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TrueCredit, FreeCreditProfile
Operating Agreement
This Affiliate Operating Agreement is entered into by and between TrueLink, Inc., a
Delaware corporation, with an office at 100 Cross Street, Suite 202, San Luis Obispo,
California 93401 ("TrueLink") and the individual or entity set forth on the signature page
hereof ("Affiliate").
Background
TrueLink maintains one or more sites on the World Wide Web protocol of the Internet located
through the Uniform Resource Locators ("URLs"), including, without limitation,
http://www.123creditreports.com and http://www.truecredit.com, http://www.freecreditprofile.com,
and http://www.knowyourloanrate.com (together with any other and successor sites, the "TrueLink Credit Report Site") that, among other things, enables users to obtain current credit
reports on themselves and other credit-information related products ("TrueLink Products").
TrueLink wishes to establish a series of affiliated web sites to promote TrueLink Products
("Affiliate Program").
NOW, THEREFORE, in consideration of the agreements and obligations set forth herein
and for other good and valuable consideration, the parties, intending to be legally bound,
hereby agree as follows:
1. Membership. Affiliate's membership in the Affiliate Program will commence on the date
on which TrueLink notifies Affiliate of its acceptance into the Affiliate Program ("Effective
Date"). TrueLink may reject the Membership Application submitted by Affiliate if TrueLink
determines, in its sole discretion, that the Affiliate Site is unsuitable for the Affiliate
Program.
2. Term and Termination.
  a. Term. The term of this Agreement will begin on the Effective Date and will
continue for a period of twelve (12) months unless earlier terminated or renewed
in accordance with the terms of this Agreement.
  b. Termination for Failure to Maintain Suitable Site. TrueLink may terminate this
Agreement, with or without notice, in the event that TrueLink determines, in its
sole discretion, that the Affiliate Site has become unsuitable for the Affiliate
Program.
  c. Termination for Refusal to Accept Modification. Affiliate may terminate this
Agreement upon written notice to TrueLink given within 48 hours of TrueLink
giving notice to Affiliate of a modification to this Agreement in accordance with
Article 13 hereof.
  d. Termination by Either Party. Either party may terminate this Agreement
on thirty (30) days written notice in the event the other party materially breaches this Agreement and fails to cure such material breach within such 30-day notice period.
  e. Renewals. This Agreement will renew automatically for successive one-year
periods unless either party gives written notice to the other party of its intent not
to renew not less than thirty (30) days prior to the end of the previous term.
  f. Post Termination Obligations. Upon termination or expiration of this
Agreement, Affiliate shall promptly return to TrueLink all Link Materials (as
defined in Article 3.a.) and shall immediately remove from the Affiliate Site all
links to the TrueLink Credit Report Site. TrueLink shall only be obligated to pay to
Affiliate those Referral Fees earned through the expiration or effective date
of termination of this Agreement.
  g. Survival. The provisions of Articles 2.f.7.c., 8 through 15 shall survive any
termination or expiration of this Agreement.
3. Linking to the TrueLink Credit Report Site.
  a. Obtaining the Link Materials. As a member of the Affiliate Program, TrueLink
will make available to Affiliate (1) banner and button advertisements and text
links consisting of textual matter and/or graphic images relating to the TrueLink
Credit Report Site, and (2) at the discretion of TrueLink, a graphic image to be
used to identify Affiliate as a member of the Affiliate Program (the "Link
Materials"). The Link Materials shall be subject to change from time to time in
the sole discretion of TrueLink.
  b. Agreement Regarding Link Materials. TrueLink shall provide all information
necessary to allow Affiliate to make appropriate links from the Link Materials to
the TrueLink Credit Report Site. Affiliate understands and agrees that Affiliate is
solely responsible for establishing and maintaining all links from the Link
Materials to the TrueLink Credit Report Site. Affiliate also agrees that it will
display on the Affiliate Site only those Link Materials that are provided by
TrueLink and will promptly substitute any revised or new Link Materials that are
provided by TrueLink from time to time. Each link connecting the Link Materials
to the TrueLink Credit Report Site shall in no event alter the look and feel or
functionality of the TrueLink Credit Report Site.
  c. Responsibilities for the Affiliate Site. Affiliate will be solely responsible for the
development, operation, and maintenance of the Affiliate Site and for all
materials that appear therein, including without limitation: (a) the technical
operation of the Affiliate Site and all related equipment; (b) the accuracy and
appropriateness of materials posted on or incorporated into the Affiliate Site; (c)
ensuring that materials posted on or incorporated into the Affiliate Site do not
violate or infringe upon the rights of any third party (including without limitation
any patents, copyrights, trademarks, trade secrets, rights of privacy or publicity or
other personal or proprietary rights); (d) ensuring that materials posted on or
incorporated into the Affiliate Site do not contain any defamation; and (e)
ensuring that Affiliate complies in all material respects with all applicable laws,
statutes, ordinances, rules and regulations with respect to the Affiliate Site
including, without limitation, those dealing with the distribution of materials that
are threatening, obscene or indecent.
  d. Order Processing. TrueLink will be responsible for processing and fulfilling all
orders for TrueLink Products placed by customers who follow links from the Link
Materials to the TrueLink Credit Report Site; provided, however, that TrueLink
reserves the right to reject orders that do not comply with any requirements that
TrueLink periodically may establish. TrueLink will track sales made to customers
who follow links from the Link Materials to the TrueLink Credit Report Site and
will maintain complete and accurate records regarding this sales activity. To
permit accurate tracking, reporting, and fee accrual, Affiliate will be responsible
for ensuring that the special links between the Affiliate Site and the TrueLink
Credit Report Site are properly formatted.
4. Compensation.
  a. Referral Fees. Subject to this Agreement's terms and conditions, TrueLink will
pay Affiliate commissions ("Commission Fees") on TrueLink Products as follows:
  (i) TrueCredit Products. TrueLink will Commission Fees based on the
percentage of monies TrueLink actually receives from Customers for each
TrueLink Product other than the FreeCreditProfile Monitoring Product and the
KnowYourLoanRate products, purchased through the Affiliate Link Path.
Commission Fees for each Credit Report Product will be paid at the rates set
forth immediately below. Commission Fees pertaining to additional Products will
be set forth at Reporting.net.
 
  •    25% commission for sales in excess of $5,001 per month
  •    22% commission for sales between $3,001 - $5,000 per month
  •    20% commission for sales between $1,501 - $3,000 per month
  •    17% commission for sales between $501 - $1,500 per month
  •    15% commission for sales up to $500 per month
  •   (ii) FreeCreditProfile Products.. TrueLink shall pay a Commission Fee for each
    customer who has registered for the FreeCreditProfile Monitoring Product from
    the Affiliate Site equal to the following amounts per customer based on the
    aggregate number of registered customers during any calendar month:
     
  •    Earn $12 per order for a quantity level of 1001 + orders
  •    Earn $11 per order for a quantity level of 501-1000 orders
  •    Earn $10 per order for a quantity level of 251-500 orders
  •    Earn $9 per order for a quantity level of 101-250 orders
  •    Earn $8 per order for a quantity level of 1-100 orders
  •   (iii) KnowYourLoanRate Products. TrueLink shall pay a Commission Fee
    based on the percentage of monies TrueLink actually receives from Customers
    for each KnowYourLoanRate Product purchased through the Affiliate Link Path.
    Commissions will be paid at the rates set forth immediately below:
     
  •    25% commission for sales in excess of $5,001 per month
  •    22% commission for sales between $3,001 - $5,000 per month
  •    20% commission for sales between $1,501 - $3,000 per month
  •    17% commission for sales between $501 - $1,500 per month
  •    15% commission for sales up to $500 per month
  •   (iv) TrueLink shall not pay any Referral Fees with respect to any customer
    purchase of a Credit Report Product provided to a customer once the customer
    reenters the TrueLink Credit Report Site other than through a direct hyperlink
    from the Affiliate Site (e.g., through a link from another site, a bookmark or any
    manually entered URL). TrueLink reserves the right to establish the purchase
    prices for all credit report products to be sold at the TrueLink Credit Report Site
    and, from time to time in its sole discretion, to increase, decrease, and offer
    promotional discounts affecting, such prices. TrueLink will not be obligated to pay
    Affiliate any Referral Fees with respect to any customer purchase other than the
    FreeCreditProfile Monitoring Product for which TrueLink has issued a refund or
    sustained a chargeback.
      b. Statements and Payment. TrueLink will pay Affiliate its Commission Fees, less
    any taxes TrueLink is required to withhold by law, no later than thirty (30) days
    following the end of each calendar month. The Commission Fees will be paid in
    the form of a check, and mailed to Affiliate at the address set forth in the
    TrueLink on-line application. In the event the Affiliate's Commission Fees for any
    given month are twenty five dollars ($25) or less, TrueLink will retain the Commission Fees until such time as the Commission Fees exceed twenty five dollars ($25), and pay these commissions no later than 30 days at the end of the subject month or within 30 days of the termination of this agreement.
      c. Taxes and Tariffs. All present and future, domestic and foreign sales, use,
    withholding, value-added, personal property, transfer, excise, export or import
    taxes, or duties, tariffs or charges of any kind based upon the fee payments
    made hereunder, or any other federal, state or local taxes except for those based
    upon TrueLink's net income, shall be paid directly by Affiliate and Affiliate shall
    promptly forward to TrueLink evidence of the payment of any such taxes, or at
    TrueLink's sole discretion, Affiliate shall promptly reimburse TrueLink following
    receipt of TrueLink's invoice for any such amounts paid by TrueLink. The fees
    listed in this Agreement do not reflect any such
    taxes, tariffs, or other such charges.
    5. Policies and Pricing. Customers who purchase TrueLink Products through the Affiliate
    Program will be deemed customers of TrueLink. Accordingly, all TrueLink policies and
    operating procedures will apply to those customers. TrueLink may change its policies and
    operating procedures at any time. Because TrueLink may change the price of TrueLink
    Products from time to time, Affiliate may not include price information on the Affiliate Site
    or indicate that the fees for TrueLink Products shall be refundable under any circumstances.
    6. Customer Information. TrueLink shall have no obligation to share any customer
    information collected by TrueLink, including but not limited to the name, address, e-mail
    address, or financial information relating to any customer who completes a credit report
    application at the TrueLink Credit Report Site.
    7. Licenses.
      a. License to Affiliate. TrueLink hereby grants to Affiliate during the Term of this
    Agreement a limited, nonexclusive, non-transferable, royalty-free, worldwide
    license to establish hyperlinks between the Link Materials and the TrueLink
    Credit Report Site. Other than establishing a hyperlink between the Link
    Materials and the TrueLink Credit Report Site, Affiliate shall not make any other
    use of the Link Materials without the prior written approval of TrueLink and shall
    not use the Link Materials in any way that is disparaging or otherwise portrays
    TrueLink in a negative light. Affiliate shall not alter, modify or change the Link
    Materials in any way without the prior written consent of TrueLink. TrueLink may
    revoke this license at any time upon written notice to Affiliate.
      b. License to TrueLink. Affiliate hereby grants to TrueLink, during the Term of this
    Agreement, a limited, nonexclusive, non-transferable, royalty-free, worldwide
    license to utilize the name and logo of Affiliate, as the same may be amended
    from time to time (the "Affiliate Trademarks") to advertise, market, promote and
    publicize in any manner Affiliate's participation in the Affiliate Program, provided,
    however, that nothing herein shall obligate TrueLink to so advertise, market,
    promote and publicize. Affiliate hereby represents and warrants that it is the sole
    and exclusive owner of the Affiliate Trademarks and that Affiliate has the right
    and power to grant to TrueLink the license to use same in the manner
    contemplated herein and that such grant does not and will not (i) breach, conflict
    with, or constitute a default under any agreement or other instrument applicable
    to Affiliate or binding upon Affiliate, or (ii) infringe upon any trademark, trade
    name, service mark, copyright, or other proprietary right of any other person
    or entity.
      c. Termination of Licenses. The licenses described in this Article shall terminate
    immediately upon the expiration or earlier termination of this Agreement.
    8. Representations and Warranties. Affiliate hereby represents and warrants to TrueLink
    that this Agreement has been duly and validly executed and delivered by Affiliate and
    constitutes Affiliate's legal, valid and binding obligation, enforceable against Affiliate in
    accordance with its terms; and that the execution, delivery and performance of this
    Agreement by Affiliate are within Affiliate's legal capacity and power, have been duly
    authorized by all requisite actions, require no consents or approvals of any other persons
    and do not violate or constitute a default under (a) the provision of any law, statute,
    ordinance, rule, regulation, judgment or decree applicable to Affiliate, or (b) the terms of
    any other agreement, document or instrument applicable to Affiliate.
    9. Indemnification. Affiliate will defend and indemnify TrueLink and its affiliates (and their
    respective directors, officers, employees, and representatives) (collectively, the
    "Indemnities") against any and all claims, demands, losses, liabilities, damages and
    expenses (including attorneys' fees and costs) of any nature whatsoever incurred or
    suffered by the Indemnities (collectively, the "Losses") arising out of or relating to (a) the
    operation or content of the Affiliate Site, (b) any breach of Affiliate's obligations under this
    Agreement, (c) any breach of any representation or warranty made by Affiliate herein, or
    (d) any Affiliate Trademarks provided by Affiliate for display on the TrueLink Credit Report
    Site.
    10. Confidentiality. Except as otherwise provided in this Agreement or with the consent of
    the other party hereto, each of the Affiliate and TrueLink agrees that all information
    including, without limitation, the terms of this Agreement, and all unpublished financial
    and business information concerning the Affiliate or TrueLink, or any of their respective
    affiliates, provided by or on behalf of any of them shall remain confidential and shall not
    be utilized, directly or indirectly, by the party receiving such information for its own
    business purposes or for any other purpose, except and solely to the extent that any such
    information (a) is already known by, or in the possession of the non-disclosing party, (b)
    is thereafter rightly obtained by the non-disclosing party from a source other than the
    disclosing party that is rightfully in possession of such information and that has not
    imposed an obligation of confidentiality upon the recipient party, or (c) is or becomes
    publicly known through no wrongful act of the non-disclosing party. Notwithstanding the
    foregoing, each party is hereby authorized to disclose any such information to the extent
    that it is required to be disclosed as a matter of law, provided that, to the extent permitted
    by law, the non-disclosing party uses all reasonable efforts to provide the disclosing party
    with at least ten days' prior notice of such disclosure.
    11. DISCLAIMERS OF WARRANTIES. TRUELINK HEREBY EXPRESSLY DISCLAIMS ALL
    EXPRESS AND IMPLIED WARRANTIES WITH RESPECT TO THE AFFILIATE
    PROGRAM AND THE TRUELINK PRODUCTS SOLD THROUGH THE AFFILIATE
    PROGRAM INCLUDING WITHOUT LIMITATION ANY STATUTORY WARRANTY
    AGAINST INFRINGEMENT, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
    FITNESS FOR A PARTICULAR PURPOSE OR IMPLIED WARRANTIES ARISING
    FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
    12. LIMITATIONS OF LIABILITY. TRUELINK WILL NOT BE LIABLE TO AFFILIATE FOR
    ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND
    BY REASON OF ANY BREACH, ACT OR OMISSION BY IT IN ITS PERFORMANCE
    UNDER THIS AGREEMENT, INCLUDING NEGLIGENT ACTS OR OMISSIONS, EVEN
    IF TRUELINK HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
    INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES FOR LOST DATA, BUSINESS
    INTERRUPTION, LOST PROFITS, LOST REVENUES OR LOSS OF BUSINESS OR
    GOODWILL. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE
    CUMULATIVE LIABILITY OF TRUELINK TO AFFILIATE FOR ALL CLAIMS
    WHATSOEVER ARISING OUT OF THE AFFILIATE PROGRAM, INCLUDING ANY
    CAUSE OF ACTION SOUNDING IN CONTRACT, WARRANTY, TORT OR STRICT
    LIABILITY SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL REFERRAL FEES
    PAID OR PAYABLE TO AFFILIATE BY TRUELINK HEREUNDER.
    13. Modifications to this Agreement. TrueLink reserves the right to modify any of the terms
    and conditions contained in this Agreement. Notification of any such changes shall be
    sent by e-mail to Affiliate at the address set forth in the Membership Application or
    otherwise contained in TrueLink's records. All such modifications shall take place 48
    hours after such notice is provided to Affiliate. If Affiliate does not wish to be bound by
    any such modification, its sole remedy is to terminate this Agreement. Affiliate's continued
    participation in the Affiliate Program shall constitute binding acceptance to the change.
    14. Relationship of the Parties. The parties are entering this Agreement as independent
    contractors, and this Agreement will not be construed to create a partnership, joint
    venture or employment relationship between them. Neither party will represent itself to be
    an employee or agent of the other or enter into any agreement on the other's behalf of or
    in the other's name.
    15. Miscellaneous.
      a. No Assignment. Affiliate may not shall assign this Agreement, in whole or in
    part, without the prior written consent of TrueLink. This Agreement shall be
    binding upon and shall inure to the benefit of the parties and their respective
    successors and permitted assigns.
      b. Waiver. No party shall be deemed to have waived any of its rights, powers or
    remedies hereunder unless such waiver is embodied in a writing executed by
    such party. The waiver by either party of any breach or default by the other party
    in the performance of any obligation hereunder shall not constitute a waiver of
    any subsequent breach or default.
      c. Amendments. This Agreement may not be modified except in accordance with
    the provisions of Article 13 hereof.
      d. Governing Law. This Agreement shall be construed in accordance with the laws
    of the state of New York except that no choice of law doctrine shall be used to
    apply the laws of any other jurisdiction.
      e. Consent to Jurisdiction. Affiliate consents to the non-exclusive jurisdiction of
    the federal and state courts located in New York County within the state of New
    York in connection with any action or proceeding to enforce, or arising out of, this
    Agreement and agrees that venue will be proper in such court on any such
    matter.
      f. Good Faith Resolution of Disputes. Each party agrees to attempt to resolve, in
    good faith, any dispute arising hereunder. In that regard, the parties agree that,
    thirty (30) days prior to initiating any arbitration or litigation regarding any dispute,
    controversy or claim (except for actions seeking only injunctive relief), they shall
    attempt to resolve such dispute, controversy or claim through mediation by a
    mediator selected by the parties, whose fees and expenses shall be borne
    equally by the parties. If the parties are unable to select a mediator within such
    thirty (30) day period, or mediation has not resolved the dispute within such thirty
    (30) day period, the parties shall be free to initiate arbitration or litigation as
    permitted herein.
      g. Dispute Resolution. Except for actions seeking only injunctive relief, and any
    actions arising out of, or relating to, proprietary rights issues, both of which shall
    be decided by any supreme court of the State of New York or any United States
    District Court located therein, all disputes and controversies arising out of or in
    connection with this Agreement shall be submitted to arbitration to be held in
    New York City, New York, in accordance with the Commercial Rules of
    the American Arbitration Association. A single arbitrator residing within the New York
    metropolitan area shall preside over the arbitration proceedings. Judgment on
    any arbitration award may be entered in any court having jurisdiction. All
    expenses of the arbitration shall be shared by the parties except that each party
    shall bear its own legal and expert costs and expenses.
      h. Notices. All notices provided for hereunder shall be in writing and shall be
    deemed given (a) when delivered on a business day if delivered personally, (b)
    on the day after deposit with any overnight courier if such date is a business day,
    (c) three days after deposit in the United States mail, if delivered by certified mail,
    return receipt requested, postage prepaid and addressed to the address referred
    to at the beginning of this Agreement, or to such other address as a party may
    specify in accordance with the provisions of this Section 15.h.
      i. Severability. To the extent that any law, statute, treaty or regulation by its terms
    as determined by a court, tribunal or other governmental authority of competent
    jurisdiction, is in conflict with the terms of this Agreement, the conflicting terms of
    this Agreement shall be superseded only to the extent necessary by the terms
    required by such law, statute, treaty or regulation. If any provision of this
    Agreement shall be otherwise unlawful, void, or for any reason unenforceable,
    then that provision shall be enforced to the maximum extent permissible so as to
    effect the intent of the parties. In either case, the remainder of this Agreement
    shall continue in full force and effect.
      j. Force Majeure. A party shall be excused from performance hereunder to the
    extent that such performance is prevented, delayed or obstructed by an event
    beyond its reasonable control (an "Event of Force Majeure"), including, without
    limitation, acts of God, fire, explosion, strikes, accident, floods, embargoes,
    epidemics, war, nuclear disaster, riot, change in applicable law, or acts of a
    competent authority, disruption of telecommunications, power or other essential
    services, or interruption or termination of service by the Internet access provider
    being used by such party for reasons outside of its control. In the event of the
    occurrence of an Event of Force Majeure, the affected party shall promptly
    advise the other party in writing if its performance is affected by an Event of
    Force Majeure, the expected duration of such effect and of any developments (or
    changes therein) that appear likely to affect the ability of that party to perform any
    of its obligations hereunder in whole or in part. During the period that a party's
    performance is affected by an Event of Force Majeure, such party shall use
    commercially reasonable efforts to meet its obligations as set forth in this
    Agreement.
      k. Entire Agreement. This Agreement and the exhibits hereto embody the entire
    agreement between the parties relating to the subject matter hereof.
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