Affiliate Program Agreement
Read this carefully before submitting the application (the
"Application") for participation in the Auto Credit Express®
Inc. Affiliate Program (the
"Program"). This is a binding agreement (the "Agreement")
between the individual or entity submitting the Application ("You"
and "Your") and Auto Credit Express, Inc., a Michigan corporation, and
its affiliates (collectively,"ACE"). By completing an Affiliates
Program Application and clicking on the "Accept" button below, you agree
to be bound by the terms of this Agreement.
1. Enrollment in the Program. By submitting the Application
You are expressing Your desire to participate in the Program through which
You may promote certain ACE services and are compensated for the number of
qualified individuals that use such services as a direct result of Your
promotion. As part of the Application You must submit the principal URL of
Your Web site ("Your Web Site") upon which You desire to place the
ACE Graphics (as defined in Section 2). Additionally, You represent and
warrant that: (i) the information submitted in the Application is truthful
and accurate; (ii) the person submitting the Application is at least 18
years old; (iii) in the event You are an entity, the person submitting the
Application has the full right, power and authority to enter into this
Agreement on behalf of such entity; and (iv) the execution of this
Agreement by You, and the performance by You of Your obligations and
duties hereunder, do not and will not violate any agreement to which You
are a party or by which You are otherwise bound. You acknowledge that ACE
makes no representations, warranties or agreements related to the subject
matter hereof that are not expressly provided for in this Agreement. ACE
will evaluate the Application and will notify You of ACE's acceptance or
rejection of the Application in a timely manner. ACE may reject the
Application if Your Web Site is deemed in ACE's sole discretion to be
unsuitable for the Program.
2. Use of ACE Links on Your Site. In the event Your
Application is accepted by ACE, You may use (to the extent provided in
Section 4 below) the electronic graphic artwork and corresponding links ("Links")
to the ACE brand commercial online service ("ACE Service")
including the special promotion identifier and all HTML thereto ("ACE
Graphics") available at http://affiliates.aceinet.net ("Reporting
Site") as necessary to participate in the Program. ACE will provide
the HTML for such Links at the Reporting Site, including a special
promotion identifier that will make possible tracking and reporting of all
fully submitted Leads (as defined in Section 5) acquired through Your Web
Site. It is Your responsibility to integrate the ACE Graphics into Your
Web Site properly in accordance with the instructions available at the
Reporting Site, and ACE shall not be liable to You with respect to Your
failure to integrate properly the ACE Graphics into Your Web Site. You
agree not to modify any ACE Graphics in any way without the prior written
permission of ACE. You may only display the ACE Graphics on Your Web Site,
and if You have Web sites other than Your Web Site, You must submit an
Application and accept and agree to the terms of this Agreement for each
such Web site to display the ACE Graphics on such Web site. You may not
transmit "interstitial advertising" to users as they link from Your Web
Site to the ACE Web Site, or otherwise interrupt such link through the use
of any intermediate screen or device, including without limitation the use
of an HTML pop-up window. Without limiting the foregoing, You shall not
promote or otherwise announce the availability of the ACE Graphics or
promote the ACE Service anywhere other than within Your Web Site or in
opt-in email campaigns or newsletters.
3. Your Web Site. You are solely responsible for, and
ACE
hereby disclaims all liability for, the development, operation and
maintenance of, and all costs associated with, Your Web Site, any content
thereon and any equipment therefore. You hereby agree that Your Web Site
shall not, in any way, copy or resemble the look and feel of, or create
the impression that it is part of the ACE Service.
4. Limited License to Use ACE Graphics.
ACE hereby grants to
You a nonexclusive, revocable license to display on Your Web Site and in
opt-in email campaigns and newsletters the ACE Graphics solely as
necessary for, and for the purpose of, promoting the ACE Service
associated with the ACE Graphics as set forth at the Reporting Site and
identifying You as a participant in the Program. To the extent that ACE
Graphics contain ACE's trademarks, service marks or trade names, You shall
not use such marks in a manner that might be deemed to create a unitary
composite mark. You also agree not to use the ACE Graphics in a manner
that is, or otherwise include materials on Your Web Site that are,
disparaging of ACE or any third party. ACE reserves all proprietary rights
in and to the ACE Graphics not expressly granted herein. You agree this
license can be revoked at any time for any or no reason upon notice by ACE
to You (regardless of termination of this Agreement) and You agree upon
receipt of such notice immediately to cease using all ACE Graphics.
5. Referral Fees. On a monthly basis, within thirty (30) days
after the end of each calendar month, ACE agrees to pay You a marketing
referral fee (the "Referral Fee") of $4.50 each time
(but no more than once in a 31 day period) a unique
customer ("Customer") who, after having used the ACE Links on Your
Web Site, fully submits the required fields for a particular Type of ACE
Service with valid information.
a.) Valid Information: To the best of Your knowledge (1)
each referral is competent and had full legal capacity request ACE's
services at the time they completed the request form; (2) No referral has
been obtained by fraud or fraudulent representations; (3) the information
provided is complete and true; (4) none of referrals are deceased.
If during any month the Referral Fees due You are less than
forty ($40), ACE will defer payment until the Referral Fees accrued
during a month are at least forty ($40), or (if earlier) until the
Agreement is terminated. Upon earning Referral Fees in excess of forty ($40) during a month, ACE will send a check for all Referral Fees
due and owing, including the Referral Fees for the prior month or months
during which the Referral Fees did not exceed forty ($40).
For the purposes of this Agreement, Leads means a Customer who (i)
directly accesses the ACE Web Site from Your Web Site using the Links, and
(ii) registers with ACE using a unique e-mail address, telephone number
and name not previously received by ACE. We attribute a Customer to the
affiliate it was first associated with.
You acknowledge that ACE Advertiser's
performs all actions, services and processing of loans and applications offered through the
ACE Advertiser's Web sites ("ACE Web Sites") and all other matters
relating thereto, including but not limited to (i) the solicitation of
loans, (ii) the processing of loans and other
loan related documentation, (iii) the collection of closing costs, and (iv) all other
broker functions and activities
(collectively, the "Broker Activities"). The parties intend that
the compensation payable by ACE to You under this Agreement shall not
constitute an loans commission, and the parties agree that You are not, by
providing the Links, engaged in any Broker Activities, and ACE
shall not pay any Referral Fee to You based upon the condition that a
Customer closes a loan with an ACE Advertiser. ACE agrees that such
compensation shall at all times be in compliance with applicable federal
and state laws and regulations, including without limitation, all states
insurance laws and regulations. In furtherance of this objective, the
parties agree to negotiate in good faith an alternative compensation
arrangement with substantially similar economic benefits if ACE reasonably
determines that such compensation arrangement is no longer in compliance
with applicable federal, state or other laws and regulations.
ACE, in its sole discretion, may choose to offer You a higher Referral
Fee for a particular period of time or for particular types of services
offered by ACE. ACE will either provide You notice of such higher Referral
Fee to the e-mail address in Your Application or will post notice of such
higher Referral Fee on the Reporting Site. You acknowledge that ACE may
offer a Referral Fee to other participants in the Program that is higher
than the Referral Fee You receive. Nothing in the foregoing shall limit
ACE's ability to lower the Referral Fee in accordance with Section 7.
6. Reporting. ACE, will provide You with
access to a password-protected site to view reports summarizing Your Web
Site activity. The form and content of the reports may vary from time to
time at ACE's discretion. To permit accurate tracking, reporting, and
Referral Fee accrual, You must ensure that the Links between Your Web Site
and the ACE Web Site are properly formatted. Failure to properly format
and use the Links may result in a reduction of the amounts, which would
otherwise be paid to You pursuant to the terms hereof, or the termination
of this agreement.
You will not receive and/or have access to any personally identifiable
consumer information that may be collected through the Program. ACE agrees
that personally identifiable information will be collected pursuant to a
privacy policy that is substantially similar to the privacy policy posted
on the ACE Web Site, as it may be amended from time to time.
7. Modification of This Agreement. ACE may modify any terms
and conditions in this Agreement, including any amounts payable as
Referral Fees under Section 5, at any time in its sole discretion by
posting a notice or a new Agreement on the Reporting Site, but such new
Agreement shall be effective no sooner than five (5) days after such
notice or new Agreement is posted on the Reporting Site. YOUR SOLE REMEDY
AND RECOURSE IN THE EVENT ANY SUCH MODIFICATION IS UNACCEPTABLE TO YOU IS
TO TERMINATE THIS AGREEMENT, PROVIDED THAT ACE SHALL PAY TO YOU ALL
AMOUNTS DUE TO YOU PRIOR TO YOUR TERMINATION IN ACCORDANCE WITH SECTION
11.1. Notwithstanding the five (5) day notice period for termination
provided in Section 9, such termination by You in the event of a
modification shall be effective immediately upon receipt by ACE of notice
thereof. Your continued participation in the Program after such five (5)
day period has passed shall constitute acceptance of the modifications.
8. Press Releases; Publicity. You may not announce Your use of
the ACE Graphics on Your Web site unless You first receive ACE's prior
written approval of such announcement. ACE may announce Your use of the
ACE Graphics on Your Web Site in its sole discretion.
9. Term and Termination. This Agreement shall be effective on
the date ACE accepts the Application and shall continue until either party
terminates this Agreement as set forth herein (the "Term"). Either
party may terminate this Agreement at any time for any or no reason upon
five (5) days notice. ACE shall notify You of such termination by sending
you an e-mail on the e-mail address set forth on Your Application, or by
posting a notice on the Reporting Site. You shall notify ACE of such
termination by sending an e-mail to affiliates@fundingay.com.
Notwithstanding the foregoing, ACE may terminate this Agreement
immediately if You breach this Agreement or if Your Web Site is deemed in
ACE's sole discretion to be unsuitable for the Program.
10. Limitation of Liability; Disclaimer; Indemnification.
10.1 Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL
OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES), ARISING IN CONNECTION WITH THIS AGREEMENT
(COLLECTIVELY, "DAMAGES"); PROVIDED THAT YOU SHALL REMAIN LIABLE TO
ACE TO THE EXTENT ANY DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT
TO INDEMNIFICATION PURSUANT TO SECTION 10.3. IN NO EVENT SHALL THE
LIABILITY OF ACE IN CONNECTION WITH THIS AGREEMENT FOR DAMAGES NOT
EXCLUDED IN THE IMMEDIATELY PRECEDING SENTENCE EXCEED THE AMOUNT PAID OR
PAYABLE BY ACE TO YOU UNDER THIS AGREEMENT.
10.2 No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH
IN THIS AGREEMENT, NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY
SPECIFICALLY DISCLAIMS ANY, REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, REGARDING THE SUBJECT MATTER, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. ADDITIONALLY, ALL
OF ACE'S AND ITS AFFILIATE'S WEB SITES, THE ACE GRAPHICS, THE PROPRIETARY
SOFTWARE USED TO CONNECT TO AND USE THE U.S. VERSION OF THE ACE SERVICE ("ACE
SOFTWARE"), AND THE ACE SERVICE (COLLECTIVELY, "SUBJECT MATTER")
ARE PROVIDED "AS IS" AND "AS AVAILABLE."
10.3 Indemnification. You agree to defend, indemnify and hold
harmless ACE, its subsidiaries and affiliates, and their respective
officers, directors, stockholders, agents, distributors and employees
against any loss, damage, expense, or cost, including reasonable attorneys
fees (including allocated costs for in-house legal services) arising out
of any claim, demand, action, suit, investigation, arbitration or other
proceeding by a third party ("Liabilities") based on (i) Your
material breach of any covenant, duty, representation, or warranty of this
Agreement, (ii) materials contained on Your Web Site (including any
allegation that such materials infringe a third party's proprietary
rights).
11. Miscellaneous.
11.1 Survival. Sections 10 (Limitation of Liability;
Disclaimer; Indemnification) 11.1 (Survival), 11.2 (Applicable Law;
Jurisdiction) and 11.4 (No Waiver) shall survive the expiration or
termination of this Agreement. Additionally, to the extent this Agreement
is not terminated as a result of fraud or inappropriate conduct by You or
otherwise as a result of Your breach of this Agreement, the payment
obligations set forth in Section 5 (Referral Fees) shall survive to the
extent that ACE owes You Referral Fees earned prior to the date of
termination.
11.2 Applicable Law; Jurisdiction. This Agreement will be
interpreted, construed, enforced, and governed by the laws of the United
States and the State of Michigan. Any action relating to this Agreement
must be brought in the federal or state courts located in Oakland County,
Michigan, and You irrevocably consent to the jurisdiction of such
courts.
11.3 Unsolicited E-Mail. You agree that You will not send
unsolicited, commercial e-mail (i.e., "spam") to any persons or entities ("Recipients")
absent a Prior Business Relationship. For purposes of this Agreement, a
"Prior Business Relationship" will mean that the Recipient has
voluntarily either (i) engaged in a transaction with You other than
through an ACE Graphic or Link provided on Your Web Site or (ii) provided
information to You through a contest, registration, or other
communication, which included clear notice to the Recipient that the
information provided could result in commercial e-mail being sent to that
Recipient by You or Your agents. Any commercial e-mail or other online
communications that are otherwise permitted hereunder shall include a
prominent and easy means for the Recipient to "opt-out" of receiving any
future commercial communications from You.
11.4 No Waiver. The failure of either party to insist upon or
enforce strict performance by the other party of any provision of this
Agreement or to exercise any right under this Agreement will not be
construed as a waiver or relinquishment to any extent of such party's
right to assert or rely upon any such provision or right in that or any
other instance.
11.5 Assignment. You shall not assign this Agreement or any
right, interest or benefit under this Agreement without the prior written
consent of ACE. Subject to this restriction, this Agreement will be
binding on, inure to the benefit of, and enforceable against the parties
and their respective successors and assigns.
11.6 Injunctive Relief; Remedies. You acknowledge a violation
of this Agreement could cause irreparable harm to ACE for which monetary
damages may be difficult to ascertain or an inadequate remedy. You
therefore agree that ACE will have the right, in addition to its other
rights and remedies, to seek and obtain injunctive relief for any
violation of this Agreement. Except where otherwise specified, the rights
and remedies granted to a party under this Agreement are cumulative and in
addition to, and not in lieu of, any other rights or remedies which the
party may possess at law or in equity.
11.7 Acknowledgment. You acknowledge that You have read this
Agreement and agreed to all the terms and conditions. You understand that
ACE may at any time (directly or indirectly) solicit customer referrals on
terms that may differ from those contained in this Agreement, and ACE and
its affiliates and subsidiaries may operate Web sites that compete with
Your Web Site.
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