Dear MotorCrush User:
You are one the select few being provided with the opportunity to participate in the MotorCrush mobile app’s Affiliate Link Program. MotorCrush is an app like no other, with broad plans for its future. This chance to help us grow our early community of performance vehicle enthusiasts through the MotorCrush app, all while earning money, is available for a limited time – read through these terms and opt in by clicking below before the opportunity passes.
This Affiliate Link Agreement (the “Agreement”) is made this 25th day of September, 2017 between you, the user currently accessing the MotorCrush mobile application (the “Affiliate”) and (ALMM/ALIVE/MOTORCRUSH – whatever the proper org name is) in connection with Affiliate’s desire to participate in the MOTORCRUSH AFFILIATE LINK PROGRAM (the “Program”) through the MotorCrush mobile application (the “App”). This Agreement contains the full and complete terms and conditions that apply to Affiliate’s participation in the Program.
As used in this Agreement, the terms “we,” “us,” “our,” or “MotorCrush” refer to (PROPER NAME OF OUR ORG), and “you,” “your,” or “Affiliate” refer to Affiliate.
The term of this Agreement (“Term”) will begin upon the date which you click “Accepted and Agreed” below, and will end when terminated as described herein. We may terminate this Agreement at any time, with or without cause, by giving at least three (3) days written notice to you (email notification, or other electronic notification through the App shall suffice), and the Term shall end on the third day following such notice. Unless terminated by us at an earlier date, this Agreement shall terminate and the Term shall end on the earlier of July 31, 2017 or according to the Maximum Total Payment section below. You are only eligible to earn Program commissions through the methods described herein, during the Term, and commissions earned through the date of termination will remain payable only if the App remains available for public use.
MotorCrush will make available to you a variety of graphic and/or textual links (“Link” individually, or the “Links” collectively) in order to link to our website, the App, and/or a mobile application storefront such as the Apple App Store and Google Play. Each Link will permit recipients to navigate directly to a page on our website, the App, and/or a mobile application storefront designated by us via a special tagged link format. No Link will be placed on any page that: advocates discrimination on any basis; promotes or engages in illegal activities, violates intellectual property rights of third parties; contains or promotes deceptive information. You will be responsible for circulating your Links to the individuals of your choosing and/or integrating the Links to properly enable application installation tracking, and we will not be responsible for your failure to do so, including to the extent such failure may result in any reductions of amounts that would otherwise be paid to you under this Agreement.
Commissions and Referral Fees
MotorCrush will pay you referral fees (“Referral Fees”) based on the number of new users using your Links to access our website, the App itself, and/or a mobile application storefront in order to install the App. “New Users” shall refer only to 1) those users installing the App for the first time on the device used to access your Links, 2) after installing the App, add a vehicle to their user profile, 3) perform at least one “check-in” through the App during the Term, and 4) keep the App installed on their device through the Term. Referral Fees will not be payable on users who previously installed the App or who failed to install the App through the use of your Links.
No Referral Fees shall be earned for your first forty-nine (49) New Users under the program. A one-time Referral Fee of One Hundred U.S. Dollars and Zero Cents ($100.00) shall be earned for your fiftieth (50th) New User. You will earn Referral Fees at a rate of Two U.S. Dollars and Zero Cents ($2.00) for each of your fifty-first (51st) through Five Hundredth (500th) New Users.
Once your total New Users exceeds five hundred (500), all of your New Users shall be audited for the following additional criteria: 1) New Users who have added a mod to their user profile through the App, and 2) New Users who have added at least one vehicle which is of such a nature that it would be of general interest to performance automotive enthusiasts, as determined by us. You will only earn Referral Fees once your total New Users exceeds five hundred (500) for New Users who meet these additional criteria, up to your total New Users less five hundred (500), at a rate of Two U.S. Dollars and Zero Cents ($2.00).
FOR EXAMPLE PURPOSES ONLY: if you have eight hundred (800) New Users, you may earn $100.00 total once you reach 50 New Users; $900.00 total for New Users 51 through 500 ($2.00 per New User); and $2.00 for each New User who meets the additional criteria, up to $600.00 maximum (800 [total New Users] – 500 = 300 X $2.00 [per New User meeting the additional criteria]).
All Referral Fees are subject to the limitations and conditions set forth in Maximum Total Payment below.
All earned Referral Fees will be paid to you by us within thirty (30) days of the end of this Agreement’s Term. Referral Fees will be paid via check, sent to the mailing address you provide us with. If no mailing address has been provided to us by you within thirty (30) days of the end of this Agreement’s Term, we will request one from you via electronic mail. If you do not respond to such request for a mailing address within five (5) business days, you will have forfeited your earned Referral Fees. Maximum Total Payment
MotorCrush will allocate a maximum of Ten Thousand U.S. Dollars and Zero Cents ($10,000.00) toward all Program payments as the program budget (the “Budget”), across all Affiliates, including you. Earned Referral Fees shall be calculated daily by 5:00PM EST for the purpose of calculating the remaining available Budget. If at any time during the Term the aggregate amount to be paid toward the program exceeds the Budget, the Agreement shall immediately terminate and neither you nor any other Affiliate shall continue to earn Referral Fees. Referral Fees earned but not yet paid upon termination of this Agreement based on exceeding the Budget shall be paid out of the remaining Budget as of the last monthly Referral Fee payment, with each Affiliate’s individually earned Referral Fees calculated in proportion to all earned but not yet paid Referral Fees of all Affiliates at the time of termination. Such payments shall not apply in the event the Agreement is terminated for any other reason.
Reports and Audit
Payments under this Agreement will be accompanied by reports of new user installs for which Referral Fees are payable. You will have the right to have a certified public accountant, acceptable to us, examine our applicable records as necessary to verify the accuracy of payments made to you under this Agreement. You are entitled to conduct such an audit only during normal business hours, at your expense, upon reasonable notice, no more frequently than once per calendar year, and no later than thirty (30) days following the end of the Term or termination of this agreement.
We may audit the New Users associated with your Links at any time to prevent fraudulent activities, such as falsifying New User records to boost your earned Referral Fees (e.g. through the use of bots or scripts to create fake or false user profiles). We will also audit all of your New Users if your total New Users exceeds five hundred (500) to ensure they meet the additional requirements as outlined in Commissions and Referral Fees above and calculate your earned Referral Fees against the Budget, per Maximum Total Payment above. In the event we believe you are engaging in any kind of fraudulent activity, we reserve the right to terminate this Agreement immediately and without notice, and suspend all Referral Fee payments not yet issued, as well as deactivate your Links. We may choose to send written notice as to why your Agreement with us was terminated after termination has taken place, if it is due to fraudulent activity. In the event you believe we have erroneously audited your New Users, you may request from us a list of any of your New Users we determined to be ineligible, as well as a general list of all vehicle makes and models we determined do not meet the additional requirements.
Representations and Warranties; Limitation of Liability
Each of us hereby represents and warrants that:
- It has full power and authority to enter into this Agreement and to perform its obligations hereunder;
- It has obtained all permits, licenses , and other governmental authorizations and approvals required for its performance under this Agreement
- The services to be rendered by each of us under this Agreement neither infringe nor violate any patent, copyright, trade secret, trademark, or other proprietary right of any third party.
We will remain solely responsible for the operation of the MotorCrush website and mobile application, and you, or the respective site owner, will remain solely responsible for the operation of your site. Each party acknowledges that their respective sites may be subject to temporary downtime due to causes beyond their reasonable control subject to the specific terms of this Agreement, and retains sole right and control over the programming, content and conduct of transactions over its respective site or service.
EACH PARTY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING 1) THE AMOUNT OF NEW USER INTALLS THAT MOTORCRUSH MAY GENERATE DURING THE TERM AND 2) ANY ECONOMIC OR OTHER BENEFIT THAT THE OTHER PARTY MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT.
NEITHER MOTORCRUSH NOR AFFILIATE WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF THIS AGREEMENT. MOTORCRUSH’S ENTIRE LIABILITY ARISING FROM THIS AGREEMENT WHETHER IN CONTRACT OR TORT WILL NOT EXCEED THE AMOUNTS PAYABLE TO AFFILIATE HEREUNDER.
Fulfillment and Policy
MotorCrush will be solely responsible for ensuring that the App is available for new user installs during the Term, and the policies governing the manner in which users interact with the App and the privacy of user data. Accordingly, all rules, policies, operating procedures and information concerning users will apply to those users, including our rules of privacy and confidentiality. We may change our policies and operating procedures at any time, without notice.
Intellectual Property Rights
MotorCrush hereby grants to you during the Term a non-exclusive, non-transferrable, royalty-free license to establish hyperlinks between your websites and ours, and to use MotorCrush’s trade names, logos, trademarks, and service marks (the “MotorCrush Marks”) on your site, solely as is reasonably necessary to establish and promote such hyperlinks and to otherwise perform your obligations under this Agreement; provided however, that any other promotional materials or usages containing any of the MotorCrush Marks will be subject to MotorCrush’s prior written approval.
You hereby grant MotorCrush during the Term, a non-exclusive, non-transferable, royalty-free license to establish hyperlinks between your website and ours, and to use your trade names, logos, trademarks and service marks (the “Affiliate Marks”) solely as is reasonably necessary to establish and promote such hyperlinks and to otherwise perform our obligations under this Agreement; provided, however, that any other promotional materials or usages containing any of the Affiliate Marks will be subject to your prior written approval.
Except as set forth above, you and we each reserve all right, title and interest in respective intellectual property rights (e.g. patents, copyrights, trade secrets, trademarks, and other intellectual property rights). Use of the other’s marks except as set forth herein is strictly prohibited. For the purposes of this agreement “website” shall be interpreted to include profiles on social media websites or applications, digital media content sharing websites or applications, and other similar platforms the content of which is managed by the Affiliate or MotorCrush.
We agree to indemnify, defend and hold harmless you and your affiliates, directors, officers, employees and agents from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorney’s fees) relating to the operation of our site, the App, a breach of our obligations under this Agreement, or the violation of any third party intellectual property rights of editorial content or other materials provided by us for display on your site.
You agree to indemnify, defend, and hold harmless us and our affiliates, directors, officers, employees and agents from and against and any all liability, claims, losses, damages, injuries or expenses (including reasonable attorney’s fees) relating to the operation of your site, a breach of our obligations under this Agreement, or the violation of any third party intellectual property rights of editorial content or other materials of your site.
You and we are entering into this Agreement as independent contractors, and nothing will be construed to create a partnership, agency, joint venture or employment relationship between you and us. We will not be collecting nor distributing any applicable income, wage, or other tax from your Referral Fees, and you will be responsible for any such tax payments according to the applicable tax code.
In its performance of this Agreement and in the operation of each party’s respective websites, you and we each will comply with all applicable laws, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction. Without limiting the generality of the foregoing you and we each will pay, collect and remit such taxes as may be imposed with respect to any compensation, royalties, or transactions under this agreement.
Neither you nor we will be considered to be in breach of, or default under, this Agreement on account of any delay or failure to perform as a result of any causes or conditions that are beyond our respective reasonable control. If any force majeure event occurs, the affected party will give prompt written notice to the other and will use commercially reasonable efforts to minimize the impact of the event.
This Agreement has been made in and shall be construed and enforced in accordance with the laws of the State of Delaware. Any action arising hereunder will be brought before the federal or state courts located in Delaware.
Any notices under this Agreement will be given in writing. Notices may be given by electronic mail and will be deemed delivered and given for all purposes on the sent date. Notices sent via traditional means will be sent via certified mail, return receipt requested. Notices to MotorCrush will be sent to: ALMM VENTURES, LLC, ATTN: MotorCrush Affiliate Program 117 N. Market Street, Suite 300, Wilmington, DE 19801.
This Agreement and the opportunities contained herein are being offered to you and others at our sole discretion, and are not being made publicly. As such the terms of this Agreement, and this Agreement itself, are considered strictly confidential information. You may not disclose its contents to anyone else unless we provide you with written permissions to do so, and will remain confidential for a period of two (2) years following the end of the Term of this Agreement, unless we provide you with written communication otherwise. You acknowledge that failure to comply with this confidentiality clause will cause us irreparable harm which may not have a directly measurable monetary value. You further acknowledge that in the event that you breach this confidentiality clause: 1) you will forfeit all earned Referral Fees; 2) we will immediately terminate this Agreement upon written notice to you, and you will no longer be eligible to earn additional Referral Fees; 3) we may pursue remedies for your breach to the full extent of the law, including but not limited to injunctive relief. You may not assign this Agreement, in whole or in part, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.
The failure of either you or us to enforce any provisions of this Agreement will not constitute a waiver of the right to subsequently enforce the provision. Any remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity.
This Agreement represents the entirety of the Agreement between you and us, with respect to the subject matter hereof and supersedes any other oral written agreements regarding such subject matter and may be amended or modified only by a written instrument signed by a duly authorized agent of each party.
If any provisions of this Agreement will be declared by any court of competent jurisdiction to be illegal, void, or unenforceable, all other provisions of this Agreement will not be affected and will remain in full force and effect.