To begin the enrollment process, you will submit a
complete Program application via our site. 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 (in our sole discretion) that your site is unsuitable for the Program. If we
reject your application, you are welcome to reapply to the Program at any time. After
you have been approved, you will be provided with a reply via e-mail, which will give you
specific linking instructions.
Pending approval of this application, this Simple
Affiliate Agreement is entered into as of this date by and between AutoFusion Inc. ("AFI"), a
California corporation with its principal place of business at 1940
Garnet Ave., Suite 104, Pacific Beach, Calif. 92109, and "you", as the applicant
(for the purpose of this contract, you also will be referred to as "Company,"
"Partner" and/or "Partner.com").
Whereas, YOU provide information and other content in
various media to end users via the World Wide Web and other media
Whereas, AFI supplies automotive-related information
and other data via the Web; and
Whereas, AFI desires to supply and YOU desire to
license a unique link to AFI's automotive information and other data for the purpose of
use and display of AFIs advertisement & brand marks and other data on YOUR Web
Now, therefore, the parties hereby agree as follows:
1. Definitions. The following terms shall have
the following meanings for the purpose of this Agreement:
A. AFI Brand Marks shall mean CarPrices.com,
AutoFusion and all of AFI's other trademarks, trade names, service marks,
creatives, logos and designations, which it may own or use from time to
time, and all variations thereof.
B. AFI Internet Net Revenue shall mean
any revenue collected by or on any of the AFI Internet Sites and commissions
on sales leads or quotations, less any and all agency and sales commissions,
fees or discounts and less applicable federal, state or local taxes (excluding
any taxes based upon AFI's net worth or net income).
C. Partner's Net Revenue Share shall
mean the portion of the AFI Internet Net Revenue distributed to Company,
as calculated on Schedule B.
D. Framing Technology shall mean the
ability to present data from a remote Web page into a window (called a "frame")
within the local Web page, thereby possibly giving the viewer of the data
the impression that the information in the frame is a part of the local
E. Site means a World Wide Web site and, depending
on the context, refers either to Autoweb.com's site or to the site that you will link to
F. Web Site Content shall mean certain proprietary
information of AFI as set forth on Schedule A to this Agreement, for which AFI shall have
full editorial rights and control.
G. User means any person who accesses or attempts
to access AFI Web Sites.
H. Referred Traffic shall mean all
users who access AFI Web Sites from Company's Web Pages.
Partner agrees to include a link anywhere
on its network of sites that points directly to AFI's Web Site. At the end
of each quarter, you will receive a commission check, based upon the productivity
of your referred traffic, subject to the descriptions set forth in Schedule
B of this agreement. Partner shall not use any Framing Technology or other
similar techniques in establishing these links for the purpose of displaying
AFI Web Site content and Partner.com information together in a single Web-browser
window. You will be issued banners, buttons or other creatives and a tracking
ID & Password, which will allow both parties to record the behavior
of your referred visitors. AFI also will provide you with a unique
URL in which to link to AFI's Internet Site. The form, content
and frequency of the reports may vary from time to time in our sole discretion.
To permit accurate tracking, reporting and fee accrual, you must ensure
the special links between your site and our site are formatted properly
. All fees and payments stated herein exclude, and you
shall pay, any sales, use, property, license, value added, withholding,
excise or similar tax, federal, state or local, related to your performance,
obligations or exercise of your rights under this Agreement and any related
duties, tariffs, imposts and similar charges, exclusive of taxes based on
your net income. You shall be responsible for any and all misuse or apparent
misuse of the Affiliate Program. Compensation payable to you on account
of misuse or apparent misuse shall be suspended or refunded to AFI upon
request and/or deducted from accrued commissions. AFI will notify partner
of such actions.
Proprietary Rights and License.
A. AFI grants you a non-exclusive revocable license,
under AFI's present or future copyrights, trademarks, trade secrets, service marks,
patents and any other intellectual property rights (collectively, the "AFI IP
Rights"), to display AFI Advertisements and Brand Marks on your Web site(s) for the
sole purpose of promoting AFI Web Sites.
B. Company shall use the AFI Advertisements
and Brand Marks in accordance with any written instructions provided by
AFI. Company acknowledges that Company's use of the AFI Advertisements and
Brand Marks will not create in it nor represent it has any right, title
or interest in or to the AFI Brand Marks or the Web Site Content. Company
will not challenge the validity of or attempt to register any of the AFI
Advertisements and Brand Marks or its interest therein as a licensee. Company
acknowledges AFI's and its business partners' ownership and exclusive right
to use AFI Advertisements and Brand Marks and agrees that all goodwill,
arising as a result of the use of these, shall inure to the benefit of AFI.
Sublicense. Notwithstanding anything
herein to the contrary, Company shall not be permitted to sublicense any of
the licenses contained in this Agreement to any other party without the prior
written consent of AFI.
Protection. As between the parties hereto, AFI shall be the sole
owner of the Web Site Content, the AFI Advertisements and Brand Marks, including
any IP Rights associated therewith. Company shall be the sole owner of the Company
Brand Marks, including any copyrights, trademarks, trade secrets or service
marks associated therewith. Partner shall follow AFI's reasonable requirements,
with respect to notices, disclaimers and legends, that AFI may require Partner
to include on or around the AFI Advertisements and Brand Marks, and any copies,
extracts and so forth that may be derived from the Web Site Content. Partner
shall cooperate with AFI with regard to any copyright registration of AFI Advertisements
and Brand Marks, including updated versions thereof, that AFI may choose to
obtain. Both parties agree to cooperate with each other with respect to any
other action that may be necessary or appropriate for the protection of AFI
Advertisements, Brand Marks and Web Site under applicable intellectual property
laws. In the event that Partner discovers an instance of possible infringement
of AFI's rights from AFI Advertisements and Brand Marks, partner shall promptly
notify AFI. The parties shall consult with one another with respect to the action
that may be appropriate to stop or remedy such infringement.
6. No Implied
Rights or Obligations. Nothing in this Agreement is intended
to create any implied right to require, or any implied duty to provide, a level
of effort or results (in general or in particular) not expressly stated herein,
or to refrain from engaging in any other activity, including any activity involving
the same or similar products or services with the same or similar customers
or providers. Licenses granted herein are not to be construed either (i) as
consent by the licensor to any act which may be performed by the licensee, except
to the extent impacted by the licensor's intellectual property rights, or (ii)
to include licenses to infringe or induce infringement under U.S. law or a foreign
equivalent thereof. Nothing in this Agreement shall be construed as granting
any implied licenses. The parties agree and acknowledge that nothing in this
Agreement shall be deemed or construed to prohibit AFI from providing the Web
Site Content or material similar in nature to the Web Site Content to any third
The term of this Agreement shall commence upon the Effective Date and terminate
one month thereafter ("Initial Term"). This Agreement shall renew
automatically on a month-to month basis ("Renewal Terms") at the expiration
of the Initial Term and each Renewal Term. Automatic Agreement renewal will
not occur if either party gives prior notice to the other in writing that it
no longer wants to renew. Either party may terminate this Agreement at any time
upon a breach of any material provision of this Agreement by the other party,
which breach is not remedied within 30 days following written notice to the
other party of such breach. Any termination pursuant to this Section shall be
without any further liability or obligations of the terminating party, other
than with respect to any breach of this Agreement or obligation under this Agreement
prior to such termination. The provisions of Sections 12-15 and 22-31
hereof shall survive expressly the termination of this Agreement. Any termination
of this Agreement hereunder shall result in the automatic revocation of any
license that may be granted pursuant hereto.
8. 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 referral fees, fee schedules, payment procedures and Program
rules. We will send you an e-mail message, to the most recent address we have,
alerting you to a change in the Agreement. 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.
9. Scope of
Relationship. This Agreement is intended solely as an agreement
to establish and maintain the Affiliate Program and no partnership, joint venture,
employment, agency, franchise or other relationship is created hereby.
of Liability; Disclaimer. It is acknowledged mutually that data
entry, communication and storage are subject to a possibility of human and machine
errors, omissions, delays and losses, including inadvertent loss of data or
damage to media, which may give rise to loss or damage. Neither party hereto
undertakes any liability to the other for any such errors, omissions, delays
or losses. Further, AFI does not assume liability for the services offered
or sold to its visitors. WE WILL
NOT BE LIABLE FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (OR ANY LOSS OF
REVENUE, PROFITS OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE PROGRAM,
EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR
AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL
NOT EXCEED THE TOTAL REFERRAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.
AFI shall use its best commercially reasonable efforts to provide in good faith
the Web Site Content described in this Agreement and to work with Partner to
establish and maintain links to AFI Web Sites. No other warranties are provided
other than as contained in this Agreement or any schedule hereto.
ALL INFORMATION OR CONTENT TO BE OFFERED OR FURNISHED BY
AFI, INCLUDING WITHOUT LIMITATION AFI ADVERTISEMENTS AND BRAND MARKS, THE WEB SITE CONTENT
AND THE AFI BRAND FEATURES, IS BEING OFFERED OR FURNISHED ON AN "AS IS" BASIS.
AFI MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING SUCH INFORMATION. AFI
SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY OR AGAINST
INFRINGEMENT. AFI SHALL IN NO EVENT BE LIABLE FOR ANY DAMAGES OR LOSSES, INCLUDING WITHOUT
LIMITATION DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES
RESULTING FROM OR CAUSED BY SUCH INFORMATION, INCLUDING WITHOUT LIMITATION FROM ANY
INABILITY TO ACCESS OR USE SUCH INFORMATION, DELAYS IN OPERATION OR TRANSMISSION, DELAYS
IN UPDATING, MODIFYING OR AMENDING SUCH INFORMATION, COMMUNICATIONS LINES FAILURE, OR ANY
ERRORS OR OMISSIONS IN THE FORM OR CONTENT OF SUCH INFORMATION.
Company and/or its affiliates, at its or their own expense, hereby agrees to
jointly and severally indemnify, defend and hold harmless AFI (and its respective
officers, directors, employees, agents, representatives, shareholders, attorneys
and affiliates) against any claim, suit, action or proceeding brought against
such indemnified party that alleges or is based upon or arises out of :(i) any
act occurring in connection with or related to any performance under this Agreement;
(ii) any act of negligence, omission or misconduct on the part of Company; or
(iii) infringement in any manner of any copyright, patent, trademark, trade
secret, service mark or any other intellectual property right of any third party
related to any material on or taken from AFI Advertisements and Brand Marks
-- provided, however, in any such case, (a) AFI shall provide Company with prompt
notice of any such claim; (b) AFI shall permit Company to assume and control
the defense of such action, with counsel chosen by Company (who shall be reasonably
acceptable to AFI); and (c) Company shall not enter into any settlement or compromise
of any such claim without AFI's prior written consent, which consent shall not
be withheld unreasonably. Company shall pay any and all costs, damages and expenses,
including, but not limited to, reasonable attorneys' fees and costs (even if
incident to any appeals) awarded against or otherwise incurred by any indemnified
party described herein in connection with or arising from any such claim, suit,
action or proceeding. Company's obligations under this Indemnification Section
shall in no manner be affected by the existence or non-existence of insurance.
AFI's right to indemnity under this Agreement shall arise notwithstanding that
joint or concurrent liability may be imposed on Company and/or its affiliates
by statute, ordinance, regulation or otherwise.
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 INDEPENDENTLY HAVE
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
Either Partner or AFI may disclose to the other certain written information
that the disclosing Party designates as confidential and proprietary ("Proprietary
Information"), including, without limitation, technical and other business
information of the disclosing Party that is not generally available to the public.
The Party receiving Proprietary Information solely in conjunction with its performance
under this Agreement and not to disclose or otherwise use such information in
any fashion. The receiving Party, however, will not be required to keep confidential
such Proprietary Information that becomes generally available without fault
on its part; is already rightfully in the receiving Party's possession without
restriction prior to its receipt from the disclosing Party; is developed independently
by the receiving Party; is rightfully obtained by the receiving Party from third
Parties without restriction; or otherwise is required to be disclosed by law
or judicial process.
and Venue. This Agreement and all transactions contemplated by
this Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the state of California. The parties acknowledge that a substantial
portion of the negotiations, anticipated performance and execution of this Agreement
occurred or shall occur in San Diego, Calif. Any civil action or legal proceeding
arising out of or relating to this Agreement shall be brought in the courts
of record of the state of California in San Diego County or the U.S. District
Court, Southern District of California, San Diego Division. Each party consents
to the jurisdiction of such court in any such civil action or legal proceeding
and waives any objection to the laying of venue of any such civil action or
legal proceeding in such court. Service of any court paper may be affected on
such party by mail, as provided in this Agreement, or in such other manner as
may be provided under applicable laws, rules of procedure or local rules.
15. Third Parties.
Unless expressly stated herein to the contrary, nothing in this Agreement, whether
express or implied, is intended to confer any rights or remedies under or by
reason of this Agreement on any persons other than the parties hereto and their
respective legal representatives, successors and permitted assigns. Nothing
in this Agreement is intended to relieve or discharge the obligation or liability
of any third persons to any party to this Agreement, nor shall any provision
give any third persons any right of subrogation or action over or against any
party to this Agreement.
Agreement. This Agreement and the License Agreement represents
the entire understanding and agreement between the parties with respect to the
subject matter hereof, and supersedes all other negotiations, understandings
and representations (if any) made by and between such parties.
All notices, requests, consents and other communications required or permitted
under this Agreement shall be in writing (including electronic transmission)
and shall be (as elected by the person giving such notice) hand delivered by
messenger or courier service, electronically transmitted or mailed (airmail
if international) by registered or certified mail (postage prepaid), return
receipt requested, addressed to:
1940 Garnet Avenue
Pacific Beach, CA 92109
AFI WEB SITE
The Web Site Content shall include, but is not
limited to, information including auto prices, insurance quotes, finance quotes, car title
investigations, new and used car buying/leasing leads, news and articles relating to the
following product areas:
Automobile Retailing, Auto Insurance, Automobile
Financing, Auto Warranties & Service Plans (more product areas will apply as AFI
develops additional value-added features)
CALCULATION AND DISTRIBUTION OF Partner
Inc. NET REVENUE SHARE
1. Calculation of
Partners Net Revenue Share (PNR)
Partners Net Revenue (PNR) shall be equal to the table below.
|New Car Price Quote
Agents shall receive 10% of all referred affiliate commissions
of Partner Net Revenue Share
This shall be calculated on a daily basis, and payment shall be distributed to Partner Inc. on a monthly basis (if the balance exceeds $10.00 U.S.) within 30 days after the end of such month. If the PNR balance is less than the $10 limit, payment will be withheld
until the month end when the balance exceeds the limit.