Affiliate Agreement
between
Be Infinity Limited
Unit 1411, 14/Floor, Cosco Tower, HK-183 Queen’s Road Central,
Sheung Wan, Hong Kong
– hereinafter “Be Infinity” –
and
the respectively registered Affiliate
– hereinafter “Affiliate” –
—
Preamble
(1) Be Infinity offers digital education, training and coaching services worldwide in the areas of lifestyle, health, personal development and finance. Be Infinity does not offer financial instruments, securities or any other regulated financial or investment products.
(2) The Affiliate promotes the services of Be Infinity to third parties and receives performance‑based remuneration according to the then current compensation and career plan (the “Compensation Plan”). The Affiliate acts as an independent contractor and is not an employee, commercial agent or broker of Be Infinity.
(3) This Agreement is directed exclusively at entrepreneurs within the meaning of the respective applicable legal system. The conclusion of this Agreement by consumers is excluded.
—
§ 1 Scope and Subject Matter
(1) This Agreement governs the legal framework of the Affiliate’s activities for Be Infinity, in particular the rights and obligations of the parties, the use of the systems and materials provided by Be Infinity, and the remuneration rules.
(2) The Affiliate is obliged, when promoting and arranging the services of Be Infinity, to comply with all applicable statutory provisions, in particular advertising, competition, consumer protection and data protection laws.
(3) The respectively current product, service, compensation and compliance rules of Be Infinity (including the Compensation Plan, code of conduct and advertising guidelines) form part of this Agreement, provided that they are made available to the Affiliate in text form.
—
§ 2 Entrepreneur Status, Registration, KYC
(1) The Affiliate represents and warrants that, at the time of entering into this Agreement and throughout its term, the Affiliate is acting as an entrepreneur (e.g. sole trader, company, partnership or other organization) and not as a consumer.
(2) The Affiliate is responsible for obtaining, maintaining and complying with all trade, tax, regulatory and professional registrations, licenses and permits required for its activities in its jurisdiction of residence throughout the term of this Agreement.
(3) Be Infinity is entitled, before and during the term of this Agreement, to carry out KYC, identification and compliance checks (Know Your Customer). The Affiliate shall provide all documents and information reasonably required for such checks fully and truthfully.
(4) As a general rule, only one Affiliate position in the Compensation Plan is permitted per natural or legal person, unless Be Infinity expressly approves otherwise in writing.
—
§ 3 Legal Status of the Affiliate
(1) The Affiliate acts as an independent contractor. No employment relationship, no commercial agency, brokerage or partnership relationship is created between the parties.
(2) The Affiliate acts in its own name and for its own account. The Affiliate bears all costs associated with its activities (including office, staff, travel expenses, taxes and social security contributions) and is solely responsible for proper declaration and payment of such taxes and contributions.
(3) The Affiliate is free to determine its working time and working methods and is not subject to any instructions by Be Infinity. Nevertheless, the Affiliate is bound by the contractual provisions, the compensation rules and the compliance and advertising guidelines.
—
§ 4 Ethical Standards and Conduct
(1) The Affiliate undertakes to behave in an ethical, fair and transparent manner towards prospects, customers, other affiliates and competitors.
(2) In particular, the Affiliate shall not:
1.⁠ ⁠make misleading, untrue or exaggerated statements about earning opportunities, product effects or the company structure;
2.⁠ ⁠give unrealistic income promises or guarantees of success;
3.⁠ ⁠use pressure, threats or impermissible psychological methods in sales activities;
4.⁠ ⁠disparage competitors or spread false facts about them.
(3) In all promotional activities, the Affiliate must clearly indicate that it acts as an independent affiliate. The Affiliate must not give the impression that it speaks on behalf of Be Infinity as a corporate body or as an employee.
—
§ 5 Advertising, Online Presence and Marketing Tools
(1) The Affiliate may only use such marketing and advertising materials for Be Infinity’s products and services as are provided by Be Infinity or expressly approved by Be Infinity in text form (e.g. presentations, graphics, landing pages).
(2) The use of self‑created marketing materials (texts, videos, landing pages, funnels, social media accounts, etc.) requires prior approval by Be Infinity in writing or text form. Any changes to previously approved materials require renewed approval.
(3) In particular, the following are prohibited:
1.⁠ ⁠spam marketing (in particular unsolicited mass emails and unlawful telemarketing);
2.⁠ ⁠anonymous or misleading postings;
3.⁠ ⁠advertising using misleading or protected terms (e.g. “official account”) without corresponding authorization;
4.⁠ ⁠offering or selling Be Infinity products on public online marketplaces (e.g. eBay, Amazon) without the express prior written consent of Be Infinity.
(4) In online presences, the Affiliate must clearly state that it acts as an independent affiliate (e.g. “Independent Affiliate”).
—
§ 6 Structure, Downline and Crossline Sponsoring
(1) Be Infinity’s sales organization is structured into sponsoring lines (“upline/downline”). The Affiliate is bound to its position within this structure.
(2) The Affiliate is prohibited from actively inducing affiliates or customers to change their existing sponsoring assignment or to join a different sponsoring line (“crossline sponsoring”), unless such change has been expressly approved by Be Infinity in text form.
(3) The Affiliate may not offer or grant any direct or indirect benefits (financial or otherwise) as an incentive for a change of sponsoring line.
—
§ 7 Change of Structure / Sponsoring Change
(1) A change in structure (sponsoring change) of an Affiliate is, as a rule, only permitted in exceptional cases and with the consent of all persons directly affected.
(2) A voluntary change of sponsoring line requires:
1.⁠ ⁠a written or text‑form request by the Affiliate concerned;
2.⁠ ⁠the consent in text form of the current direct sponsor (upline);
3.⁠ ⁠the consent in text form of the five next higher‑ranking affiliates in the upline holding the rank “Diamond” (or higher), to the extent such rank exists in the respective upline;
4.⁠ ⁠the express approval of Be Infinity in text form.
(3) Be Infinity is entitled to order a change in structure at any time, even without the consent of individual or all parties involved, if there is good cause. Whether good cause exists shall be determined by Be Infinity in its reasonable discretion.
(4) When ordering a change in structure, Be Infinity shall duly take into account the legitimate interests of all parties involved. No party shall have a claim to a specific structure or position.
—
§ 8 Non‑Competition and Non‑Solicitation
(1) During the term of this Agreement, the Affiliate shall not distribute services or products that are in direct competition with the core products of Be Infinity, if:
1.⁠ ⁠such activities take place in the same market segment and follow essentially the same business model; and
2.⁠ ⁠this would materially impair the legitimate interests of Be Infinity.
(2) The non‑competition obligation is limited to active, targeted solicitation of customers and affiliates from the Affiliate’s own downline or from the Be Infinity network for an immediately competing network‑marketing or affiliate system.
(3) Post‑contractual non‑competition obligations are only valid if agreed in a separate written agreement and accompanied by adequate compensation for the restriction (garden‑leave or non‑compete compensation). Any implied or unlimited post‑contractual non‑competition obligation is excluded.
(4) During the term of this Agreement, the Affiliate is prohibited from actively soliciting affiliates or customers of Be Infinity for competing systems.
—
§ 9 Confidentiality, Data and Trade Secrets
(1) The Affiliate undertakes to keep confidential all information which becomes accessible in connection with its activities, in particular regarding internal structures, the Compensation Plan, non‑public key figures, customer data and affiliate data.
(2) The obligation of confidentiality shall continue to apply after termination of this Agreement as long as and to the extent that Be Infinity has a legitimate interest in such confidentiality.
(3) Customer and downline structures do not constitute independent proprietary rights of the Affiliate. Such data remain under the exclusive responsibility and control of Be Infinity, unless mandatory data protection or professional rules require otherwise.
—
§ 10 Sanctions and Contractual Penalty
(1) If the Affiliate breaches essential contractual obligations, in particular:
•⁠ ⁠the advertising and compliance rules (§§ 4 and 5);
•⁠ ⁠the crossline, structure or non‑competition rules (§§ 6 to 8);
•⁠ ⁠the confidentiality obligation (§ 9);
Be Infinity may, after prior warning and granting a reasonable cure period, take the following measures:
1.⁠ ⁠written warning;
2.⁠ ⁠temporary blocking of the Affiliate account (including withholding of payouts) until clarification;
3.⁠ ⁠adjustment or withdrawal of certain ranks or career positions;
4.⁠ ⁠extraordinary termination of this Agreement in the event of serious or repeated breaches.
(2) In addition, Be Infinity may claim an appropriate contractual penalty for certain particularly serious breaches. The contractual penalty must, in the individual case, be proportionate to the severity and economic weight of the breach. Relevant criteria include, in particular, the nature, duration and extent of the breach as well as any repetition.
(3) The contractual penalty determined by Be Infinity is subject to judicial review for appropriateness. An excessively high contractual penalty may be reduced by a competent court to an appropriate amount.
(4) Any contractual penalty paid shall be credited against any damages claimed by Be Infinity arising from the same breach.
—
§ 11 Remuneration, Compensation Plan
(1) The Affiliate receives performance‑based remuneration for the successful distribution of Be Infinity’s products and services in accordance with the Compensation Plan applicable at the time. Remuneration is strictly product‑related; no remuneration is paid for the mere recruitment of new affiliates or participants.
(2) A commission entitlement arises in particular only if:
1.⁠ ⁠a valid, paid contract for products or services has been concluded between Be Infinity and the end customer;
2.⁠ ⁠the consideration has been fully paid by the customer;
3.⁠ ⁠the contract has been duly arranged by the Affiliate in accordance with this Agreement and the compliance rules.
(3) Be Infinity may amend the Compensation Plan and remuneration structures with effect for the future for objectively justified reasons (e.g. changes in the product portfolio, market developments, legal requirements). Be Infinity shall inform the Affiliate in text form, giving reasonable notice (as a rule, at least four weeks).
(4) If an amendment to the Compensation Plan results in a more than insignificant deterioration of the Affiliate’s remuneration situation, the Affiliate shall have a special right to terminate this Agreement effective as of the effective date of the amendment. Be Infinity shall expressly point out such special termination right in the amendment notice.
(5) Commission statements shall be issued in the cycles specified in the Compensation Plan. Objections to the correctness of a commission statement must be raised by the Affiliate in text form within 60 days from receipt; thereafter the statement shall be deemed accepted.
(6) Commission entitlements lapse or must be repaid if the underlying customer contract is revoked, contested, rescinded or not performed, or if it turns out that the contract was concluded by means of impermissible or unlawful sales practices.
—
§ 12 Liability
(1) Be Infinity is liable without limitation for damages resulting from injury to life, body or health caused by an intentional or negligent breach of duty by Be Infinity, its legal representatives or vicarious agents.
(2) For all other damages, Be Infinity is liable without limitation only in cases of intent and gross negligence.
(3) In the event of slightly negligent breaches of essential contractual obligations (cardinal duties), i.e. obligations whose fulfillment is essential for the proper performance of this Agreement and on whose compliance the Affiliate may regularly rely, Be Infinity’s liability is limited to the typical, foreseeable damage.
(4) Any further liability of Be Infinity is excluded, except in cases of mandatory statutory liability (e.g. under product liability laws).
(5) Be Infinity does not guarantee any specific availability of its technical systems or uninterrupted access. Any liability remains governed by the provisions above.
—
§ 13 Term and Termination
(1) This Agreement takes effect upon successful registration of the Affiliate and acceptance by Be Infinity and, unless otherwise agreed in a specific case, is concluded for an indefinite term.
(2) Each party may terminate this Agreement at any time by giving 30 days’ notice to the end of a calendar month in text form, unless minimum terms have been agreed for specific package models. If minimum terms apply due to special packages, those rules prevail; after expiry of such minimum term, the Agreement is automatically renewed unless terminated.
(3) The right to extraordinary termination for good cause remains unaffected. Good cause shall in particular exist where:
1.⁠ ⁠the Affiliate commits serious or repeated breaches of essential contractual obligations;
2.⁠ ⁠the Affiliate engages in criminal conduct, unlawful sales practices or serious compliance violations;
3.⁠ ⁠the Affiliate severely damages the reputation or economic interests of Be Infinity.
(4) In the event of extraordinary termination for good cause by Be Infinity, commission claims from transactions not yet fully completed may lapse to the extent the termination is based on a culpable serious breach by the Affiliate and maintaining such commission claims would be unreasonable for Be Infinity.
(5) The Affiliate shall not be entitled to any goodwill or agency compensation (or similar compensation) upon termination, as the Affiliate does not act as a commercial agent and such considerations are already reflected in the compensation system.
—
§ 14 Governing Law and Jurisdiction
(1) This Agreement and any disputes arising out of or in connection with it shall be governed by the substantive law of Hong Kong, to the extent not mandatorily overridden by provisions of other legal systems, and excluding its conflict‑of‑laws rules.
(2) If the Affiliate is a merchant or a person equivalent to a merchant or does not have a general place of jurisdiction in Hong Kong, the exclusive place of jurisdiction for all disputes arising out of or in connection with this Agreement shall, to the extent legally permissible, be the registered office of Be Infinity. However, Be Infinity shall also be entitled to bring actions against the Affiliate at the Affiliate’s general place of jurisdiction.
(3) Mandatory consumer protection or other protective provisions of the legal system in which the Affiliate has its habitual residence remain unaffected, to the extent they exceptionally apply.
—
§ 15 Final Provisions
(1) Any amendments and supplements to this Agreement must be made in text form (e.g. email, electronic document). This also applies to any amendment of this text form requirement, unless stricter formal requirements apply by law.
(2) If any provision of this Agreement is or becomes wholly or partially invalid or unenforceable, the validity of the remaining provisions shall not be affected. In place of the invalid or unenforceable provision, a valid and enforceable provision shall apply which most closely reflects the economic intent of the invalid provision, to the extent legally permissible.
(3) The Affiliate may transfer rights and obligations under this Agreement to third parties only with the prior written consent of Be Infinity. Be Infinity may transfer this Agreement to any affiliated company, provided that this does not unreasonably impair the legitimate interests of the Affiliate.