| TO JOIN ANY CHROME AUTOMOTIVE NETWORK, YOU MUST BE AN INDIVIDUAL OVER THE AGE OF
EIGHTEEN (OR ANY HIGHER AGE REQUIRED UNDER THE LAWS OF YOUR PLACE OF DOMICILE IN
ORDER TO ENTER INTO CONTRACTS), A CORPORATION, LIMITED PARTNERSHIP, LIMITED
LIABILITY COMPANY OR ANOTHER KIND OF ENTITY RECOGNIZED BY THE LAW AS A LEGAL
PERSON SEPARATE FROM ITS OWNERS. INDIVIDUALS, HOWEVER, MAY NOT JOIN THE CHROME
AUTOMOTIVE NETWORK.
IN ADDITION, YOU MAY USE ANY CHROME AUTOMOTIVE NETWORK ONLY FOR A BUSINESS
PURPOSE AND NOT FOR A PERSONAL, HOUSEHOLD OR FAMILY PURPOSE; THE BUSINESS THAT
YOU CONDUCT THROUGH ANY CHROME AUTOMOTIVE NETWORK MUST BE YOUR PRIMARY BUSINESS
OR AN INTEGRAL PART OF YOUR PRIMARY BUSINESS; AND YOUR USE OF ANY CHROME
AUTOMOTIVE NETWORK MUST BE INTEGRALLY RELATED TO SUCH BUSINESS.
YOU MAY NOT JOIN OR USE ANY CHROME AUTOMOTIVE NETWORK IF YOU DO NOT SATISFY THE
REQUIREMENTS OF THE NETWORK POLICIES REFERRED TO IN THE FOLLOWING AGREEMENT.
TO BE AN AUTHORIZED MEMBER OF ANY CHROME AUTOMOTIVE NETWORK, YOU MUST AGREE TO
THE TERMS OF THE FOLLOWING AFFILIATE MEMBERSHIP AGREEMENT. PLEASE READ THE
AGREEMENT CAREFULLY BEFORE JOINING OR USING ANY CHROME AUTOMOTIVE NETWORK.
BY CLICKING ON THE "ACCEPT" BUTTON OR USING ANY CHROME AUTOMOTIVE NETWORK, YOU
AGREE TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT
THIS AGREEMENT, DO NOT USE ANY CHROME AUTOMOTIVE NETWORK.
AFFILIATE MEMBERSHIP AGREEMENT
This Affiliate Membership Agreement is between CHROME AUTOMOTIVE Corporation, a
New York, U.S.A. corporation ("CHROME AUTOMOTIVE," "We" or "Us") and You ("You"
or "Member").
In consideration of the mutual covenants and agreements contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
acknowledged by the parties, the parties, intending to be legally bound, agree
as follows:
SECTION 1. BACKGROUND
1.1. Certain Website owners ("Merchants") may seek to increase visitor traffic
through a program commonly called an "affiliate program." A Merchant with an
affiliate program invites Website owners or others to join the program and
display or distribute the Merchant's advertising that includes a hyperlink that
leads to the Merchant's Website. Persons who join a Merchant's affiliate program
("Online Affiliates" of that Merchant) receive compensation from the Merchant
based on tracked sales of products or services, application completions or other
specified activities by Web users who activate the hyperlink.
1.2. CHROME AUTOMOTIVE directly or indirectly operates, over the Web, one or
more affiliate marketing networks that have two types of participants: (1)
Merchants who join in order to operate an affiliate program and (2) others who
join in order to participate as Online Affiliates in the affiliate programs of
those Merchants.
1.3. You desire to participate in one or more of such networks as a potential
Online Affiliate for Merchants in such network(s), and this Agreement contains
the terms and conditions for that participation.
SECTION 2. DEFINED TERMS
2.1. References to "this Agreement" are to the following, collectively: (i) this
Affiliate Membership Agreement, (ii) CHROME AUTOMOTIVE's Network Policies For
Affiliates that are posted on a CHROME AUTOMOTIVE Webpage identified on the
relevant Network Site (as defined in Section 2.3) or otherwise made accessible
to You (the "Network Policies"), (iii) any additional or different terms
specifically applicable to membership in any Network (as defined in Section 2.3)
that CHROME AUTOMOTIVE posts on the relevant Network Site or otherwise makes
available and requires that You accept in order to join or continue to use such
Network (the "Additional Terms"), and (iv) any supplement to this Affiliate
Membership Agreement signed by both parties (a "Supplement"), in each case as
such terms may be amended, supplemented or replaced from time to time as
provided in Section 5. To review the Network Policies that are currently in
effect for the various CHROME AUTOMOTIVE Networks, click here.
2.2. The term "Web" means the part of the Internet commonly referred to as the
World Wide Web or any replacement or similar network or resource which permits
the sharing of electronic files, graphics or information, regardless of how it
is accessed by users, whether through computers, WebTV, cable set-top boxes,
cellular telephones or other wireline or wireless device, platform or
technology. A capitalized term used in this Agreement is defined in the
provision of this Agreement first used or in Section 2.3. Unless defined in this
Agreement or unless the context otherwise requires, terms used in this Agreement
that have commonly accepted meanings within the Web-based e-commerce industry
are intended to have such meanings. The term "Website" means a site on the Web
and, where the context requires, a person owning or operating a site on the Web.
2.3. The following terms have the meanings indicated:
"Content"
Information, communications, software, photos, text, video, graphics, music,
sounds, images and other material.
"Link"
Any software, software code, programming or other technology or method (or any
combination of the foregoing) that (i) creates a hyperlink between two Websites,
or (ii) otherwise causes a Web access device to display to its user a "banner,"
"button," text-mention, word, phrase, logo or other textual or graphical
material that, when "clicked on" or otherwise activated by a person, results in
a Website featured in the link being served to such person (i.e., the screen of
the visitor's Web access device displays Content on the linked Website) or
results in such person being able to electronically access or receive
information, files, graphics or other items from the linked Website.
"CHROME AUTOMOTIVE Network"Any affiliate marketing network now or hereafter
operated by CHROME AUTOMOTIVE or by a corporate affiliate of CHROME AUTOMOTIVE,
including the affiliate marketing networks that CHROME AUTOMOTIVE currently
operates under the service names The CHROME AUTOMOTIVE Network ®, B2B CHROME
AUTOMOTIVESM, and CHROME AUTOMOTIVE , but excluding any "private label network"
that is operated for a specific Merchant or restricted group of Merchants.
"Network"
As of any time, any CHROME AUTOMOTIVE Network, which You have joined in
accordance with CHROME AUTOMOTIVE's requirements and of which You are a member
as of such time.
"Network Affiliate"
As of any time and with respect to any CHROME AUTOMOTIVE Network, a person which
is a member of such CHROME AUTOMOTIVE Network as a potential Online Affiliate
for Network Merchants under an effective online or written agreement with CHROME
AUTOMOTIVE.
"Network Merchant"
As of any time and with respect to any CHROME AUTOMOTIVE Network, a person which
is then a member of such CHROME AUTOMOTIVE Network under an effective Merchant
Agreement with CHROME AUTOMOTIVE for purposes of conducting one or more
affiliate programs.
"Network Site"
For any Network, the Webpage(s) or other area of the Website having the URL
designated from time to time by CHROME AUTOMOTIVE for use by members of that
Network for the purpose of facilitating formation of Qualifying Links, accessing
reports and otherwise participating in such Network.
"Program"
An affiliate program or other performance-based marketing arrangement that any
Network Merchant conducts through any Network.
"Program Site"
For any Program, a Website that a Network Merchant is authorized to use in the
relevant Network.
"Promotion"
A banner, text-mention, advertisement or other material by which a Network
Merchant offers its products or services to Web users or otherwise seeks to
attract Web users to its own Website.
"Qualifying Link"
With respect to any Network and any Program in which You participate a Link that
(i) when activated by a viewer results in the viewer being redirected to or
served, through or on the Network Site, a Webpage or duplicate of a Webpage of a
Program Site, (ii) You post on Your Site authorized to be used in such Network
or, subject to any prohibitions or limitations imposed by such Network Merchant,
You include in an e-mail message, incorporate into browser or browser extension
software, make available on a "kiosk" or otherwise make available to Web users,
(iii) is of a kind and format for which CHROME AUTOMOTIVE provides its tracking
services for Network Merchants and (iv) is established through the interface of
such Network Site or otherwise as instructed by CHROME AUTOMOTIVE and includes
any tracking or other code required by CHROME AUTOMOTIVE, in each case in
accordance with CHROME AUTOMOTIVE's technical guidelines.
"Your Site"
For any Network, a Website that You own and operate and have properly registered
for use in such Network.
2.3. The words "include," "includes" and "including" shall be deemed to be
followed by the phrase "without limitation." The word "or" means "and/or." If,
in any provision of this Agreement, any example is given (through the use of the
words "such as," "for example," "e.g." or otherwise) of the meaning, intent or
operation of such provision, such example is intended to be illustrative only
and not exclusive or limiting. The term "person" is to be broadly construed and
includes any natural person or any corporation, trust, association, limited
liability company, partnership, joint venture or other entity. A "corporate
affiliate" of any person is any other person that directly or indirectly through
one or more intermediaries controls, is controlled by or is under common control
with such first person, with "control" meaning the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a person. A "business day" is a weekday in New York City, USA, that
CHROME AUTOMOTIVE does not observe as a holiday. The word "Your" is a possessive
pronoun that refers to You and the word "Our" is a possessive pronoun that
refers to CHROME AUTOMOTIVE.
2.4. Whenever the context requires, any pronoun shall include the corresponding
masculine, feminine and neuter forms. Section or other headings or captions
shall not affect in any way the meaning or interpretation of this Agreement.
Unless otherwise stated, references in this Affiliate Membership Agreement to a
Section or subsection are to a Section or subsection of this Affiliate
Membership Agreement. All definitions apply equally to both the singular and
plural forms of the terms defined. This Agreement shall be construed according
to its fair meaning and not strictly for or against either party.
SECTION 3. NETWORK MEMBERSHIP
3.1. By clicking on an "Accept" or similar button on a Network Site or another
Website of CHROME AUTOMOTIVE or by using any Network, You acknowledge that You
have read, accepted and agreed to be bound by the terms of this Agreement
(including the Network Policies) with the same force and effect as if this
Agreement were set forth in a written document that had been duly signed and
physically delivered by You and CHROME AUTOMOTIVE, and this Agreement becomes
effective when You do so. In the event of any conflict between the respective
express provisions of this Affiliate Membership Agreement, any applicable
Network Policies, any applicable Additional Terms or any Supplement, the
conflict shall be resolved in accordance with the following order of precedence:
(i) Supplement, (ii) Additional Terms, (iii) Network Policies and (iv) this
Agreement.
3.2. To use any CHROME AUTOMOTIVE Network as a Network Affiliate, You must
register on the page of the relevant Network Site provided by CHROME AUTOMOTIVE
for such purpose. You agree to promptly provide CHROME AUTOMOTIVE with accurate
and complete updated registration information if and as such information
changes. As part of the registration process for any Network, You shall be
assigned a unique alphanumeric password and user name for that Network (Your
"Credentials"). CHROME AUTOMOTIVE may deny access to and use of any CHROME
AUTOMOTIVE Network unless or until any preconditions established by CHROME
AUTOMOTIVE and published on the registration area of the relevant Network Site
are satisfied.
3.3. You represent and warrant to and agree with CHROME AUTOMOTIVE as follows:
The information You provide as part of the registration process or otherwise
shall be, at the time provided, accurate and complete.
You have carefully read this Agreement (including the applicable Network
Policies, Additional Terms and Supplements, if any) and consulted Your own legal
counsel to the extent You deem necessary (or shall have consciously decided not
to consult a lawyer). You fully understand that this Agreement creates legally
binding obligations on Your part.
This Agreement has been duly and validly accepted, executed and delivered by You
and constitutes Your legal, valid, and binding obligation, enforceable against
You in accordance with its terms.
The execution and delivery or acceptance or deemed acceptance and performance by
You of this Agreement and the participation by You in any Network and any
Program does not and shall not conflict with or violate (i) any law, rule,
regulation, order, judgment, decree, agreement or instrument applicable to You
or binding upon Your assets or (ii) if You are an entity, any provision of Your
certificate of incorporation or other organizational documents.
You shall independently evaluate the desirability of participating in any
Network or Program You apply to or join. You agree that in deciding to
participate in any Network or any Program, You shall not rely on any
representation, warranty, guaranty or statement by CHROME AUTOMOTIVE other than
any representation expressly set forth in this Agreement and expressly stated to
be a representation.
3.4. You agree not to resell, assign, sublicense or otherwise provide to any
third person any of Your rights or benefits, or transfer or delegate any of Your
obligations, under this Agreement or as a Network Affiliate without the prior
written consent of CHROME AUTOMOTIVE, except to the extent authorized by the
Network Policies if You meet the requirements for acting as a "superaffiliate"
set forth in the Network Policies.
3.5. You agree that, during the applicable Restricted Period (as defined below),
You shall not maintain or create any Link outside of a Network with any Network
Merchant on terms that provide for payment to You of compensation for levels of
Web user activities attributable to such Link, other than a Qualifying Link
through the relevant Network or otherwise enter into any agreement or
arrangement with any Network Merchant intended to reduce the fees that would
otherwise be payable to CHROME AUTOMOTIVE by such Network Merchant. The term
"Restricted Period" means, with respect to any Network Merchant, the period
beginning on the effective date of this Agreement and ending on the first to
occur of (i) one year after the date You cease to be a member of the relevant
Network in accordance with this Agreement and (ii) the date such Network
Merchant is entitled, by the express terms of its Merchant Agreement with CHROME
AUTOMOTIVE, to form links with Network Affiliates outside of the relevant
Network without restriction. You may request CHROME AUTOMOTIVE to inform You of
the date referred to in clause (ii) of the immediately preceding sentence with
regard to any specific Network Merchant by e-mailing CHROME AUTOMOTIVE at
notices@CHROME AUTOMOTIVE.com.
3.6. You agree that You are solely responsible for all tax obligations due to
all taxing authorities arising from or in connection with Your participation in
any Network or any Program, including federal, state, local and foreign
withholding taxes, FICA, FUTA, Social Security, Medicare, SUI and any and all
other federal, state, local and foreign taxes. In addition, You agree that
payments to You by a Network Merchant or CHROME AUTOMOTIVE on behalf of a
Network Merchant shall be subject to withholding under any applicable tax law,
rule or regulation. You shall promptly provide CHROME AUTOMOTIVE with any
information it reasonably requests in order to determine if withholding is
required. If CHROME AUTOMOTIVE acts for any Network Merchant in disbursing any
payment due from it to You, then You authorize CHROME AUTOMOTIVE to withhold
taxes from payments to You that it believes in good faith are required. Without
limiting the generality of the foregoing, You agree that, as between You and
CHROME AUTOMOTIVE, You are solely responsible for calculation and payment or
collection of, accounting for and issuing or obtaining invoices relating to any
applicable Value Added Taxes.
3.7. You understand and agree that participation in any Network will involve
establishing contractual arrangements with CHROME AUTOMOTIVE (including this
Agreement) or CHROME AUTOMOTIVE Merchants that are stored electronically on
servers and are formed by means of "clicking on" an accept button on the LSN
Site or a Merchant's Website or through other electronic means. You agree not to
assert that any such contract is invalid or unenforceable solely because it
takes such form or was formed by such means rather than taking the form of a
written document formed by the manual signatures of the parties or another form
or method
SECTION 4. MEMBERSHIP SERVICES
4.1. As a Network Affiliate in any Network, You shall be potentially eligible to
join the Programs and receive offers to form Qualifying Links made by one or
more Network Merchants who are members of that Network ("Link Offers"). As
described in Section 6, the fact that Network membership makes You potentially
eligible to join Programs or receive Link Offers does not necessarily mean that
You shall also meet the eligibility requirements for participation in the
Program or any Link Offer of any particular Network Merchant. Each Network
Merchant is responsible for its own Programs and its own Link Offers, including
providing the software code for the graphical artwork or other materials to use
in Links.
4.2. You shall have, on the Network Site for any Network of which You are a
member in good standing, an individual account accessible through the Web by use
of Your Credentials. CHROME AUTOMOTIVE shall periodically post to Your account
reports regarding activities tracked by CHROME AUTOMOTIVE for the Network
Merchants with which You from time to time have Qualifying Links (Your
"Affiliate Reports"). Subject to Section 5, the contents, format and frequency
of Your Affiliate Reports for any Network shall be substantially the same as for
the comparable reports that CHROME AUTOMOTIVE provides without separate charge
to Network Affiliates in such Network generally as part of its basic services
for such Network, which may vary from time to time in CHROME AUTOMOTIVE's
discretion.
4.3. You shall be responsible for maintaining the confidentiality and security
of Your Credentials and for all usage of Your account. Absent actual receipt of
written notice to the contrary from You, CHROME AUTOMOTIVE may assume that any
person accessing any Network Site using Your Credentials is authorized to do so.
4.4. CHROME AUTOMOTIVE shall not be liable to You as a result of failure by You
or any Network Merchant to use Qualifying Links, including to the extent that
such failure results in inaccurate reports or reduction of the amounts which
would otherwise be payable to You by any Network Merchant.
4.5. You acknowledge that the accuracy, completeness and currency (in time) of
the data included in Your Affiliate Reports is a function of the accuracy,
completeness and currency of the underlying data that CHROME AUTOMOTIVE obtains
from Network Merchants. CHROME AUTOMOTIVE shall not be responsible or liable for
any errors in or omissions from such underlying data or any Network Merchant's
failure to make or delay in making such data available to CHROME AUTOMOTIVE or
for any intentional or inadvertent deletion or disablement by You or a Network
Merchant of any of CHROME AUTOMOTIVE's tracking code or technology, or any
consequences of the foregoing. CHROME AUTOMOTIVE's obligation, if any, to
provide data or Affiliate Reports to You or any Network Merchant is subject to
the provision to CHROME AUTOMOTIVE, on a timely basis, of the necessary data of
the kinds and in the form, format and manner required by CHROME AUTOMOTIVE.
CHROME AUTOMOTIVE may rely on any data, notice, instruction or request furnished
to CHROME AUTOMOTIVE by You, any Network Merchant or any other third party which
is believed by CHROME AUTOMOTIVE in good faith to be genuine.
4.6. If a Network Merchant reports a transaction or activity that occurred in a
particular month to CHROME AUTOMOTIVE after such month ends, then CHROME
AUTOMOTIVE may, in its discretion, incorporate that event into Your Affiliate
Reports for that month or for some subsequent period.
4.7. You acknowledge and agree that each Network Merchant whose Program You join
shall receive reports from CHROME AUTOMOTIVE that identify You and may include
data about You and Your Qualifying Links with that Network Merchant. If CHROME
AUTOMOTIVE is notified by a Network Merchant that it believes that its reports
about its relationship with You contain an error or omission or otherwise
require adjustment, CHROME AUTOMOTIVE may elect to revise those reports as
requested by the Network Merchant and make corresponding changes to Your
Affiliate Reports. Since the reports CHROME AUTOMOTIVE provides You and such
Network Merchant are the bases for calculating the compensation, if any, due to
You from that Network Merchant, any such adjustment may affect the amount of
compensation to which You are entitled.
4.8. If You believe that any of Your Affiliate Reports for any month contains
errors in the data about Your relationship with any Network Merchant, You must
notify CHROME AUTOMOTIVE and that Network Merchant within ten days after the end
of that month or any shorter period that may be provided for in Your agreement
with that Network Merchant so that, if possible, the matter may be resolved. If
any Affiliate Reports for any month are corrected or adjusted after the end of
the month, then the period within which You must notify CHROME AUTOMOTIVE of
errors in the corrected or adjusted data shall be ten days after such correction
or adjustment is posted or any shorter period that may be provided for in Your
agreement with the relevant Network Merchant. Any dispute between You and a
Network Merchant about any error You report must be resolved by You and that
Network Merchant
4.9. You acknowledge that Your entitlement to any compensation reported with
respect to any tracked or reported activity is solely a function of the terms of
Your agreement with the relevant Network Merchant and that such Network Merchant
is solely responsible for its payment. The fact that a compensation amount is
reported for any tracked activity does not necessarily mean that a payment is
due to You from the relevant Network Merchant, since payment may be subject to
conditions established by that Network Merchant, including policies regarding
order cancellation, returned merchandise, receipt of pending credit card
authorizations and minimums for earned compensation before payment is made. All
determinations of Qualifying Links and the compensation due to You made by
CHROME AUTOMOTIVE shall be final and binding on You.
SECTION 5. CHANGES IN NETWORK, SERVICES AND MEMBERSHIP TERMS
5.1. CHROME AUTOMOTIVE reserves the right to take, at any time, any of the
following actions (each a "change"):
Add to, remove or otherwise change the terms or provisions of this Agreement or
replace this Agreement in its entirety.
Add, remove, suspend or discontinue any aspect of any Network, limit, restrict,
condition or deny access to or use of all or part of any CHROME AUTOMOTIVE
Network or otherwise change any Network or Your right to use any Network.
Charge fees for continued access to or use of any Network or any aspect thereof
or any services that CHROME AUTOMOTIVE provides or makes available to You.
CHROME AUTOMOTIVE may notify You of such change by posting a notice on the
relevant Network Site or, in its discretion, by e-mail, newsletter, postal mail
or personal or overnight delivery. Such change shall be effective when such
notice is posted or otherwise given or any other time specified in such notice,
except that
If any such change would result in You becoming required to pay fees not
previously payable or increase fees already payable, then such notice of such
change shall be given by one of such means at least thirty days before such
change becomes effective.
In the case of any other change that would, in CHROME AUTOMOTIVE's good faith
and reasonable judgment, materially adversely affect Your rights or obligations
under this Agreement, then such notice of such change shall be given by one of
such means at least five business days' before such change becomes effective,
except that shorter advance notice (but not less than two business days) may be
given in a situation that CHROME AUTOMOTIVE believes in good faith to be an
emergency or otherwise have an adverse effect on a Network if a longer notice
were given.
You are responsible for regularly reviewing each Network Site in order to learn
of any changes. YOUR CONTINUED USE OF ANY NETWORK AFTER SUCH NOTICE IS POSTED OR
OTHERWISE GIVEN (AND AFTER EXPIRATION OF ANY APPLICABLE PRIOR NOTICE PERIOD
SPECIFIED ABOVE) SHALL CONSTITUTE YOUR BINDING AND LEGALLY ENFORCEABLE AGREEMENT
TO SUCH CHANGE. IF YOU DO NOT WISH TO ACCEPT ANY SUCH CHANGE, THEN YOU MUST
WITHDRAW FROM SUCH NETWORK AND CEASE USING SUCH NETWORK.
5.2. You acknowledge and agree that CHROME AUTOMOTIVE may at any time enroll any
person as a Network Affiliate on terms that differ from those contained in this
Agreement, and may also operate other affiliate marketing networks or programs
that are similar to or compete with any Network in which You are a member.
SECTION 6. PARTICIPATION IN THE AFFILIATE PROGRAMS OF NETWORK MERCHANTS
6.1. Subject to the terms of its Merchant Agreement with CHROME AUTOMOTIVE, each
Network Merchant has complete discretion in limiting the persons to whom it
makes Link Offers or by whom its Link Offers may be accepted, and in
establishing the terms and conditions of its Link Offers and agreements
regarding its Qualifying Links and participation in its Program. In general, to
accept any Link Offer by a Network Merchant, You shall be required to join the
Program of such Network Merchant. Subject to the terms of its Merchant Agreement
with CHROME AUTOMOTIVE, each Network Merchant has complete discretion in setting
eligibility and other requirements and conditions for membership and
participation in its Program and Link Offers.
6.2. In order to join the Program or accept a Link Offer of a Network Merchant,
You must follow the instructions and satisfy the requirements of that Network
Merchant. In most cases, this will require, among other things, that You enter
into an online or written agreement (an "Engagement") with such Network Merchant
by which You accept, electronically or in writing, such Network Merchant's terms
and conditions for participation in its Program or for accepting a Link Offer.
6.3. You agree to comply with the Engagements and other terms and requirements
for participation established by each Network Merchant whose Program You join.
6.4. Subject only to compliance with Section 5.1, CHROME AUTOMOTIVE may, with
the consent of such Network Merchant, if required, but without Your prior
approval, institute policies or procedures that have the effect of modifying the
terms of Your Engagements with a Network Merchant. Upon effectiveness, such
policy or procedure shall apply to You, notwithstanding any contrary provision
of Your Engagements, and Your Engagements shall automatically be deemed to be
modified to reflect such policy or procedure, without the necessity of any
formal amendment of such Engagements or other action on Your, CHROME
AUTOMOTIVE's or any Network Merchant's part. No such modification, however, may
have retroactive effect without Your consent.
6.5. You agree that You shall not:
Place or use any Link of any Network Merchant except with the intention of
delivering valid sales, leads, applications, accounts, clicks or other specified
compensable actions to that Network Merchant;
Distribute or display, or authorize or use any third party to distribute or
display, any Qualifying Link or any other Link of any Network Merchant created
or obtained through the Network by means of any browser extension or other
software or technology which is downloaded to or installed on the Web user's
personal computer or other Web access device and which serves advertisements,
promotional material or links as an overlay upon, a substitute for content in,
as a "pop-up" keyed by content or key words on a Webpage requested or viewed by
such Web user;
Inflate the number of applications, accounts, clicks or other specified
compensable actions or any impressions of any Network Merchant's Webpage,
Promotion or other Content by any method or using any device, program, hidden
frames, java pop ups, Web bot, robot, automatic redirecting of users,
autospawning of browsers or any other technique or means of generating automated
click-throughs, requiring visitors to click on a Network Merchant's Link before
entering any area of Your Site(s), by placing or including Promotions or links
on pages of Your Site that automatically reload or go to another page without
interaction from the user (for example, client pull or server push technology,
METATAG reload, or refresh command on page html) or on any page that is not
generally accessible to all Web users (for example, pop-up windows and hidden
frames);
Resell, assign, sublicense or otherwise provide any third person any of Your
rights or benefits, or otherwise transfer or delegate any of Your obligations,
as a participant in any Program, except to the extent authorized by the Network
Policies if You meet the requirements for acting as a "superaffiliate" set forth
in the Network Policies;
Display, distribute or otherwise make available to Web users or others any
Promotion of or any Link to any Program Site anywhere by any means or method
prohibited by such Network Merchant or that violates any law, rule or regulation
or any intellectual or other rights of such Network Merchant or any third party;
or
Use any name, trademark, service mark, domain name or other intellectual
property of any third party in connection with Your use of the Network, Your
participation in any Program or any Qualifying Link in any way or for any
purpose that infringes or violates any law or any intellectual property or other
rights of such third party, whether in order to increase the levels of
compensable activities attributable to Your Qualifying Links or for any other
purpose.
6.6. Network Merchants' offers and Engagements for payment to Network Affiliates
of compensation per click-through or per specified number of click-throughs are
subject to any and all restrictions, limitations and policies that CHROME
AUTOMOTIVE may institute at any time and from time to time. Such restrictions,
limitations and policies apply to all such offers and Engagements, even if not
so stated in their terms or even if their terms state something different.
6.7. If You violate any Network policy or engage in any actual or suspected
fraudulent, abusive or illegal activity as a Network Affiliate or participant in
any Network Merchant's Program, CHROME AUTOMOTIVE may suspend or terminate Your
membership in, access to and use of any or all Networks and Network Merchant's
programs, and may require that any and all compensation otherwise due to You
from any or all Networks or Network Merchants be forfeited. Such suspension,
termination or forfeiture is in addition to any other rights and remedies that
CHROME AUTOMOTIVE or any Network Merchant may have in contract, at law or in
equity. In addition, such activity may result in referral to the appropriate law
enforcement agencies for investigation and, where appropriate, prosecution.
SECTION 7. TERMINATION OF MERCHANTS' PARTICIPATION IN A NETWORK
Any Network Merchant's participation in any Network may end or be suspended for
a number of reasons, including expiration or early termination of its merchant
agreement with CHROME AUTOMOTIVE, and You shall not necessarily receive any
prior notice that such Merchant's participation is ending. If a Network
Merchant's participation in any Network ends or is suspended for any reason, its
Program conducted through such Network shall end or be suspended and CHROME
AUTOMOTIVE may, without notice to You, terminate or suspend all Qualifying Links
that You have with that Merchant immediately or, in CHROME AUTOMOTIVE's
discretion, at any time thereafter. You agree that CHROME AUTOMOTIVE shall have
no obligation or liability to You because of any termination or suspension of
the participation of any Network Merchant in any Network or any of Your
Qualifying Links with such Network Merchant or any consequence thereof (even if
CHROME AUTOMOTIVE was notified or otherwise aware that such consequence could
result), whether such termination or suspension is by such Network Merchant or
CHROME AUTOMOTIVE, is with or without cause or occurs with or without notice.
SECTION 8. CHROME AUTOMOTIVE IS A HOST ONLY
8.1 CHROME AUTOMOTIVE is the host of each Network. Network Merchants and Network
Affiliates are independent parties and CHROME AUTOMOTIVE does not and shall not
have any responsibility or liability for the acts, omissions, Promotions,
Content or Links of any Network Merchant, Network Affiliate or other third
party, including breaches of Engagements by Network Merchants, or for screening
or policing the Websites or actions of Network Merchants or Network Affiliates.
Without limiting the generality of the foregoing:
The obligation to pay any compensation You earn from Your Qualifying Links is
solely the responsibility of each Network Merchant with which You form those
Qualifying Links, and CHROME AUTOMOTIVE is not liable or responsible for payment
or collection. That is true even if CHROME AUTOMOTIVE at any time acts as a
Network Merchant's agent for disbursing checks or payments and sends You a check
or other payment drawn on a CHROME AUTOMOTIVE account.
The Engagements You enter into with a Network Merchant are solely obligations of
such Merchant, not of CHROME AUTOMOTIVE. If the terms of any such Engagement
purport to create any obligation of liability on the part of CHROME AUTOMOTIVE,
those terms shall not bind CHROME AUTOMOTIVE.
8.2 CHROME AUTOMOTIVE's services do not involve investigating or resolving any
claim or dispute involving You and any Network Merchant or other third party. If
CHROME AUTOMOTIVE, in its discretion, elects to investigate or otherwise become
involved in any such claim or dispute, it shall not thereby undertake, assume or
have any duty, obligation or liability to You or any other party to the claim or
dispute.
SECTION 9. USE OF NETWORK, CONTENT, NAMES AND LOGOS
9.1. For each Network of which You are a member in good standing, CHROME
AUTOMOTIVE grants You a personal, non-exclusive, non-transferable, revocable and
limited license and right, subject to the terms of this Agreement, to:
Participate in such Network as a Network Affiliate.
Access the areas of the relevant Network Site necessary for Your participation
in such Network as a Network Affiliate.
Solely for Your use in connection with Your participation in such Network,
download Your individual Affiliate Reports.
For the sole purpose of creating and maintaining Qualifying Links in accordance
with this Agreement and Your Engagements, use any software code or other Content
of CHROME AUTOMOTIVE that is provided by CHROME AUTOMOTIVE for such purpose, but
only in the form so provided.
All other use of any Network, Network Site, Affiliate Reports and such software
code or Content, including modification, publication, transmission, transfer or
sale of, reproduction, creation of derivative works, distribution, performance,
display, incorporation into another Web site or mirroring is prohibited. You
agree that You shall not alter or modify such licensed code or Content in any
way. This Agreement does not grant to You any license or right to use CHROME
AUTOMOTIVE's name or any of its logos or trade or service names or marks or,
except for the limited licenses and rights expressly granted by the first
sentence of this Section 9.1 while they endure, any of CHROME AUTOMOTIVE's other
intellectual property.
9.2. Your rights and licenses (if any) granted by this Agreement with respect to
any Network are valid only while You remain a member of such Network as a
Network Affiliate in good standing and comply with this Agreement. CHROME
AUTOMOTIVE reserves all of its rights in each Network Site and all such software
code, reports and Content and Our other proprietary rights. CHROME AUTOMOTIVE
may revoke any such license at any time by giving You notice by e-mail or in
writing.
9.3. You grant to Us a non-exclusive license to utilize Your corporate, service
and trade names, domain name and logos to advertise, market, promote, and
publicize in any manner Our rights hereunder or any Network. This license shall
terminate upon the effective date of the expiration or termination of this
Agreement. You also hereby grant to Us a worldwide, perpetual, irrevocable,
royalty-free, sublicenseable (through multiple tiers) right to exercise all
copyright and publicity rights, in any media now known or not currently known,
with respect to any Content You provide to CHROME AUTOMOTIVE.
9.4. You agree to provide CHROME AUTOMOTIVE, promptly following its request, the
server log files for Your Site(s) and any other information or data reasonably
requested solely for the purpose of auditing or confirming activities related to
the Network or Your participation in any Program, which CHROME AUTOMOTIVE shall
treat as Your confidential information and use solely for such purpose.
9.5. CHROME AUTOMOTIVE makes no representation whatsoever about any other
Website which You may access through any Network. You understand that when You
access a non-CHROME AUTOMOTIVE Website through any Network, it is independent
from CHROME AUTOMOTIVE. CHROME AUTOMOTIVE acts as a passive conduit for the
unfiltered online distribution and publication of Content by the members of a
Network and does not attempt to control the Content that You or visitors to Your
Site(s) shall receive or view. By its very nature, other people's Content may be
offensive, harmful or inaccurate, and in some cases, may be mislabeled or
deceptive. CHROME AUTOMOTIVE disclaims control over or responsibility or
liability for the Content on any other person's Website or posted or distributed
on or through the Network or its resources or facilities.
9.6. You represent and warrant to CHROME AUTOMOTIVE that all Content You upload
to any Network Site or otherwise provide or use in connection with any Network
is solely owned by You or provided or used by You with the express authority of
the owners, does not infringe upon any other individual's or organization's
rights (including intellectual property rights). By submitting Content to or for
use on any Network Site or otherwise by CHROME AUTOMOTIVE or distributing any
Content through the Network or any of CHROME AUTOMOTIVE's services or
facilities, You
automatically grant to CHROME AUTOMOTIVE a royalty-free, perpetual, irrevocable,
non-exclusive right and license to use, reproduce, sell, modify, adapt, publish,
translate, create derivative works from, distribute, perform and display such
Content (in whole or part) worldwide and to incorporate it in other works in any
form, media, or technology; and
represent and warrant to CHROME AUTOMOTIVE that such Content does not contain
any virus, trojan horse, worm, time bomb, cancelbot or other computer
programming routines that are intended to damage, detrimentally interfere with,
surreptitiously intercept or expropriate any system, data or personal
information
9.7. As between You and CHROME AUTOMOTIVE, CHROME AUTOMOTIVE shall own all
information about the identities, postal and e-mail addresses, telephone numbers
and names and contact information for Network Merchants and Network Affiliates
(other than Your own) and the transactions conducted by any such person through
any Network.
SECTION 10. RISK MANAGEMENT
10.1. EACH NETWORK AND ANY SUPPORT OR SERVICES FROM CHROME AUTOMOTIVE ARE
PROVIDED "AS IS" AND "AS AVAILABLE." TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, CHROME AUTOMOTIVE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
THAT THE OPERATION OF ANY NETWORK, NETWORK SITE, SERVER, EMAILS SENT BY CHROME
AUTOMOTIVE, OR REPORTS SHALL BE UNINTERRUPTED OR ERROR-FREE OR WILL NOT CONTAIN
OR INTRODUCE VIRUSES OR OTHER HARMFUL ELEMENTS OR COMPONENTS,
AS TO THE ACCURACY, RELIABILITY OR SECURITY OF DATA,
OF NON-INFRINGEMENT, OR
ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
ANY LINKS USED OR CONTENT OR OTHER ITEM DOWNLOADED OR OTHERWISE OBTAINED THROUGH
PARTICIPATION IN THE NETWORK OR ANY PROGRAM OF ANY NETWORK MERCHANT IS DONE AT
YOUR OWN DISCRETION AND RISK AND CHROME AUTOMOTIVE SHALL HAVE NO LIABILITY FOR
ANY DAMAGE TO COMPUTER SYSTEMS OR LOSS OF DATA THAT MAY RESULT.
10.2. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU (FOR YOURSELF AND
YOUR CORPORATE AFFILIATES) HEREBY RELEASE CHROME AUTOMOTIVE AND ITS CORPORATE
AFFILIATES, OFFICERS, DIRECTORS, AGENTS, SUBCONTRACTORS, AND EMPLOYEES (THE
"RELEASED PERSONS") FROM ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, DEBTS,
OBLIGATIONS, DAMAGES, COSTS, AND EXPENSES OF ANY KIND OR NATURE WHATSOEVER,
WHETHER KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, DISCLOSED OR UNDISCLOSED,
NOW EXISTING OR HEREAFTER ARISING THAT IN ANY WAY RESULT FROM, ARISE OUT OF OR
RELATE TO
THIS AGREEMENT,
YOUR PARTICIPATION IN ANY NETWORK OR ANY MERCHANT'S PROGRAM,
USE OR MISUSE OF ANY NETWORK OR ANY SUCH PROGRAM,
RELIANCE ON ANY NETWORK OR ANY SUCH PROGRAM, INABILITY TO USE ANY NETWORK OR
PARTICIPATE IN ANY SUCH PROGRAM,
THE INTERRUPTION, SUSPENSION OR TERMINATION OF ANY NETWORK, ANY SUCH PROGRAM OR
YOUR ACCESS TO, USE OF OR PARTICIPATION IN ANY NETWORK OR ANY SUCH PROGRAM, OR
ANY ACT OR OMISSION OF CHROME AUTOMOTIVE RELATIVE TO THE FOREGOING,
EXCEPT (AND IN ANY EVENT SUBJECT TO THE EXCLUSIONS AND LIMITATIONS SET FORTH IN
AND OTHER APPLICABLE PROVISIONS OF THIS SECTION 10) ONLY FOR ANY LIABILITY OF
CHROME AUTOMOTIVE TO YOU THAT RESULTS PRIMARILY AND PROXIMATELY FROM CHROME
AUTOMOTIVE'S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE. TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, YOU HEREBY WAIVE THE APPLICATION OF ALL EXISTING
AND FUTURE LAWS THAT MAY LIMIT THE EFFICACY OF SUCH RELEASE. IF YOU ARE A
CALIFORNIA RESIDENT, THEN WITHOUT LIMITING THE GENERALITY OF THE IMMEDIATELY
PRECEDING SENTENCE, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." THIS
SECTION 10.2 SHALL SURVIVE THE UNENFORCEABILITY OR OTHER FAILURE OF ANY
PROVISION OF THIS AGREEMENT THAT PURPORTS TO EXCLUDE OR LIMIT REMEDIES OR
LIABILITY.
10.3. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE THAT IN NO
EVENT SHALL CHROME AUTOMOTIVE OR ANY OTHER RELEASED PARTY BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, SPECIAL, EXEMPLARY OR PUNITIVE
DAMAGES OR FOR ANY OTHER DAMAGES (HOWEVER DENOMINATED) FOR OR BASED ON OR
MEASURED BY HARM TO BUSINESS, LOST REVENUES, LOST SAVINGS, LOSS OF OR ON ANY
INVESTMENT, LOST PROFITS, LOSS OF OPPORTUNITY, LOSS OF USE, LOSS OF DATA, LOSS
OF GOODWILL, COSTS OF REPLACEMENT GOODS OR SERVICES OR OTHERWISE. THIS SECTION
SHALL SURVIVE THE UNENFORCEABILITY OR OTHER FAILURE OF ANY PROVISION OF THIS
AGREEMENT THAT PURPORTS TO EXCLUDE OR LIMIT REMEDIES OR LIABILITY.
10.4. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES AGREE THAT
EACH OF THE RELEASES, DISCLAIMERS, LIMITATIONS AND EXCLUSIONS CONTAINED IN
SECTIONS 10.1 THROUGH 10.4, INCLUSIVE, SHALL INDEPENDENTLY APPLY REGARDLESS OF (i)
THE FORM OF ACTION (INCLUDING ANY ACTION IN CONTRACT OR BASED ON WARRANTY,
NEGLIGENCE, TORT, STRICT LIABILITY OR STATUTE), (ii) ANY CLAIM OR FINDING THAT
ANY BREACH OF OR DEFAULT UNDER THIS AGREEMENT WAS TOTAL OR FUNDAMENTAL, (iii)
THE TYPE OF DAMAGES, (iv) ANY CLAIM OR FINDING WITH RESPECT TO THE ADEQUACY,
FAILURE, PURPOSE OR SUFFICIENCY OF ANY REMEDY OFFERED OR PROVIDED FOR UNDER THIS
AGREEMENT AND (v) WHETHER A PERSON WAS INFORMED OR AWARE OF, OR OTHERWISE COULD
HAVE ANTICIPATED THE POSSIBILITY OF, SUCH DAMAGES OR LIABILITY.
10.5. IF, IN A FINAL DECISION OF A COURT OF COMPETENT JURISDICTION (NOT SUBJECT
TO FURTHER APPEAL), IT IS HELD THAT ANY OF THE FOREGOING RELEASES, DISCLAIMERS,
LIMITATIONS OR EXCLUSIONS MAY NOT BE ENFORCED, EVEN THOUGH THE EXPRESS
PROVISIONS HEREOF PROVIDE FOR SUCH RELEASE, DISCLAIMER, LIMITATION OR EXCLUSION
AND THE PARTIES INTEND SUCH EXCLUSION OR RELEASE TO BE ENFORCED, THEN IN SUCH
JURISDICTION, CHROME AUTOMOTIVE'S LIABILITY IS LIMITED TO THE SMALLEST AMOUNT
PERMITTED BY LAW.
10.6. THE OBLIGATIONS OF EACH PARTY ARE SOLELY CORPORATE (OR OTHER
ORGANIZATIONAL) OBLIGATIONS, NO AFFILIATE, STOCKHOLDER, DIRECTOR, OFFICER,
EMPLOYEE, CONSULTANT OR AGENT OF EITHER PARTY SHALL BE SUBJECT TO ANY PERSONAL
LIABILITY WHATSOEVER TO THE OTHER PARTY OR ANY OF ITS AFFILIATES, STOCKHOLDERS
OR CREDITORS OR ANY OTHER PERSON OR ENTITY, NOR SHALL ANY SUCH CLAIM BE ASSERTED
(DIRECTLY, DERIVATIVELY OR OTHERWISE) BY OR ON BEHALF OF EITHER PARTY OR ANY OF
ITS SUCCESSORS OR ASSIGNS.
10.7. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MEMBER AGREES THAT
REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION
ARISING OUT OF OR RELATED TO PARTICIPATION IN ANY NETWORK, THE PROGRAM OF ANY
MERCHANT OR THIS AGREEMENT MUST BE FILED WITHIN ONE YEAR AFTER SUCH CLAIM OR
CAUSE OF ACTION AROSE, OR BE FOREVER BARRED.
10.8. EACH PARTY ACKNOWLEDGES THAT EACH OF THE PROVISIONS OF THIS SECTION 10
CONSTITUTE AN ESSENTIAL ELEMENT OF THE BENEFIT OF THE BARGAIN REFLECTED IN THIS
AGREEMENT, AND BUT FOR SUCH PROVISIONS, CHROME AUTOMOTIVE WOULD NOT PERMIT YOU
TO ACCESS AND USE ANY NETWORK OR WOULD REQUIRE YOU TO PAY FEES OR OTHER
CONSIDERATION FOR SUCH ACCESS OR USE THAT EITHER HAVE NOT BEEN REQUIRED OR THAT
WOULD BE IN EXCESS OF ANY THAT SUCH CONSIDERATION NOW OR HEREAFTER REQUIRED.
10.9. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE
LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES.
ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS, LIMITATIONS, RELEASES AND DISCLAIMERS
MAY NOT APPLY TO YOU. IN PARTICULAR, NOTHING IN THIS AGREEMENT SHALL AFFECT THE
APPLICABLE STATUTORY RIGHTS OF ANY CONSUMER THAT MAY NOT, BY LAW, BE WAIVED,
RELEASED, LIMITED OR EXCLUDED OR RESTRICTED, IN ANY WAY OR TO ANY EXTENT NOT
PERMITTED BY APPLICABLE LAW, ANY LIABILITY OF CHROME AUTOMOTIVE FOR DEATH OR
PERSONAL INJURY ARISING FROM THE NEGLIGENCE OR FRAUD OF CHROME AUTOMOTIVE. YOU
ACKNOWLEDGE AND AGREE, HOWEVER, THAT EACH CHROME AUTOMOTIVE NETWORK IS DESIGNED
FOR USE IN CONNECTION WITH THE CONDUCT OF A BUSINESS, THAT NONE OF THE CHROME
AUTOMOTIVE NETWORKS IS INTENDED TO BE USED BY CONSUMERS AND THAT YOU SHALL NOT
USE ANY NETWORK OR ANY OF CHROME AUTOMOTIVE'S SERVICES IN YOUR CAPACITY AS A
CONSUMER.
SECTION 11. TERMINATION; ABSENCE OF UNEXPRESSED EXPECTATIONS; YOUR
INDEMNIFICATION OBLIGATIONS
11.1. Either You or CHROME AUTOMOTIVE, by giving the other party notice, may, at
any time and with or without cause, terminate this Agreement. Upon any
termination of this Agreement, You shall no longer be entitled to use any
Network, all licenses and rights granted to You hereunder shall terminate, You
shall immediately cease use of, and remove from Your Site(s), all links created
though any Network and all Content or items provided by or on behalf of CHROME
AUTOMOTIVE to You in connection with any Network and You shall immediately
return or destroy all confidential information and trade secrets of CHROME
AUTOMOTIVE in the possession or control of You or any of Your employees,
representatives or agents. Subject to Section 10, all rights or remedies arising
out of a breach of any terms of this Agreement shall survive any termination of
this Agreement or Your participation in any Network. Your representations and
warranties in this Agreement shall survive execution, delivery, acceptance,
performance, expiration or termination of this Agreement. In addition, the
provisions of this Agreement which, by their nature, should survive expiration
or termination of this Agreement or Your participation in any Agreement
(including the provisions of Sections 2, 3.6, 4.3 through 4.9, inclusive, 6.3,
6.7, 7, 8, , 9.1 through 9.8, inclusive, 10.1 through 10.9, inclusive, 11.1
through 11.3, inclusive, 12 and 13, and the last sentence of each of Sections
4.1, 4.4 and 8.7 of this Affiliate Membership Agreement) shall survive
expiration or any termination of this Agreement.
11.2. You and CHROME AUTOMOTIVE desire to avoid the uncertainty and the
potential for discord that would exist if the unstated expectation of either of
the parties could be used to gain advantage through litigation, or expectations
stated or expressed outside the confines of this Agreement could become
actionable even though the other party does not agree with those expectations or
has not assented to them. You and CHROME AUTOMOTIVE, therefore, agree that (i)
it is unreasonable for either party to have or rely on an expectation that is
not reflected in this Agreement, (ii) either party that has or develops an
expectation contrary to or in addition to the contents of this Agreement has a
duty to immediately inform the other party and promptly seek to have this
Agreement amended to reflect the expectation; and (iii) the failure of a party
who has or develops an expectation contrary to or in addition to the contents of
this Agreement to obtain an amendment shall be evidence that the expectation was
not reasonable and estops that party from asserting that expectation as a basis
for any claim against the other party. Neither party has a duty to agree to any
such proposed amendment.
11.3. You agree to indemnify and hold harmless CHROME AUTOMOTIVE and the other
Released Persons for and against any and all claims, actions, demands,
liabilities, losses, damages, penalties, interest, judgments, settlements, costs
and expenses (including reasonable attorneys' fees) that directly or indirectly
arise out of or are based on (i) any misrepresentation or breach of any
warranty, covenant or agreement made by You in this Agreement or any Engagement,
(ii) operation of any of Your Site(s), (iii) any violation by You of any law,
regulation or rule, (iv) Your use of any Network, (v) any claim related to any
of Your Site(s), Your acts or omissions, Your participation in any Network or
any Program, any Content, goods or services offered, sold or otherwise made
available by You to any person, or Your acts or omissions in using, displaying
or distributing any Links obtained or formed through any Network, (vi) any claim
that CHROME AUTOMOTIVE is obligated to pay tax obligations in connection with
compensation paid to You pursuant to any such program, (vii) any violation or
alleged violation by You of any rights of another, including Your use of any
Content, trademarks, service marks, trade names, copyrighted or patented
material, or other intellectual property used in connection with Your Site(s) or
(viii) any claim of any violation by CHROME AUTOMOTIVE or any other Released
Person of any law, rule or regulation that is a direct or indirect result of
Your use of any Network or the provision of CHROME AUTOMOTIVE's gathering or
storage of data or tracking, reporting or other services, other than any knowing
and intentional violation by CHROME AUTOMOTIVE or other such Released Person.
CHROME AUTOMOTIVE reserves the right, at its own expense, to assume the
exclusive defense and control of any matter otherwise subject to indemnification
by You, but doing so shall not excuse Your indemnity obligations. CHROME
AUTOMOTIVE shall have the right to participate in the defense of all claims as
to which it does not assume defense and control, and You shall not settle any
such claim without CHROME AUTOMOTIVE's prior written consent. You also agree to
indemnify CHROME AUTOMOTIVE for any reasonable legal fees or other costs
incurred by CHROME AUTOMOTIVE, acting reasonably, in investigating or enforcing
its rights under this Agreement.
SECTION 12. CHROME AUTOMOTIVE MAY REQUIRE BINDING ARBITRATION
You agree that, if requested by CHROME AUTOMOTIVE, any controversy between You
and, or by You against, CHROME AUTOMOTIVE or any of the other Released Parties
directly or indirectly arising out of or relating in any way to this Agreement
or any Network or Program (including the performance, construction or breach of
this Agreement) shall be submitted to and finally settled by binding arbitration
before a single arbitrator reasonably satisfactory to both parties in accordance
with the commercial arbitration rules of the American Arbitration Association
then in effect. Any such controversy or claim so submitted to arbitration shall
be arbitrated on an individual basis, and shall not be consolidated in any
arbitration with any claim or controversy of any third party. The arbitration
shall be conducted in the Borough of Manhattan of New York City, New York and
judgment on the arbitration award may be entered into any court having
jurisdiction. Either You or CHROME AUTOMOTIVE may seek any interim or
preliminary injunctive relief from a court of competent jurisdiction in New York
County, New York necessary to protect its rights or property pending the
completion of arbitration. If You are not residing in the United States at the
time of any such controversy or claim, You agree to the following additional
provisions:
(i) You waive any objection to the place designated above for the arbitration;
(ii) You agree to the personal jurisdiction and venue of the federal and state
courts sitting in the Borough of Manhattan, State of New York, U.S.A. to
interpret and enforce the arbitration provisions of this Agreement; and
(iii) all arbitrations shall be held in the English language.
You expressly acknowledge that You understand that if CHROME AUTOMOTIVE requires
arbitration:
(i) the decision in the arbitration shall be final and binding on the parties;
(ii) except as provided above as to injunctive relief, you are waiving your
right to seek remedies in court, including the right to jury trial;
(iii) pre-arbitration discovery is generally more limited than and different
than in court proceedings; and
(iv) the arbitrators' award is not required to include factual findings or legal
reasoning and any party's right to appeal or to seek modification of rulings by
the arbitrator is strictly limited.
SECTION 13. MISCELLANEOUS
13.1. Independent Contractors. The parties are independent contractors and
nothing in this Agreement shall confer upon either party any authority to
obligate or bind the other in any respect. Neither this Agreement nor any course
of dealing between the parties shall confer upon You any exclusive right with
respect to any Network or CHROME AUTOMOTIVE's software or services.
13.2. Force Majeure. CHROME AUTOMOTIVE shall not be liable to You by reason of
any failure or delay in the performance of its obligations hereunder on account
of strikes, shortages, riots, insurrection, fires, flood, storm, explosions,
acts of God, war, governmental action, labor conditions, earthquakes,
interruptions in telecommunications services or Internet access, or any other
cause which is beyond the reasonable control of CHROME AUTOMOTIVE, whether or
not similar to the foregoing.
13.3. Assignability. Neither the rights nor the obligations arising under this
Agreement are assignable or transferable by You, and any such attempted
assignment or transfer shall be void and without effect. CHROME AUTOMOTIVE may
assign this Agreement to any successor, affiliate or assign. If CHROME
AUTOMOTIVE sells or otherwise transfers ownership of any Network to any
corporate affiliate of CHROME AUTOMOTIVE, a joint venture in which CHROME
AUTOMOTIVE has an equity interest or an entity which licenses CHROME
AUTOMOTIVE's technology or any other third party, then CHROME AUTOMOTIVE may
assign this Agreement, insofar as it relates to such Network, to such
transferee, whereupon the rights, obligations and liabilities of CHROME
AUTOMOTIVE under this Agreement, insofar as it relates to such Network, shall be
those of such third party and not of CHROME AUTOMOTIVE, but this Agreement,
insofar as it relates to each other Network, shall continue in effect as binding
obligations of You and CHROME AUTOMOTIVE.
13.4. Severability; Waiver of Conflicting Laws. If any provision of this
Agreement, or its application to any person or circumstance, is held by a court
with jurisdiction to be invalid or unenforceable, the remaining provisions
hereof, or the application of such provision to persons or circumstances other
than those as to which it has been held invalid or unenforceable, shall remain
in full force and effect. Such court may substitute therefor a suitable and
equitable provision to carry out, so far as may be valid and enforceable, the
intent and purpose of the invalid or unenforceable provision. If any provision
of this Agreement shall be judicially unenforceable in any jurisdiction, such
provision shall not be affected with respect to any other jurisdiction. If any
provision of this Agreement is or shall become inconsistent with or
unenforceable under any provision of applicable law that may be waived or the
applicability of which may otherwise be varied or excluded by You or by You and
CHROME AUTOMOTIVE, then You or You and CHROME AUTOMOTIVE (as the case may be)
hereby waive or exclude the applicability of such provision of law. Without
limiting the generality of the immediately preceding sentence, to the maximum
extent permitted by applicable law, the parties agree that the provisions of the
Uniform Computer Information Transactions Act, as it may have been or hereafter
may be in effect in any jurisdiction, shall not apply to this Agreement or any
course of dealing between the parties.
13.5. Governing Law; Consent to Jurisdiction. This Agreement shall be governed
by the laws of the State of New York. Each party consents to the jurisdiction of
the Federal and New York State courts sitting in New York County, New York (and
the appellate courts to which judgments of such Federal and State courts may be
appealed), and agrees to commence any litigation hereunder in one of those
courts.
13.6. Waiver of Trial by Jury. Each party waives, to the fullest extent
permitted by applicable law, any right it may have to a trial by jury in respect
of any action, suit or proceeding arising out of this Agreement.
13.7. Entire Agreement; Third Party Beneficiaries. This Agreement is the entire
agreement between the parties pertaining to its respective subject matter, and
all written or oral agreements, representations, warranties or covenants, if
any, previously existing between the parties with respect to such subject matter
are canceled. The statements made by CHROME AUTOMOTIVE on any of its Websites or
otherwise than in an express provision of this Agreement are not representations
or warranties and do not create contractual obligations. If, prior to the date
of this Agreement, the parties have entered into a separate confidentiality
agreement and there is any conflict or inconsistency between this Agreement and
such separate confidentiality agreement, the terms of this Agreement shall
prevail and govern with respect to the information provided pursuant to this
Agreement. Except as provided in Section 10 with respect to the Released
Parties, there are no third party beneficiaries of this Agreement. Without
limiting the generality of the immediately preceding sentence, if this Agreement
requires that You refrain from acting in ways that may violate the rights or
otherwise harm third parties or requires that You take an action (such as
maintaining a privacy policy) that may be considered to indirectly benefit third
parties, that requirement is included for the purpose of defining the conditions
upon which You are authorized to use any Network, to permit CHROME AUTOMOTIVE to
terminate this Agreement or pursue other remedies for its own benefit if You
behave contrary to such requirement and to insure that You will be responsible
if any claim is made against CHROME AUTOMOTIVE by any third party because of any
of Your acts or omissions. Such requirement is not intended, however, to create
any right on the part of, or any duty, obligation or liability on the part of
CHROME AUTOMOTIVE to, any third party, including any obligation to monitor Your
compliance with any such requirement or take action if You do not comply. To the
extent that, under applicable law and notwithstanding the foregoing statement of
intent, the inclusion of any such requirement in this Agreement is held to
create any such duty, obligation or liability or to confer upon CHROME
AUTOMOTIVE any deemed control over You or responsibility for Your acts or
omissions, then such requirement shall be deemed to be stricken from this
Agreement with the same effect as if it was never a part hereof, without,
however, affecting any of Your indemnification obligations with respect to any
claim arising out of Your acts or omissions that would otherwise violate such
requirement or any of CHROME AUTOMOTIVE's rights or remedies otherwise
available.
13.8. Amendments and Waivers. Any amendments of this Agreement must be in
writing and signed by both parties. No failure or delay in exercising any power,
right, or remedy under this Agreement shall operate as a waiver. A waiver on the
part of CHROME AUTOMOTIVE, to be effective, must be written and signed by an
officer of CHROME AUTOMOTIVE and physically delivered to You.
13.9. Remedies Are Cumulative. Unless otherwise expressly stated in this
Agreement, all remedies available under or with respect to this Agreement
(including any right to terminate this Agreement granted in this Agreement) are
cumulative and in addition to all other remedies, if any, available at law or in
equity. The exercise of any right to terminate this Agreement or suspend access
or service granted a party in this Agreement shall not result in a breach of
this Agreement by such party, and neither the exercise of such right nor any
consequence thereof shall give rise to or be the basis for any claim by or
liability to the other party, whether in contract, tort or otherwise, even if
the terminating party was informed or aware of, or otherwise could have
anticipated the possibility of, such consequence.
13.10. Public Statements. Any press release or other public announcement by You
regarding this Agreement or any CHROME AUTOMOTIVE Network or that mentions
CHROME AUTOMOTIVE shall require the prior approval of CHROME AUTOMOTIVE. You
agree that You shall not disparage CHROME AUTOMOTIVE or any of the CHROME
AUTOMOTIVE Networks.
13.11. Exercise of Discretion. Where this Agreement states that any consent,
approval, agreement or other discretionary action on the part of CHROME
AUTOMOTIVE is in its discretion, then such consent, approval, agreement or other
action can be withheld for any reason or no reason or conditioned in any manner
desired by such party, in each case in such party's sole and absolute
discretion.
13.12. Citizens or Residents Outside of the U.S.A. Information CHROME AUTOMOTIVE
publishes on the Web may contain references or cross references to CHROME
AUTOMOTIVE's products, programs and services that are not announced or available
in Your country. Such references do not imply that CHROME AUTOMOTIVE intends to
announce or make available such products, programs or services in Your country.
CHROME AUTOMOTIVE makes no representations or warranties that any CHROME
AUTOMOTIVE Network, the Content on CHROME AUTOMOTIVE's Website(s), CHROME
AUTOMOTIVE's products or services are appropriate or available for use in other
locations, and access to or use of them from or in territories where their
Contents are illegal or where access or use would subject CHROME AUTOMOTIVE to
taxes, laws or regulations that otherwise would not apply or to the jurisdiction
of any court or other governmental authority to which it would not otherwise be
subject is prohibited. You are, in any event, responsible for compliance with
all laws and regulations that apply to Your use of any Network or CHROME
AUTOMOTIVE's products or service.
© 2005. CHROME AUTOMOTIVE Corporation. All Rights Reserved.
Chromeautomotive respects the
privacy of its customers. Our policy regarding the use of information we collect
is contained in our privacy policy. To view our privacy policy, please
click here.
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