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| Operating Agreement |
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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"). |
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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"). |
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TrueLink
wishes to establish a series of affiliated web sites
to promote TrueLink Products
("Affiliate Program"). |
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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: |
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| 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. |
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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. |
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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. |
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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. |
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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. |
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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. |
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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. |
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g. |
Survival.
The provisions of Articles 2.f.7.c., 8 through
15 shall survive any
termination or expiration of this Agreement.
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| 3. |
Linking
to the TrueLink Credit Report Site. |
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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. |
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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. |
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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. |
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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. |
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a. |
Referral
Fees. Subject to this Agreement's terms
and conditions, TrueLink will
pay Affiliate commissions ("Commission Fees")
on TrueLink Products as follows: |
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(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. |
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| 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 |
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(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: |
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| 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 |
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$9 per order for a quantity level
of 101-250 orders |
| Earn
$8 per order for a quantity level
of 1-100 orders |
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(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: |
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| 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 |
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(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. |
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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. |
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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. |
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| 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. |
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| 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. |
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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. |
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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. |
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c. |
Termination
of Licenses. The licenses described in
this Article shall terminate
immediately upon the expiration or earlier
termination of this Agreement. |
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| 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. |
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| 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. |
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| 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. |
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| 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. |
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| 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. |
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| 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. |
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| 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. |
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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. |
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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. |
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c. |
Amendments.
This Agreement may not be modified except
in accordance with
the provisions of Article 13 hereof. |
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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. |
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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. |
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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. |
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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. |
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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. |
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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. |
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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. |
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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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| © 1998-2005
TrueCredit. All Rights Reserved. |
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