Tire Rack Affiliate Linking Agreement

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In Plain English

Thank you for considering establishing links between your Web site and ours. This Agreement contains the complete terms and conditions that apply to your participation as an affiliate in the affiliate linking network of Tire Rack, Inc., 7101 Vorden Pkwy, South Bend, IN 46628 ("Tire Rack"). As used in this Agreement, "we" or "us" means Tire Rack and "you" or "your" means the Affiliate.

To enroll, please review the terms of this Agreement and indicate your acceptance of these terms by clicking "I Agree" at the bottom of the page. Once you have agreed to the terms, you will be linked to our Affiliate Linking Application. After you submit a complete Affiliate Linking Application, we will evaluate your application and notify you of your acceptance or rejection by email. We may reject your application if we decide in our discretion that your site is unsuitable. If we reject your application, you are welcome to reapply at any time. We will review your application again then.

Due to recent changes in Arkansas, California, Illinois, Iowa, Kansas, Maine, Michigan, Missouri, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Vermont, Virginia, and Washington laws, Tire Rack cannot allow residents of those states to participate in the Tire Rack Affiliate Program. For more information, click here.

Recitals
  1. Affiliate is the owner or provider of certain Internet services and content areas and offers items for sale, accessible through the Affiliate Site (the "Affiliate Site");
  2. Tire Rack is the owner or provider of certain Internet services and content areas and offers tires, wheels, suspensions and related items for sale ("Tire Rack Products"), accessible through the URL www.Tire Rack.com (with any replacement or successor URL, the "Tire Rack Site");
  3. Tire Rack wants Affiliate to integrate a link from the Affiliate Site to the Tire Rack Site so that Affiliate’s users may have convenient access to the Tire Rack Site;
  4. Affiliate wants to provide such a link from the Affiliate Site to the Tire Rack Site.
Terms and Conditions

In consideration of the mutual promises and agreements of the parties set forth in this Agreement, and for other valuable consideration, the parties agree as follows:

1. Links.

1.1 Affiliate may use any combination of the following types of links in connection with marketing Tire Rack Products on the Affiliate Site:

1.1.1 Tire Rack Product Lists

Affiliate will select one or more specific Tire Rack Products to list on the Affiliate Site. For each selected Tire Rack Product, Affiliate will display on the Affiliate Site the Tire Rack Product's title, a short description, review, or other reference (provided, as set forth in Sections 1.3 and 2.3 below, Affiliate does not include pricing information and provided further that Affiliate does not make any representations or warranties regarding the products). Affiliate will be solely responsible for the content, style, and placement of these references. Affiliate will use a special link, provided by Tire Rack, from each Tire Rack Product reference on the Affiliate Site to the corresponding Tire Rack Product detail page on the Tire Rack Site. Each link will connect directly to a single item in the Tire Rack Site. Affiliate may add, change or delete Tire Rack Products (and related links) from its Web site anytime.

1.1.2 Search Feature

Tire Rack may provide Affiliate with technical specifications describing how to include a Tire Rack search box on the Affiliate Site. The search box will permit site visitors to navigate directly to a page on the Tire Rack Site that contains the results of their search queries.

1.1.3 Links to Subject Browse Categories

Tire Rack may provide Affiliate with graphical images and/or text to use in linking to Tire Rack subject browse categories (e.g., guides, test results and reviews) where contextually reasonable.

1.1.4 Links to the Tire Rack Site Homepage

Tire Rack will provide Affiliate with graphical images and/or text to use in linking to the Tire Rack homepage where contextually reasonable.

1.2 Characteristics of Links

Each link from the Affiliate Site to the Tire Rack Site will use one of the URLs provided by Tire Rack (the "Tire Rack URLs"). If Tire Rack provides more than one applicable Tire Rack URL, Affiliate may choose among them as it sees fit in establishing the link to the Tire Rack Site. Affiliate may not display links next to, above or below or otherwise in close proximity to any recognized tire or wheel merchant. The links may not affect or alter the look, feel, or functionality of the Tire Rack Site (e.g., you may not frame the Tire Rack Site, including without limitation causing your site's tool bar to appear on the Tire Rack Site). Except as expressly provided in this Agreement, the position, prominence and nature of links on the Affiliate Site will be solely in the discretion of Affiliate, though Affiliate will attempt to accommodate related special needs, desires, or concerns of the Tire Rack.

1.3 No Representations by Affiliate

Affiliate agrees not to make any representations or warranties concerning Tire Rack, the Tire Rack Site, any of Tire Rack's products or services, or Tire Rack Site policies, except as expressly authorized in this Agreement or otherwise in writing by Tire Rack.

1.4 Affiliate Site Operation

Affiliate will be solely responsible for the development, operation, and maintenance of its Web site and for all materials that appear in it, including, without limitation: (a) the technical operation of its Web site and all related equipment; (b) creating and posting Tire Rack Product descriptions on its Web site and linking those descriptions to the Tire Rack Site; and (c) the accuracy and appropriateness of materials posted on or incorporated into its Web site (including among other things, all Tire Rack Product-related materials).

1.5 Malfunctioning URLs

Affiliate will notify Tire Rack of any malfunctioning of the URLs or other problems with the links from the Affiliate Site to the Tire Rack Site. Tire Rack will respond promptly to all concerns upon notification by Affiliate.

2. Referral Fees.

2.1. Tire Rack agrees to pay to Affiliate a referral fee of Six Percent (6%) of sales if Tire Rack makes a completed sale of a Tire Rack Product to a visitor to the Tire Rack Site (a "Customer") if that Customer has accessed the Tire Rack Site and purchased the Tire Rack Product via a Qualifying Link (as defined below) from the Affiliate Site. Referral fees will be determined based on aggregate amounts collected by Tire Rack, excluding amounts collected for sales taxes, duties, packaging, shipping, handling, coupons, discounts, credit card fees and similar charges, amounts due to credit card fraud and bad debt, and credits for returned goods. For any of these excluded amounts, Tire Rack will provide complete documentation to Affiliate for review, if so requested.

2.2. A "Qualifying Link" is a link from the Affiliate Site to the Tire Rack Site using any of the URLs provided by Tire Rack for use by the Affiliate if it is the last link to the Tire Rack Site that the Customer uses during a Season where a sale of a product or a service to Customer occurs. We will not pay referral fees on Tire Rack Products ordered via a link from another site to the Tire Rack Site (instead of through a Qualifying Link), even if the Customer previously followed a link from the Affiliate Site to the Tire Rack Site. A "Season" is the period beginning with a Customer's initial contact with the Tire Rack Site via a link from the Affiliate Site and ending 60 days afterwards. Tire Rack will use a cookie to store a Customer’s ID during the Season. Tire Rack will not be responsible for paying a commission to Affiliate on sales it cannot attribute to a Customer, e.g., because the Customer’s browser does not accept the cookie.

2.3. Tire Rack shall have the sole right and responsibility for processing all orders made by Customers. Affiliate acknowledges that all agreements relating to sales and service to Customers will be between Tire Rack and the Customer. Prices for the products will be set solely by Tire Rack in its discretion. Product prices and availability may vary from time to time. Because price changes may affect Tire Rack Products that Affiliate has listed on its Web site, Affiliate may not include price information in its Product descriptions. Tire Rack uses commercially reasonable efforts to present accurate information, but it cannot guarantee the availability or price of any particular Tire Rack Product.

2.4. Commission Junction is the network on which Tire Rack’s affiliate program is operated. Commission Junction will pay all fees to Affiliate monthly. Commission Junction will send payment for the correct amount of referral fees to Affiliate within twenty-five (25) days after the end of each month. If referral fees payable to Affiliate for any calendar month are less than $25, Commission Junction reserves the right to withhold those referral fees until the total amount due is at least $25, or (if earlier) until the Agreement is terminated.

3. Auditing.

3.1. Tire Rack will maintain complete and accurate records according to U.S. Generally Accepted Accounting Principles ("GAAP") for all transactions which are the subject of this Agreement for not less than three (3) years after the last payment is due under this Agreement. An independent accounting firm, when retained at the expense of Affiliate and not more frequently than annually, will have access to such records, upon reasonable notice, for the purposes of audit during normal business hours, for so long as such records are required to be maintained under this Agreement. If such accounting firm determines that any additional payment is due Affiliate by Tire Rack, and such payment is not the subject of a good faith dispute between the parties, then Tire Rack will promptly make payment of such amount to Affiliate. If Tire Rack overpays Affiliate, then Tire Rack shall be entitled to a credit against the next payment due to Affiliate in the amount of the overpayment, unless such overpayment is the subject of a good faith dispute between the parties or no further payments are due under this Agreement, in which case Affiliate shall promptly refund to Tire Rack the amount of the overpayment.

4. Ownership and Licenses.

4.1. Each party owns (or has the right to use and sublicense) and shall retain all right, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, which shall be used in connection with links to the other party's site, as provided for in this Agreement, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future.

4.2. Tire Rack grants Affiliate a revocable, nonexclusive, worldwide, royalty-free license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress and proprietary technology, as designated in this Agreement, on the Affiliate Site solely to create links from the Affiliate Site to the Tire Rack Site. Except as expressly set forth in this Agreement or permitted by applicable law, Affiliate may not copy, distribute, modify, reverse engineer, or create derivative works from the same. Affiliate may not sublicense, assign or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment or transfer is void. Affiliate shall promptly remove such name, logos, trademarks, service marks, trade dress and proprietary technology from the Affiliate Site upon the end of this Agreement.

4.3. Affiliate grants Tire Rack a revocable, nonexclusive, worldwide, royalty-free license to use, reproduce and transmit Affiliate’s name, logos, trademarks, service marks, and trade dress to advertise, market, promote, or publicize Affiliate’s participation as an affiliate under this Agreement, though Tire Rack is not required to do so. This license ends upon the end of this Agreement.

5. Term and Termination.

The term of this Agreement will begin upon our acceptance of your Affiliate Linking Application and will end immediately when terminated by either party. Either party may end this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon notice of termination, you must remove all links within one hour of giving or receiving notice. You are only eligible to earn referral fees under Sections 2.1 and 2.2 on sales of Products incurring during the term. Referral fees earned through the date of termination will remain payable only if the related Tire Rack Product orders are not cancelled or returned. We may withhold your final payment for a reasonable time to confirm that the correct amount is paid. However, all rights to payment, causes of action and any provisions which by their terms are intended to survive termination, including but not limited to the representations, indemnification and limitation of liability provisions, shall survive termination of this Agreement.

6. Disclosure of Confidential Information.

6.1 Each party acknowledges that it may receive the other party’s Confidential Information during the term of this Agreement. "Confidential Information" means any confidential, proprietary or trade secret information relating to this Agreement or disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") during the term of this Agreement, including but not limited to material terms of this Agreement, information about Customers, information related to the calculation of referral fees and any other business, financial or technical information that is not (i) disclosed in public materials or otherwise in the public domain through no fault of the Receiving Party; (ii) lawfully obtained by the Receiving Party from a third party without any obligation of confidentiality; (iii) lawfully known to the Receiving Party before disclosure by the Disclosing Party; or (iv) independently developed by the Receiving Party.

6.2 Except as otherwise expressly provided in this Agreement, each party agrees that it will (i) treat all Confidential Information of the other party with the same degree of care as it accords to its own Confidential Information, but in no event less than a reasonable degree of care; (ii) disclose Confidential Information of the other party only (A) to those of its agents or employees who need to know such Confidential Information and have agreed previously, either as a condition of employment or to obtain the Confidential Information, to be bound by terms substantially similar to those of this Section, or (B) as required or reasonably advised to be disclosed by law, if the Receiving Party affords the Disclosing Party a reasonable opportunity to seek protective legal treatment of such Confidential Information; and (iii) destroy or return to the other party all Confidential Information of the other party upon termination of this Agreement. The obligations in this section 6.2 will continue, as to each bit of information, for so long as such information remains Confidential Information.

7. Representations.

7.1. Each party, to the best of its knowledge, represents to the other that: (a) it has the authority to enter into this Agreement and sufficient rights to grant any licenses granted, and (b) any material which is provided to the other party and displayed on the other party's site will not (i) infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) be defamatory or libelous; (iv) be lewd, pornographic or obscene; (v) violate any laws regarding unfair competition, discrimination or false advertising; (vi) promote violence or contain hate speech; or (vii) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious computer programming routines.

7.2. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

8. Indemnification.

Each party now agrees to indemnify, defend and hold harmless the other party and its affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys' fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations in this Agreement, provided that the indemnified party promptly notifies the indemnifying party in writing of any such claims. The indemnifying party shall have the sole right and obligation to defend such claims at its own expense. The indemnified party shall provide, at the indemnifying party's expense, such assistance in investigating and defending such claims as the indemnifying party may reasonably request.

9. Limitation of Liability.

IN NO EVENT SHALL WE BE LIABLE OR OBLIGATED UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND OUR AFFILIATE LINKING NETWORK WILL NOT EXCEED THE TOTAL REFERRAL FEES AND COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT.

10. General.

10.1. No term or condition of this Agreement shall be deemed waived, and no breach shall be deemed excused, unless such waiver or excuse is in writing and is executed by the party against whom such waiver or excuse is claimed.

10.2. Neither party shall have any authority to obligate or bind the other in any respect. Despite anything to the contrary, this Agreement does not and shall not be deemed to form a partnership or joint venture between the parties and neither party nor any of their respective directors, officers, employees or agents shall, by virtue of the performance of their obligations under this Agreement, be deemed to be an agent or employee of the other.

10.3. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the State of Indiana without regard to conflict of laws provisions. Any action to enforce or interpret this Agreement shall be brought in the federal or state courts located in Indiana.

10.4. All official correspondence, notices, requests, demands, and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given, made and received when delivered via United States registered mail, return receipt requested, postage prepaid, to the respective addresses as set forth above. For Tire Rack, Affiliate shall address this communication to the attention of Tom Veldman. Either party may alter the address to which communications or copies are to be sent by giving notice of such change of address to the other party in the manner set forth.

10.5. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part. If any portion of this Agreement is invalid or unenforceable, such portion(s) shall be limited or excluded from this Agreement to the minimum extent required and the balance of this Agreement shall remain in full force and effect.

10.6. Neither party shall have any right or ability to assign, transfer, or sublicense any obligations or benefit under this Agreement without the written consent of the other party and any such attempt shall be void.

10.7. This Agreement contains the entire understanding of the parties regarding its subject matter. We reserve the right to modify any terms and conditions contained in this Agreement at any time. You will be notified by email and a change notice will be posted on the Tire Rack Site or on the BeFree site. Modifications may include, but are not limited to, changes to the scope and schedules of referral fees and linking rules. If any modification is unacceptable to you, your only recourse and sole remedy is to terminate this Agreement. Your continued participation as a linking affiliate following our posting of a change notice or new agreement will constitute your binding acceptance of the change.

THIS IS A LEGAL AGREEMENT BETWEEN YOU AS AFFILIATE AND Tire Rack. BY CLICKING ON THE "I AGREE" BUTTON AT THE END OF THIS AFFILIATE LINKING AGREEMENT YOU ARE AFFIRMATIVELY STATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS SET FORTH HERE AND ARE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AFFILIATE LINKING AGREEMENT AND YOU AGREE TO BE BOUND BY THESE TERMS.

SELECT AGREE TO THESE TERMS BELOW IF YOU ARE NOT A RESIDENT OF ARKANSAS, CALIFORNIA, ILLINOIS, IOWA, KANSAS, MAINE, MICHIGAN, MISSOURI, NEW JERSEY, NEW YORK, NORTH CAROLINA, OHIO, OKLAHOMA, PENNSYLVANIA, RHODE ISLAND, TENNESSEE, VERMONT, VIRGINIA, OR WASHINGTON, AND WOULD LIKE TO APPLY.

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