of which shall be a material breach of the Affiliate Terms:
Purchasing followers and/ or likes
Making any representations, claims or promises on behalf of GOFIGURE, other than those contained in GOFIGURE’s official marketing and promotional materials (i.e., on the label or GOFIGURE website).
Promoting GOFIGURE Products through unsolicited or Spam communications (including via emails, direct messages, posting comments, providing codes on any platform).
Engaging in, promoting, contributing to, or creating a platform for offensive, sexually explicit or distasteful materials, inappropriate images or video, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, or of any Content that is unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable to GOFIGURE in GOFIGURE’s sole discretion.
Transmitting messages or images inconsistent with the positive images and/or goodwill of GOFIGURE
Engaging in any activity that may divert commissions from other participants in the Program
Engaging in any activity that violates or breaches GOFIGURE’s or any third party’s legal rights.
Engaging in any advertising or marketing practices that are deceptive, misleading or fraudulent, including using Spam or sending unsolicited commercial email or direct messages, posting commercial messages or personal discount code to any forum that prohibits the same or on any account’s posts (including GOFIGURE’s).
Presenting GOFIGURE’s banners, images or videos as if they are your own or any other site’s (which is usually referred to as copyright or trademark infringement and is illegal).
Posting any links to the GOFIGURE website or any other GOFIGURE platform on any website in which users can post content, including, without limitation, Reddit.com, and any sub-page, sub-domain, or sub-thread thereof.
Posting, directly or indirectly, Affiliate’s promotional code or another GOFIGURE Affiliate’s promotional code on any website, including, without limitation, RetailMeNot.com, Coupons.com and CouponCodes.com.
Using any promotional coupon or code that is not provided to Affiliate by GOFIGURE for the Program or running any ad with any of GOFIGURE’s URLs offering brand Affiliate commissions.
Reading, intercepting, recording, redirecting, interpreting or filling in the contents of any electronic form or other materials submitted to GOFIGURE by any person or entity.
Selling or reselling any of the GOFIGURE Products or offering a cash incentive or discount on GOFIGURE Products as a means of promotion that is not within the context of the Program.
11. Monitoring; Removal of Content. GOFIGURE reserves the right to monitor all Affiliate Accounts and to preview Affiliate’s Content. From time to time, GOFIGURE may request changes to and/or removal of Content from any and all of Affiliate’s Accounts in its sole discretion. If you refuse to make any requested changes, GOFIGURE may terminate or limit your participation in the Program.
12. Term; Termination. The term of the Affiliate Terms shall begin upon submission of your application and continue unless earlier terminated. The Affiliate Terms may be terminated by GOFIGURE immediately at any time and for any or no reason, upon GOFIGURE’s written notice to you; and by you upon thirty (30) days written notice by you to GOFIGURE. Such termination constitutes your termination from the Program; you will be disqualified from receiving any further commission, recognition, communication or compensation from GOFIGURE; you must discontinue posting about or publicizing your use of GOFIGURE Products, and stop making any representations, publicly or privately, in which you could be construed as representing GOFIGURE or GOFIGURE Products. The obligations related to Confidential Information will continue perpetually after the termination of the Affiliate Terms.
13. Payment for Services. For eligible Affiliates, in consideration of the Promotional Activities and rights granted to GOFIGURE with respect to Content, Affiliate will be compensated as follows:
a. Free GOFIGURE Products. From time to time, GOFIGURE may provide Affiliate with free GOFIGURE Products, the value and amount of which shall be determined by GOFIGURE.
b. Appearances. If given the opportunity to participate in special events or Appearances, Affiliate may be compensated for those appearances as will be set forth in a separate written agreement signed by you and GOFIGURE. GOFIGURE will strive to give priority to Affiliates for Appearances but such invitations to participate cannot be guaranteed.
c. Commission. Affiliates are provided with a unique promotional code which can be provided to followers who can use it to buy GOFIGURE Products at a discounted price. Affiliates in good standing are entitled to receive a commission of twenty-five percent (25%) of Net Sales made to customers who purchase GOFIGURE Products using Affiliate’s unique promotional code (“Customers”), subject to the exclusions in Section 14(e). “Net Sales” shall mean the total amount actually received by GOFIGURE from the purchase of GOFIGURE Products by Customers, less: (i) cost of insurance, cost of freight and other shipping and handling charges; (ii) any sales tax, or other similar taxes which may be imposed by a governmental entity having jurisdiction on any such transaction; and (iii) any sales or amounts that are attributable to Spam, credit card fraud, returned GOFIGURE Products, refunded payments or similar factors. Payment will be made in a form designated by GOFIGURE from time to time and accepted by Affiliate, on a weekly basis. Affiliate’s will be compensated Saturday no later than 12pm by PayPal. Any sales after 10pm Thursday will go towards your sales for the next week.
d. Exclusions. If a sale is canceled or refunded for any reason, any amount pre-paid to Affiliate will be deducted from the amount owed to the Affiliate. Affiliate will not be paid a commission on sales or orders that are in delinquent status. Affiliate commissions are counted, and final numbers are deemed final at the sole discretion and decision of GOFIGURE. GOFIGURE also reserves the right to change the dates of the commission payout. While GOFIGURE makes every reasonable effort to accurately track and pay commissions for all Affiliate sales, GOFIGURE is not responsible nor shall be held liable for any technical difficulties, outside events, actions by other Affiliates, or other uncontrollable events that may disrupt or interfere with GOFIGURE’s ability to track sales or pay commissions. GOFIGURE has the right to pay commissions to any other person, in its discretion.
14. Independent Contractor. By entering into the Affiliate Terms, you agree that you are customarily engaged in an independent business of performing Promotional Activities and are not an employee of GOFIGURE. Therefore, you are not entitled to any benefits provided by GOFIGURE to its employees, including, without limitation, worker’s compensation benefits or group insurance. Nothing in the Affiliate Terms should be construed to create an employer-employee relationship or any other relationship other than that of an independent contractor.
a. GOFIGURE will not have control or exercise direction over the methods by which you perform the Promotional Activities. You are responsible for creating content and determining when your Content will be shared, with the exception of time-sensitive projects as identified by GOFIGURE.
b. You are responsible for your own federal, state and local income, social security, unemployment, sales, disability and any other applicable local, state or federal taxes arising out of your performance of Promotional Activities under the Affiliate Terms. If applicable, GOFIGURE will report amounts paid to you by filing Form 1099-Misc. with the Internal Revenue Service, as required by Laws.
c. You understand and agree that GOFIGURE will not withhold or make payments for social security, unemployment insurance or disability insurance contributions on your behalf. You agree to indemnify and defend GOFIGURE against any and all such taxes or contributions. You are also responsible for all costs, liabilities and expenses you may incur in connection with performing Promotional Activities under the Affiliate Terms.
15. Intellectual Property. All GOFIGURE trade names, trademarks, logos, slogans, domain names, trade dress, coupons, hypertext links, promotional codes, designs, works of authorship, and other advertising and marketing material (collectively, the “GOFIGURE Intellectual Property”) is the property of GOFIGURE, and you agree not to use such GOFIGURE Intellectual Property except in the form provided to you through the Program, and solely for the purpose and in the manner specifically authorized by GOFIGURE. Unless and only to the extent explicitly authorized by GOFIGURE, you agree not to modify any GOFIGURE Intellectual Property or use any modified or derivative version of any GOFIGURE Intellectual Property. Unless and only to the extent explicitly authorized by GOFIGURE, you agree not to purchase, use or register any domain name, or any social media profile name, handle, or moniker, that comprises or incorporates any GOFIGURE Intellectual Property or any variations, derivatives or misspellings thereof. You agree not to publish, host, or promote any GOFIGURE Intellectual Property or other material that misrepresents your relationship with GOFIGURE or implies that you are an official site, authorized dealer, or otherwise specially connected with or sponsored by GOFIGURE.
You agree that any and all content, photos, videos, verbiage, pictures, writings, other work product and/ or works of authorship generated as part of the content or otherwise related to the work that you do for GOFIGURE (collectively, the “Content”) shall be the sole and exclusive property of GOFIGURE, and you irrevocably assign to GOFIGURE all right, title and interest in any Content that you create, or to which you contribute, including all intellectual property rights contained therein. You acknowledge and agree that all Content is deemed specially requested by GOFIGURE (whether or not actually requested), and further agree that it shall be considered a work made for hire within the meaning of the copyright laws of the United States (together with any modifications, improvements or enhancements. You acknowledge and agree that GOFIGURE is expressly authorized to use your name, likeness, voice, signature, photograph, image, distinctive appearance, gestures or mannerisms as part of any Content, such use will not constitute an infringement of any of your rights, and all your rights relating to or embodied in any Content are hereby waived.
16. Confidential Information. GOFIGURE may disclose to your confidential or proprietary information and trade secrets from time to time (collectively, “Confidential Information”). GOFIGURE’s Confidential Information includes, without limitation, all non-public or proprietary information and GOFIGURE Intellectual Property, including, but not limited to specifications, ingredients and other proprietary information relating to the GOFIGURE Products, sales figures, software passwords, customers, names and contact information, event format, presentation content, inventions, financial information, business plans, business processes, marketing plans, marketing strategies, marketing copy, financial projections, personal information of employees and agents, sponsorship strategies, relationships with vendors, technical data, software designs, drawings, specifications, models, source code, object code, documentation, diagrams, flow charts, inventions, techniques, marketing and other future plans. You agree to hold all Confidential Information in the strictest confidence and not to disclose the Confidential Information to any third party. You agree that GOFIGURE is (and will remain) the sole and exclusive owner of all right, title and interest in and to the Confidential Information, and all GOFIGURE Intellectual Property. You further agree that you will not and will cause any employees and other agents to not, use GOFIGURE’s Confidential Information for the benefit of anyone other than GOFIGURE. You agree not to use GOFIGURE’s Confidential Information for any purpose except in the performance of your obligations under the Affiliate Terms.
17. Third Parties; Competing Products. GOFIGURE recognizes that, as an independent contractor, you are available to perform services for entities other than GOFIGURE. You agree to notify GOFIGURE in writing (email sufficient if acknowledged by an employee of GOFIGURE) of any other arrangements. Moreover, you warrant and represent that there is no conflict or potential conflict of interest between your performance of Promotional Activities under the Affiliate Terms and your performance of services under other contracts for services or as an employee of other entities, or under your own brand or involving any products you develop or plan to develop for commercial use or sale, alone or with others, and will ensure that no such conflict arises. If you decide to perform services for a competing brand, your status as an Affiliate will be immediately revoked and you will have no further rights under the Affiliate Terms.
18. Indemnity. You will at all times defend, indemnify and hold harmless GOFIGURE (including, without limitation, all related and affiliated entities and their respective directors, officers, shareholders, agents and representatives) from and against any and all claims of whatever nature, including without limitation: (i) any violation of Law committed by you or your agents; and/ or (ii) your participation in the Program, and/ or your breach of any obligation, representation or warranty set forth in the Affiliate Terms. Your obligation to indemnify and defend GOFIGURE as set forth in this Section shall include reimbursement of any and all legal fees and related costs and expenses incurred by GOFIGURE in connection with any such claim.
19. Limitation of Liability. GOFIGURE WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF GOFIGURE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL GOFIGURE’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO YOUR PARTICIPATION IN THE PROGRAM, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO YOU BY GOFIGURE IN THE SIX (6) MONTHS PRECEDING THE EVENT WHICH GIVES RISE TO THE CLAIM.
20. Disclaimer. GOFIGURE MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND TO AFFILIATE, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED.
21. Modification. GOFIGURE may change the Affiliate Terms in the future. Unless the Affiliate Terms specify otherwise, GOFIGURE will give you prior notice of any significant change and if you find the change unacceptable, you have the right to terminate. However, if you continue to participate in the Program after the end of the notice period, you will be deemed to have accepted the changes. You may not modify the Affiliate Terms by making any typed, handwritten, or any other changes to them for any purpose.
22. Miscellaneous. The Affiliate Terms contain the entire agreement with respect to your independent contractor relationship with GOFIGURE and supersede any prior verbal and/or written agreements or representations regarding said relationship and will be governed by the laws of the State of Florida (without regard to conflict of law principles). Each party agrees to do all such acts, matters and things and shall sign or execute and deliver all such documents as may in the reasonable opinion of the other party be necessary or expedient to further and more effectually carry into effect the provisions of the Affiliate Terms. All disputes, claims or controversies arising out of or in any way relating to the Affiliate Terms, shall be governed by, construed under, and enforced in accordance with the laws of the State of Florida, without regard to conflict of laws principles. Both you and GOFIGURE agree to resolve all disputes related to the Affiliate Terms, to the fullest extent permitted by law, by final, binding and confidential arbitration in the County of Duval, State of Florida. By agreeing to this arbitration procedure, you agree to waive the right to resolve any such dispute through a trial by jury or judge or by administrative proceeding. All claims, disputes, or causes of action under the Affiliate Terms, whether by you or GOFIGURE, must be brought in an individual capacity, and shall not be brought as a plaintiff (or claimant) or class member in any purported class or representative proceeding, nor joined or consolidated with the claims of any other person or entity. The arbitrator may not consolidate the claims of more than one person or entity and may not preside over any form of representative or class proceeding. The Affiliate Terms are made under the provisions of the Federal Arbitration Act (9 U.S.F., Sections 1-14) ("FAA") and will be construed and governed accordingly. Nothing herein shall prevent any party from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Both parties may conduct discovery to the same extent as would be permitted in a court of law. GOFIGURE and you shall each be responsible for its/your own costs and expenses in connection with the arbitration.