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LoanApp.com Affiliate Agreement
WITNESSETH: WHEREAS, the parties to this Agreement wish to affiliate themselves for the limited purposes set forth in this Agreement and to that end, intend to establish links between their websites for their mutual benefit, NOW, THEREFORE, in consideration of the premises and the respective representations, warranties, covenants and agreements contained herein, the parties hereto agree as follows: 1. As used in this Agreement, "we" or "us" means loanapp.com, and "our" refers to the property, including the website, of loanapp.com. "You" or "your" means the Affiliate, and its property, including its website. 2. The "Affiliate Program" means the establishment of links between your website and loanapp.com. 3. This Agreement contains the complete terms and conditions that apply to your participation in the Affiliates Program. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND LOANAPP.COM, INC. BY CLICKING ON THE "I ACCEPT" BUTTON AT THE END OF THIS AGREEMENT, YOU ARE AFFIRMATIVELY STATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS SET FORTH HEREIN AND ARE EXPRESSLY AND AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT AND AGREEING TO BE BOUND BY ITS TERMS. 4. To enroll in the Affiliate Program, you must submit a complete Affiliate Program Application via our web site. All new affiliates will be provisionally approved upon our receipt of an Affiliate Program Application. Thereafter, we will evaluate your application in good faith and will notify you of your acceptance or rejection. We may cancel our approval of your participation if we determine (in our sole discretion) that your site is unsuitable for the Affiliate Program for any reason, including, but not limited to, our judgment that your website contains images or content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethically or otherwise objectionable. Examples of such objectionable content include images or words that promote or facilitate illegal activity, depict explicit sexual messages, promote violence; promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, promote illegal activities or incorporate any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights (collectively "Content Restrictions"). 5. We will make available to your website ("Affiliate Site") banner advertisements, button links to our site and/or text links to our site, containing loanapp.com's logo and words identifying us. These links are collectively referred to in this Agreement as "Links," or individually as a "Link." Subject to the terms and conditions of this Agreement, you may display these Links on your site but you may not modify or change them without our approval. In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links or Links. You agree to display such Links prominently throughout your site as you see fit and with our consent. Links connecting users of your site to our site may not alter the look, feel or functionality of our site. We have the right in our sole discretion to monitor your site at any time, and from time to time, to determine if you are in compliance with the terms of this Agreement. 6. We will be responsible for providing all information necessary to allow you to make appropriate Links from your site to our site. However, all Links must be approved by us. We will accept data input from consumers who follow the Links from your site to the loanapp.com site. We reserve the right to reject data from consumers if it does not comply with certain requirements, that we periodically may establish. We will be solely responsible for all aspects of customer service provided by loanapp.com to consumers who follow the Links from your site to our site. We will track the volume and amount of activity generated on the loanapp.com site from your site. We will make unaudited reports, summarizing this activity, available to you through our site. The form, content, and frequency of the reports may vary from time to time, in our discretion. To permit accurate tracking, reporting, and commission payment, you must ensure that the Links between your site and our site are properly formatted. 7. We will pay you a fee as set forth on the commission schedule at http://afl.loanapp.com/commission.asp for each completed data set provided to our site by a unique consumer who has followed a Link from your site, (the "Fee"). However, payment of the Fee is solely contingent upon the successful match of each completed data set to the profile requirements of at least one of our participating lenders/brokers. Should a completed data set be submitted and we are unable to find a lender that will accept the loan request within 72 hours of submission, no Fee will be paid. Further, no fees will be paid where a visitor to your web site has inputted data for a loan request on your website and you then take that data and resubmit the data to our website without the consumers express consent. Re-inputting consumers data that they submitted to your website to our web site, without the consumers express approval is fraudulent and violators will be prosecuted for such acts. The Fee is also subject to change at any time or from time to time, in our sole and absolute discretion. You will be notified of any change in the Fee, pursuant to the provisions of Section 18 of this Agreement. No Fee will be paid to you if the visitor to our site cannot be tracked by our system. 8. We will pay you Fees on a monthly basis. Approximately 30 days following the end of each month, we will send you a check for the Fees due to you, less any taxes that we are required by law to withhold. However, if the Fees due to you for any month are less than twenty-five dollars ($25) (the "Payment Floor"), we will hold those Fees until the total amount due is at least equal to the Payment Floor. The Payment Floor is subject to change at any time or from time to time, in our sole and absolute discretion. You will be notified of any change in the Payment Floor, pursuant to the provisions of Section 18 of this Agreement. The monthly payment made to you will be reduced by the amount of any data sets provided by consumers via a Link which are deemed invalid by lender participants in loanapp.com, or which are rejected by those participants because they (i) are duplicative of other data sets previously transmitted to them by us, (ii) lack complete information to enable contact to be made with the consumer; (iii) contain incomplete data or data that is determined by us or our lender participants not to correspond to actual consumers who have the capacity to enter into credit contracts, or (iv) for any other reason in our reasonable discretion, provided the rejection of the data sets (and our chargeback against the amount due you for such data sets) is based on our reasonable belief that communication with a consumer or the likelihood of a consumer credit transaction is impossible based on the data provided. 9. Consumers who enter into transactions at the loanapp.com website as a result of the Links from your site will be deemed to be customers of loanapp.com. Accordingly, all loanapp.com rules, policies, and operating procedures concerning customer service apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for transactions on the loanapp.com website. Prices and services available on the loanapp.com website may vary from time to time. You may not include price information for our products and services in your website. 10. We reserve the right to collect information from consumers regarding their tastes and preferences, and to use such information in connection with any online or offline offering or any electronic mail offering directed to consumers. 11. We grant you a non-exclusive, non-transferable, revocable right to (i) access our site through Links solely in accordance with the terms of this Agreement, and (ii) solely in connection with such Links, to use our logos, trade names, trademarks and similar identifying material (collectively "Licensed Materials"), solely for the purpose of generating visits to our site from your site. You may not alter, modify or change the Licensed Materials in any way. You are only entitled to use the Licensed Materials to the extent you are a member in good standing of the Affiliate Program. 12. You may not make any specific use of any Licensed Materials for purposes other than generating visits to loanapp.com without first submitting a sample of the proposed use to us and obtaining our prior written consent. You agree not to use the Licensed Materials in any manner that is disparaging or that otherwise portrays loanapp.com in an negative light. We reserve all of our rights in the Licensed Materials, and all other intellectual property rights. We may revoke the license granted by this paragraph at any time, by giving you notice in accordance with the provisions of Section 18 of this Agreement. You shall obtain no rights in and to the Licensed Materials, and agree to return or destroy any copies of the Licensed Materials promptly upon termination of this Agreement. The license granted by this paragraph shall terminate upon the effective date of the expiration or termination of this Agreement. 13. You, and those under your control, including but not limited to your agents, directors, officers, contractors and employees, may not create, publish, distribute or permit any written material that makes reference to us without first submitting such material to us and receiving our written consent. 14. All images, trademarks, service marks, product names, company names or logos appearing on the loanapp.com website, other than the Licensed Materials owned by loanapp.com, are the property of their respective owners. Any use of such images, trademarks, service marks, product names, company names or logos, including the reproduction, modification, distribution or republication of same, without the prior written permission of the owner, is strictly prohibited. 15. You grant us a non-exclusive license to utilize your names, titles, service marks, logos, and trademarks (collectively the "Affiliate Trademarks"), to advertise, market, promote and publicize in any manner our rights hereunder. Notwithstanding anything herein to the contrary, we are not required to so advertise, market, promote or publicize. You hereby represent and warrant that you are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to us the license to use them in the manner contemplated by this Agreement. You represent to us that the grant of the license made by you in this paragraph does not or will not (i) breach, conflict with or constitute a default under any agreement or other instrument applicable to you or binding upon you, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity. You agree to imdemnify and hold us harmless from all claims, damages and expenses (including, without limitation, attorneys' fees and expert witness fees) relating to any breach of the above representations and warranties. This license granted by this paragraph shall terminate upon the effective date of the expiration or termination of this Agreement. 16. You will be solely responsible for the development, operation and maintenance of your site and for all materials that appear on your website. We shall have no responsibility for the development, operation and maintenance of your website or for materials that appear on your website. You are also responsible for ensuring that materials posted on your website do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights), and ensuring that materials posted on your website are not libelous or otherwise illegal. You must have express permission to use another party's copyrighted or other proprietary material. We will not be responsible if you use another party's copyrighted or other proprietary material in violation of the law. If we suffer losses as a result of your wrongful use of another party's proprietary material or intellectual property, you will indemnify and hold us harmless from all such losses (including, without limitation, attorneys' fees and expert witness fees). 17. The term of this Agreement will begin upon our acceptance of your Affiliate Program Application and will end when terminated by either of us. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party notice of termination. Notice by e-mail, to your address on our records, is sufficient notice for us to terminate this Agreement. If this Agreement is terminated because you have violated its terms or because your site becomes subject to the Content Restrictions, the termination will be considered a termination for cause and you are not eligible to receive any further Fees , even if they were earned prior to the date of termination. If this Agreement is terminated for any other reason, you are only eligible to earn Fees for consumer data sets originating from the Links where the transmission of such data occurred during the term of the Agreement. We reserve the right to withhold your final payment for a reasonable time following termination of this Agreement, even if it is longer than 60 days, to ensure that the correct amount is paid. 18. We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion. Notice of any change by e-mail, to your address on our records, or the posting on our site of a change notice or a new affiliate agreement, is considered sufficient notice of a modification to the terms and conditions of this Agreement. Modifications may include, but are not limited to, changes in Fees , payment procedures, and Affiliate Program rules. All such modifications will take effect 48 hours after we give notice as provided above, unless we indicate otherwise in the notice itself. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Otherwise, your continued participation in the Affiliate Program following the effective date of a change notice or new agreement on our site will constitute your acceptance of the change. 19. You and loanapp.com are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that would contradict anything in this paragraph or that would lead anyone to believe that there is a relationship between us other than as set forth in this paragraph. You hereby grant us the right to issue press releases relating to the Affiliate Program and the fact that you are a member of the Affiliate Program, without seeking your prior consent. We agree to portray your involvement in the Affiliate Program accurately and in a manner that we believe to be in good taste. 20. WE WILL NOT BE LIABLE FOR INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES TO YOU OR ANYONE CONNECTED WITH YOU, OR FOR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY TO YOU OR ANYONE CONNECTED WITH YOU WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT. 21. WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE AFFILIATE PROGRAM OR ANY PRODUCT OR SERVICE PROVIDED BY US THROUGH THE AFFILIATE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS. 22. You hereby represent and warrant to us that this Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid and binding obligation, enforceable against you in accordance with its terms; and that the execution, delivery and performance by you of this Agreement are within your legal capacity and power; have been duly authorized by all requisite action on your part; require the approval or consent of no other persons; and neither violate nor constitute a default under (i) any law, rule, regulation, order, judgement or decree to which you are subject or which is binding upon you, or (ii) the terms of any other agreement, document or instrument applicable to you or binding upon you. 23. We may disclose to you certain information as a result of your participation in the Affiliate Program, which information we consider to be confidential ("Confidential Information"). For purposes of this Agreement, the term "Confidential Information" shall include, but not be limited to, any modifications to the terms and provisions of this Agreement made specifically for your site and not generally available to other members of the Affiliate Program; website, business and financial information relating to loanapp.com; customer and vendor lists relating to loanapp.com; and pricing and sales information for loanapp.com and any members of the Affiliate Program other than you. Confidential Information shall also include any information that we designate as confidential during the term of this Agreement. You agree not to disclose any Confidential Information and that such Confidential Information shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for your own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public or if required by law or legal process. We make no warranty, expressed or implied, with respect to any information delivered hereunder, including implied warranties of merchantability, fitness for a particular purpose or freedom from patent, trademark or copyright infringements, whether arising by law, custom or conduct, or as to the accuracy or completeness of the information and we shall not have any liability to you or to any other person resulting from your or such third person's use of the information. 24. You hereby agree to indemnify, defend and hold harmless loanapp.com, its shareholders, officers, directors, employees, agents, affiliates, successors and assigns, from and against any and all claims, losses, liabilities, damages or expenses (including attorneys' fees and costs) of any nature whatsoever incurred or suffered by us (collectively the "Losses"), to the extent such Losses (or actions in respect thereof) arise out of or are based on: (i) any claim or threatened claim that our use of the Affiliate Trademarks infringes on the rights of any third party; (ii) the breach of any representation or warranty made by you in this Agreement; or (iii) or any claim related to your site, regardless of the person or entity bringing the claim. 25. Both you and we agree to waive any rights you or we may have to trial by jury concerning any controversy, dispute, or cause of action (collectively, "Claims") arising out of or in connection with the provisions of this Agreement. Any such Claims which cannot be settled between us and you by mutual agreement shall be finally settled by arbitration in San Jose, California, in accordance with the rules of the American Arbitration Association. The arbitrator may enter a default decision against either of us if we fail to participate in the arbitration proceedings. The decision of the arbitrator on the points in dispute will be final, unappealable and binding, and judgment on the award may be entered in any court having jurisdiction thereof. Both you and we agree to continue our performance under this Agreement while the arbitration is pending, but the termination provisions of Section 17 shall remain in force. The terms of this section shall remain in force following termination of this Agreement. 26. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETITIVE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT. 27. This Agreement will be governed by the laws of the United States and the State of California, without reference to its choice of laws rules. This Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND LOANAPP.COM. BY CLICKING ON THE "ACCEPT" BUTTON, YOU ARE AFFIRMATIVELY STATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS SET FORTH HEREIN AND ARE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THE TERMS HEREOF. YOU AGREE THAT YOUR TYPED NAME AND TITLE SHALL BE CONSIDERED BY US TO BE YOUR LEGAL SIGNATURE, AND WHEN YOU ENTER THIS INFORMATION YOU INTEND TO SIGN THIS AGREEMENT TO THE SAME EXTENT AS IF YOU HAD SIGNED IT BY HAND. |
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