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Updated: September 15, 2013.
This Affiliate Program Operating Agreement (“Operating Agreement”) contains the terms and conditions that govern your participation in the $99 Social Affiliate Program (the “Program”). “We,” “us,” or “our” means $99 Social or any of its affiliate companies, as the case may be. “You” or “your” means the applicant. A “site” means a website. “$99 Social Site” means the 99dollarsocial.com site or any other site that is owned or operated by or on behalf of us and which is identified as participating in the Program in the Affiliate Program Commissions, as applicable. “Your site” means any site(s) and software application(s) that you own or operate and link to the $99 Social Site.
BY CHECKING THE BOX OR CLICKING THE “ACCEPT AND CONTINUE” BUTTON, AS APPLICABLE, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS OPERATING AGREEMENT, OR BY CONTINUING TO PARTICIPATE IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE, REVISED OPERATING AGREEMENT, OR REVISED OPERATIONAL DOCUMENTATION ON THE 99DOLLARSOCIAL.COM SITE, YOU (A) AGREE TO BE BOUND BY THIS OPERATING AGREEMENT; (B) ACKNOWLEDGE AND AGREE THAT YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH IN THIS OPERATING AGREEMENT; AND (C) HEREBY REPRESENT AND WARRANT THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS (E.G., YOU ARE NOT A MINOR) AND THAT YOU ARE AND WILL REMAIN IN COMPLIANCE WITH THIS OPERATING AGREEMENT, INCLUDING THE AFFILIATE PROGRAM PARTICIPATION REQUIREMENTS. IN ADDITION, IF THIS OPERATING AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS OPERATING AGREEMENT ON BEHALF OF THAT COMPANY OR ENTITY HEREBY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS OPERATING AGREEMENT.
1. Description of the Program
The purpose of the Program is to permit you to advertise our Services on your site and to earn commissions for Qualifying Orders (defined in Section 7) made by your end users. A “Service” is any service sold on the $99 Social Site. In order to facilitate your advertisement of Services, we may make available to you data, images, text, link formats, widgets, links, and other linking tools, and other information in connection with the Program (“Content”). Content specifically excludes any data, images, text, or other information or content relating to products or services offered on any site other than the $99 Social Site.
2. Affiliate Enrollment
To begin the enrollment process, you must submit a complete and accurate Program Application. You must identify your site in your application. All applications are initially accepted. However, if after we accept your application we determine that your site is unsuitable, we may terminate this Operating Agreement. Unsuitable sites include those that:
(a) promote or contain sexually explicit materials;
(b) promote violence or contain violent materials;
(c) promote or contain libelous or defamatory materials;
(d) promote discrimination, or employ discriminatory practices, based on race, sex, religion, nationality, disability, sexual orientation, or age;
(e) promote or undertake illegal activities;
(f) are directed toward children under 13 years of age, as defined by the Children’s Online Privacy Protection Act (15 U.S.C. §§ 6501-6506) and any regulations promulgated thereunder;
(g) include any trademark of $99 Social , or a variant or misspelling of a trademark of $99 Social , in any domain name, subdomain name, or in any username, group name, or other identifier on any social networking site (see the Trademark Guidelines for examples); or
(h) otherwise violate intellectual property rights.
If we reject your application, you are welcome to reapply at any time. However, if we accept your application and we later determine that your site is unsuitable, we may terminate this Operating Agreement.
You will ensure that the information in your Program application and otherwise associated with your account, including your email address and other contact information and identification of your site, is at all times complete, accurate, and up-to-date. We may send notifications (if any), approvals (if any), and other communications relating to the Program and this Operating Agreement to the email address then-currently associated with your Program account. You will be deemed to have received all notifications, approvals, and other communications sent to that email address, even if the email address associated with your account is no longer current.
3. Links on Your Site
After you have been notified that you have been accepted into the Program, you may display Affiliate Links on your site. “Affiliate Links” are links to the $99 Social Site that you place on your site in accordance with this Operating Agreement, that properly utilize the affiliate link formats we provide, and that comply with the Affiliate Program Linking Requirements. Affiliate Links permit accurate tracking, reporting, and accrual of Affiliate Commissions.
You may earn Affiliate Commissions only as described in Section 7 and only with respect to activity on the $99 Social Site occurring directly through Affiliate Links. We will have no obligation to pay you Affiliate Commissions if you fail to properly format the links on your site to the $99 Social Site as Affiliate Links.
4. Program Requirements
By participating in the Program, you agree that you will comply with the Affiliate Program Participation Requirements and all pages, schedules, policies, guidelines, specifications, and supporting materials that we make available to you, and other documents and materials referenced in this Operating Agreement (collectively, “Operational Documentation”).
You will provide us with any information that we request to verify your compliance with this Operating Agreement or any Operational Documentation. In addition to any other rights or remedies available to us, we may terminate this Operating Agreement, withhold (and you agree you are not eligible for) any Affiliate Commissions payable to you under this Operating Agreement, or both, if we determine that you or other persons that we determine are affiliated with you or acting in concert with you (whether in respect to any existing or previously terminated Associates account) have not complied with any requirement or restriction described in the Affiliate Program Participation Requirements page or any other Operational Documentation or have otherwise violated this Operating Agreement.
In addition, you hereby consent to us:
5. Responsibility for Your Site
You will be solely responsible for your site, including its development, operation, and maintenance and all materials that appear on or within it. For example, you will be solely responsible for:
We will have no liability for these matters or for any of your end users’ claims relating to these matters, and you agree to defend, indemnify, and hold us, our affiliates and assigns, and our and their respective employees, officers, directors, and representatives, harmless from and against all claims, damages, losses, liabilities, costs, and expenses (including attorneys’ fees) relating to (a) your site or any materials that appear on your site, including the combination of your site or those materials with other applications, content, or processes; (b) the use, development, design, manufacture, production, advertising, promotion, or marketing of your site or any materials that appear on or within your site, and all other matters described in this Section 5; (c) your use of any Content, whether or not such use is authorized by or violates this Operating Agreement, any Operational Documentation, or applicable law; (d) your violation of any term or condition of this Operating Agreement or any Operational Documentation; or (e) your or your employees’ negligence or willful misconduct.
6. Order Processing
We will process Service orders placed by customers who follow Affiliate Links from your site to the $99 Social Site. We reserve the right to reject orders that do not comply with any requirements on the $99 Social Site, as they may be updated from time to time. We will track Qualifying Orders (defined in Section 7) for reporting and affiliate commission accrual purposes and will make available to you reports summarizing those Qualifying Orders.
7. Affiliate Commissions
We will pay you Affiliate Commissions on Qualifying Orders in accordance with Section 8. A “Qualifying Order” occurs when (a) a customer clicks through an Affiliate Link on your site to the $99 Social Site; and (b) places an order for a single service costing $99 per month or more no later than 89 days following the customer’s initial click-through; and (c) the Service is paid for by, the customer.
Affiliate Commissions paid by $99 Social to you are paid as an independent contractor service and may be reported to the Internal Revenue Service (IRS) as 1099 income. You are expected to adhere to governing laws applicable to income earned through the Program whether or not you are provided with a Form 1099 by $99 Social.
“Paid Search Placement” means an advertisement that you purchased through bidding on keywords, search terms, or other identifiers or other participation in keyword auctions. “Prohibited Paid Search Placement” means any Paid Search Placement that includes Proprietary Terms or otherwise directly competes with our own paid search placement. “Proprietary Term” means keywords, search terms, or other identifiers that include the word(s) “$99 Social,” “99 Dollar Social,” “99DollarSocial,” or “Ninety Nine Dollar Social,” or any other trademark of $99 Social, or variations or misspellings of any of those words (e.g., “99 Dolar Social,” “99 Bucks Social,” “$99 Socal,” “99Dollaar Social,” and “$99 Soshul”). “Redirecting Link” means a link that sends users indirectly to the $99 Social Site via an intermediate site or webpage and without requiring the user to click on a link or take some other affirmative action on that intermediate site or webpage. “Search Engine” means Google, Yahoo, Bing, or any other search engine, portal, sponsored advertising service, or other search or referral service, or any site that participates in any of their respective networks.
8. Affiliate Commission Payment
We will pay you a US$15.00 (fifteen dollars in U.S. currency) Affiliate Commission for each Qualifying Order paid in full in a given month, subject to any applicable withholding or deduction described below. In addition, we will pay you US$15.00 (fifteen dollars in U.S. currency) for each full month a customer from a Qualifying Order pays for continuation of his or her Service. We will pay you approximately 30 days following the end of the 30-day period beginning on the date of the Qualifying Order and subsequently 30 days following the date of any Qualifying Order renewal date, using the PayPal account you designate in your Affiliate Application. If you have not designated a valid PayPal account, we will withhold any unpaid accrued Affiliate Commissions until you have done so.
We may be obligated by law to obtain tax information from you if you are a U.S. citizen, U.S. resident, or U.S. corporation, or if your business is otherwise taxable in the U.S. If we request tax information from you and you do not provide it to us, we may (in addition to any other rights or remedies available to us) withhold your affiliate commissions until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
Withholding and Deductions – Notwithstanding the terms of this Section 8, Affiliate Commissions will not be paid on Qualifying Orders which are subsequently canceled within 30 (thirty) days of payment. In addition, Qualifying Orders refunded for any reason, whether during the first month of service or thereafter, will result in a debit in your affiliate account to be charged against Affiliate Commissions then owed and/or owing at a future date but not to exceed the amount paid to you for the refunded order.
9. Policies and Pricing
Customers who buy Services through this Program are our customers with respect to all activities they undertake in connection with the $99 Social Site and company. Accordingly, as between you and us, all pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and sales set forth on the $99 Social Site will apply to those customers, and we may change them at any time.
10. Identifying Yourself as an Affiliate
You will not issue any press release or make any other public communication with respect to this Operating Agreement, your use of the Content, or your participation in the Program. You will not misrepresent or embellish the relationship between us and you, or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Operating Agreement.
11. Limited License
Subject to the terms of this Operating Agreement and solely for the limited purposes of advertising Services on, and directing end users to, the $99 Social Site in connection with the Program, we hereby grant you a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to (a) copy and display the Content on your site; and (b) use only those of our trademarks and logos that we may make available to you as part of the Content (those trademarks and logos, collectively, “$99 Social Marks”) solely on your site and in accordance with the Affiliate Program Trademark Guidelines.
The license set forth in this Section 11 will immediately and automatically terminate if at any time you do not timely comply with any obligation under this Operating Agreement or any Operational Documentation, or otherwise upon termination of this Operating Agreement. In addition, we may terminate the license set forth in this Section 11 in whole or in part upon written notice to you. You will promptly remove from your site and delete or otherwise destroy all of the Content and $99 Social Marks with respect to which the license set forth in this Section 11 is terminated or as we may otherwise request from time to time.
12. Reservation of Rights
Other than the limited licenses expressly set forth in Section 11, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to, and you do not, by virtue of this Operating Agreement or otherwise, acquire any ownership interest or rights in or to, the Program, Affiliate Links, link formats, Content, any domain name owned or operated by us or our affiliates, Operational Documentation, our trademarks and logos (including the $99 Social Marks), and any other intellectual property and technology that we provide or use in connection with the Program (including any application program interfaces, image libraries, sample marketing materials, and related materials).
13. Compliance with Laws
In connection with your participation in the Program you will comply with all applicable laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions, and other requirements of any governmental authority that has jurisdiction over you, including laws (federal, state, or otherwise) that govern marketing email (e.g., the CAN-SPAM Act of 2003).
14. Term and Termination
The term of this Operating Agreement will begin upon our acceptance of your Program application and will end when terminated by either you or us. Either you or we may terminate this Operating Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon any termination of this Operating Agreement, any and all licenses you have with respect to Content will automatically terminate and you will immediately stop using the Content and $99 Social Marks and promptly remove from your site and delete or otherwise destroy all links to the $99 Social Site, all $99 Social Marks, all other Content, and any other materials provided or made available by or on behalf of us to you under this Operating Agreement or otherwise in connection with the Program. We may withhold accrued unpaid Affiliate Commissions for a reasonable period of time following termination to ensure that the correct amount is paid (e.g., to account for any cancelations or refunds). Upon any termination of this Operating Agreement, all rights and obligations of the parties will be extinguished, except that the rights and obligations of the parties under Sections 5, 9, 10, 12, 13, 14, 16, 17, 18, 19, and 20, together with any accrued but unpaid payment obligations of us under this Operating Agreement, will survive the termination of this Operating Agreement. No termination of this Operating Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Operating Agreement prior to termination.
We may modify any of the terms and conditions contained in this Operating Agreement (and any Operational Documentation) at any time and in our sole discretion by posting a change notice, revised agreement, or revised Operational Documentation on the 99dollarsocial.com site or by sending notice of such modification to you by email to the email address then-currently associated with your Affiliate account. Modifications may include, for example, changes to the Affiliate Program Affiliate Commission Schedule, Affiliate Program Participation Requirements, payment procedures, and other Program requirements. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS OPERATING AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE EFFECTIVE DATE OF ANY MODIFICATION (E.G., THE DATE OF OUR POSTING OF A CHANGE NOTICE, REVISED OPERATING AGREEMENT, OR REVISED OPERATIONAL DOCUMENTATION ON THE 99DOLLARSOCIAL.COM SITE OR THE DATE SPECIFIED IN ANY EMAIL TO YOU REGARDING SUCH MODIFICATION) WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
16. Relationship of Parties
You and we are independent contractors, and nothing in this Operating Agreement or the Operational Documentation will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us or our respective affiliates. 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 contradicts or may contradict anything in this section. If you authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of this Operating Agreement, you will be deemed to have taken the action yourself.
17. Limitation of Liability
WE WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THIS OPERATING AGREEMENT, THE PROGRAM, OPERATIONAL DOCUMENTATION, THE $99 SOCIAL SITE, OR THE SERVICE OFFERINGS (DEFINED BELOW), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS OPERATING AGREEMENT, THE PROGRAM, THE $99 SOCIAL SITE, AND THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL AFFILIATE COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS OPERATING AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.
THE PROGRAM, THE $99 SOCIAL SITE, ANY PRODUCTS AND SERVICES OFFERED ON THE $99 SOCIAL SITE, ANY AFFILIATE LINKS, LINK FORMATS, OPERATIONAL DOCUMENTATION, CONTENT, 99DOLLARSOCIAL.COM DOMAIN NAME, OUR AND OUR AFFILIATES’ TRADEMARKS AND LOGOS (INCLUDING THE $99 SOCIAL MARKS), AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US OR OUR AFFILIATES IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE “SERVICE OFFERINGS”) ARE PROVIDED “AS IS.” NEITHER WE NOR ANY OF OUR AFFILIATES MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR AFFILIATES DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME. NEITHER WE NOR ANY OF OUR AFFILIATES WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, OR ERROR FREE. NEITHER WE NOR ANY OF OUR AFFILIATES WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE PROGRAM, CONTENT, OPERATIONAL DOCUMENTATION, THE $99 SOCIAL SITE, OR THE AFFILIATE PROGRAM WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS OPERATING AGREEMENT. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS OPERATING AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM, OR (Z) ANY TERMINATION OF THIS OPERATING AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM.
Any dispute relating in any way to the Program or this Operating Agreement will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law and the laws of the state of Arizona, USA, without regard to principles of conflict of laws, will govern this Operating Agreement and any dispute of any sort that might arise between you and us.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
Notwithstanding anything to the contrary in this Operating Agreement, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity’s intellectual property or proprietary rights. You further acknowledge and agree that our rights in the Content are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated or adequately compensated for in monetary damages.
You acknowledge and agree that we and our affiliates may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Operating Agreement or operate sites that are similar to or compete with your site. You may not assign this Operating Agreement, by operation of law or otherwise, without our express prior written approval. Subject to that restriction, this Operating Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Operating Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Operating Agreement. Whenever used in this Operating Agreement, the terms “include(s),” “including,” “e.g.,” and “for example” mean, respectively, “include(s), without limitation,” “including, without limitation,” “e.g., without limitation,” and “for example, without limitation.” Any determinations or updates that may be made by us, any actions that may be taken by us, and any approvals that may be given by us under this Operating Agreement, may be made, taken, or given in our sole discretion.