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Pending
approval of this application, this Simple Affiliate Agreement is
entered into as of this date by and between Autofusion Corporation
("Autofusion"), a California corporation with its principal place
of business at 1940 Garnet Ave., Suite 104, San Diego, Calif. 92109,
and "you", as the applicant (for the purpose of this contract, you
also will be referred to as "Partner").
Whereas,
you provide information and other content in various media to end
users via the World Wide Web and other media environments; and
Whereas,
Autofusion supplies automotive-related information and other data
via the Web; and
Whereas,
Autofusion desires to supply and you desire to license a unique
link to Autofusion’s automotive information and other data
for the purpose of use and display of Autofusion’s advertisement,
brand marks and other data on your Web site(s).
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.
Autofusion Brand Marks shall mean CarPrices.com, Autofusion
and all of Autofusion'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.
Autofusion Internet Net Revenue shall mean any revenue
collected by or on any of the Autofusion 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
Autofusion's net worth or net income).
C.
Partner's Net Revenue Share shall mean the portion of
the Autofusion Internet net revenue distributed to Partner,
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 Web site.
E.
Site means a World Wide Web site and refers to the site
that you will link to our site.
F.
Web Site Content shall mean certain proprietary information
of Autofusion as set forth on Schedule A to this Agreement,
for which Autofusion shall have full editorial rights and control.
G.
User means any person who accesses or attempts to access
Autofusion Web sites.
H.
Referred Traffic shall mean all users who access Autofusion
Web sites from Partner's Web pages.
2.
Affiliate Program.
Partner
agrees to include a link anywhere on its network of sites that
points directly to Autofusion's Web site. At the end of each
month, 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 Autofusion Web site content
and Partner 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. Autofusion
also will provide you with a unique URL in which to link to
Autofusion '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 Autofusion upon request and/or deducted
from accrued commissions. Autofusion will notify Partner of
such actions.
3.
Proprietary Rights and License.
A.
Autofusion grants you a non-exclusive revocable license, under
Autofusion's present or future copyrights, trademarks, trade
secrets, service marks, patents and any other intellectual property
rights (collectively, the " Autofusion IP Rights"), to display
Autofusion Advertisements and Brand Marks on your Web site(s)
for the sole purpose of promoting Autofusion Web sites.
B.
Partner shall use the Autofusion Advertisements and Brand Marks
in accordance with any written instructions provided by Autofusion.
Partner acknowledges that Partner's use of the Autofusion Advertisements
and Brand Marks will not create in it nor represent it has any
right, title or interest in or to the Autofusion Brand Marks
or the Web Site Content. Partner will not challenge the validity
of or attempt to register any of the Autofusion Advertisements
and Brand Marks or its interest therein as a licensee. Partner
acknowledges Autofusion's and its business partners' ownership
and exclusive right to use Autofusion Advertisements and Brand
Marks and agrees that all goodwill, arising as a result of the
use of these, shall inure to the benefit of Autofusion.
4.
Sublicense.
Notwithstanding
anything herein to the contrary, Partner shall not be permitted
to sublicense any of the licenses contained in this Agreement
to any other party without the prior written consent of Autofusion.
5.
Proprietary Protection.
As
between the parties hereto, Autofusion shall be the sole owner
of the Web Site Content, the Autofusion Advertisements and Brand
Marks, including any IP Rights associated therewith. Partner
shall be the sole owner of the Partner Brand Marks, including
any copyrights, trademarks, trade secrets or service marks associated
therewith. Partner shall follow Autofusion’s reasonable
requirements, with respect to notices, disclaimers and legends,
that Autofusion may require Partner to include on or around
the Autofusion Advertisements and Brand Marks, and any copies,
extracts and so forth that may be derived from the Web Site
Content. Partner shall cooperate with Autofusion with regard
to any copyright registration of Autofusion Advertisements and
Brand Marks, including updated versions thereof, that Autofusion
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 Autofusion Advertisements,
Brand Marks and Web site under applicable intellectual property
laws. In the event that Partner discovers an instance of possible
infringement of Autofusion’s rights from Autofusion Advertisements
and Brand Marks, Partner shall promptly notify Autofusion. 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 Autofusion
from providing the Web Site Content or material similar in nature
to the Web Site Content to any third party.
7.
Termination.
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.
10.
Limitation 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,
Autofusion 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.
11.
Warranties.
Autofusion
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
Autofusion 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 AUTOFUSION,
INCLUDING WITHOUT LIMITATION AUTOFUSION ADVERTISEMENTS AND BRAND
MARKS, THE WEB SITE CONTENT AND THE AUTOFUSION BRAND FEATURES,
IS BEING OFFERED OR FURNISHED ON AN "AS IS" BASIS. AUTOFUSION
MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING
SUCH INFORMATION. AUTOFUSION SPECIFICALLY DISCLAIMS ANY EXPRESS
OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES
OF FITNESS FOR A PARTICULAR PURPOSE, OR MERCHANTABILITY OR AGAINST
INFRINGEMENT. AUTOFUSION 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.
12.
Indemnification.
Partner
and/or its affiliates, at its or their own expense, hereby agrees
to jointly and severally indemnify, defend and hold harmless
Autofusion (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 Partner; 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 Autofusion
Advertisements and Brand Marks -- provided, however, in any
such case, (a) Autofusion shall provide Partner with prompt
notice of any such claim; (b) Autofusion shall permit Partner
to assume and control the defense of such action, with counsel
chosen by Partner (who shall be reasonably acceptable to Autofusion);
and (c) Partner shall not enter into any settlement or compromise
of any such claim without Autofusion’s prior written consent,
which consent shall not be withheld unreasonably. Partner 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.
Partner's obligations under this Indemnification Section shall
in no manner be affected by the existence or non-existence of
insurance. Autofusion’s right to indemnity under this Agreement
shall arise notwithstanding that joint or concurrent liability
may be imposed on Partner 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 AGREEMENT.
13.
Confidentiality.
Either
Partner or Autofusion 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 agrees to receive 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.
14.
Jurisdiction 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.
16.
Entire 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.
17.
Notices.
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:
Affiliates Program
Autofusion Corp.
1940 Garnet Avenue
Suite 104
San Diego, CA 92109
SCHEDULE A
AUTOFUSION WEB SITE CONTENT
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, Automobile Insurance, Automobile
Financing, Automobile Warranties & Service Plans (more product areas
will apply as Autofusion develops additional value-added features)
SCHEDULE B
CALCULATION AND DISTRIBUTION OF Partner Inc. NET
REVENUE SHARE
1. Calculation of Partner’s Net Revenue
Share (PNR).
Partner’s Net Revenue (PNR) shall be equal
to the table below.
|
Item
|
Cost to Users
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Your Commission
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|
Insurance Quote
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FREE
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$1.20
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New Car Price Quote
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FREE
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$1.00 - $3.50
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| Posted Classified Ads |
$15 or $21 |
$5.00 |
Agents shall receive 10% of all referred
affiliate commissions.
2. Distribution 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 $100.00 U.S. in one month). If the PNR balance is
less than the $100 limit, payment will be withheld until the month end
when the balance exceeds the limit.
You acknowledge and understand that AutoFusion shall use its commercially
reasonable efforts to collect payment(s) due from such third party advertisers.
You further acknowledge and understand that AutoFusion's obligation
to pay any amounts to you is contingent upon AutoFusion's receipt of
payment(s) from such third party advertisers. In the event, AutoFusion
fails to receive payment(s) due from third party advertisers it shall
have no obligation to pay you. In the event, AutoFusion receives a portion
of payment(s) due from third party advertisers it shall pay you only
after AutoFusion receives its fees. AutoFusion shall pay you any amounts
owed on each invoice within thirty (30) days after receipt of payment(s)
from third party advertisers, if any.
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