SamplePlan, Inc. Affiliate Operating Agreement
This Agreement contains the complete terms and conditions that apply to participate in the SamplePlan, Inc. Affiliate Program (the "Program"). As used in this Agreement, "we" means SamplePlan, Inc., and "you" means the applicant. "Site" means a World Wide Web site and, depending on the context, refers either to the SamplePlan, Inc. site (www.sampleplan.com) or to the site that you will link to our site.
1. Enrollment in the program
We will evaluate your application in good faith and will notify you of your acceptance or rejection. We may reject your application if we determine (at our sole discretion) that your site is unsuitable for the Program. Unsuitable sites include those that promote sexually explicit materials; promote violence; promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promote illegal activities; violate intellectual property rights.
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2. Product Links
Product Lists: You may select one or more products to list on your site or in your marketing materials. For each selected product, you will display on your site a short description, review, or other reference. You will be responsible for the content, style, and placement of these references. We will provide a special link from each product reference on your site to the corresponding product page on the SamplePlan, Inc. site. Each link will connect directly to a single item in our online catalog, using a special link format that we give you. We will also provide a general link for use on your site or in your marketing materials to our home page. We will provide you with guidelines, links and artwork to use in linking to our home page.
When a customer comes to our site from your links, our web server sends a client-side text string (cookie) containing your affiliate code to their computer. Our system uses those strings to identify your site. We additionally track the customer’s ISP number.
3. Pay-per-click advertising and Affiliate Keyword Bidding
We welcome affiliates to participate in keyword bidding programs at your own cost, such as those offered by Google, Yahoo and Bing (MSN). You are welcome to bid on any generic or brand name related term, but we do have restrictions on bidding on “sample business plans”, which are outlined below.
You can easily target your landing page to any keyword. You can direct visitors to any page on our website, including product detail pages or search results pages. We find that it is most effective to direct bids to product based campaigns.
You may not purchase or register domains or bid on search engine keywords, AdWords, pay-per-click, search terms or other identifying terms that include but are not limited to, the terms and keyword phrases “sampleplan”, “www.sampleplan.com” and “Sampleplan, Inc.”. You cannot outbid us on “sample business plans” or keyword phrases that include the words “business plans”, such as “restaurant business plans”. These restrictions apply to all search bids based on an exact, phrase or broad match. You are free to bid on these terms in content match.
Violation of our keyword policy will result in our reversing the commissions paid and/or termination of our affiliate agreement.
4. Order processing
We will process product orders placed by customers who follow special links from your site to the SamplePlan, Inc. site. We reserve the right to reject orders that do not comply with any requirements that we periodically may establish. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms, process payments, cancellations, and returns, and handle customer service. We will track sales made to customers who purchase products using special links from your site to our site and will send you reports summarizing this sales activity. The form, content, and frequency of the reports may vary at our discretion. To permit accurate tracking, reporting, and fee accrual, you must ensure that the special links between your site and our site are properly formatted.
5. Referral fees
We will pay you referral fees on certain product sales to third parties. For a product sale to generate a referral fee, the customer must: (i) follow a special link (in the format specified by SamplePlan, Inc.) from your site to the SamplePlan, Inc. site, (ii) purchase a SamplePlan, Inc. product using our automated ordering system, (iii) accept delivery of the product whether by digital download to the customer’s IP address or physical shipping to the customers shipping destination;, (iv) and remit full payment to us. The Program is intended for commercial use only; you may not purchase products through the Program for your own use. Such purchases may result (at our sole discretion) in the withholding of referral fees or the termination of this Agreement. SamplePlan, Inc. reserves the right to specify and to change which products are Qualifying Products for the purposes of the Program. The current Referral Fee is 40% of SamplePlan, Inc.’s Net Receipts. Net Receipts shall mean the amount collected by SamplePlan, Inc. in connection with sales of Qualifying Products made through the special link, less shipping costs, taxes, returns, or chargebacks on such Qualifying Products.
6. Commission Payout
We pay commission on a monthly basis. Forty-five (45) days following the end of each calendar month, we will send you a check for the commission earned on your Qualifying Revenues during that month, less any taxes that we are required by law to withhold. However, if the commission payable to you for any month are less than $100.00, we will hold the commission until the total amount due exceeds such minimum payout threshold or, if earlier, until this Agreement is terminated. If a product that generated commission is returned by the customer, or results in a chargeback, we will deduct the corresponding commission from your next monthly payment. If there is no subsequent payment, we will send you a bill for the commission.
7. Responsibility for Your Site
You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on your site. For example, you will be solely responsible for ensuring that materials posted on your site are legal and do not violate or infringe upon the rights of any third party including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights. We disclaim all liability for these matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your site.
8. Use of Our Trademarks
Our trademarks include "SamplePlan," and "sampleplan.com" (the "Trademarks"). You may use the Trademarks solely for the purposes authorized by this Agreement. You may not alter graphics containing the Trademarks in any manner. For example, you may not change the proportion, color, or font of the Trademarks. You may not display the Trademarks in any manner that implies sponsorship, endorsement by us other than of your involvement in the Program. You may not use the Trademarks to disparage our company, our products or services, or in a manner which, in our reasonable judgment, may diminish or otherwise damage our goodwill in the Trademarks. You acknowledge that all rights to the Trademarks are our exclusive property, and all goodwill generated through your use of the Trademark will inure to our benefit.
If we determine, in our sole discretion, that you have violated any of the foregoing restrictions, we may (without limiting any other rights or remedies available to us) withhold any commission otherwise payable to you under this Agreement and/or terminate this Agreement. If we are required to enforce any of the foregoing restrictions, you will be obligated to reimburse us for any attorneys' fees incurred in connection therewith.
9. Use of Images
The product images provided to members of the Program are the property of SamplePlan, Inc., its corporate affiliates or its content suppliers and are protected by United States and international copyright laws. You may not use any product image in any way that exceeds the limited license granted to you. This limited license allows you to use product images solely for the purpose of promoting our products for sale by creating Links connecting your website to our Website. This means, among other things, that you may not: (a) alter, modify or manipulate any product image; (b) use a product image in any form other than the form provided by us; (c) remove any code or identifying information from any product image; (d) inactivate the link associated with any product image or cause the image to ultimately link to a destination other than our Website; or (e) link to or display images after they have been discontinued from the sampleplan.com product catalog.
10. Website Guidelines
You must follow common search engine guidelines, such as: (a) your display URL must match the ultimate actual destination URL; (b) you may not frame our website as a landing page; or (c) you may not create "redirects" or "jump pages" that immediately direct to our website;
(i) Dilute, blur or tarnish the value of our trademarks, and/or products and services.;
(ii) Misrepresent sampleplan.com's brands including our URL, logos, trademarks and tradenames, or misrepresent that either you or your website are sampleplan.com or operated by SamplePlan, Inc.;
(iii) Engage in any conduct that violates the CAN-SPAM Act of 2003, as amended, or any similar privacy or data protection law of any jurisdiction;
(iv) Enable any sales to be made that are not in good faith, including, but not limited to, by means of any device, program, robot, Iframe, hidden frame or redirect;
(v) Use any device or technology that will replace, intercept, interfere, hinder, disrupt or otherwise alter in any manner a Web user's access, view or usage of, the website of any affiliate of ours in a manner that causes or otherwise results in a different experience from what was otherwise intended by our affiliate; or
(vi) Use any device or technology that will block, alter, direct, redirect, substitute, insert, append itself to, or otherwise intercept or interfere in any manner with any click through or other traffic-based transaction that originated from the website of any affiliate of ours with the result of reducing any compensation or other payment earned by or owing to such affiliate.
(vii) Issue or post any press release or other broad-based communication regarding your participation in the Program without our consent. Notwithstanding the foregoing, you may promote your website via mailings to recipients who are already customers or subscribers to your website's services, provided that the recipients have the option to remove themselves from future mailings and that you otherwise comply with all applicable laws of your jurisdiction. Further, you may promote your website via newsgroup postings to newsgroups that specifically welcome commercial messages (when in doubt, consult the newsgroup FAQ or moderators to be sure that such a message is acceptable in that newsgroup).
We reserve the right to modify these rules at any time. If we determine, in our sole discretion, that you have violated any of the foregoing restrictions, we may (without limiting any other rights or remedies available to us) withhold any commission otherwise payable to you under this Agreement and/or terminate this Agreement. If we are required to enforce any of the foregoing restrictions, you will be obligated to reimburse us for any attorneys' fees incurred in connection therewith.
11. Terms of the Agreement
The terms of this Agreement will begin upon our acceptance of your Program application and will end when terminated by you or us. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. You are only eligible to earn commissions on sales of Qualifying Products occurring during the term, and commissions earned through the date of termination will remain payable only if the related orders are not canceled or returned. Any evidence of fraudulent lead generation resulting in sales will trigger a full investigation and notification to the proper authorities. All commissions will be withheld by us until the end of any investigation. Any sales deemed intentionally fraudulent on your part will result in the cancellation of all commissions, immediate termination of this agreement and legal action to recoup any past fraudulent losses incurred by us. We will prosecute fraud to the fullest extent of the law.
12. Modification
We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on our site. Modifications may include, for example, changes in the scope of available commissions, commission schedules, payment procedures, and Program rules.
IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON OUR SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
13. Relationship of Parties
You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
14. Limitation of Liability
We will not be liable for indirect, special or consequential damages or any loss of revenue, profits or data arising inconnection with this Agreement or the Program, even if we have been advised of the possibility of such. Further, our aggregate liability arising with respect to this and the Program will not exceed the total commissions paid or payable to you under this Agreement.
15. Disclaimers
We make no express or implied warranties or representations with respect to the Program or any products sold through the Program including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage. In addition, we make no representation that the operation of our site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
16. Independent Investigation
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
17. Miscellaneous
This Agreement will be governed by the laws of the United States and the state of Arizona, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Tucson, Arizona, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.
NOTE TO NEW YORK AFFILIATES: As a condition of its participation in the SamplePlan, Inc. Affiliate Program, you must agree that your solicitation activities on behalf of SamplePlan, Inc. within the State of New York shall be limited to providing links on your website(s) to our website(s).You hereby acknowledge that under current New York State law, further solicitation and promotional activities by you within New York State may subject SamplePlan, Inc. to liability for collecting New York State sales tax on all sales to New York customers. Therefore, as a condition of participation in the SamplePlan, Inc. Affiliate Program, you are prohibited from engaging in any solicitation activities in New York State intended to refer potential customers to SamplePlan, Inc., including, but not limited to: distributing flyers, coupons newsletters and other printed materials, or electronic equivalents of such materials; engaging in verbal solicitation, including in-person referrals or initiating telephone calls; and sending emails intended to refer customers to the SamplePlan, Inc site. As a New York affiliate, you will also be required to sign a document once a year stating that you have abided by the above terms.
NOTE TO NON-USA AFFILIATES: According to a new United States tax law, we must withhold 30% of referral fees to affiliates who are based outside of the United States. Those who qualify can submit a W-8ECI form to the IRS to avoid this withholding. Information from the IRS web site about this new law can be seen here.
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