CarsDirect.com, Inc. Affiliates Program Agreement
Effective February 2005
IMPORTANT -- READ CAREFULLY
THIS AFFILIATE PROGRAM AGREEMENT, INCLUDING APPLICABLE OFFERS (COLLECTIVELY, THE "AGREEMENT"), IS A LEGAL AGREEMENT BETWEEN YOU AND CARSDIRECT FOR PARTICIPATION IN CARSDIRECT'S AFFILIATE PROGRAM (THE "PROGRAM") AS MANAGED BY AND THROUGH THE LINKSHARE NETWORK. BY REGISTERING FOR AND PARTICIPATING IN THE PROGRAM, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT REGISTER FOR OR PARTICIPATE IN THE PROGRAM, OR, IF YOU ARE ALREADY A CARSDIRECT AFFILIATE, IMMEDIATELY TERMINATE ALL USES OF CARSDIRECT AND AUTOS.COM MARKS AND ANY LINKS TO THE CARSDIRECT.COM OR AUTOS.COM WEBSITES. AS USED IN THIS AGREEMENT, "WE" AND CARSDIRECT MEAN CARSDIRECT, INC. AND ITS SUBSIDIARIES AND "YOU" AND AFFILIATE MEAN THE PARTICIPATING WEB AFFILIATE.
1. AgreementBy completing and sending the accompanying "Affiliate Program" registration form, you are entering into a legal agreement with MH Sub I, LLC, dba CarsDirect.com, a Delaware limited liability company with its principal place of business at 909 N. Pacific Coast Hwy, 11th Floor, El Segundo, CA 90245 and its affiliated business operations. This Agreement that contains all of the terms and conditions below and the "Offer" (described on the Affiliate Program Home Page) governs your participation in the CarsDirect Affiliate Program.
2. Statement of InvestigationYou acknowledge that you have read this Agreement and agree to all of its terms and conditions. You understand that CarsDirect may, at any time (directly or indirectly), solicit referrals for users of information retrieval services on terms that differ from those contained in this Agreement, or operate sites that are similar to or compete with your website.
3. Enrollment in the Affiliates ProgramIf you are a member of The LinkShare Network, you only need to read and agree to this Agreement. If you are not a member of The LinkShare Network, you must complete a registration form to join The LinkShare Network and read and agree to this Agreement. We will evaluate your registration form and notify you if your website is not accepted for participation in the Program. We may reject your application if we determine (in our sole discretion) that your website is unsuitable for the Affiliate Program. If you are accepted into the Affiliate Program, you will be able to participate in the Affiliate Program, subject to the terms and conditions of this Agreement and the Offer. You should also note that if you are accepted to participate in the Affiliate Program and your website is thereafter determined (in our sole discretion) to be unsuitable for the Affiliate Program, we may terminate this Agreement.
CarsDirect website means the collection of web pages located at www.carsdirect.com and www.autos.com
Link is a clickable hyperlink such as a virtual storefront, banner, button, tile (or combination thereof) or other text or graphic of creative and technical specifications to be determined by CarsDirect, through which users of a website containing such hyperlink may access the CarsDirect and Autos.com websites.
Offer means the written offer to participate in the Affiliate Program to which this Agreement relates which is posted on the CarsDirect Home Page and the LinkShare website and is qualified in its entirety by the terms and conditions of this Agreement.
Purchase Request is an automobile purchase request received by CarsDirect that conforms with the description attached to this Agreement as Appendix A.
Dealer Request is an automobile request by consumer through CarsDirect or Autos.com that conforms with the description attached to this Agreement as Appendix B.
Finance Lead is a request by a consumer through CarsDirect that conforms with the description attached to this Agreement as Appendix C.
Qualified Lead means a visitor originating from the Affiliate website (i) referred to the CarsDirect website by a Qualifying Link, who (ii) completes all required fields of a CarsDirect Purchase Request with respect to a new vehicle offered on the CarsDirect website, (iii) submits that form and commits to the required deposit, if any, within thirty (30) days of the initial introduction to the CarsDirect website via the Qualifying Link) and (iv) receives confirmation of such submission and deposit from CarsDirect.
Qualifying Link means a Link from your site to the CarsDirect website for use in the Affiliate Program and which are registered with the LinkShare Network.
Website means a website and, depending on the context, refers either to the CarsDirect or Autos.com website, or to the site that you will Link to our site as identified in your LinkShare registration form (your site).
Site Advertising Fee is the fee described in the Offer.
5. Provision of the CarsDirect WebsiteCarsDirect will provide to you Links (which may be in different formats) through which visitors from your website may access the CarsDirect and Autos.com websites. You may display Links, in any of the formats provided by CarsDirect, on any or as many areas or pages of your website as you wish.
6. PaymentPursuant to the terms of an agreement between LinkShare and CarsDirect, LinkShare will pay you an amount per Qualified Lead, Dealer Request or Finance Lead as specified in the Offer. LinkShare has no obligation to pay you for clicks to the CarsDirect or Autos.com website that do not fit the above definition of a Qualified Lead, Dealer Request, or Finance Lead. For the purpose of determining Site Advertising Fees that you may be eligible to receive in connection with a Qualified Lead, Dealer Request or Finance Lead, LinkShare will only track Qualifying Links registered with The LinkShare Network. All determinations of Qualified Leads, Dealer Requests or Finance Leads and whether a Site Advertising Fee is payable in connection therewith will be made by The LinkShare Network and shall be binding upon both of us.
Subject to the minimum described below, LinkShare will pay you on a monthly basis. Within thirty (30) days or a reasonable time after the end of each calendar month, LinkShare will send you a check for the amounts earned during that month, less any applicable withholdings. If your aggregate Site Advertising Fees for any calendar month is less than $15.00, the Site Advertising Fees will be carried over until the total amount is at least $15.00 or until this Affiliate Agreement is terminated.
In no event shall CarsDirect be responsible to you for payment in respect of Qualified Leads, Dealer Requests and Finance Leads. Such payments shall be made by LinkShare pursuant to the terms of an agreement between LinkShare and CarsDirect.
If CarsDirect's records show activity from the Qualified Links that CarsDirect determines is inconsistent with valid information requests, or is otherwise unusual, then we reserve the right to withhold payment for a reasonable period pending an investigation of that activity by CarsDirect and resolution of the dispute (if any).
7. PublicityYou may not create, publish, or distribute in any way any items that reference CarsDirect or Autos.com or its trademark without first submitting those items to CarsDirect for approval and receiving CarsDirect's written consent.
8. Limited Licenses
CarsDirect grants to you a non-exclusive, non-transferable, revocable license without the right of sublicense to the Links and such other images for which CarsDirect grants express permission, solely for use on your Site and solely for the purposes expressly specified in this Agreement. You may not modify a Link or any other image provided by CarsDirect. CarsDirect also grants to you a nonexclusive, non-transferable, revocable license without the right of sublicense to use the phrase(s) CarsDirect, Autos.com, the logo, car quotes from CarsDirect and such other phrases agreed upon in writing by the parties (such phrases and the Links shall hereinafter be referred to as the Trademarks) solely to identify the Links the CarsDirect or Autos.com websites, or to describe the search capabilities on your Site. Before using the Trademarks, you must have any materials on which the Trademarks appear approved by CarsDirect. In addition, any use of the Trademarks is subject to CarsDirect's Trademark Guidelines, which appear as Appendix D at the end of this Agreement. CarsDirect may modify the Trademark Guidelines from time to time, upon notice to you. CarsDirect reserves all right, title and interest in and to the Trademarks, service marks, the CarsDirect and Autos.com websites and any images, trade names, trademarks or other intellectual property rights that CarsDirect provides or uses. Except as expressly stated herein, neither party shall make any use of the other party's marks. Upon request of either party, the other party shall provide appropriate attribution of the use of the requesting party's marks.
Affiliate hereby grants to CarsDirect a non-exclusive, non-transferable license without the right of sublicensee to access the Affiliate website, and to use the intellectual property of Affiliate solely to the extent reasonably necessary to carry out the purposes of this Agreement.
9. Obligations Regarding Your Site
You are solely responsible for the development, operation and maintenance of your website and for all materials and content which appear on your website. CarsDirect will not be responsible for any of the foregoing. The content of your website must comply with all applicable laws and regulations including all laws respecting intellectual property. You will indemnify, defend and hold CarsDirect harmless from all losses, costs, damages, claims, fees (including attorneys' fees) and expenses that arise out of or are related to the development, operation or maintenance of your website, including content not attributable to CarsDirect.
You may not include price information with respect to any product or service offered by CarsDirect. You may not make any reference to CarsDirect or any of its products or services, except in the Links provided under Section 5 of this Agreement.
Affiliate agrees not to bid on any CarsDirect trademarks, derivatives thereof or any misspellings in any pay per click search engines such as Google or Overture. Some examples of these keyword terms include:
Furthermore, Affiliate agrees not to bid on any names or misspelling of CarsDirect's competitors on any such search engines which would in any way tie CarsDirect or Autos.com to such searches.
Failure to comply may result in permanent suspension from the CarsDirect affiliate program.
You are responsible for notifying CarsDirect and The LinkShare Network of any malfunctioning of any Link or any other problems with your participation in the Program in accordance with the terms of this Agreement. CarsDirect (or a designee such as The LinkShare Network) will respond in normal course to all reasonable concerns upon notification.
10. FraudCarsDirect does not tolerate any form of fraud. Certain suspicious activities may result in suspension of an Affiliate's account, pending a full investigation. Such activities may include, but are not limited to:
11. Special Aspects for Lead/Request GenerationWith respect to the generation of leads or requests for CarsDirect, the following terms and conditions shall apply:
13. Term of the AgreementThe term of this Agreement begins upon CarsDirect's acceptance of your application for the Program, and ends upon the earlier of: (i) the End Date as specified in the Offer or (ii) at any time, for any reason or no reason, by giving the other party five (5) days prior written notice of termination (the "Term"). In addition, CarsDirect may terminate this Agreement immediately upon giving written notice if, in its discretion, it determines that a continuation of the Agreement may subject it to liability to a third party. Within twenty-four (24) hours after termination (whether by you or CarsDirect), you must cease use of and remove any Links and any copies of the Trademarks and any images, trade names, trademarks, service marks or other intellectual property rights of CarsDirect and Autos.com provided by or on behalf of CarsDirect to you in connection with the Program and destroy or erase from computer memory any items you might have that contain the same. CarsDirect will pay you any amounts you earned before termination after the end of the then-current month, less taxes, sales returns and cancelled orders. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
14. ModificationCarsDirect may modify any of the terms and conditions contained in this Agreement or by posting such modifications on the appropriate page(s) of The LinkShare Network website. CarsDirect may modify the Offer at any time by providing Affiliates prior notice via the Affiliate's provided email or through the LinkShare Network mail communications system. If a modification is unacceptable to you, you may terminate this Agreement at any time by removing any of the CarsDirect Links and following the procedures in Section 10 (Term of Agreement). If you do not give CarsDirect notice as described in this Section 11 and continue to display the Links on your Site, then you will be deemed to have accepted the Modifications.
15. Relationship of the PartiesYou and CarsDirect are independent contractors, and nothing in this Agreement creates any partnership, joint venture, agency, franchise, sales representative or employment relationship between you and CarsDirect. You understand that you do not have authority to make or accept any offers or make any representations on behalf of CarsDirect. You may not make any statement, whether on your website or otherwise, that would contradict anything in this Section.
16. ConfidentialityWe agree and acknowledge that, as a result of entering into and performing this Agreement, we have and will have access to certain of each other's Confidential Information (as defined below). We understand and agree that misuse and/or disclosure of that information could adversely affect the other's business. Accordingly, we agree that, during the Term of this Agreement, we shall use and reproduce the other's Confidential Information only for the purposes of this Agreement and only to the extent necessary for such purpose and shall restrict disclosure of the other party's Confidential Information to its employees, consultants or independent contractors with a need to know and shall not disclose each sought all reasonably available safeguards against widespread dissemination prior to such disclosure. As used in this Agreement, the term "Confidential Information" refers to: (i) each of our trade secrets, business plans, strategies, methods and/or practices: (ii) any and all information relating to Purchase Requests submitted through the Affiliate website: and (iii) other information relating to either of us that is not generally known to the public, including information about either party's personnel products, customers, marketing strategies, services or future business plans. Notwithstanding the foregoing, the term "Confidential Information" specifically excludes: (A) information that is now in the public domain or subsequently enters the public domain by publication or otherwise through no action or fault of the receiving party; (B) information that is known to either party without restriction, prior to receipt from the disclosing party under this Agreement, from its own independent sources under no duty of confidentiality to the disclosing party; (C) information that either of us receives from any third party and not reasonably known by such receiving party to be under any obligation to keep such information confidential; and (D) information independently developed by either of our employees or agents without reference to or use of the Confidential Information received hereunder.
17. DisclaimersCarsDirect makes no express or implied warranties with respect to the Program, the CarsDirect and Autos.com websites, the Links or the results obtained from using the Links and the CarsDirect and Autos.com websites. You understand that the operation of the Links, the CarsDirect and Autos.com websites may not be uninterrupted or error free, and that the search results obtained through use of the Links and CarsDirect and Autos.com websites may have errors or omissions. You agree that CarsDirect will not be liable for any interruptions or errors in using the Links or the CarsDirect and Autos.com websites, including any errors or omissions in the search results obtained through use of the Links and the CarsDirect and Autos.com websites. The provisions of this Section 14 shall survive termination or expiration of this Agreement.
18. Representations and Warranties.
Each party hereby represents and warrants as follows: 18.1 Corporate Power. If such party is a legal entity, it is duly organized and validly existing under the laws of the state of its organization and has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof. 18.2 Due Authorization. Each party hereto is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder. 18.3 Binding Agreement. This Agreement is a legal and valid obligation binding upon such party and is enforceable pursuant to its terms. The execution, delivery and performance of this Agreement by such party does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound
18.4 Intellectual Property Rights.
RIDER B18.5. General Practices.
19.1 CarsDirect Indemnity. CarsDirect will at all times indemnify, defend and hold harmless Affiliate and its officers, directors, shareholders, employees, accountants, attorneys, agents, successors and assigns from and against any and all third-party claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses, arising out of or related to any breach of any warranty, representation, covenant or agreement made by CarsDirect in this Agreement. Affiliate shall give CarsDirect prompt written notice of any claim, action or demand for which indemnity is claimed. CarsDirect shall have the right, but not the obligation, to control the defense and/or settlement of any claim in which it is named as a party. Affiliate shall have the right to participate in any defense of a claim by CarsDirect with counsel of Affiliate's choice at Affiliate's own expense. The foregoing indemnity is conditioned upon: (i) prompt written notice by Affiliate to CarsDirect of any claim, action or demand for which indemnity is claimed; (ii) complete control of the defense and settlement thereof by CarsDirect; (iii) and such reasonable cooperation by Affiliate in the defense as CarsDirect may request.
19.2 Affiliate Indemnity. Affiliate will at all times defend, indemnify and hold harmless CarsDirect and its officers, directors, shareholders, employees, accountants, attorneys, agents, successors and assigns from and against any and all third party claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses, arising out of or related to any breach of any warranty, representation, covenant or agreement made by Affiliate in this Agreement or the development, operation or maintenance of the Affiliate Site, including the Content thereon. CarsDirect shall give Affiliate prompt written notice of any claim, action or demand for which indemnity is claimed. Affiliate shall have the right, but not the obligation, to control the defense and/or settlement of any claim in which it is named as a party and which arises as a result of Affiliate's breach of any warranty, representation, covenant or agreement under this Agreement. CarsDirect shall have the right to participate in any defense of a claim by Affiliate with counsel of CarsDirect's choice at CarsDirect's own expense. The foregoing indemnity is conditioned upon: (i) prompt written notice by CarsDirect to Affiliate of any claim, action or demand for which indemnity is claimed; (ii) complete control of the defense and settlement thereof by Affiliate; (iii) and such reasonable cooperation by CarsDirect in the defense as Affiliate may request.
19.3 The provisions of Sections 19.1 and 19.2 shall survive the termination or expiration of this Agreement for a period of three (3) years.
19.4 Settlement. Neither party shall, without the prior written consent of the other party, settle, compromise or consent to the entry of any judgment with respect to any pending or threatened claim unless the settlement, compromise or consent provides for and includes an express, unconditional release of all claims, damages, liabilities, costs and expenses, including reasonable legal fees and expenses, against the indemnified party.
20. Limitation of Liability
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR ANY OTHER INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR CARSDIRECT'S AFFILIATE PROGRAM, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, THE AGGREGATE LIABILITY OF CARSDIRECT ARISING UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID OR PAYABLE TO AFFILIATE UNDER THIS AGREEMENT. THE PROVISIONS OF THIS SECTION SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT.
Any written notice or other communication required or permitted to be given by this Agreement, other than notice of a modification of this Agreement as provided in Section 11, shall be given by email as follows: To CarsDirect at firstname.lastname@example.org To Affiliate at the email address reflected on your Affiliate Program registration form. Notice shall be deemed effective upon receipt. Either party may from time to time change its address by giving the other party notice of the change in accordance with this paragraph.
22. Miscellaneous Provisions
This Agreement will be governed and construed in accordance with the laws of the State of California and the United States of America, without regard to conflict of law principles. All disputes arising out of or related to this Agreement shall be subject to the exclusive jurisdiction and venue of the California state courts of Los Angeles County, California (or for claims having exclusive federal jurisdiction, the Federal District Court for the Central District of California), and the parties consent to the personal and exclusive jurisdiction of such courts. This is the entire Agreement between Affiliate and CarsDirect with respect to the CarsDirect Affiliate Program. Except as specifically set forth in Section 8 (Limited Licenses) and Section 11 (Modifications), any modification to this Agreement must be in writing and signed by both parties or, if proposed by CarsDirect, accepted by you as provided in an amendment. You may not assign this Agreement or any rights or obligations hereunder, by operation of law or otherwise (including mergers and change in control), without the prior written approval of CarsDirect and any such attempted assignment shall be void. CarsDirect may assign this Agreement upon written notice to you. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns. CarsDirect's failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of CarsDirect's right to subsequently enforce that provision, or any other provisions of this Agreement. The provisions of this Section survive termination or expiration of the Agreement.
Appendix A: CarsDirect Purchase RequestA CarsDirect Purchase Request is the product of a user visiting the Affiliate Site, clicking through to CarsDirect's website via a Link, and submitting a request for a vehicle. It must meet the following criteria:
Appendix B: Dealer Request
A Dealer Request is a product of a user visiting the Affiliate Site, clicking through to the CarsDirect or Autos.com website via a Link, and submitting a request to be contacted by a dealer regarding a particular make and or qualified model of vehicle. It must meet the following criteria:
Appendix C: Finance Request
A Finance Lead is a product of a user visiting the Affiliate Site, clicking through to the CarsDirect website via a Link and submitting a request to be contacted by a dealer finance specialist who offers loan programs designed for car buyers with no credit, credit problems or special financing needs. It must meet the following criteria:
Appendix D: Trademark Guidelines